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No jury waiver [NOT FINAL]

By Randall Hodgkinson

Washburn student intern Staci Lane and I won in State v. Neria, No. 97,050 (Kan. App. March 7, 2008), reversing a conviction in a Shawnee County drug prosecution. Although we lost on a suppression issue, the COA reversed the bench trial conviction due to failure to ever get a jury trial waiver on the record. At the end of the motion to suppress, defense counsel indicated her belief that the matter would probably be resolved without a jury trial, and the district court put in her notes that the jury trial was waived, but no such waiver was ever made on the record. And Kansas law makes it pretty clear that the waiver has to be affirmative, by the defendant (not the attorney), and either on the record or in writing.

The state attempted to use a case that suggested that if a defendant does not raise an issue regarding improper jury waiver at the trial court, he or she cannot raise it on appeal for the first time. But, in the cases cited by the state, there was a waiver on the record. The defendant in those cases were saying there was some problem with the waiver (i.e. they had been coerced or that the colloquy's were insufficient) and the appellate courts in those cases said the record didn't support those claims. Here, where there was no waiver at all, the COA held that the issue was fundamental and could be raised on appeal.

Full post as published by Kansas Defenders on March 07, 2008 (boomark / email).