You may ask to have a judge decide guilt, but a criminal jury waiver requires your personal, express decision in open court, your defense counsel’s consent, and the prosecutor’s consent. The judge checks that your waiver is valid; the judge does not have an independent policy veto once the required parties validly consent. California Constitution, article I, section 16; Penal Code section 1042; People v. Scott.
Understand the choice before making it
In a jury trial, jurors decide the facts and the judge rules on law and procedure. In a bench trial, the judge decides the facts and applies the law. The prosecution’s burden of proof does not change. Discuss with counsel the evidence, defenses, admissibility disputes, community considerations, and whether the judge has already heard information that could matter.
The waiver must be yours—not just a decision by counsel or a signature on a form. The California Supreme Court has described the personal waiver as express, knowing, intelligent, and voluntary. The prosecutor must also agree. A judge may ask questions to confirm the choice, but there is no one mandatory script that must be recited in every case. In People v. Sivongxxay, the court offered guidance about explaining jury mechanics and a judge-alone trial while treating that guidance as advisory rather than rigid wording. People v. Sivongxxay.
Check the scope of any waiver
Confirm exactly which counts and allegations the proposed waiver covers and whether the case has special-circumstance or penalty-phase issues. Capital cases can involve separate requirements for different stages, so the ordinary guilt-phase discussion should not be assumed to answer every phase. People v. Scott also illustrates why waiver scope can matter in a capital case. People v. Scott.
Before agreeing, ask counsel to explain the record that will be made and what facts the judge will decide. A jury waiver is consequential and should be considered with advice about the actual charges and evidence. The Law Offices of David S. Chesley handles California criminal trials. Call (800) 755-5174 to discuss the choice and case posture.