State v. Harrell / Wilson ( 2013 )

No. 8 February 28, 2013 247
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
JAMES ANTHONY HARRELL,
Petitioner on Review.
(CC CR060548; CA A138184; SC S059513)
STATE OF OREGON,
Respondent on Review,
v.
SAMUEL ALLEN WILSON,
Petitioner on Review.
(CC C071438CR; CA A138740; SC S059461)
(Consolidated for opinion)
On review from the Court of Appeals.*
Argued and submitted March 8, 2012.
Anna Fujita Munsey, Senior Deputy Public Defender,
Office of Public Defense Services, Salem, argued the cause
for petitioner on review James Anthony Harrell. With her
on the briefs was Peter Gartlan, Chief Defender. Joshua B.
Crowther, Chief Deputy Defender, Office of Public Defense
Services, Salem, argued the cause for petitioner on review
Samuel Allen Wilson. With him on the brief was Peter
Gartlan, Chief Defender.
Jeremy C. Rice, Assistant Attorney General, Salem,
argued the cause for respondent on review. With him on
the briefs were John R. Kroger, Attorney General, Anna
M. Joyce, Solicitor General, and Ryan Kahn, Assistant
Attorney General.
______________
*  Appeal from Yamhill County Circuit Court, John L. Collins, Judge. 241 Or
App 139, 250 P3d 1 (2011). Appeal from Washington County Circuit Court, Mark
Gardner, Judge. 240 Or App 708, 247 P3d 1262 (2011).
248 State v. Harrell/Wilson
Jesse Wm. Barton, Salem, filed a brief on behalf of
amicus curiae The Bunker Project.
Before Balmer, Chief Justice, and Kistler, Walters, and
Linder, Justices, and Durham and De Muniz, Senior Judges,
Justices pro tempore.**
Linder, J., concurred in part and dissented in part and
filed an opinion in which Kistler, J., joined.
DE MUNIZ, Justice pro tempore.
The decisions of the Court of Appeals are reversed.
The cases are remanded to the circuit courts for further
proceedings.
Defendants in these two cases each attempted to waive their right to a jury
trial during the criminal proceedings against them. In State v. Harrell, defendant
tendered his waiver to the trial court while the jury deliberated after voicing
concerns over juror confusion regarding the applicable law. The prosecutor
objected, and the trial court, after concluding that it lacked discretion to do
otherwise, denied defendant’s waiver request. In order to avoid a potential retrial,
however, the parties all agreed to be bound by the trial court’s sealed verdict if
its waiver-related holding proved to be erroneous. The jury ultimately convicted
defendant on two of the eight criminal counts against him and, following the
jury’s release, the trial court revealed that it would have acquitted defendant
on all counts. In State v. Wilson, defendant tendered his waiver request before
trial. After apparently concluding that the prosecutor in that case had objected
to that request, the trial court withheld its consent to the requested waiver and
a jury subsequently convicted defendant on all the charges against him. The
Court of Appeals went on to affirm the convictions in both cases. Held: In State v.
Harrell, the decision of the Court of Appeals is reversed and the case is remanded
to the circuit court with instructions to reconsider defendant’s jury trial waiver
in accordance with this court’s opinion. In the event the circuit court determines
that it should not have withheld its consent to defendant’s jury waiver, then the
circuit court shall issue an order reversing defendant’s convictions and entering
judgments of acquittal on all counts. In State v. Wilson, the decision of the Court of
Appeals is reversed and the case is remanded to the circuit court with instructions
to reconsider defendant’s jury trial waiver in accordance with this court’s opinion.
In the event the circuit court determines that it should not have withheld its
consent to defendant’s jury waiver, then the circuit court shall enter an order
reversing defendant’s convictions and granting defendant a new trial. After
carefully examining the text, context, and history of the jury waiver provisions
of Article I, section 11, the Court concludes that the discretion informing a trial
court’s decision to consent to a jury waiver is generally focused on considerations of
speed, economy, and the continued protection of a defendant’s rights, together with
the prosecutor’s preference for or against a defendant’s waiver request. Although
those are the primary considerations, the court does not foreclose on the possibility
that other considerations might arise in individual cases.
The decisions of the Court of Appeals are reversed. The cases are remanded to
the circuit courts for further proceedings.
______________
**  Landau, Brewer, and Baldwin, JJ., did not participate in the consideration
or decision of this case.
Cite as 353 Or 247 (2013) 249
DE MUNIZ, Justice pro tempore.
In these two criminal cases, consolidated for
purposes of opinion, each defendant attempted to waive
his constitutional right to a jury trial as guaranteed by
Article I, section 11, of the Oregon Constitution.1 In both
cases, the trial court refused to consent to the waiver, and
juries subsequently convicted each defendant of the charges
against him. In State v. Harrell, 241 Or App 139, 250 P3d 1
(2011), the Court of Appeals concluded that the trial court
had not abused its discretion in refusing defendant Harrell’s
requested jury waiver and affirmed the convictions. On
review in Harrell, we reverse the Court of Appeals decision
and remand to the trial court with instructions to reconsider
defendant’s jury waiver. In State v. Wilson, 240 Or App 708,
247 P3d 1262 (2011), the Court of Appeals concluded that
the trial court’s refusal to consent to defendant’s requested
jury waiver had been within the trial court’s discretion
and went on to affirm defendant’s convictions. On review
in Wilson, we reverse the decision of the Court of Appeals
and remand to the trial court to reconsider defendant’s jury
waiver.
I.  FACTS AND PROCEDURAL BACKGROUND
A.  State v. Harrell
In September 2006, defendant was involved in an
altercation outside a bar in which he stabbed one victim
with a folding knife and injured a second in the ensuing
commotion. Defendant was charged by indictment with
multiple counts of assault, attempted assault, and unlawful
use of a weapon.
Following a four-day trial, the jury began
deliberations and, after three hours, submitted two written
questions for the trial court. First, the jury asked, “If
[defendant] is found guilty of first degree is he guilty of
2nd automatically?” The trial court answered, “No. Second
degree assault requires proof beyond a reasonable doubt
that the defendant caused the injury ‘recklessly under
circumstances manifesting extreme indifferent to the value
of human life.’ ” The jury then asked, “Can (is it allowed that
1
The relevant text of Article I, section 11, is set out below.
250 State v. Harrell/Wilson
a persons [sic]) a persons [sic] demeanor from ‘self defense’ to
‘intent to cause injury’ be done instantaneously?” The trial
court replied, “I do not understand your question. Would
you like to clarify or rephrase it?” The jury did not submit
any further queries.
Shortly after the trial court had been given the
jury’s questions, defendant indicated that he wished to
waive his jury trial right and permit the trial court to rule on
the charges against him. The record shows that defendant’s
counsel submitted a document to the trial court captioned
“Waiver of Jury Trial” and had it marked and placed in
the record. The document was signed by defendant Harrell
and recited that, although he was fully aware of his right
to a jury determination regarding the charges against him,
he nevertheless wished to waive that right in favor of a
determination made by the trial court judge sitting alone.
The document further stated that defendant had executed
the waiver “voluntarily with full understanding of my rights
and without any threat or promise.”
The trial court—after opining that it probably had
the authority to grant the waiver if the prosecutor agreed—
nevertheless stated that, “absent an agreement[,] I don’t
think the court has the authority to grant the motion.”
The prosecutor responded by arguing that it “would be
dangerous precedent” to allow defendants to waive jury
trials whenever they disliked a question that the jury had
submitted to the trial court. After the prosecutor indicated
that her preference was to have the jury decide the case,
the trial court denied defendant’s requested jury waiver,
stating:
“I think at this stage in the process I don’t think I even
have the discretion—I have the discretion to do it if both
sides agree. I—as I said to you I would be willing to, but I
don’t think I have the discretion to dismiss the jury at this
stage.”
Several hours later, the trial court judge submitted
his own sealed verdict, which the parties agreed to accept to
avoid a retrial if the trial court had erred in refusing to allow
defendant’s requested jury waiver. Ultimately, the jury
convicted defendant on two counts of second-degree assault
Cite as 353 Or 247 (2013) 251
and acquitted him on the remaining charges. After the jury
had been released, the trial court judge stated that he would
have acquitted defendant on all eight counts. As noted, the
Court of Appeals affirmed defendant’s convictions, and we
allowed defendant’s petition for review.
B.  State v. Wilson
In April 2007, defendant was driving his vehicle
one night after consuming a significant quantity of alcohol.
His driver license was suspended at the time as a result
of an earlier conviction for driving under the influence of
intoxicants. Eventually, defendant ran a stop sign and
collided with another car, killing its driver. Defendant
subsequently was charged with first-degree manslaughter,
second-degree assault, driving under the influence of
intoxicants, and driving while suspended.
Before his scheduled trial, defendant sought to
waive his right to a jury. We are unable to find anything in
the record showing that a written waiver was ever tendered
to the trial court or that the need for such a writing was
even discussed.2 The record does show that, following an
in-chambers discussion with the parties, the trial court
declined to accept defendant’s requested waiver. When
trial began the next day, the trial court allowed the parties
to recite, for the record, the previous day’s discussions
regarding defendant’s attempted jury trial waiver:
“[DEFENSE COUNSEL]:  I do want the record to
reflect what happened yesterday, that we had a meeting in
chambers, that the prosecutor objected to our waiver of a
jury. In this case, the specific grounds were that he felt that
the extreme indifference to the value of human life was a
community standard that a jury and not a Judge should
decide.
“I would simply argue that it’s a legal standard like
any others that we’re dealing with. The Court’s certainly
capable of determining whether the facts meet that or not.
And I would just point out that I don’t think the State has
2
The parties, however, do not assign error to the lack of a written waiver
or otherwise argue that its absence should impact the holding in this case. We
assume that, because the trial court did not consent to defendant’s waiver, there
was no need for defendant to tender a written waiver.
252 State v. Harrell/Wilson
any authority to intervene or object to a waiver. That’s a
defendant’s right, again, with the Court’s consent. * * *
“[TRIAL COURT]:  Okay. Is there anything you want
to say for the record on that?
“[PROSECUTOR]:  Simply I—I didn’t object. I just
did—I did request that the Court exercise its discretion.”
The trial court then explained the rationale for its decision:
“[TRIAL COURT]:  Okay. Well, it’s been my policy over
the years to try to be in a situation where if someone had
an objection to me acting as the finder of fact that I would
not, in fact, act in that capacity. And, so, based upon the
State’s request here, I do not give my consent to—to allow
the defendant to waive his right to jury trial and that’s the
end of the matter, as far as I’m concerned.”
(Emphasis added.) Defendant’s case was then tried to a jury,
and he was found guilty on all counts. Defendant appealed,
the Court of Appeals affirmed his convictions, and, as
already noted, we allowed defendant’s petition for review.
II. ANALYSIS
Under the Oregon Constitution, criminal
defendants possess both the right to be tried by a jury and
the concomitant right—albeit bounded by judicial consent—
to waive that jury trial guarantee in favor of a bench trial.
To that end, Article I, section 11 provides, in part:
“In all criminal prosecutions, the accused shall have the
right to public trial by an impartial jury in the county in
which the offense shall have been committed; * * * provided,
however, that any accused person, in other than capital
cases, and with the consent of the trial judge, may elect to
waive trial by jury and consent to be tried by the judge of
the court alone, such election to be in writing[.]”
As we discuss later in this opinion, the people adopted that
wording as a constitutional amendment in 1932.
In State v. Baker, 328 Or 355, 976 P2d 1132 (1999),
this court interpreted the jury waiver portion of that
constitutional provision following an amendment to ORS
136.001 that granted the state its own separate statutory
right to pursue jury trials in criminal prosecutions. The
Cite as 353 Or 247 (2013) 253
court concluded that the statute was unconstitutional
because it authorized the state to insist on a jury trial
despite a defendant’s unequivocal request to waive such
proceedings under Article I, section 11. See 328 Or at 360
(“Granting the state the right to demand a jury trial, when
the defendant desires otherwise and the trial judge accepts
the defendant’s choice, is inconsistent with Article I, section
11.”). In doing so, the court identified the trial court as the
only entity possessing the “discretionary choice to deny a
criminal defendant in a noncapital criminal case the right
to waive trial by jury.” Id. at 364.
On review, both defendants argue that the scope
of that judicial discretion, when applied to a trial court’s
consent in matters of jury waiver, is limited to ascertaining
whether the defendant’s waiver request was knowingly,
intelligently, and voluntarily made. The state, however,
contends that nothing in the text, context, or history of the
Article I, section 11, amendment at issue here suggests
that Oregon voters intended to impose any specific subject-
matter limitation on the trial court’s “consent” authority.
According to the state, the text and context of that provision
“gives the trial court the voluntary choice to consent or to
withhold consent, according to its own free and deliberated
choice.”
(Emphasis in original.) Moreover, the state adds that the
history of Oregon’s jury waiver provision demonstrates that
voters did not intend to place any limitations on what a trial
court could consider in reaching that decision. Specifically,
it argues that
“voters would have understood that the trial court, as an
individual entity, had subjective authority over its consent
decision and thus, was not limited to its consideration of
specific factors.”
(Emphasis in original.)
III. DISCUSSION
We begin by observing that the state is incorrect
in its attempt to categorize a trial court’s authority to
grant or deny consent under Article I, section 11, as a
purely subjective judicial consideration, one having no
254 State v. Harrell/Wilson
boundaries whatsoever outside of the trial judge’s own
“free and deliberated choice.” The act of choosing to consent
or not consent as described by the state is itself a classic
example of an exercise in judicial discretion. See State v.
Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (explaining,
in terms of evidentiary decisions, that “  ‘discretion’ *  *
*
refers to the authority of a trial court to choose among
several legally correct outcomes. If there is only one legally
correct outcome, ‘discretion’ is an inapplicable concept[.]”).
It is well established, however, that judicial discretion is
not absolute. State v. Hubbard, 297 Or 789, 794 n 2, 688
P2d 1311 (1984). Judicial discretion should, for example,
“be exercised according to fixed legal principles in order to
promote substantial justice.” Elliott v. Lawson, 87 Or 450,
453-54, 170 P. 925 (1918). And judicial discretion “never
authorizes arbitrary, capricious action that tends to defeat”
that substantive end. State ex rel Bethke v. Bain, 193 Or
688, 703, 240 P2d 958 (1952). In short, judicial discretion is
always bounded by a simple framework: It must be lawfully
exercised to reach a decision that falls within a permissible
range of legally correct outcomes. See Rogers, 330 Or at
312 (no abuse of discretion where trial court’s decision
falls within range of legally correct choices and produces
a permissible, legally correct outcome). Our task here is to
construe the parameters of that framework as it applies
to Article I, section 11, and to determine whether the trial
courts’ refusal to consent to defendants’ jury waivers was
an exercise of discretion that took place within those legal
confines.
The range of legally correct outcomes under Article
I, section 11, depends on the voters’ intent in enacting the
“jury waiver” amendment to that constitutional provision.
See, e.g., Dickinson v. Davis, 277 Or 665, 673, 561 P2d
1019 (1977) (describing discretion as a range of responsible
choices in pursuing objectives “more or less broadly
indicated by the legislature (or, in Oregon, by the people
themselves) under various circumstances pertinent to those
objectives”). Because the jury waiver provision was added
to Article I, section 11, by legislative referral, we apply
the interpretive methodology for initiated constitutional
provisions and amendments set out in Roseburg School Dist.
Cite as 353 Or 247 (2013) 255
v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993),
and Ecumenical Ministries v. Oregon State Lottery Comm.,
318 Or 551, 559, 871 P2d 106 (1994). See Stranahan v. Fred
Meyer, Inc., 331 Or 38, 56, 11 P3d 228 (2000) (explaining
methodology). Under that framework, our task is to discern
the intent of the voters. Id. The best evidence of the voters’
intent is the text and context of the provision itself and, if the
intent is clear, “the court does not look further.” Ecumenical
Ministries, 318 Or at 559. Nevertheless, “caution must be
used before ending the analysis at the first level, viz., without
considering the history of the constitutional provision at
issue.” Stranahan, 331 Or at 57.
We begin with the pertinent text. The portion of
Article I, section 11, at issue here provides that criminal
defendants,
“in other than capital cases, and with the consent of the
trial judge, may elect to waive trial by jury and consent to
be tried by the judge of the court alone, such election to be
in writing[.]”
Adopted by Oregon voters as a state constitutional
amendment in 1932, the provision has remained unchanged
from the time of its adoption.
It is clear from the text set out above that a
criminal defendant cannot waive his or her right to trial
by jury without at least two components: a written waiver
and the trial court’s consent to that waiver. As to written
waivers, we have recognized that, for purposes of Article
I, section 11, that component is essential to a valid jury
waiver. In State v. Barber, 343 Or 525, 173 P3d 827 (2007),
the defendant had been convicted of burglary and theft in
a bench trial conducted on stipulated facts. On appeal, the
judgment was affirmed by the Court of Appeals. The record,
however, contained neither a written waiver of defendant’s
right to a jury trial nor any other indication that defendant
had executed such an agreement. Id. at 527. On review, this
court reversed and remanded, holding that “[t]here is no
waiver of a jury trial unless that waiver is in writing, and
without a waiver, defendant should have been tried by a
jury. The judge’s error thus lay in going to trial at all.” Id.
at 530 (emphasis in original).
256 State v. Harrell/Wilson
The requirement of trial court consent, in contrast, is
less well defined. What the text does not reveal is the precise
place in the landscape of judicial discretion wherein that
consent may either be granted or withheld. Unsurprisingly,
dictionaries in use at the time that Article I, section 11, was
amended identify the word “elect” as a verb meaning “to
select” or “to determine by choice; to decide upon; to choose.”
Webster’s New Int’l Dictionary of the English Language 706
(1910). Judicial “consent,” on the other hand, is a noun. It
means “voluntary accordance with, or concurrence in, what
is done or proposed by another; acquiescence; compliance;
approval; permission.” Id. at 478. Used in a purely legal
context, “consent” is defined as “capable, deliberate, and
voluntary assent or agreement to, or concurrence in, some
act or purpose, implying physical and mental power and
free action.” Id.; see also Black’s Law Dictionary 254 (1891)
(defining consent as a “concurrence of wills”).
Had the drafters of the jury waiver provisions
in Article I, section 11, intended trial court judges to
have absolute, unfettered discretion to decide whether a
defendant’s case should be tried to the court or to a jury,
those drafters would have used the word “elect” or “election”
in relation to trial judge as well as criminal defendants. See,
e.g., State v. Shaw, 338 Or 586, 603, 113 P3d 898 (2005)
(in construing statute, this court presumes that legislature
intended same term in same statute to have same meaning
throughout, as well as presuming that use of a term in one
section and not in another indicates a purposeful omission).
They did not do so. Article I, section 11, separately refers
to (1) the defendant’s “election”—a choice; and (2) the trial
judge’s “consent”—a concurrence with what the defendant
has chosen. That text underscores the unremarkable
proposition that choosing to waive a jury falls squarely
within a defendant’s prerogative to initiate; it does little,
however, to explain what factors may inform a trial judge’s
decision to consent to that choice.
In interpreting constitutional provisions adopted by
ballot measure, we examine several aspects of the provision
in question in order to discover the voters’ intent: (1) the
text of the ballot measure that gave rise to the provision;
Cite as 353 Or 247 (2013) 257
(2) the text of any related ballot measures submitted to voters
during the same election; and (3) related constitutional
provisions that were in place when the provision at issue
was adopted. George v. Courtney, 344 Or 76, 84, 176 P3d
1265 (2008). We also examine relevant case law interpreting
the provision at issue, Oregon Telecommunications Assn.
v. ODOT, 341 Or 418, 426, 144 P3d 935 (2006), as well as
rules of construction that bear directly on the provision’s
interpretation in context. See PGE v. Bureau of Labor
and Industries, 317 Or 606, 612 n 4, 859 P2d 1143 (1993)
(structure for interpreting statutes enacted by legislature
also applies to constitutional amendments adopted by
initiative or referendum).
In this case, our inquiry is aided by the fact that
this court has already explored the history of the jury waiver
clause at issue here, first in State v. Wagner, 305 Or 115,
752 P2d 1136 (1988), and later in Baker, 328 Or 355.
That history discloses that the provision was the
result of a 1932 amendment to the Oregon Constitution.3
In Wagner, this court examined—for the first time—the
history of the amendment, stating:
“Prior to the 1932 amendment, the section provided:
“  all criminal prosecutions, the accused shall
‘In
have the right to public trial by an impartial jury in the
county in which the offense shall have been committed;
to be heard by himself and counsel; to demand the
nature and cause of the accusation against him, and to
have a copy thereof; to meet the witnesses face to face,
and to have compulsory process for obtaining witnesses
in his favor.’
3
As general background, it is worth noting that the idea of adding a jury waiver
clause to the state constitution actually predated the clause’s implementation by
several years. As part of an Oregon Judicial Council report in 1929, Justice Harry
H. Belt had recommended the amendment, citing as the advantages it would bring
to Oregon:
“(1)  [s]avings of expense and time in empanelling juries; (2) more expeditious
manner of trial when conducted before a court; (3) elimination of error arising
out of court’s instructions; (4) protection to defendant where crime charged is
of such nature as to arouse passion and prejudice.”
Report of Oregon Judicial Council for the Year, 9 Or L Rev 332, 341 (1930).
258 State v. Harrell/Wilson
“By Senate Joint Resolution 4, the 1931 legislature referred
to the people a proposed amendment to add to section 11 a
proviso:
“
‘provided, however, that any accused person, in other
than capital cases, and with the consent of the trial
judge, may elect to waive trial by jury and consent to be
tried by the judge of the court alone, such election to be
in writing.’
“At the general election on November 8, 1932, the
amendment was adopted.”
Wagner, 305 Or at 129.
Later, in Baker, this court concisely set out
the applicable parts of the 1932 Voters’ Pamphlet that
had explained the proposed amendment to Oregon’s
electorate:
“ ‘AMENDMENT AUTHORIZING CRIMINAL
TRIALS WITHOUT JURIES BY CONSENT OF
ACCUSED—Purpose: To provide that any accused person
in other than capital cases, and with the consent of the trial
judge, may choose to relinquish his right of trial by jury
and consent to be tried by the judge of the court alone, such
election to be in writing.
“ ‘* * * * *
“ ‘AMENDMENT AUTHORIZING CRIMINAL
TRIALS WITHOUT JURIES BY CONSENT OF
ACCUSED—Purpose: To authorize accused persons
except in capital cases to relinquish right of trial by jury by
consent of judge, and be tried by judge only.
“ ‘(On Official Ballot, Nos. 302 and 303)
“ ‘ARGUMENT (Affirmative)
“  ‘Submitted by the joint committee of the senate and
house of representatives, thirty-sixth regular session,
legislative assembly, in behalf of the Amendment
Authorizing Criminal Trials Without Juries by
Consent of Accused.
“ ‘The purpose of this proposed constitutional amendment
is to permit the accused in criminal cases, with the consent
of the trial judge, to waive trial by jury and be tried by
judge alone. This would apply to all crimes excepting capital
Cite as 353 Or 247 (2013) 259
offenses. Although not expressly required by the wording of
the amendment, it is nevertheless thought the consent of
the district attorney should be obtained as well as that of
the judge before whom the case may be tried.
“  ‘Under present requirements of the constitution, jury
trial is compulsory in criminal cases. There are many cases
that may be tried by the judge, and without jury, speedily,
economically and fully protecting the right of the accused.
The requirement that consent of accused and judge must
both be obtained, with the suggestion that the approval
of the district attorney be secured also in applying the
measure, assure its carefully considered and reasonable
use. [Emphasis added.]
“ ‘Similar provisions are effective in many states. Rights
of the state and accused are fully preserved and the adoption
of the amendment should accomplish a substantial saving
in the time and expense now incurred in criminal trials.
Where adopted its use is general and the percentage of
court trials has been large.
“ ‘It should be kept in mind [that] the right to waive trial
by jury, provided herein, applies only to criminal cases and
requiring consent of accused and trial judge, cannot be used
oppressively.’”
328 Or at 362-63 (emphasis omitted; boldface and brackets
in original) (quoting Wagner, 305 Or at 132-43).
Several points emerge from the history set out
above. Oregon voters of the period would have recognized
that, at the time of the 1932 general election, full jury
trials were compulsory in criminal matters, at least in
cases where the defendants had opted for a trial rather
than a guilty plea. They also would have recognized that
the proposed jury waiver provisions were intended to create
an alternative to the standard criminal trial, an alternative
designed to secure the benefits of greater speed and greater
economy while “fully protecting the rights of the accused.”
Indeed, voters would have understood those benefits to be
the primary purpose for amending the constitution to allow
criminal defendants to forgo trial by jury.
How, exactly, would a waiver provision realize that
purpose as a practical matter? The trial court judge was
the most prominent state actor in the proposed jury waiver
260 State v. Harrell/Wilson
process. As a result, if a criminal defendant sought to waive
the right to trial by jury in favor of a bench trial, the perceived
responsibility for ensuring that the bench trial would be
quicker, cheaper, and fully protective of the accused’s rights
would have fallen naturally to the judiciary. Those goals,
however, could have been thwarted if trial judges were able
to decline to consent to the bench trial option for an invalid
reason or no reason at all.
From the historical perspective set out above, we
believe that voters in 1932 expected that the amendment
would lead to cases “  ‘that may be tried by the judge, and
without jury, speedily, economically and fully protecting the
right of the accused.’ ” Baker, 328 Or at 362-63 (emphasis
added) (quoting State v. Wagner, 305 Or at 132-43).
Consequently, they had reason to expect that the discretion
undergirding a trial court’s consent—or lack thereof—to
such proceedings for the most part would be informed by
inquiries that corresponded to the amendment’s overarching
purpose: Will the resulting proceedings be faster? Will they
be more economical? Will they fully protect the rights of the
individual accused of a crime? As a general rule, affirmative
answers to those questions logically would lead to the
conclusion that a criminal defendant’s jury waiver should
be granted.
In addition to identifying judicial economy consid-
erations, the Voters’ Pamphlet at page 6 also contained the
following statement:
“The requirement that consent of accused and judge must
both be obtained, with the suggestion that the approval of
the district attorney be secured also in applying the measure
assure its carefully considered and reasonable use.”
Baker, 328 Or at 363 (emphasis and citations omitted).
Based on that reference to the district attorney in
the Voters’ Pamphlet material, the court in Baker reasoned
that, although the district attorney’s consent to a jury waiver
is not required by the text of the provision, the trial judge
should, in making its discretionary decision, “consider and
give due weight to the preferences of the district attorney.”
Cite as 353 Or 247 (2013) 261
328 Or at 364. In Baker, the court had no occasion to
determine the nature of the district attorney’s “preferences”
that are entitled to judicial consideration or what weight a
trial court should give a district attorney’s “preference” for
or against a defendant’s jury waiver.
We recognize that it is difficult to anticipate the
variety of circumstances that might prompt a prosecutor
to express a preference for or against a defendant’s jury
waiver in an individual case. However, given that the
prosecutor’s role as a representative of the state is not just
to convict a criminal defendant, but to seek justice in every
case, we anticipate that a prosecutor’s “preference” will be
consistent with promoting judicial economy and seeking
justice as the circumstances of an individual case indicate.
See, e.g., Berger v. United States, 295 U.S. 78, 88, 55 S. Ct.
629, 79 L. Ed. 1314 (1935) (“The United States Attorney is
the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.”). And, the
prosecutor’s “preference” should be weighed by the trial
judge with those goals in mind.
With regard to the notion of increased speed and
economy, it is well-established that trial courts generally
possess broad discretion to ensure that the proceedings
before them are orderly and expeditious. Rogers, 330 Or at
301. See also ORS 1.010(3) (every court of justice has power
to provide for orderly conduct of proceedings before it). And
it goes without saying that, when defendants seek to waive
jury trials in favor of bench trials, such a procedural change
ordinarily results in a saving—often substantial—of time
and money. Trial courts can realize those potential savings
by consenting to a defendant’s waiver of trial by jury. In
some circumstances, however, the more important question
will be the one that remains: Will a bench trial fully protect
a defendant’s rights?
In that regard, the observations and holdings from
this court that serve as context for the jury waiver provision
of Article I, section 11, are instructive. As a general matter,
262 State v. Harrell/Wilson
the right to trial by jury in criminal matters is fundamental
to the American system of justice. In Oregon, that right—
set out at Article I, section 11—is personal to the individual
criminal defendant. See State v. Barber, 343 Or at 529
(noting that provision is worded as an individual right).
The right to a jury trial can be waived in either
state or federal court, so long as the waiver demonstrates
an “intentional relinquishment or abandonment of a known
right or privilege.” State v. Harris, 339 Or 157, 174, 118
P3d 236 (2005) (quoting Johnson v. Zerbst, 304 U.S. 458,
464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). There is, however,
a pronounced difference between the state and federal
constitutions regarding the level of protection afforded a
defendant’s ability to waive those proceedings. Nothing
in the United States Constitution authorizes criminal
defendants to waive trial by jury in favor of a bench trial.
Consequently, in federal proceedings, a “criminal defendant
does not have a constitutional right to waive a jury trial and
to have his case tried before a judge alone.” United States v.
Goodwin, 457 U.S. 368, 383 n 18, 102 S. Ct. 2485, 73 L. Ed. 2d
74 (1982). In that regard, the United States Supreme Court
has held that
“[a] defendant’s only constitutional right concerning the
method of trial is to an impartial trial by jury. We find no
constitutional impediment to conditioning a waiver of this
right on the consent of the prosecuting attorney and the
trial judge when, if either refuses to consent, the result is
simply that the defendant is subject to an impartial trial
by jury—the very thing that the Constitution guarantees
him.”
Singer v. United States, 380 U.S. 24, 36, 85 S. Ct. 783, 13 L. Ed.
2d 630 (1965).
In Oregon, by contrast, the right to waive trial by
jury is guaranteed within the text of the state constitution,
and is part of a panoply of trial-related rights expressly
set out in Article I, section 11, and reserved to criminal
defendants. Those rights include the above-mentioned
right to public trial by an impartial jury; the right to trial
in the county in which the offenses were committed; the
right of criminal defendants to be heard by themselves and
Cite as 353 Or 247 (2013) 263
by counsel; the right to demand the nature and cause of
a criminal accusation and to have a copy thereof; and the
right to meet witnesses face to face and to have compulsory
process for obtaining witnesses in the defendant’s favor.
The right to waive trial by jury is found in the midst
of those individual rights. Consequently, the jury waiver
provision of Article I, section 11, should be read in context
as a right no less fundamental and no less personal than
the other rights with which it is associated in the Oregon
Constitution. That reading of the provision comports with
the interpretive canon noscitur a sociis (“it is known by its
associates”),
“an old maxim which summarizes the rule both of language
and of law that the meaning of words may be indicated or
controlled by those with which they are associated.”
Nunner v. Erickson, 151 Or 575, 609, 51 P2d 839 (1935).
That maxim of construction pointedly “invites the court’s
attention to the entire context and not to one passage only.”
White v. State Ind. Acc. Comm., 227 Or 306, 317, 362 P2d
302 (1961).
Here, that context underscores the fact that, in
Oregon, the ability to waive trial by jury is a constitutional
right that belongs to the individual who wishes to exercise
it. And if the exercise of that right is to be protected, then
a trial court’s consent under Article I, section 11, should
focus on the validity of the defendant’s election to waive a
jury trial. As with any other waiver of a constitutional right,
trial courts must take care to ensure that the waiver is not
“the product of duress or misrepresentation. It must
be voluntary and must be understandingly made with
knowledge by the party of his [or her] rights.”
Huffman v. Alexander, 197 Or 283, 322, 251 P2d 87 (1952).
After considering the text, context, and history of
the jury waiver provisions of Article I, section 11, we hold
that the discretion informing a trial court’s decision to
consent to a jury waiver should be guided generally by the
factors discussed above, including the prosecutor’s expressed
preference, rather than the trial court’s purely subjective
264 State v. Harrell/Wilson
predilections. Specifically, a trial court should evaluate a
criminal defendant’s decision to waive trial by jury in the
context of improving judicial economy, taking into account
considerations of speed, economy, and the prosecutor’s
expressed preference for or against defendant’s waiver, and
the continued protection of the defendant’s rights. Although
those are the primary considerations, we do not foreclose on
the possibility that other considerations might arise in an
individual case. We turn now to the resolution of the two
cases before us.
A.  State v. Harrell
In State v. Harrell, defendant’s decision to waive
his jury right arose during jury deliberations after the jury
had submitted a question to the trial judge, that, in defense
counsel’s view, demonstrated that the jury was “hopelessly
confused” in its application of the law to the evidence before
it. Defendant then tendered, in writing, a signed jury
waiver to the trial court. The trial court indicated that it
did not believe that defendant had a constitutional right to
waive the jury at that stage of the proceedings; the trial
court, however, also stated that it was willing to accept
defendant’s jury waiver, but only if the prosecutor agreed to
the waiver as well. Without that agreement, the trial court
opined, it lacked the discretion to dismiss the jury during
deliberations. The prosecutor, for her part, made clear that
she objected to defendant’s waiver request and asserted that
she did not find the questions tendered to the trial court
indicative of juror confusion.
After trial, but before judgment was entered,
defendant moved the court to reconsider its decision denying
defendant’s jury waiver on the ground that the court did,
in fact, have authority to grant that waiver during jury
deliberations. The trial judge reiterated the basis of his
initial ruling, stating: “I want to say it, again, that *  * I
*
ruled at that time I didn’t believe that the defendant had
a constitutional right to waive jury at that stage[.]” Id. at
143. In doing so, the trial judge seemed to be saying that
the prosecutor had a veto power over defendant’s waiver
decision. Id. at 143-44.
Cite as 353 Or 247 (2013) 265
The trial judge then explained that, if he was wrong
and had discretion to exercise despite the late timing of
defendant’s motion, he would, nevertheless, not consent
to defendant’s jury waiver because of the lateness of the
motion; the prosecutor’s concerns and objection; the fact
that, had the judge sat through the trial as the factfinder, he
would have had a greater focus on the factual evidence and
would have taken more notes; and that he had a particular
familiarity with a “close witness” for the defense, which he
believed could “be perceived as having some influence on
my decision if I was the trier of fact.” Id. at 144-45. The trial
judge concluded by saying: “[T]o the extent that it is in my
discretion to change my mind and reconsider, I’d have to tell
you that I have reconsidered, but still, having reconsidered,
I *  * believe that my decision was the correct one at that
*
time.” Id. at 145 (emphasis omitted).
Based on the forgoing, it is difficult to determine
whether the trial judge’s refusal to consent to defendant’s
exercise of his right to waive a jury was premised on a
belief that, at that stage of the proceeding, (1) he lacked
authority to exercise discretion to consent to the waiver, or
(2) he believed he could not consider the waiver without a
prosecutor’s consent, or (3) he had concluded that defendant’s
requested waiver was inconsistent with considerations
of judicial economy and that he should in an exercise of
discretion withhold his consent.
Because we cannot determine the actual basis
on which the trial court refused to consent to defendant’s
exercise of his right to waive the jury, we conclude that
our best course is to remand to the trial court to reconsider
defendant’s jury trial waiver in accordance with this opinion.
B.  State v. Wilson
We reach the same result in State v. Wilson. Before
his scheduled trial date, defendant sought to waive his
right to a jury. The record is somewhat unclear regarding
the prosecutor’s exact position on defendant’s requested
jury waiver, but the trial court apparently concluded that
the prosecutor had, in fact, objected to defendant’s waiver
request. In doing so, the trial court erred because it withheld
266 State v. Harrell/Wilson
its consent to defendant’s jury trial waiver based solely on
the prosecutor’s perceived objection—a position that was not
based on considerations of speed, economy, or the protection
of defendant’s constitutional rights. Because the trial court
withheld its consent to defendant’s jury waiver based on an
impermissible criterion, its decision in that regard was not
produced by an exercise of discretion guided by the above-
mentioned considerations. Consequently, we remand to the
trial court to reconsider defendant’s jury trial waiver.
IV. CONCLUSION
In State v. Harrell, the decision of the Court of
Appeals is reversed, and the case is remanded to the circuit
court with instructions to reconsider defendant’s jury trial
waiver in accordance with this court’s opinion. In the event
the circuit court determines that it should not have withheld
its consent to defendant’s jury waiver, then the circuit court
shall issue an order reversing defendant’s convictions and
entering judgments of acquittal on all counts.
In State v. Wilson, the decision of the Court of
Appeals is reversed, and the case is remanded to the circuit
court with instructions to reconsider defendant’s jury trial
waiver in accordance with this court’s opinion. In the event
the circuit court determines that it should not have withheld
its consent to defendant’s jury waiver, then the circuit court
shall enter an order reversing defendant’s convictions and
granting defendant a new trial.
The decisions of the Court of Appeals are reversed.
The cases are remanded to the circuit courts for further
proceedings.
LINDER, J., concurring in part and dissenting in
part.
I agree with the majority’s essential legal analysis
in these cases, which recognizes that a trial judge’s decision
whether to consent to a jury waiver in a criminal case may be
based on an array of considerations, including the interests
of the state, as articulated by the prosecutor. I further agree
that the trial judge may not simply defer to the position of
the prosecutor in a way that delegates the decision whether
Cite as 353 Or 247 (2013) 267
to consent to the prosecutor, rather than base the decision
on the trial judge’s independent and informed judgment.
Consequently, I agree with the majority that State v. Wilson
240 Or App 708, 247 P3d 1262 (2011), must be reversed,
because the record does not reflect that the trial judge
exercised independent discretion in that case. In State
v. Harrell, 241 Or App 139, 250 P3d 1 (2011), however, I
believe that this court should affirm the judgment. I write
separately to explain my agreement with the majority’s
essential legal analysis and disposition in Wilson, and my
disagreement with the disposition in Harrell.
I.  HISTORICAL BACKGROUND
I begin by examining in some additional depth the
circumstances that led to the 1932 amendment to Article I,
section 11, of the Oregon Constitution because they aid in
illuminating the role of a trial judge’s consent to waiver of a
jury in a criminal trial.
Criminal bench trials were unheard of at English
common law. Instead, trial by jury was “the one regular
common-law mode of trial,” and defendants had no right or
means to choose trial by a judge in place of a jury. Singer v.
United States, 380 U.S. 24, 26-29, 85 S. Ct. 783, 12 L. Ed. 2d 630
(1965) (discussing common-law jury trial right). Although
there apparently were occasional criminal bench trials
early on in a few American colonies, the practice was never
widespread; by the time the United States Constitution was
adopted, complete with the Sixth Amendment guarantee
of a jury trial in criminal cases, bench trials were not
perceived to be an option in criminal prosecutions. Id. at
28-31. Thus, early federal cases, including dicta by the
United States Supreme Court, expressed the view that trial
by jury was the only constitutionally permissible method
of trial in criminal cases. Id. at 31-32 (citing cases). And
most jurisdictions presented with the issue had held that
a defendant in a criminal case, although able to waive trial
entirely by pleading guilty, could not waive a jury and
be tried instead by a trial court judge. Wayne R. LaFave,
6 Criminal Procedure § 22.1(h), 31 (3d ed 2007); see generally
268 State v. Harrell/Wilson
Erwin N. Griswold, Waiver of Jury Trial in Criminal Cases,
20 Va L Rev 655, 655-56 (1934) (similar observation).1
By the mid- to late 1920s and early 1930s, various
legal commissions, counsels, and commentators throughout
the United States began endorsing “an optional trial
without jury in all cases except capital” to deal with large
criminal case backlogs and the concomitant delay in resolv-
ing criminal prosecutions. See generally S. Chesterfield
Oppenheim, Waiver of Trial By Jury in Criminal Cases, 25
Mich. L Rev 695, 695, 696 n 1 (1927) (urging legal reform
and citing other legal authorities, committees, and councils
similarly urging adoption of a bench trial option in noncapital
criminal cases). Whether such an option should be at the
unilateral election of a defendant, or subject to the consent
of the prosecuting attorney, or the trial judge, or both, was
open to policy debate, but the “economy of time” achieved
with any reform that made criminal bench trials possible
was considered “self-evident.” Id. at 736-37 (discussing
policy choices involved in various models for waiving jury
and having bench trials in criminal cases).
In Oregon, the same discussions were taking place
during that time period. In particular, in 1929, the Oregon
Judicial Council issued an annual report proposing, among
other legal reforms, that the legislature at its next regular
session refer to the voters a constitutional amendment that
would authorize bench trials in all criminal cases, except
those involving death or life imprisonment as a penalty.
Report of Oregon Judicial Council for the Year 1929, 9 Or
L Rev 332 (1930). In support of that proposal, the council
quoted from a report prepared in another state, urging that
1
Oregon followed that common law tradition. A criminal defendant in Oregon
traditionally had an absolute right to plead guilty, which effectively waived the
constitutional right to a jury trial on the factual basis for the charge. See generally
State v. Wagner, 305 Or 115, 130-31, 752 P2d 1136 (1988), vac’d on other grounds
sub nom Wagner v. Oregon, 492 U.S. 914, 109 S. Ct. 3235, 106 L. Ed. 2d 583 (1989)
(discussing criminal defendant’s traditional right in Oregon to waive right to jury
trial by pleading guilty); see generally ORS 135.385(2)(a)(A) (“The court shall
inform the defendant that by a plea of guilty * * * the defendant waives the right
to trial by jury[.]”). What a defendant traditionally could not do was invoke the
constitutional right to a trial while simultaneously waiving the guaranteed mode
of trial—that is, waive trial by jury and insist on a trial by a judge instead. No
reported criminal case in Oregon proceeded to trial without a jury until after the
1932 amendment to Article I, section 11.
Cite as 353 Or 247 (2013) 269
the reform would save time and money and expedite the
administration of criminal justice. Id. at 341-42. The specific
proposal recommended by the Oregon Judicial Council was
that the defendant, “if he shall so elect, * * * be tried by the
court without the intervention of the jury[.]” Id. at 340. The
election would have been unilateral; the Council’s proposal
did not condition the defendant’s ability to waive jury and
be tried by the trial judge on the consent or other agreement
of either the prosecutor or the trial judge. As noted below,
however, the 1929 proposal never went before the voters.
Shortly after the Council’s report, the United
States Supreme Court decided Patton v. United States, 281
U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854 (1930). The issue there
was whether the defendant and the government, after one
juror had to be released due to illness, could jointly agree
to proceed before an 11- rather than a 12-person jury. The
Court rejected the defendant’s argument that, despite his
agreement to proceed with only 11 jurors, he was entitled to
a reversal of his conviction because the lack of a 12-person
jury was a jurisdictional defect. Id. at 298. The Court
further held that it was within a defendant’s power to waive
the mode of trial—that is, a 12-person jury as guaranteed
by the Constitution—although a defendant had no absolute
right to do so. The Court explained:
“Trial by jury is the normal and, with occasional exceptions,
the preferable mode of disposing of issues of fact in
criminal cases above the grade of petty offenses. In such
cases the value and appropriateness of jury trial have
been established by long experience, and are not now to
be denied. Not only must the right of the accused to a trial
by a constitutional jury be jealously preserved, but the
maintenance of the jury as a fact-finding body in criminal
cases is of such importance and has such a place in our
traditions, that, before any waiver can become effective,
the consent of government counsel and the sanction of the
court must be had, in addition to the express and intelligent
consent of the defendant. And the duty of the trial court
in that regard is not to be discharged as a mere matter of
rote, but with sound and advised discretion, with an eye to
avoid unreasonable or undue departures from that mode of
trial or from any of the essential elements thereof, and with
270 State v. Harrell/Wilson
a caution increasing in degree as the offenses dealt with
increase in gravity.”
Id. at 312-13. Patton’s pronouncement that waiver of the
mode of trial was possible, at least with the concurrence
of the government and the trial court, led to widespread
acceptance of bench trials as a constitutionally permissible
option in criminal cases, thus paving the way for the legal
reform being urged across the nation. See LaFave, 6 Criminal
Procedure § 22.1(h) at 31 (Patton led shift to acceptance of
proposition that defendant in criminal case constitutionally
could waive jury and be tried by judge); Griswold, 20 Va
L Rev at 655-56 (observing that, until Patton, it was “far from
clear” that a defendant in a criminal case could effectively
waive jury and be tried by a judge).2
One year after Patton was decided, the Oregon
legislature referred to the voters a proposed constitutional
amendment authorizing bench trials in criminal cases.
The measure, however, differed in substance in two ways
from what the Oregon Judicial Council had proposed in its
1929 report. First, it excluded only capital cases, and not
cases in which the penalty could potentially include life
imprisonment. Ballot Measure 302 & 303 (1932). Second,
and significantly for the analysis here, the measure expressly
conditioned a defendant’s ability to waive jury and consent
to trial by the judge on the trial judge’s consent as well. Id.
The lone argument in the Voters’ Pamphlet
addressing the amendment was drafted by a group of
legislators who supported its passage. Official Voters’
Pamphlet, General Election, Nov 8, 1932, 6. The argument
explained that the Oregon Constitution made a jury trial
compulsory in all criminal cases, but that “[t]here are
many cases that may be tried by judge, and without jury,
speedily, economically and fully protecting the right of the
accused.” Id. The argument repeatedly emphasized that
trial by a judge rather than a jury required the consent of
the trial judge in addition to that of the defendant. Id. The
2
 To be sure, at the time, the Sixth Amendment to the United States
Constitution had not yet been held to apply to the states, and so Patton announced
a principle of federal law only. But because of the similarities and common origins
of the federal and state constitutional guarantees of jury trial in criminal cases,
Patton influenced thinking at the state level as well.
Cite as 353 Or 247 (2013) 271
amendment identified no restrictions on the trial judge’s
power to give or refuse consent, except to imply that a judge
should withhold consent (but was not required to do so) if the
district attorney did not agree that the case should be tried
by the judge. Id. (“Although not expressly required by the
wording of the amendment, it is nevertheless thought the
consent of the district attorney should be obtained as well
as that of the judge before whom the case may be tried.”).3
Voters were reassured that, because a trial judge should
consider the prosecutor’s position in deciding whether to
consent to a bench trial, the “requirement that consent
of accused and judge must both be obtained *  * assure
*
its carefully considered and reasonable use” and that the
provision “fully preserved” both the “[r]ights of state and
accused[.]” Id.
That history reveals four points of importance.
First, when the Oregon Constitution was amended to
authorize bench trials in noncapital criminal cases, the idea
was a novel one. Judges were not accustomed to serving as
the trier of fact in criminal cases. Citizens, likewise, were
not accustomed to having a defendant’s guilt or innocence
decided by a single judge, rather than by a jury comprised
of representative members of the community. Second, the
constitutionality of permitting a defendant unilaterally to
dispense with a jury was uncertain. The Supreme Court
in Patton had at least suggested that any waiver of the
mode of trial, as opposed to a waiver of a trial altogether,
was constitutionally permissible only if the waiver was
subject to the watchful and considered oversight of a trial
judge.4 Third, shortly after Patton was decided, the Oregon
3
As this court has previously recognized, the information before the voters
effectively was “a recommendation that, in making its discretionary decision
whether to allow a criminal defendant to waive trial by jury, the trial judge should
consider and give due weight to the preferences of the district attorney.” State v.
Baker, 328 Or 355, 364, 976 P2d 1132 (1999). The voters thus were told only “what
the trial judge may do” and not that the trial court’s discretion was limited by the
prosecutor’s agreement. Id. at 363-64 (emphasis in original).
4
As cases involving bench trials or a jury of fewer than 12 jurors reveal,
precision is important in discussing waiver of the right to a “jury trial” or “trial by
jury.” When the waiver is a result of a guilty plea, it is a full waiver of the right—
there is neither a jury nor a trial. When the waiver occurs through an agreement
to proceed with fewer than 12 jurors or with the judge as the finder of fact, the
waiver is really a partial one only. In those circumstances, the defendant seeks
to exercise the right to a trial, but waive some aspect of the guaranteed mode of
272 State v. Harrell/Wilson
legislature declined to refer to voters a measure giving a
criminal defendant the unilateral ability to consent to trial by
a judge instead of a jury, and instead expressly conditioned
that election on the consent of the trial judge. Fourth, and
finally, the argument in favor of the amendment emphasized
to voters the importance of independent judicial consent in
the waiver decision and that such consent should consider
the interests of both the defendant and the prosecution.
With that historical background as context, I turn
to the actual text of the 1932 amendment that the voters
added to Article I, section 11, and to the majority’s analysis
of a trial judge’s authority to give or withhold consent to a
jury waiver in a criminal case.
II.  THE 1932 AMENDMENT
The original text of Article I, section 11, declared
that an accused in a criminal prosecution “shall have the
right to public trial by an impartial jury,” but provided
no alternative for trial by a judge. The 1932 amendment
approved by the voters added the following text to that
guarantee:
“provided, however, that any accused person, in other than
capital cases, and with the consent of the trial judge, may
elect to waive trial by jury and consent to be tried by the
judge of the court alone, such election to be in writing.”
Or Const, Art I, § 11. As this court has observed, the
amendment operates as a proviso5—that is, a clause that
introduces a condition or qualification to the jury trial
trial. The Court in Patton specifically acknowledged that a defendant traditionally
had been able to waive the right to jury trial (a full waiver) by pleading guilty to
a charge, but implicitly differentiated such a waiver, which was unilateral, from
a partial waiver of the mode of trial only (there, a 12-person jury). 281 U.S. at
305-06. Some years later, in Singer, the Court further established that a criminal
defendant’s ability to waive his federal constitutional right to a jury trial does not
confer on him the positive corollary right to be tried by a trial court judge. 380 U.S.
at 34-35. Consequently, the Court held that the federal jury waiver rule enacted in
1946 under Federal Rule of Criminal Procedure 23(a) constitutionally conditioned
a defendant’s ability to be tried by a judge in a federal criminal prosecution on both
the government’s and the trial court’s consent; under federal law, a defendant has
no absolute right to waive the mode of trial, as opposed to waiving trial entirely by
pleading guilty. Id. at 36-37.
5
Wagner, 305 Or at 129.
Cite as 353 Or 247 (2013) 273
right that Article I, section 11, otherwise guarantees.6
The terms of that proviso and their collective meaning
are straightforward: If the defendant and the trial judge
mutually consent to have the trial judge alone try the case,
the case may be so tried.
The essential analysis announced by the majority
in this case accords with the voters’ intent in adopting
the amendment. As the majority recognizes, the provision
authorizing a criminal defendant to waive the mode of
trial resides among several rights “reserved to criminal
defendants” in criminal cases by Article I, section 11, such as
the right to compulsory process, the right of confrontation,
and the guarantee of trial in the county in which an offense
is committed. 353 Or at 262-63.7 But the majority likewise
recognizes that a criminal defendant’s right or ability to
elect to be tried by a judge instead of a jury is different in
kind from any other guarantee in Article I, section 11—it
is expressly made subject to the trial judge’s consent. Id. at
255-56.8 The majority properly gives effect to that significant
difference by acknowledging that the trial judge’s consent
is essential to a legally effective jury waiver in a criminal
case. See id. (criminal defendant cannot waive jury without
both written waiver and trial judge’s consent to waiver);
see generally State v. Barber, 343 Or 525, 529-30, 173 P3d
827 (2007) (Article I, section 11, guarantees adherence to a
6
A proviso is “an article or clause (as in a statute, contract, or grant) that
introduces a condition, qualification, or limitation and usu[ally] begins with the
word provided * * *.” Webster’s Third New Int’l Dictionary 1827 (unabridged ed
2002) (emphasis in original).
7
Of course, as the circumstances leading to the amendment reveal, at the
time, there was significant uncertainty whether the constitutional guarantee of
a jury in a criminal case allowed defendant to waive jury and proceed before a
judge. That presumably is why the change was brought about by constitutional
amendment rather than by statute, and why textually the waiver provision was
added as a proviso to the guarantee of a criminal jury trial, rather than a stand-
alone right.
8
The legislature could have referred to the voters, and the voters might
have approved, an amendment giving a criminal defendant the unilateral ability
to waive jury and proceed before a judge, as a minority of states have done.
See LaFave, 6 Criminal Procedure § 22.1(h) at 38 (describing unilateral waiver
as minority approach). Oregon’s provision is instead consistent with the far
more prevalent model followed by states and the federal courts. See id. (most
jurisdictions condition a defendant’s criminal jury waiver on the consent of the
court, the consent of the prosecution, or both).
274 State v. Harrell/Wilson
specified method of waiving jury, which consists of written
waiver together with trial judge consent).
As a textual matter, the trial judge’s authority
to grant or withhold consent is not limited by any terms
expressly set forth in the 1932 amendment. See id. at 256
(also noting textual silence). I agree with the majority,
however, that the trial judge’s authority in that regard is not
unbounded. Like any exercise of judicial discretion, the trial
judge’s decision to consent or not must reflect a reasoned
exercise of judgment and be guided by the overall purposes
to be served by the decision to be made. I agree with the
majority, then, that among the appropriate factors for a
trial judge to consider are the extent to which the waiver
will ensure a speedy and economic resolution of a case and
will fully protect a defendant’s rights. Id. at 260. But as the
majority also recognizes, the equation is not one-sided. See
id. at 260-61 (acknowledging that trial judge should consider
prosecutor’s position). In being urged to vote for the 1932
amendment, voters were specifically told that conditioning
the jury waiver on the trial judge’s consent would ensure
that the state’s interests, as well as those of the defendant,
would be equally considered by the trial judge. Official
Voters’ Pamphlet at 6; see also State v. Baker, 328 Or 355,
364, 976 P2d 1132 (1999) (trial judge, in deciding whether to
consent to jury waiver, should “consider and give due weight
to the preferences of the district attorney.”). Consequently,
a trial judge appropriately should consult and consider the
position of the prosecutor as well as that of the defendant.
And finally, I agree with the majority that this court should
not now attempt to anticipate all circumstances that might
inform a trial judge’s decision whether to consent to a jury
waiver. 353 Or at 261 (“[I]t is difficult to anticipate the
variety of circumstances that might prompt a prosecutor
to express a preference for or against a defendant’s jury
waiver in an individual case.”). It is enough, for present
purposes, to sketch the appropriate factors that may inform
the consent decision in broad strokes, leaving it to future
cases with developed records to explore the legitimacy of
considerations not presented in these cases.9
9
As one authority on criminal procedure observes, sensible rationales exist
for requiring judicial consent to a jury waiver in a criminal case. They include
Cite as 353 Or 247 (2013) 275
III.  DISPOSITION OF THESE CASES
A.  State v. Wilson
As I have described, I agree with the majority that we
should reverse the judgment in State v. Wilson and remand
for further proceedings. The excerpts of the record set out
in the majority opinion reveal that the prosecutor in Wilson
objected to defendant’s request to waive a jury, arguing that
the mental state at issue—extreme indifference to the value
of human life—was a community standard better resolved
by a jury than a judge. 353 Or at 251. The record does not
show, however, that the trial judge relied on the prosecutor’s
reasons for objecting to a jury trial or that the trial judge
otherwise independently assessed what weight to give to the
prosecutor’s stated concern. Instead, the trial judge made it
clear that he generally requires the mutual consent of the
prosecutor and the defendant to proceed with a bench trial,
and here, because the prosecutor objected, that was “the end
of the matter.” In denying the request on that ground, the
trial judge abused his discretion by failing to make his own
independent and informed decision. Instead, the trial judge
effectively delegated his consent to the prosecutor, which he
may not do. See Baker, 328 Or at 364 (legislature may not
by statute require prosecutor’s consent to bench trials as a
condition of granting them, because the constitution “grants
to only one person,” the trial judge, the discretionary choice
to deny a criminal defendant in a noncapital case the right to
waive trial by jury); State v. Larson, 325 Or 15, 26, 933 P2d
958 (1997) (legal error for trial court to decline to exercise
discretion when it has obligation to make discretionary
decision). For that reason, I agree that the appropriate
disposition in Wilson is to reverse the judgment and remand
to the circuit court for further proceedings.
giving the judge latitude to play the role that she or he believes will best protect
the defendant, instilling community confidence in the outcome of the case,
obtaining valuable jury input on matters of witness credibility and community
standards, ensuring that juries continue to have a role in criminal proceedings,
and preventing use of jury waivers to manipulate the trial process in illegitimate
ways (such as trying to force severance of charges in circumstances where the
state is entitled to join them). LaFave, 6 Criminal Procedure § 22.1(h) at 39
(discussing rationales and citing representative authorities). We need not—and
should not—consider other rationales in the abstract, rather than wait to assess
their appropriateness in a case in which the trial judge has relied on one or more
of those or other considerations.
276 State v. Harrell/Wilson
B.  State v. Harrell
Harrell presents both a different and a closer
question. In Harrell, defendant, at the outset of the case,
invoked his right to trial by jury, rather than waive it and
be tried by a judge. A jury was selected, and a four-day
trial followed. While the jury was deliberating, defendant
advised the court that he wanted to waive jury and consent
to trial by the judge. Defendant explained that he was doing
so at that stage of the proceedings because he believed,
based on a question tendered to the court by the jury, that
the jury was “hopelessly confused.” The prosecutor objected,
urging that the jury’s question may have been inarticulate,
but that it was understandable in the context of the factual
evidence and did not show that the jury was confused. The
prosecutor also relied on the trial judge’s acknowledgment,
in an off-record conference with counsel, that in the judge’s
experience, judges often do not listen to the evidence with
the same focus when presiding as a judge rather than sitting
as a factfinder, which had concerned the judge in this case,
given the late timing of defendant’s motion.
The trial judge denied defendant’s request for
a bench trial. In doing so, the trial judge made clear that
he believed he had no discretion to exercise because of the
timing of defendant’s motion:
“at this stage in the process I don’t think I even have the
discretion—I have the discretion to do it if both sides agree.
I—and I said to you I would be willing to, but I don’t think I
have the discretion to dismiss the jury at this stage.
“* * * * *
“So that’s my reasoning. As I said to you I would be
willing to make the decision, but I don’t think that the law
permits me to do so. So the Motion to Dismiss the Jury and
Waive Jury Trial at this stage is denied.”
In effect, the trial judge believed that, if the parties were to
mutually agree to discharge the jury and proceed before the
judge only, the judge could, through his usual authority to
oversee the proceedings, do as the parties mutually agreed.
But without that agreement, some source of law had to give
defendant the ability to waive jury despite the prosecutor’s
Cite as 353 Or 247 (2013) 277
objection. The trial judge did not believe that Article I,
section 11, gave defendant such a right at that late stage
of the proceeding. Therefore, because the prosecutor was
unwilling to agree to dispense with the jury at that stage
of the proceeding, the trial judge concluded that he had no
power to grant defendant’s motion.
If that were the extent of the record in Harrell, I
would agree that this case should be remanded to the trial
court. The constitution does not expressly dictate the timing
of the defendant’s jury waiver by requiring the waiver to
occur at the outset of the trial. The legislature likely could
require the waiver to occur at an earlier point. Baker, 328
Or at 358 (“Criminal procedure is a subject over which
the legislature generally has plenary authority, subject to
constitutional restrictions.”); see generally State v. Mai, 294
Or 269, 274-77, 656 P2d 315 (1982) (legislature generally
may establish reasonable procedures to be followed in
exercising constitutional rights as long as the procedures
do not result in unfairness; witness could be precluded from
testifying, in appropriate case, because defendant failed to
comply with reciprocal discovery as required by statute).
But the legislature has not done so, and the timing of
defendant’s election to waive a jury—that is, post-trial but
pre-verdict—does not interfere with policies adopted by the
legislature in other related and analogous areas. See, e.g.,
ORS 135.380(2) (defendant may plead guilty, thus waiving
jury trial, at arraignment “or any time thereafter”); ORS
135.365 (“at any time before judgment” court has discretion
to permit plea of guilty to be withdrawn). Consequently, in
my view, the trial judge’s reason for denying the motion in
that initial ruling reflected a legal error.
Again, if that were the extent of the record before us,
I would agree that the case should be remanded for further
proceedings. But that is not the end of the record. As the
Court of Appeals discussed, after trial, but before judgment
was entered, defendant moved the court to reconsider its
decision denying defendant’s waiver of jury trial on the
ground that the court did, in fact, have authority to grant
that waiver during jury deliberations. Harrell, 241 Or App
at 143. The Court of Appeals opinion sets forth extensive
278 State v. Harrell/Wilson
verbatim excerpts from the colloquy that followed on the
record, which transpired over two separate hearings. The
trial judge reiterated the narrow basis of his initial ruling:
“I want to say it, again, that * * * I ruled at that time I didn’t
believe that the defendant had a constitutional right to
waive jury at that stage[.]” Id. at 143. In doing so, he twice
expressly clarified what he was not ruling—he was not
saying that the prosecutor had a veto power over defendant’s
waiver decision. Id. at 143-44.
After that clarification of his initial ruling, the trial
judge then went beyond it and made an alternative ruling.
He explained that, if he was wrong and could exercise his
discretion despite the timing of defendant’s motion, he
would decline to allow the motion. As his reasons, the trial
judge expressly recited: the lateness of the motion; the fact
that, had the judge sat through the trial as the factfinder,
he would have had a greater focus on the factual evidence
and would have taken more notes; and he had a particular
familiarity with a “close witness” for the defense, which he
believed could “be perceived as having some influence on
my decision if I was the trier of fact.” Id. at 144-45. The trial
judge concluded by saying: “[T]o the extent that it is in my
discretion to change my mind and reconsider, I’d have to tell
you that I have reconsidered, but still, having reconsidered,
I *  * believe that my decision was the correct one at the
*
time.” Id. at 145 (emphasis omitted).
The majority concludes that it cannot determine
the basis of the trial judge’s ruling. 353 Or at 265. In my
view, however, the record is clear. The trial judge took
care in articulating on the record what effectively was an
alternative ruling in response to defendant’s motion to
reconsider its initial ruling. That alternative ruling provides
a sound basis for the trial judge’s unwillingess to consent to
defendant’s requested jury waiver. Defendant’s motion to
waive jury came after the four days of trial were concluded,
and the jury had retired to deliberate. By coming so late,
the waiver, if granted, would have cast the judge into a role
that the judge had not prepared throughout the trial to
perform; it would have wasted the jurors’ time and efforts
through a four-day trial, as well as the public’s resources,
Cite as 353 Or 247 (2013) 279
in the form of the extra time and effort expended by the
prosecutor and the judge and court staff; and it would have
risked undermining the integrity of the proceedings and the
confidence in the verdict in multiple ways, including the
fact that the judge was familiar with a key defense witness.
In Harrell, the trial judge’s reasons for denying
defendant’s request to discharge the jury and have the judge
decide the case were self-evidently sound, and they comport
with the letter as well as the spirit of Article I, section 11.
There was no error, and there is no reason to remand the
case to the trial court.
For those reasons, I concur in part and dissent in
part.
Kistler, J., joins this opinion.