A. Civil Actions.
Parties to a civil action may agree to waive their right to trial by jury.23 Consistent with this, parties can include in their contracts a provision mandating binding arbitration.24 Apart from an agreement, certain unilateral actions can constitute a waiver of the right to a jury trial. For example, a plaintiff, by filing an action in the Court of Common Pleas, waives the right to a jury trial.25 It has also been held that a party waives the right to trial by jury by failing to appear at trial.26 It has also been said that a party who files an action in the Court of Chancery waives the right to a jury trial.26.1
In civil actions in the Superior Court, to preserve the right to a jury trial a party must affirmatively demand a trial by jury on an issue triable of right by a jury by serving upon the other parties a demand in writing at any time after the commencement of the action but not later than ten days after the service of the last pleading directed to such issue.27 In many cases plaintiffs include a demand in their complaint. A demand may also be included in a responsive pleading or counterclaim. In making a demand for trial by jury, a party may specify the issues which the party wishes to be so tried; otherwise, the party is deemed to have demanded trial by jury for all triable issues.28 Subsequently, a request for withdrawal of a demand for trial by jury may be made by stipulation of the parties.29 The failure of a party to serve a demand for trial by jury within the specified time limits constitutes a waiver by that party of trial by jury.30
B. Criminal Actions.
Trial by jury automatically attaches in criminal cases unless a criminal defendant intelligently and voluntarily waives the right in writing, the court approves of such waiver and the State consents.31
A criminal defendant has no constitutional right to be tried by the court without a jury.32 The decision whether to accept a waiver is within the discretion of the trial judge.33 A court, therefore, can deny a request for a non-jury trial, if circumstances warrant it.33.1
The court should be assured that the waiver is knowing, intelligent and intentional. While it is preferred that a court engage in an oral interrogation on the record to satisfy itself that these requirements have been met, the use of a waiver form explicitly explaining the effect of a waiver has been deemed to be effective.33.2 It remains in the discretion of the trial judge to employ the means most appropriate in a particular case to ascertain on the record in a colloquy that the defendant understands the fundamental attributes of a jury trial before accepting a waiver.33.3 It is recommended that trial courts explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection of jurors, and that the verdict of the jury is unanimous. The courts should inform the defendant that if he or she waives a jury, the judge alone will decide guilt or innocence. After informing the defendant of these factors, the trial court should then ascertain whether the defendant wishes to waive his or her right to a jury trial.33.4
If the waiver of the right to trial by jury has been expressly conditioned upon a certain event or condition, the failure of that event or condition will permit the waiving party to withdraw that waiver. Thus, where a plaintiff waived the right to a jury trial in the second phase of a bifurcated trial on the condition that the judge who presided over the first phase be the judge to preside over the second phase, and a different judge presided over the second phase, it was held that there was no express and unconditional waiver of the right to a jury trial, and proceeding without a jury violated Delaware’s Constitution.33.5
23. Del. Const. art. IV, § 20.
24. Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 912 (Del. 1989). Such agreements may be specifically enforceable by the Court of Chancery. 10 Del. C. §§ 5701, 5703.
25. 10 Del. C. § 1320(a). See also Donehower v. Magic Chef, Inc., C.A. No. 81A-JA-7, slip op. at 3, Walsh, J. (Del. Super. Aug. 8, 1981). Any party other than the party commencing the action in the Court of Common Pleas may obtain a trial by jury, however, by making a written demand and depositing with the clerk of the court the amount necessary for the commencement of an action in the Superior Court. 10 Del. C. § 1320(b). Failure to make such a demand constitutes a waiver of the right to trial by jury. 10 Del. C. § 1321(c). A properly made demand for trial by jury results in the action being removed to the Superior Court. 10 Del. C. § 1321(d).
26. Elliott v. Gaster, Nos. 269 & 271, 1980, slip op. at 4, Horsey, J. (Del. Aug. 26, 1982) (ORDER), disposition reported at 454 A.2d 763 (Del. 1982) (TABLE).
26.1. Sokol Holdings, Inc. v. Dorsey & Whtiney, LLP, C.A. No. 3874-VCS, slip op. at 13, Strine, V.C. (Del. Ch. Aug. 5, 2009).
27. Super. Ct. Civ. R. 39(b).
28. Super. Ct. Civ. R. 39(c).
29. Super. Ct. Civ. R. 38(e); Super. Ct. Civ. R. 48.
30. Super. Ct. Civ. R. 38(e).
31. Super. Ct. Cr. R. 23(a); Sudler v. State, 611 A.2d 945, 947 (Del. 1992); Polk v. State, 567 A.2d 1290, 1294 (Del. 1989); Fetters v. State, 436 A.2d 796, 798 (Del. 1981).
32. Davis v. State, 809 A.2d 565, 568 (Del. 2002); Polk v. State, 567 A.2d 1290, 1294 (Del. 1989); Longoria v. State, 168 A.2d 695, 698 (Del. 1961), cert. denied and appeal dismissed, 368 U.S. 10 (1961).
33. Deshields v. State, 706 A.2d 502, 509 (Del. 1998); Fetters v. State, 436 A.2d 796, 798 (Del. 1981).
33.1. E.g., Deshields v. State, 706 A.2d 502, 509 (Del. 1998); State v. Caliboso, Nos. 0004019366 & 0004004124, Goldstein, J. (Del. Super. Oct. 18, 2001).
33.2. Davis v. State, 809 A.2d 565, 568-71 (Del. 2002); Behr v. State, C.A. No. 94A-05-004, slip op. at 5-6, Terry, J. (Del. Super. Mar. 14, 1995), app. dismissed mem., 660 A.2d 393 (Del. 1995).
33.3. Davis v. State, 809 A.2d 565, 571 (Del. 2002).
33.4. Davis v. State, 809 A.2d 565, 571 (Del. 2002).
33.5. Behr v. State, C.A. No. 94A-05-004, slip op. at 5-6, Terry, J. (Del. Super. Mar. 14, 1995), app. dismissed mem., 660 A.2d 393 (Del. 1995).
© 2010 David L. Finger