This would apply to all crimes excepting capital offenses. Although not expressly required by the wording of the amendment, it is nevertheless thought the consent of the district attorney should be obtained as well as that of the judge before whom the case may be tried. Under present requirements of the constitution, jury trial is compulsory in criminal cases. There are many cases that may be tried by the judge, and without jury, speedily, economically and fully protecting the right of the accused. The requirement that consent of accused and judge must both be obtained, with the suggestion that the approval of the district attorney be secured also in applying the measure, assure its carefully considered and reasonable use.
Similar provisions are effective in many states.
Rights of the state and accused are fully preserved and the adoption of the amendment should accomplish a substantial saving in the time and expense now incurred in criminal trials. Where adopted its use is general and the percentage of court trials has been large. The state relies on the emphasized parts of the Voters' Pamphlet materials to claim that the history of the 1932 amendment establishes that the waiver clause in Article I, section 11, was not intended to create a right in a criminal defendant to insist on a court trial or to bar the legislature from granting to the state the right to demand a jury trial. The flaw in the state's argument is that, like the wording of the amendment itself, the Voters' Pamphlet material speaks only to what the amendment requires with respect to what the defendant must do and what the trial judge may do. The district attorney is not mentioned in the amendment.