12.2​Jury Trial or Jury Waiver¹

A.​Right to a Jury Trial

In all criminal prosecutions, the accused has the right to a speedy and public trial by an impartial jury. US Const, Am VI; Const 1963, art 1, § 14; Const 1963, art 1, § 20; see also MCL 763.2.² “Issues of fact shall be tried by a jury drawn, returned, examined on voir dire, and empaneled in the manner provided by law for the trial of issues of fact in civil cases.” MCL 768.8.

B.​Waiver of a Jury Trial

With the consent of the prosecutor and the court’s approval, the defendant may waive the right to a jury trial. MCL 763.3; MCL 768.8; MCR 6.401; MCR 6.402. Before accepting a defendant’s waiver, the defendant must have been arraigned on the information (or have waived arraignment), have been properly advised of the right to a jury trial, and have been offered the opportunity to consult with an attorney. MCR 6.402(A); MCR 6.402(B). In a court where arraignments have been eliminated under MCR 6.113(E),³ the court may not accept a defendant’s waiver of trial by jury until the defendant has been provided with a copy of the information and offered an opportunity to consult with an attorney. MCR 6.402(A).

Committee Tip:

Before proceeding to trial (or before taking a plea), it is imperative to confirm, on the record, that the defendant has been given a copy of the information.

Before accepting a waiver of the right to a jury trial, the court must:

•​Advise the defendant in open court of the constitutional right to a jury trial.

•​Address the defendant personally to determine whether the defendant understands the right to a jury trial and is voluntarily choosing to give up that right and to be tried by the court.

MCR 6.402(B). A verbatim record must be made of the waiver proceeding. Id.

Although MCL 763.3(1) provides that, except in cases of minor offenses, a defendant’s waiver of jury trial must be in writing, MCR 6.402 does not require the defendant to sign a written waiver form; instead, the court rule “eliminates the written waiver requirement and replaces it with an oral waiver procedure consistent with the waiver procedure applicable at plea proceedings.” 1989 Staff Comment to MCR 6.402. Because “[t]he statutory procedure is superseded by the court rule procedure[,]”⁴ a defendant does not have to sign a written waiver form to effect a valid waiver of a jury trial. 1989 Staff Comment to MCR 6.402. “Before the adoption of MCR 6.402, a waiver of the right to a jury trial was required to be in writing pursuant to MCL 763.3(1).” People v Lafey, ___ Mich App ___, ___ (2024). “However, the adoption of MCR 6.402 superseded the statute’s writing requirement.” Lafey, ___ Mich App at ___.

“In order for a jury trial waiver to be valid, . . . it must be both knowingly and voluntarily made.” People v Cook, 285 Mich App 420, 422 (2009). Compliance with the procedures set out in MCR 6.402(B) creates a presumption that the waiver was knowing, voluntary, and intelligent. Cook, 285 Mich App at 422-423; People v Mosly, 259 Mich App 90, 96 (2003). On the other hand, “the trial court [is] without authority to proceed with a bench trial[]” where there is no record evidence that “[the] defendant was fully informed about hisright to a jury trial and voluntarily waived that right[.]” Cook, 285 Mich App at 422-424 (holding that defense counsel’s “statement that [the] defendant agreed to waive his jury trial and [a] written waiver signed only by counsel [did] not constitute a valid waiver[]” in the absence of record evidence that the trial court informed the defendant of the right to a jury trial or that the defendant voluntarily waived that right).

“A defendant has no right to withdraw a waiver of jury trial once it is validly made[.]” Cook, 285 Mich App at 423. See also People v Wagner, 114 Mich App 541, 558-559 (1982) (noting that the trial court has discretion to permit a defendant to withdraw a waiver of jury trial for good cause, but holding that “the trial court did not abuse its discretion in denying the defendant’s motion to withdraw[]” where the request was made for the purpose of delay and judge-shopping).

It is improper and unethical for a trial court to give a defendant a “waiver break” by dismissing charges in exchange for the defendant’s waiver of a jury trial; “it is not within the power of the judicial branch to dismiss charges or acquit a defendant on charges that are supported by the case presented by the prosecutor.” People v Ellis, 468 Mich 25, 26-28 (2003).

C.​Standard of Review

The trial court’s determination that a defendant validly waived the right to a jury trial is reviewed for clear error. People v Taylor, 245 Mich App 293, 305 n 2 (2001). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. Michigan v McQueen, 493 Mich 135, 147 (2013).

A trial court’s failure to comply with the procedural mandates of MCR 6.402(B) does not require automatic reversal “if the record establishes that [the] defendant nonetheless understood that he had a right to a trial by jury and voluntarily chose to waive that right.” People v Mosly, 259 Mich App 90, 96 (2003). Indeed, “a trial court’s failure to follow procedural rules for securing a waiver of the right to a jury trial does not violate the federal constitution nor does it require automatic reversal.” Lafey, ___ Mich App at ___ (quotation marks and citation omitted). “If a defendant’s waiver was otherwise knowingly, voluntarily, and intelligently made, reversal will not be predicated on a waiver that is invalid under the court rules because courts will disregard errors that do not affect the substantial rights of a defendant.” Id. at ___ (cleaned up). “Whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.” Id. at ___ (cleaned up). “The dispositive inquiry is whether the defendant understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.” Id. at ___ (cleaned up). “When these requirements are not met, constitutionally invalid jury waiver is a structural error that requires reversal.” Id. at ___ (quotation marks and citation omitted). See also People v Cook, 285 Mich App 420, 427 (2009) (“[A] constitutionally invalid jury waiver is a structural error that requires [automatic] reversal.”).