Richard L. Peterson. Comment. Unintelligent Jury Waivers a Call to Amend Federal Rule of Criminal Procedure 23(a), 21 Geo. Mason U. Civil Rights L.J. 441 (2011).
Introduction: In one case, a defendant's counsel files a motion to waive jury trial with the district court. Although the defendant never signed the waiver, the trial court approves it without informing him on the record of its implications. The appellate court affirms the waiver. In another case, a defendant's counsel files a motion waiving her right to trial by jury. Once again, the defendant has not signed the waiver, and the court does not inform her on the record of the nature and consequences of the waiver. But this time, the waiver is found invalid on appeal.
Neither defendant signed a written waiver or made an oral waiver; however, one defendant received a new trial while the other did not. This unequal treatment of a defendant's right to trial by jury warrants a careful look at the existing law. The constitutional right to trial by jury and the implementation of laws and rules protecting that right should be scrutinized to ensure that courts do not violate the similarly situated principle, that is, that rules should be scrutinized to ensure that courts do not treat similarly situated persons differently.