Sunday, December 20, 2009

Can a Defendant "Un-waive" his Jury Waiver?

If a defendant submits a written waiver of his right to a jury trial in accordance with Article 1.13 of the Texas Code of Criminal Procedure, can he later reassert that right?  And if so, how does he do it?

In a recent published opinion, the Texas Court of Criminal Appeals considered this issue.  See Hobbs v. State.  Justice Cochran delivered the opinion of the court, wherein he stated:
"once the defendant validly waives his right to a jury trial, he does not have an unfettered right to reassert that right."
However, the CCA noted, that if the defendant can show an "absence of adverse consequences," the trial court may, in his discretion, allow the defendant to reassert his right to a jury trial.

What exactly is the burden on the defendant to show an "absence of adverse consequences?"  Per the CCA:
"He must establish, on the record, that his request to withdraw his jury waiver has been made sufficiently in advance of trial such that granting his request will not:  (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the state.  If the defendant's claims are rebutted by that State, trial court, or the record itself, the trial judge does not abuse his discretion in refusing to allow the withdrawal of the waiver."
Whether a defendant is allowed to reassert his right to a jury trial after making a written waiver is very much dependent upon the facts of the particular case.  In Hobbs, the court denied the defendant's request to continue the start of the case and reassert his right to a jury trial because to do so could have allowed the defendant to continue his efforts at witness tampering, which could result in prejudice to the State.  The trial court's denial, according to the 5th Court of Appeals and the CCA, was not an abuse of discretion.

TAKEAWAY:  Do not submit a written jury waiver unless and until you are sure that it is the right move.