Miss. R. Crim. P. 18.1

As amended through March 21, 2024

Rule 18.1 - Trial by Jury

(a) Generally.

(1) Qualifications. Jurors shall have the qualifications as required by law.

(2) Number of Jurors - Felony Cases. In felony cases, conviction requires the unanimous consent of twelve (12) impartial jurors.

(3) Number of Jurors - Misdemeanor Cases. A six (6) person jury shall be used in all criminal misdemeanor actions tried in justice or county court (including, in county court, whether the case originated in such court or was appealed from a lower court). In such cases, the unanimous consent of six (6) impartial jurors is required for conviction. If the case is in justice court, a trial by jury may be demanded as provided by law, although there is no right to a jury trial in justice court if the potential sentence is less than six (6) months in jail. Trial by jury is not available in municipal court.

(4) Alternate Jurors. The court may direct the selection of a sufficient number of alternate jurors.

(b) Waiver. The defendant may waive the right to trial by jury with consent of the prosecution and the court. In a death penalty case, the defendant may also waive the right to have a jury determine the penalty if the prosecution and the court concur. Regarding any such waiver:

(1) Before acceptance, the court shall address the defendant personally, advise the defendant of the right to a jury trial, and ascertain that the waiver is knowing, voluntary, and intelligent.

(2) A waiver of jury trial or sentencing under this Rule shall be made in writing or in open court on the record.

(3) For good cause shown, the court may allow the defendant to withdraw the waiver of jury trial or sentencing.

Miss. R. Crim. P. 18.1

Adopted eff. 7/1/2017.

Comment

Article 3, Section 31 of the Mississippi Constitution provides that "[t]he right of trial by jury shall remain inviolate . . . ." Miss. Const. art. 3, § 31. Petit jurors shall be summoned and impaneled as provided by law. See Miss. Code Ann.§ 13-5-1, et seq. In felony cases, conviction requires the unanimous consent of twelve (12) impartial jurors. See Markham v. State, 209 Miss. 135, 46 So. 2d 88 (1950). Mississippi Code Section 13-5-1 sets forth the qualifications for competent jurors.

Section (a)(3) continues the practice of former Rule 10.01 of the Uniform Rules of Circuit and County Court, in permitting misdemeanor cases to be tried before a six (6) person jury. But "there shall be no jury trial" in justice court when the "potential of incarceration is less than six (6) months in jail . . . ." Miss. Code Ann. § 99-33-9. Also, consistent with former Rule 12.02 (C.) of the Uniform Rules of Circuit and County Court, the constitutional right to trial by jury does not apply unless the maximum possible sentence exceeds six (6) months. See Harkins v. State, 735 So. 2d 317, 318 (Miss. 1999) (citing Lewis v. United States, 518 U.S. 322, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996)); Hinton v. State, 222 So. 2d 690, 692 (Miss. 1969). Mississippi Code Section 21-23-7 does not provide for a jury trial in municipal court.

Section (b) follows common practice. See Fed. R. Crim. P. 23(a). Section (b)(3) provides that the court can allow a withdrawal of waiver for good cause shown. When considering the withdrawal of waiver, the court should consider the convenience of witnesses, parties, and potential jurors.