2017 ORS 136.001¹
Right to jury trial
  • waiver

(1) The defendant and the state in all criminal prosecutions have the right to public trial by an impartial jury.

(2) Both the defendant and the state may elect to waive trial by jury and consent to a trial by the judge of the court alone, provided that the election of the defendant is in writing and with the consent of the trial judge. [1973 c.836 §221; 1997 c.313 §21]

Notes of Decisions

The failure to object to an instruc­tion that five of six jurors could reach a verdict constituted a waiver, even though verdicts by jury of less than twelve must usually be unanimous. State v. Robinson, 22 Or App 340, 539 P2d 164 (1975)

District Court rule, providing that failure to attend pretrial conference constituted waiver of jury trial, was insufficient to es­tab­lish valid waiver where written request for jury trial had been made at arraign­ment and defendant had made no state­ment waiving right to jury. State v. Wiik, 31 Or App 571, 570 P2d 1021 (1977), Sup Ct review denied

Where mo­tion to withdraw waiver of jury trial was made on day of trial and was based on trial strategy only, mo­tion was properly denied. State v. Villareall, 57 Or App 292, 644 P2d 614 (1982)

Where no formal, written waiver of jury trial executed by defendant appeared in trial court file, reversal of con­vic­­tion and remand for new trial were re­quired. State v. Milstead, 57 Or App 658, 646 P2d 63 (1982), Sup Ct review denied

Although attorney’s state­ments are normally binding on client, it would be improper to presume express, knowing waiver of con­sent to be tried without jury from defendant’s failure to object to attorney’s ac­tions. State v. Cordray, 91 Or App 436, 755 P2d 735 (1988)

Lack of written waiver of trial by jury was error apparent on face of record warranting new trial. State v. Kendall, 96 Or App 735, 773 P2d 1362 (1989), Sup Ct review denied

Where purpose of voir dire examina­tion was investiga­tion, not persuasion and defendant’s counsel chose not to use two opportunities to ques­tion juror fully about views on mi­norities and crim­i­nal justice system, defendant’s right to trial by impartial jury was not violated. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Court refused to reverse con­vic­­tion where defendant failed to execute written waiver of jury trial and rejected trial court’s offer to retry case to jury but sought “automatic reversal” after sen­ten­cing. State v. Lopez-Loaiza, 107 Or App 258, 812 P2d 1 (1991)

Oral waiver of defendant’s right to jury trial is not sufficient. State v. Huntley, 112 Or App 22, 827 P2d 918 (1992)

1997 amend­ments allowing state right to jury trial violate defendant’s right under sec­tion 11, Article I, Oregon Constitu­tion, to waive jury trial. State v. Baker, 328 Or 355, 976 P2d 1132 (1999)

Where defendant signs jury waiver form and verbally informs court that signature indicates waiver of right to jury, failure to check box on form is not plain error that requires appellate court review. State v. Jeanty, 231 Or App 341, 218 P3d 174 (2009), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 136—Criminal Trials, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors136.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 136, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano136.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.