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Lomax and jury waivers

The Supreme Court handed down a rare unanimous decision in a criminal case a couple of weeks back in State v. Lomax.  A quick-and-dirty read on the case:

What's the issue?

Jury waivers, specifically, how far a trial court has to go in satisfying the requirement under RC 2945.05 that the waiver be made "in open court." 

What are the arguments?  The dispute centered on whether the "open court" requirement mandated a colloquy between the judge and the defendant.  The courts have consistently rejected the contention that there has to be a full colloquy, along the lines mandated by Crim. Rule 11, to ensure that a waiver is "knowing, intelligent, and voluntary." 

So the defendant lost, right?  Wrong.  In Lomax, the defendant had signed a waiver prior to the trial date.  The only mention of it by the trial judge in open court was the statement, "I understand we are finally ready on the Lomax case.  Since there's going to be a jury waiver, does the State care to make an opening statement at this time?"  The Supremes held that the open court requirement meant that "there must be some evidence in the record of the proceedings that the defendant acknowledged the waiver to the trial court," and simply having the trial court mention on the record that there was a waiver doesn't cut it.

So how far does the trial judge have to go?  Not very; while the Court has stated in other cases that "it may be better practice for the trial judge to enumerate all the possible implications of a waiver of a jury," it's not error for the trial judge not to do it.  Basically, a simple inquiry about the written form, "Is this your signature on the jury waiver?  Did you read this and understand it before you signed it?" is probably enough to get by.

Now, whether this is good practice or good law is another story entirely.  It's not clear why a waiver of one's constitutional right to a jury should be treated any differently from the waiver of one's constitutional rights in a plea.  (And, of course, one of those rights you're waiving in a plea hearing is the right to a jury trial.)  It might be a different story if the written waiver went into any kind of detail about what the right to jury trial entails, but, as you can see, the form prescribed by the statute says nothing more than that you're giving up the right.  It doesn't even mention how many jurors you're entitled to, that it's to be a jury of your peers, or that there's a requirement that they unanimously find you guilty.

Of course, limiting the colloquy to a mere ritual incantation has the advantages of simplicity and expediency.  Sadly, that seems to count for an awful lot in the criminal law.

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