Chapter One: Pre-Trial Considerations

1.1 Right To A Jury Trial
             A.    Civil Actions
             B.    Criminal Actions
             C.    Waiver Of Jury Trial
             D.    Stipulations Re Elements (Criminal)    

A MANUAL OF JURY TRIAL PROCEDURES 2004

Rule 38, Fed. R. Civ. P., acknowledges the Seventh Amendment and statutory right to a jury trial, where such a demand has been timely made. The failure to make the demand constitutes waiver of jury trial of a civil action. Rule 39(a)(1), Fed. R. Civ. P., provides for jury trial of all appropriate jury issues demanded unless the parties stipulate to trial by the court without a jury or the court finds that the right to jury trial does not exist on some or all of the issues demanded. Where a party fails to demand a jury in an action in which such a demand might have been made as a matter of right, the court has the discretion, upon motion under Rule 39(b), Fed. R. Civ. P., to order a trial by jury of any or all issues. Rule 39(c), Fed. R. Civ. P., authorizes the court "in all actions not triable of right by a jury" to try any issue with an advisory jury or (except in specified circumstances) with a stipulation, a jury "whose verdict has the same effect as if trial by jury had been a matter of right."

In order to determine whether a civil action gives rise to a jury trial right, the court must examine the issues involved and the remedy sought. This determination requires the court (1) to compare the statutory action to the 18th century actions brought in the courts of England prior to the merger of law and equity courts, and (2) to examine the remedy sought and determine if it is legal or equitable in nature. This second inquiry is the more important one. See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346-55 (1998); Markman v. Westview Instruments, Inc., 517 U.S. 370, 377 (1996); Wooddell v. Int'l Bhd. of Elec. Workers, 502 U.S. 93, 97 (1991).

1. No Right to Jury Trial

a. ERISA. Because ERISA remedies are equitable in nature, plaintiff has no right to a jury trial. Spinelli v. Gaughan, 12 F.3d 853 (9th Cir. 1993).

b. Title VII Injunctive Relief. There is no right to a jury trial as to the issuance of injunctive relief in a Title VII action. Dombeck v. Milwaukee Valve Co., 40 F.3d 230 (7th Cir. 1994).

c. Civil Enforcement Action for Disgorgement of Profits. A civil enforcement action by a federal agency seeking disgorgement of illicit profits does not give rise to a jury trial right. Disgorgement of profits is equitable in nature even though it involves a claim for money. Because the court is not awarding damages to which the plaintiff is legally entitled, but is simply exercising discretion to prevent unjust enrichment, no jury trial right exists. S.E.C. v. Rind, 991 F.2d 1486, 1492-93 (9th Cir.), cert. denied, 510 U.S. 963 (1993).

d. Federal Tort Claims Act. A plaintiff has no right to a jury trial in an action against the United States under the Federal Tort Claims Act, 28 USC 1346. See 28 USC 2402; Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000). However, a party is entitled to a jury trial if the claim is one against the United States for "recovery of any internal-revenue tax . . . ." under 28 USC 1346(a)(1). 28 USC 2402.

e. Jones Act. In a case brought solely under the Jones Act, the defendant does not have the right to a jury trial. Craig v. Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir.) (interpreting 46 U.S.C. App. § 688 as allowing only plaintiff to demand a trial by jury), cert. denied, 513 U.S. 875 (1994).

2. Right to Jury Trial

a. Generally. The Seventh Amendment of the United States Constitution entitles a plaintiff to a jury trial where money damages are sought. Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991).

b. Civil Action for Failure to Provide Tax Information. The Seventh Amendment guarantees a jury trial to determine a defendant's liability where the government seeks civil penalties for the defendant's willful failure to provide the government certain tax return information. United States v. Nordbrock, 941 F.2d 947, 948 (9th Cir. 1991).

c. Bivens Action. A damage claim brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), entitles either side to a jury trial. Burns v. Lawther, 53 F.3d 1237, 1240 (11th Cir. 1995).

d. Civil Rights Act of 1991. A party to an action under the Civil Rights Act of 1991 in which compensatory and punitive damages are sought is entitled to a jury trial. 42 USC 1981a(c)(1).

e. 42 USC 1983 Civil Rights Actions. A plaintiff seeking damages in a civil rights action brought pursuant to 42 USC 1983 has the right to a jury trial. See, e.g., Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1426-27 (9th Cir. 1996), aff'd, 526 U.S. 687 (1999).

f. Title VII. A plaintiff seeking compensatory damages in a Title VII action is entitled to a jury trial. 42 USC 1981a(c)(1). See, e.g., Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997).

g. Copyright Act. A party is entitled to a jury trial on statutory damages sought pursuant to the Copyright Act, 17 USC 504(c). Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 342 (1998); in light of Feltner, the court may wish to consider whether a party is entitled to a jury trial on the amount of statutory damages in cases brought under other statutes.

a. Felony. Article III, Section 2, of the U.S. Constitution states: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . ." This has been interpreted as meaning that a criminal "defendant is entitled to a jury trial unless the particular offense can be classified as 'petty.'" Frank v. United States, 395 U.S. 147, 148 (1969) (citations omitted).

c. Petty Offense. Petty criminal offenses may be tried without a jury. District of Columbia v. Clawans, 300 U.S. 617 (1937). A petty offense is a Class B misdemeanor, a Class C misdemeanor, or an infraction, for which the maximum fine is no greater than that set forth in 18 USC 3571(b)(6) or (7) or (c)(6) or (7). 18 USC 19; see also 18 USC 3581(b) (maximum term of imprisonment for Class B misdemeanor is six months). "Where the maximum term of imprisonment is six months or less, there is a very strong presumption that the offense is petty and defendant is not entitled to a jury trial." United States v. Ballek, 170 F.3d 871, 876 (9th Cir.), cert. denied, 528 U.S. 853 (1999). "Any offense punishable by a prison term of six months or less is presumed to be petty. This presumption may be overcome if there are objective indications that the legislature regards the offense as serious." United States v. Clavette, 135 F.3d 1308, 1309-10 (9th Cir.) (crime of killing a grizzly bear in violation of the Endangered Species Act, punishable by imprisonment for six months and/or a $25,000 fine, held to be a petty offense), cert. denied, 525 U.S. 863 (1998). Where "a very large fine, or a very long period of probation, or the forfeiture of substantial property" is imposed, a petty offense may be converted into a more serious offense. United States v. Ballek, 170 F.3d at 876 (restitution did not turn a petty offense into a serious offense).

a. Waiver in general. Rule 23(a), Fed. R. Crim. P., provides that if the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. The right to a jury trial may only be waived if the following four conditions are met: (1) the waiver is in writing; (2) the government consents; (3) the court accepts the waiver; and (4) the waiver is made voluntarily, knowingly, and intelligently. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997) (citations omitted).

b. Waiver by Defendant. A defendant may waive the right to a jury trial, but the judge may be required to engage in a colloquy with the defendant regarding the waiver. United States v. Christensen, 18 F.3d 822, 826 (9th Cir. 1994) (indepth colloquy required for waiver where court has reason to suspect a defendant may suffer from mental or emotional instability); Brown v. Burns, 996 F.2d 219 (9th Cir. 1993) (extended colloquy regarding right to a jury trial and differences between bench and jury trials, and record of defendant's express waiver of his right to a jury trial, was sufficient to satisfy constitutional requirement of a knowing, intelligent and voluntary waiver of the right to jury trial, notwithstanding failure to comply with Nevada law requiring defendant to execute signed written waiver of the right to jury trial); United States v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir. 1992) (knowledge of the right to participate in the selection of jurors is not constitutionally required for a knowing, voluntary and intelligent jury waiver), cert. denied, 508 U.S. 961 (1993).

c. Waiver by Government. There is no Sixth Amendment right to waiver of jury trial. Rule 23(a), Fed. R. Crim. P., provides for waiver with the consent of the government. The government is not required, however, to state reasons for refusing such consent. United States v. Reyes, 8 F.3d 1379, 1390 (9th Cir. 1993) (citing Singer v. United States, 380 U.S. 24, 37 (1965)) ("We need not determine in this case whether there might be circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial.")

Once a timely demand for a jury has been made, all parties must agree to waiver of the right to a jury trial. Fed. R. Civ. P. 38(d); Fed. R. Civ. P. 39(a)(1). See DePinto v. Provident Sec. Life Ins. Co., 323 F.2d 826, 832 (9th Cir. 1963) (failure to demand a trial by jury does not constitute a waiver if such a demand is withheld in reliance upon a demand filed by another party, and if withdrawal of the latter demand is not consented to), cert. denied, 376 U.S. 950 (1964). But see White v. McGinnis, 903 F.2d 699, 700 (9th Cir.) (knowing participation in a bench trial without objection constitutes waiver of a timely jury demand), cert. denied, 498 U.S. 903 (1990); Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1304 (9th Cir.) (the consistent efforts of a party to defeat another party's jury request demonstrated the first party's failure to rely on this request and constituted a waiver by the first party of its rights under Rules 38(d) and 39(a)), cert. denied, 464 U.S. 916 (1983).

A stipulation involving all of the elements of the offense requires a finding that the defendant voluntarily and intelligently chose to enter the stipulation. Adams v. Peterson, 968 F.2d 835 (9th Cir. 1992) (en banc), cert. denied, 507 U.S. 1019 (1993).

"A stipulation is valid and binding if the defendant understands the contents of the stipulation, the nature of the stipulated-facts trial, and the likelihood of a guilty finding." Adams, 968 F.2d at 844.

"[A] defendant's stipulation to an element of an offense does not remove that element from the jury's consideration." Old Chief v. United States, 519 U.S. 172, 200 (1997) (O'Connor, J, dissenting) (acceptance of a stipulation regarding prior conviction may be appropriate even where government objects under Fed. R. Evid. 403).

A stipulation of facts constituting a de facto guilty plea may trigger procedural protections guaranteed by Boykin v. Alabama, 395 U.S. 238, 243 (1969) (at change of plea proceeding defendant is entitled to be advised of constitutional rights being given up, including (1) "privilege against compulsory self-incrimination;" (2) "right to trial by jury;" and (3) "right to confront one's accusers"). Adams, 968 F.2d at 846.