Wis JI-Criminal SM-21

The following is intended for use when a defendant with counsel wishes to waive a

jury trial. 1 If the defendant is without counsel, it may be necessary to obtain or renew a

waiver of counsel. See SM-30, Waiver and Forfeiture of Counsel.

CONTENTS

I. Accepting or Rejecting a Proposed Jury Trial Waiver........................ 1

A. Consent of the State....................................................................... 1

B. Trial Court Authority to Reject a Waiver...................................... 1

II. Determining the Defendant's Ability to Understand the Waiver......... 1

III. Determining that the Waiver is Knowing and Voluntary.................... 2

IV. Related Issues....................................................................................... 3

A. Agreeing to a Jury of Less Than Twelve....................................... 3

B. Waiver of a Unanimous Verdict.................................................... 3

C. Partial Jury Trial Waiver............................................................... 4

V. Withdrawal of a Jury Trial Waiver...................................................... 4

I. Accepting or Rejecting a Proposed Jury Trial Waiver

A. Consent of the State

The court should first ask the prosecutor whether the State consents to a proffered

jury trial waiver. Section 972.02(1) provides that a jury trial waiver requires the consent

of the state. The State is not required to offer reasons for refusing to consent. 2

B. Trial Court Authority to Reject a Waiver

The trial court has authority to reject a jury trial waiver even if the State consents.

Like the State's decision to withhold consent, the trial court need not explain its decision

and, absent extraordinary circumstances, that decision is not reviewable. 3

II. Determining the Defendant's Ability to Understand the Waiver

As with any waiver, the waiver of the right to a jury trial requires that the defendant

make an understanding and intelligent decision. This may require an investigation of the

defendant's background, present mental condition, etc. For suggested questions designed

to explore this aspect of a waiver decision, see SM-32, ACCEPTING A PLEA OF

GUILTY, at section II.

III. Determining that the Waiver is Knowing and Voluntary

A jury trial waiver must be made personally, knowingly, and voluntarily. A personal

inquiry is required and the record must clearly indicate the defendant's willingness and

intent to waive the right to a jury trial. 4 The following are examples of questions that

should be asked. Answers indicating the need for more information should be pursued.

Before your waiver of your constitutional right to a jury trial is accepted, the

court will ask you some questions to decide whether your waiver should be

accepted. If you have any trouble understanding the questions, please tell

me, and take all the time you need to confer with your attorney.

Do you understand that you have the right to a jury trial, that is to have

twelve people hear all the evidence in the case and decide whether you are

guilty or not guilty?

Do you understand that in a jury trial, the State must convince each member

of the jury beyond a reasonable doubt that you committed the crime? 5

Do you understand that by giving up your right to a jury trial, this court, after

hearing all of the evidence, will make a decision on whether you are guilty

beyond a reasonable doubt or not guilty?

Has anyone promised you anything to get you to give up your right to a jury

trial?

Has anyone threatened you to get you to give up your right to a jury trial?

Knowing what I have just told you, do you still wish to give up your right to

a jury trial?

Have you had enough time to discuss this with your attorney?

Has your attorney explained your right to a jury trial to you?

Do you understand the questions I have asked and understand what your

attorney has told you?

DIRECT THE FOLLOWING QUESTION TO DEFENSE COUNSEL:

Do you believe that the defendant understands the right to a jury trial and the

right to a unanimous verdict and is giving up those rights freely, voluntarily,

and intelligently?

IF THE COURT IS SATISFIED THAT DEFENDANT'S WAIVER OF A JURY

TRIAL IS MADE FREELY, VOLUNTARILY, AND KNOWINGLY, AND

THE COURT APPROVES, THE COURT SHOULD MAKE FINDINGS OF

FACT, ON THE RECORD, SUBSTANTIALLY AS FOLLOWS:

The court finds that the defendant understands the constitutional right to a

jury trial and that the defendant freely and voluntarily waives that right.

IV. Related Issues

A. Agreeing to a Jury of Less Than Twelve

Section 972.02(2) provides as follows:

At any time before the verdict in a felony case, the parties may stipulate in

writing or by statement in open court, on the record, with the approval of the

court, that the jury shall consist of any number less than 12.

The procedures required for waiver of trial by jury apply equally to waiver of a full

12-member jury. State v. Cooley, 105 Wis.2d 642, 646, 315 N.W.2d 369 (Ct. App.

1981).

B. Waiver of a Unanimous Verdict

This question was referred to in State v. Koput, 142 Wis.2d 370, 418 N.W.2d 804

(1988), in connection with the second phase of the bifurcated trial held where a defendant

enters a plea of not guilty by reason of mental disease or defect. At the time of the

decision, the statute did not, as it does now, provide explicitly for a 5/6 verdict at the

second phase. There was uncertainty about whether the second phase verdict had to be

unanimous. The court of appeals held that a unanimous verdict was required and that it

was so fundamental a right that it could not be waived. State v. Koput, 134 Wis.2d 195,

396 N.W.2d 773 (Ct. App. 1986). The supreme court reversed, but because it held that

the verdict was to be 5/6, it did not have to address the waiver issue.

The rule that a unanimous verdict is a right too fundamental to be waived is

apparently the common law rule. However, several states do allow such waivers. 6 The

ABA Standards for Criminal Justice allow a waiver of a unanimous verdict. Standard

15-1.3(b) (2nd ed. 1980). The court of appeals decision in Koput had relied on a

previous holding that there could be no waiver of the unanimous verdict. That holding,

Holland v. State, 87 Wis.2d 567, 275 N.W.2d 162 (Ct. App. 1978), was reversed on other

grounds, 91 Wis.2d 134, 280 N.W.2d 288 (1979).

C. Partial Jury Trial Waiver

In some situations, a defendant may wish to stipulate that one element of an offense

is established. This might be viewed as a waiver of the right to a jury trial on that

element. If so, does the acceptance of the stipulation require a partial jury trial waiver

and an appropriate inquiry into the defendant's ability to give that waiver? In State v.

Villarreal, 153 Wis.2d 323, 450 N.W.2d 519 (Ct. App. 1989), the trial court accepted a

stipulation from the prosecutor and defense counsel that the question of whether the

offense was committed while armed with a dangerous weapon would be decided by the

court instead of the jury. The court of appeals held that this was error: withdrawal of

that element from the jury required a personal waiver from the defendant.

V. Withdrawal of a Jury Trial Waiver

In State v. Cloud, 133 Wis.2d 58, 393 N.W.2d 123 (Ct. App. 1986), the court

characterized the question of "[w]hether, and under what circumstances, a defendant may

withdraw a valid jury waiver" as one "of first impression in this state." 133 Wis.2d 58,

63. The court adopted an abuse of discretion standard for evaluating a trial court's refusal

to allow withdrawal of a jury trial waiver, but went further to hold "that it is an abuse of

discretion for a trial court to deny a criminal defendant's motion to withdraw a jury

waiver if there is no showing that granting withdrawal would have substantially delayed

or impeded the cause of justice." 133 Wis.2d 58, 65.