This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
The law governing the waiver by the accused of his constitutional right to a trial by jury in criminal actions, or to a trial by than twelve jurors, and, indeed, the waiver of any constitutional guaranty, is not in a clearly determined condition. In cases arising under state constitutions, inharmonious doctrines have been declared. In some jurisdictions the position has been taken that the guaranties are intended merely for the benefit of the accused and may, therefore, be waived. In other States the courts have held that the guaranty of jury trial in criminal cases one in which the State also has an interest, and which for that reason may not be waived. In some courts, a third view is taken that the jury is essential to give the court jurisdiction, and that while in case of a plea of guilty, the court may at once pronounce judgment, because there are no facts to be determined, where the plea is not guilty, an issue is raised which only a jury is competent to decide,34
In the United States Supreme Court it has been held in Schick v. United States35 that jury trial may be waived in the trial of minor offenses. The constitutional provision, it is said, must be interpreted in the light of the common-law practice as it existed at the time of the adoption of the Constitution, and this practice, as shown by Blackstone's Commentaries, which the court quotes, was that while the word "crimes" technically included misdemeanors as well as felonies, in common usage, a crime denoted "such offenses as one of a deeper and more atrocious dye," and that it is in this sense that the word is used in the constitutional requirement that the trial of all crimes shall be by jury. Public policy, it is declared, does not demand that the lesser offenses, termed misdemeanors, shall be tried by jury, and "where there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." 36
In Dickinson v. United States,37 however, the Circuit Court of Appeals for the First Circuit held that a cashier indicted for "the unlawful conversion of certain moneys, funds of credit" described as a misdemeanor by Section 5209 of the Revised Statutes, could not consent to a trial by a jury of less than twelve. In this case the court distinguished between the provisions of the first ten amendments which are declared to be in the nature of a Bill of Bights for the benefit of the individual, and the requiremerits of the Constitution as originally adopted, which establish a form of government which may not be altered by the individual.
34 See note in Columbia Law Review, VIII (1908), 577, and authorities there quoted.
35 195 U. S. 65; 24 Sup. Ct. Rep. 826; 49 L. ed. 99.
36 Justice Harlan dissented in an elaborate opinion, citing inter alia, Hopt v. Utah, 110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. 620; 42 L. ed. 1061; Cancemi v. People, 18 N. Y. 128; Hill v. People, 16 Mich. 351; State v. Carman, 63 Iowa, 130; State v. Mansfield, 41 Mo. 470; Wilson v. State, 16 Ark. 601; Work v. Ohio, 2 Ohio St. 296; U. S. v. Taylor, 3 McCrary, 500.
37 159 Fed. 801.
The right of the accused to waive jury trial in cases of felony has never come before the Supreme Court; but in Lewis v. United States38 that court held that, in felonies, the presence of the accused could not be waived either by himself or by counsel. The record must show, affirmatively, the presence of the prisoner in court during the trial.39 It would seem that, in this case at least, the Supreme Court held that a right guaranteed by the Amendments, as distinguished from those in the body of the Constitution, might not be waived.40