15.12 Waiver of Jury Trial

A.No Constitutional Right to Waive Trial by Jury

A criminal defendant has a constitutional right to trial by jury. US Const, Am VI; Const 1963, art 1, § 20. Under the Michigan Constitution, the right to a jury trial applies in both felony and misdemeanor cases. People v Antkoviak, 242 Mich App 424, 481-482 (2000).

A defendant may, with the consent of the prosecutor and approval by the court, waive the right to trial by a jury and elect to be tried before the court without a jury. MCL 763.3(1); MCR 6.401–MCR 6.403. However, a criminal defendant has no constitutional or substantive right to insist upon a nonjury trial. People v Kirby, 440 Mich 485, 494-495 (1992) (requirement of MCL 763.3(1) that a defendant obtain prosecutor’s consent to waive jury trial does not violate due process).

B.Waiver Procedure

In designated cases, “[t]he court may not accept a waiver of trial by jury until after the juvenile has been offered an opportunity to consult with a lawyer.” MCR 3.954.

MCR 6.402(B) provides:

“Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.”

MCL 763.3(1) further provides:

“Except in cases of minor offenses,^[1] the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record. The waiver and election shall be entitled in the court and case, and in substance as follows: ‘I, ______________________, defendant in the above case, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which the case may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’”

C.Violation of Procedural Waiver Requirements

Where a trial court fails to follow the procedural requirements of 6.402(B), and where there is otherwise no record evidence that the defendant understandingly and voluntarily chose to waive his or her right to trial by jury, the defendant’s constitutional right to a jury trial is violated, and the court is without authority to proceed with a bench trial. People v Cook (Robert), 285 Mich App 420, 424-427 (2009). In Cook, 285 Mich App at 424, the Court of Appeals held that defense counsel’s statement that the defendant had agreed to waive his right to a jury trial, together with a written waiver signed only by counsel, did not constitute a valid waiver. Furthermore, the trial court’s failure to meet the minimum constitutional requirements for a jury waiver, by fully informing the defendant of his right to a jury trial and ascertaining that he voluntarily chose to waive that right, constituted a structural error requiring automatic reversal of the defendant’s convictions. Id. at 424-427.