In Re Whittaker

¶1(dissenting). I respectfully dissent from the majority’s conclusion that the trial court properly accepted defense counsel’s withdrawal of the juvenile’s demand for a jury trial in the absence of the juvenile’s personal withdrawal, in writing or on the record in open court.

¶2I agree with the majority that there is no federal or state constitutional right to a jury trial in the adjudicative phase of a juvenile delinquency proceeding. McKeiver v Pennsylvania, 403 US 528, 545; 91 S Ct 1976; 29 L Ed 2d 647 (1971); People v Hana, 443 Mich 202, 225; 504 NW2d 166 (1993). I also agree that the jury waiver statute relied on by respondent, MCL 763.3; MSA 28.856, applies in criminal cases only and is inapplicable to this delinquency proceeding.

¶3However, there is no dispute that the Michigan Court Rules provide a juvenile the right to a jury trial in the adjudicatory phase of a delinquency proceeding. MCR 5.911(A) provides:

¶4The right to a jury in juvenile court exists only at the trial.

¶5*32MCR 5.911(B) provides:

A party who is entitled to a trial by jury may demand a jury by filing a written demand with the court within:

(1) 14 days after the court gives notice of the right to jury trial, or

(2) 14 days after the filing of appearance of counsel, whichever is later, but no later than 7 days before trial. The court may excuse a late filing in the interest of justice.

¶6These sections provide the juvenile with a right to a jury trial in the adjudicatory phase of a delinquency proceeding if that right is demanded within the appropriate time frame. However, the problem presented is that no procedure has been established for withdrawal of the jury trial demand once the right has been invoked.

¶7I believe that fundamental fairness1 requires the court to afford additional procedural safeguards to the juvenile once the juvenile has exercised the right to demand a jury trial. This is particularly true in a situation such as this, where it is unreasonable to expect a juvenile to contradict the defense counsel’s withdrawal of this right. Thus, I would hold that once a juvenile has made a demand for a jury trial, the following procedural safeguards must be afforded to the juvenile to ensure that the juvenile’s withdrawal of a jury demand is made knowingly and voluntarily. The juvenile must personally withdraw the demand for a jury trial. This withdrawal may not be made by the juvenile’s attorney, regardless of whether the juvenile is or is not present. The juvenile may withdraw the jury trial demand in writing and must file this writing *33with the court. The writing must state that the juvenile has made this decision knowingly and voluntarily after receiving the advice of counsel. The juvenile may also withdraw the demand for a jury trial in open court, at which time the court must address the juvenile personally, on the record, in order to ensure that the juvenile’s withdrawal of the jury demand is knowing and voluntary.

¶8I would reverse.