People v. Johnson, 2019 IL App (1st) 162517 (March).Episode 614 (Duration 11:45)

No valid jury waiver in the record even though he apparently signed the waiver form.

Episode 614 Spring Extravaganza

Subscribe: Apple Podcasts | Google PodcastsSpotify | Android | RSS | Direct Download





Defendant was charged with armed violence (720 ILCS 5/33A-2(a)), possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(1)(B)), and the unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a)).

Trial Date Set

After the court discussed defendant’s decision to reject the plea with defendant, the court asked for a trial date and “what kind of trial.”

Defense counsel answered “bench.”

The cause was continued “for bench indicated.”

The file was placed on the bench trial call. On the trial date the case was then passed. When the case was recalled, the court stated that the parties “answered ready for a bench trial in this matter.” Defendant’s signed jury waiver is contained in the record on appeal, and the “Criminal Disposition Sheet” indicates “waiver taken.”

Found Guilty

After a bench trial the court found defendant guilty of armed violence, possession of heroin with the intent to deliver, and the unlawful use or possession of a weapon by a felon.

The trial court merged the unlawful use or possession of a weapon count into the armed violence count and sentenced defendant to 15 years in prison for armed violence. The court also sentenced defendant to a consecutive nine-year sentence for possession of heroin with the intent to deliver.


On appeal, defendant contends that this cause should be remanded for a new trial because he did not waive his right to a jury in open court.

Right To Jury Trial

The right to a jury trial is protected by the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and has been codified by the Illinois legislature.

The right to a jury trial is a fundamental right guaranteed by our federal and state constitutions. People v. Bannister, 232 Ill. 2d 52, 65 (2008). Although the right to a jury trial is fundamental, a defendant remains free to waive that right. Bracey, 213 Ill. 2d at 269.

Any such waiver must be “understandingly” made by the defendant in open court. 725 ILCS 5/103-6. Under section 103-6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-6), a bench trial may be held if the right to a jury trial is

“understandingly waived by defendant in open court.”

A written waiver as required by section 115-1 of the Code of Criminal Procedure of 1963, is one means of establishing a defendant’s intent, although not dispositive of a valid waiver. This section provides that

“[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.”

An Effective Waiver

Generally, a jury waiver is valid if it is made by defense counsel in open court in the defendant’s presence, without objection by the defendant. Id. at 270. “For a waiver to be effective, the court need not impart to defendant any set admonition or advice.” Id. (citing People v. Smith, 106 Ill. 2d 327, 334 (1985)).

Therefore, “the effectiveness of a defendant’s waiver depends on the facts and circumstances of each particular case” and turns on “whether the waiving defendant understood that his case would be decided by a judge and not a jury.” See People v. Reed, 2016 IL App (1st) 140498, ¶ 7 (citing Bannister, 232 Ill. 2d at 66, 69).

A reviewing court can consider a defendant’s silence when his attorney requests a bench trial as well as his “prior interactions with the justice system in determining whether a jury waiver was made knowingly. See also People v. Asselborn, 278 Ill. App. 3d 960 (1996) where the the court found that, despite the absence of a written jury waiver, the record demonstrated that the defendant knowingly waived his right to a jury trial in open court because he was present and failed to object when defense counsel elected to proceed by way of a bench trial. 

Signed Waiver Insufficient

Although the record contains defendant’s signed jury waiver, the record contains nothing that shows defendant was informed he was entitled to choose between a jury or bench trial or that he waived his right to a jury trial on the record. In other words, there is no indication in the record that defendant “understandingly waived” (725 ILCS 5/103-6) his right to a jury trial in open court.

Furthermore, while defense counsel mentioned a bench trial several times on the record, counsel did so only in the context of scheduling and at no point waived the right to a jury trial on defendant’s behalf. See, e.g., People v. Watson, 246 Ill. App. 3d 548, 549 (1993) (“Vague references to a bench trial at the rescheduling conferences were not sufficient to constitute a valid jury waiver, especially in light of the fact that the record is devoid of evidence suggesting that the defendant was ever apprised of his right to a jury trial.”).

See also People v. Ruiz, 367 Ill. App. 3d 236, 239 (2006) where this court has previously held, in a case where there was no discussion in open court of the defendant’s jury waiver but merely a signed jury waiver and discussion of a bench trial in terms of scheduling, that the defendant did not validly waive his right to a jury trial.

In other words, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid.

In the case at bar, however, the trial court did not ask whether defendant wanted a bench trial or a jury trial, which would have indicated that defendant could choose how to proceed. There was no indication in the record that defendant knew he had a choice between a bench trial or a jury trial, and there was no discussion of defendant’s signed jury waiver in open court.


Accordingly, we find that defendant’s right to a jury trial was violated and he has, therefore, met his burden under the plain error doctrine.

Here, defense counsel and the trial court mentioned a bench trial several times on the record in the context of scheduling. This is not a valid jury waiver by, or on behalf of, defendant. Accordingly, we reverse the judgment of the circuit court and remand this cause for a new trial without reaching defendant’s other arguments on appeal. 

Compare This Case To…

People v. Thomas, 2019 IL App (2d) 160767 (March)

In that case defendant refused to sign the jury waiver but still wanted a bench trial.

However, the failure to file a written jury waiver does not require reversal “so long as the defendant’s waiver was made understandingly in accordance with section 103-6 of the Code of Criminal Procedure.” People v. Tooles, 177 Ill. 2d 462, 468 (1997).

The trial court is not required to provide a defendant with any particular admonishment or information regarding the constitutional right to a jury trial, but it has a duty to ensure that any waiver of that right is made expressly and understandingly. People v. Hernandez, 409 Ill. App. 3d 294, 297 (2011).

“Regardless of whether the defendant executed a written jury waiver, the record must show that the defendant understandingly relinquished the right to a jury trial.”

Here, the trial court discussed defendant’s jury waiver at length in the presence of his attorney, who had also discussed the matter with him. He clearly didn’t want a jury trial.

See Also These Other Examples of Structural Error

Before You Go…

If you are an Illinios attorney and keeping up with the case law is important to you then you’ll enjoy these free gifts I have for you…