One form of violation of the right to jury trial is unfortunately very commonly present in guilty plea proceedings.  Where the court fails to explain what is meant by the “right to a trial by jury,” any waiver is arguably invalid since it is impossible to make a knowing and intelligent waiver if you do not know the nature of the right you are waiving.

 

There can be no knowing and voluntary waiver of a constitutional right unless the nature of that right is explained to the defendant.[301]  The defendant must have “sufficient awareness of the relevant circumstances and likely consequences” before a waiver of a constitutional right will be considered knowing and voluntary.[302]  Inquiry into whether there has been a valid waiver must focus on the facts and unique circumstances of each case.[303]

 

A waiver of the right to a jury trial will not be considered knowing and intelligent unless the court informs the defendant of the nature of the jury trial right.[304]  The defendant must be informed of the essential attributes of a jury trial: that a jury is composed of 12 members of the community, that s/he may participate in the jury selection process, that the verdict of the jury must be unanimous, that the jury must find guilt beyond a reasonable doubt, and that the judge alone will decide guilt or innocence should the right to a trial by jury be waived.[305] 

This requirement is particularly important for immigrants, who may have had no previous way of knowing these things, and who may have experienced a completely different legal system in their nation of origin.  They may have no idea what a jury trial is.

 

The Ninth Circuit has expressly recognized that an intelligent waiver requires an understanding of the nature of the right involved and has imposed specific criteria to determine whether the waiver of the right to a jury trial is knowing and voluntary:

 

The district court should inform the defendant that (1) twelve members of the community compose a jury, (2) the defendant may take part in jury selection, (3) a jury verdict must be unanimous, and (4) the court alone decides guilt or innocence if the defendant waives a jury trial.  Furthermore, the district court should question the defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and freely chooses to waive a jury.  Such a colloquy will ensure that the waiver is made voluntarily, knowingly, and intelligently.  A colloquy will also emphasize to the defendant the seriousness of the decision; and reduce the likelihood of a later challenge to the validity of the waiver on appeal or in habeas proceedings.[306]

 

The Ninth Circuit has declined to require an in-depth colloquy in every case.  It has not required this colloquy where there is a valid written waiver of the right to a trial by jury that gives rise to a presumption of validity.[307] 

 

California courts strictly construe any waiver of the right to a trial by jury in favor of preservation of that right.[308]  The California Supreme Court has stated that: “As with the waiver required of several other constitutional rights that long have been recognized as fundamental, a defendant’s waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, ‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it . . . .’”[309]

 

Without any information regarding the nature of the right to trial by jury, including its essential elements, the defendant is unable intelligently to evaluate the decision to waive this fundamental constitutional right and forego the protections afforded by trial by a jury of peers.  The lack of this knowledge rendered this waiver unknowing and unintelligent.[310] 

 

Without an express acknowledgement on the record that the defendant in fact understood the nature of the right being waived, it cannot be said that the waiver was knowing and voluntary.[311] 

 

            Courts indulge every reasonable presumption against waiver of fundamental constitutional rights, such as the right to jury trial, when the record is silent.[312]  Therefore, the court’s failure to explain what the jury trial was that the defendant was being asked to waive, is constitutionally inadequate to explain it, and the waiver is invalid.

 

            Because this argument might invalidate many guilty pleas, it is often difficult to persuade the court to invalidate the plea on this ground unless the other equities are very strong.

 

[301] Johnson v. Zerbst, 304 U.S. 458 (1938).  

[302] Brady v. United States, 397 U.S. 742 (1970). 

[303] See Adams v. United States, 317 U.S. 269, 278 (1943).

[304] See Johnson v. Zerbst, 304 U.S. 458 (1938); Adams, 317 U.S. at 280; United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997); United States v. Martin, 704 F.2d 267, 273 & n.5 (6th Cir. 1983) (“a defendant can hardly be said to make a strategic decision to waive his jury trial right if he is not aware of the nature of the right or the consequences of its waiver”); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981) (reversing conviction after bench trial where record did not reveal whether defendant understood his right to a jury trial and the consequences of waiver); see also United States v. Lyons, 898 F.2d 210, 215 (1st Cir.), cert. denied, 498 U.S. 920 (1990) (a knowing waiver requires that a defendant be fully informed about the right he is waiving).

[305] See Martin, 704 F.2d at 273; Delgado, 635 F.2d at 890.

[306] United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997).

[307] See Duarte-Higardea, supra, 113 F.3d at 1000 (discussing when written waiver of the right to a trial by jury gives rise to a presumption that the waiver was knowing and voluntary); see also United States v. Christensen, 18 F.3d 822, 824 (9th Cir. 1994) (when court is on notice that defendant’s mental or emotional condition may cause the waiver of trial by jury to be less than knowing and intelligent, court may not rely on written waiver, but must instead conduct detailed colloquy to ensure that defendant understands right waived and full consequences of the waiver).

[308] See People v. Solis, 66 Cal.App.4th 62, 65 (1998). 

[309] People v. Collins, 26 Cal.4th 297 (2001).

[310] Cf. United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986) (upholding waiver of the right to a jury trial as knowing where the trial judge thoroughly explained the nature of a jury trial to the defendant, carefully informed the defendant that he was giving up his rights to confront witnesses and to offer evidence, explained the maximum possible penalty, and questioned the defendant to ascertain that he understood the scope of the right he was waiving); People v. Miller, 7 Cal.3d 562, 566-67 (1972); People v. Monk, 56 Cal.2d 288, 298 (1961).

[311] Cf. People v. Monk, 56 Cal.2d 288, 298 (1961) (finding waiver to jury trial knowing and voluntary where “trial judge explained to [defendant] in detail his right to a jury trial and what the effect would be if he waived that right” and secured express statement that defendant “fully understood”); see also People v. Ernst, 8 Cal.4th 441, 448 (1994); People v. Holmes, 54 Cal.2d 442, 442 (1960) (waiver of right to jury trial cannot be implied from conduct); United States v. Saadya, 750 F.2d 1419 (9th Cir. 1985).

[312] Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938); Blair v. Pitchess, 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 53 (1971).

Ninth Circuit

POST CON RELIEF - FEDERAL - GUILTY PLEA - GROUNDS - INVALID
United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (conviction vacated due to invalid jury waiver where the district courts finding that defendants lawyer properly translated a jury trial waiver form was not supported by the record).
http://caselaw.lp.findlaw.com/data2/circs/9th/0450079p.pdf