BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

    1.09 Waiver Of Jury Trial (Suggested Procedures, Questions, And Statements)

        1.09.1 Waiver Of Jury Trial: Introductory Note
        1.09.2 Waiver Of Jury Trial: Suggested Procedures And Questions
        1.09.3 Waiver Of Jury Trial: Form
        1.09.4 Waiver Of Jury Trial: Other Sources

[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them.]

Trial by jury is a fundamental constitutional right, and waiver of the right to a jury trial should be accepted by a trial judge only when three requirements are satisfied:

1. the procedures of FRCP 23(a) have been followed;

2. the waiver is knowing and voluntary; and

3. the defendant is competent to waive a constitutional right.

FRCP 23(a) requires that the accused’s waiver of the right to trial by jury be

1. made in writing;

2. consented to by the government; and

3. approved by the court.

Following this rule alone does not satisfy the requirement that the waiver be knowing and voluntary, however.

The trial judge should ascertain on the record

1. whether the accused understands that he or she has a right to be tried by a jury;

2. whether the accused understands the difference between a jury trial and a nonjury trial; and

3. whether the accused has been made to understand the advantages and disadvantages of a jury trial.

Before approving the waiver, a trial judge must consider a defendant’s mental capacity to waive a jury trial. A defendant is not competent to waive a constitutional right if mental incapacity or illness substantially impairs his or her ability to make a reasoned choice among the alternatives presented and to understand the nature and consequences of the waiver.

When information available from any source presents a question as to the defendant’s competence to waive a jury trial, sua sponte inquiry into that competence must be made.

In any psychiatric examination ordered under the inherent power of the court or under 18 USC 4241, the examining psychiatrist should be directed to give an opinion on the defendant’s competence to make an intelligent waiver. Whenever any question as to the defendant’s competence arises, a specific finding of competence or incompetence should be made.

Finally, if any doubt of competence exists, the judge should order a jury trial.

A.     Preliminary questions for the defendant

[Ask defense counsel if he or she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 USC 1827.]

B.     Questions for counsel

In determining whether the accused has made a "knowing and voluntary" waiver and is competent to waive the right to a jury trial, the judge should question both the defense counsel and the prosecutor.

    1. Ask the defense counsel:

(a) Have you discussed with the defendant the advantages and disadvantages of a jury trial?

(b) Do you have any doubt that the defendant is making a "knowing and voluntary" waiver of the right to a jury trial?

(c) Has anything come to your attention suggesting that the defendant may not be competent to waive a jury trial?

    2. Ask the prosecutor:

C.     Form of waiver and oral finding

1. A written waiver of a jury trial must be signed by the defendant, approved by the defendant’s attorney, consented to by the government, and approved by the court.

2. It is suggested that the judge state orally:

3. An appropriate written waiver of jury trial may take the form of the one shown below.

United States of America                )
                                                      )     No. Cr
         v.                                          )     Waiver of trial by jury
                                                      )
[Defendant]                                    )

I acknowledge that I was fully informed of my right to trial by jury in this cause. I hereby waive that right, request the court to try all issues of fact and law without a jury, and waive my right to special findings.

Dated at __________, this day of _____, 20____ .

_______________________
Defendant

APPROVED:

_______________________
Attorney for Defendant

The United States of America consents to the defendant’s waiver of a jury trial and waives its right to request special findings.

_______________________
Assistant U.S. Attorney

I find that the defendant has knowingly and voluntarily waived the right to a jury trial, and I approve the waiver.

_______________________
Judge

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 10–12 (5th ed. 2001)