               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43260

STATE OF IDAHO,                                  ) 2017 Opinion No. 38
                                                 )
       Plaintiff-Respondent,                     ) Filed: July 3, 2017
                                                 )
v.                                               ) Karel A. Lehrman, Clerk
                                                 )
IDA PEREZ VASQUEZ,                               )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Power County. Hon. Stephen S. Dunn, District Judge.

       Judgment of conviction, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Ida Perez Vasquez appeals from the judgment of conviction entered following her
conditional plea of guilty to one count of intimidating a witness, in violation of Idaho Code § 18-
2604(3). Vasquez argues she was deprived of her state and federal constitutional right to a jury
trial because although her trial counsel waived her right to a jury trial, Vasquez never personally
waived such right, either orally or in writing. We vacate the judgment of conviction and remand
the case for further proceedings consistent with this opinion.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2009, D.P. made allegations of sexual abuse against her paternal uncle, but later
recanted those allegations. D.P.’s father, paternal uncle, and Vasquez are all siblings. In 2012,
D.P. disclosed additional acts of sexual abuse by the same uncle.           Because of the new
allegations, police officers again investigated the 2009 allegations. During the course of the

                                                 1
2012 investigation, the officers obtained evidence that Vasquez coached D.P. in 2009 regarding
what to say during the recantation. As a result, Vasquez was charged with intimidating a
witness.
        Vasquez initially pleaded not guilty and the case was set for trial. After a failed attempt
at mediation, trial was reset.      The day before trial, Vasquez’s counsel and the prosecutor
informed the district court they intended to waive the right to a jury trial and stipulate to a bench
trial. On the day of trial, the following exchange occurred:
        Court:            Yesterday I was advised by the counsel for parties, both the state
                          and the defendant, that they had stipulated to waive a jury and try
                          this case to the court.
                          Is that right, Mr. Peterson?
        Mr. Peterson:     Yes, Your Honor.
        Court:            Mr. Souza?
        Mr. Souza:        Yes, sir.
        Court:            All right. So the record will reflect that agreement.
        Although Vasquez was present during this exchange, she was never asked by the court
whether she personally agreed to waive her right to a jury trial. Following the bench trial,
Vasquez was convicted of felony intimidating a witness. The district court imposed a unified
sentence of four years, with two years determinate, and placed Vasquez on probation. Vasquez
timely appealed. On appeal, Vasquez argues that the failure of the district court to specifically
ask Vasquez and obtain her waiver of her right to a jury trial constituted a structural defect in the
proceedings, mandating that her conviction be vacated.
                                                 II.
                                             ANALYSIS
           We recognize the Idaho Supreme Court’s opinion in State v. Umphenour, 160 Idaho
503, 376 P.3d 707 (2016). However, because the Supreme Court found that the proceedings in
the district court constituted a guilty plea rather than a bench trial, it did not address whether the
waiver of the right to a jury trial is a right personal to the defendant and consequently, can be
waived only by the defendant. Id. at 507, 376 P.3d 710. Because the issue was not squarely
presented, the Supreme Court specifically declined to address the issue of what constitutes a
valid waiver of the right to a jury trial:
        In holding that [Umphenour’s] waiver of the right to a jury trial could be fairly
        inferred, we are only referring to a waiver of that right in connection with a guilty
        plea. We express no opinion as to whether it would have been adequate had he
        really waived a jury trial and had a court trial.
                                                  2
Id. at 507, 376 P.3d at 711. Here, however, the issue is squarely presented.
       Vasquez did not file a motion for a new trial nor otherwise raise the issue of a violation of
her right to a jury trial in the district court. Therefore, in order to obtain relief on appeal,
Vasquez must demonstrate fundamental error. To do so:
       (1) the defendant must demonstrate that one or more of the defendant’s unwaived
       constitutional rights were violated; (2) the error must be clear or obvious, without
       the need for any additional information not contained in the appellate record,
       including information as to whether the failure to object was a tactical decision;
       and (3) the defendant must demonstrate that the error affected the defendant’s
       substantial rights, meaning (in most instances) that it must have affected the
       outcome of the trial proceedings.
State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010) (footnote omitted).
A.     Clear Violation of a Constitutional Right
       The Sixth Amendment to the United States Constitution and Article I, § 7 of the Idaho
Constitution both preserve a criminal defendant’s right to trial by jury.         Unlike the Sixth
Amendment, however, Article I, § 7 of the Idaho Constitution also directs how that right to a jury
trial may be waived. It states:
       The right of trial by jury shall remain inviolate . . . . A trial by jury may be
       waived in all criminal cases, by the consent of all parties, expressed in open court,
       and in civil actions by the consent of the parties, signified in such manner as may
       be prescribed by law.
       The requirements for a valid waiver of a criminal defendant’s right to a jury trial was
addressed by a special panel of this Court composed of one Supreme Court justice, one senior
Supreme Court justice, and one district judge in State v. Swan, 108 Idaho 963, 703 P.2d 727 (Ct.
App. 1985). There, the defendant’s attorney, on the record in open court at the arraignment and
again on the first day of trial, stipulated in the defendant’s presence to waive the defendant’s jury
trial right and consented to a court trial. Id. at 964 n.1, 703 P.2d at 728 n.1. The district court
thereupon conducted a court trial and found the defendant guilty. The defendant appealed,
contending that his personal waiver in open court was required for a valid waiver of his jury trial
right and that his attorney could not effectively waive that right on the defendant’s behalf. Id. at
964, 703 P.2d at 728. This Court agreed that a defendant’s personal waiver is required, and
therefore reversed the conviction. Id. at 966, 703 P.2d at 730.
       Although the precise source of that requirement is not clearly articulated in the Swan
opinion, we conclude that its holding that a defendant’s personal assent to a waiver is necessary


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was grounded upon Article I, § 7 of the Idaho Constitution. This is evident from the Swan
court’s discussion of State v. Davis, 104 Idaho 523, 661 P.2d 308 (1983), where the Idaho
Supreme Court concluded that a criminal defendant could waive the jury trial protections of
Article I, § 7 in favor of a court trial even though the constitutional provision in effect at the
time 1 did not expressly allow a defendant to do so in a felony case. In Swan, this Court framed
the issue presented as one not decided in Davis--how, in consideration of the newly amended
Article I, § 7, the right to a jury trial is effectively waived in a felony case. Swan, 108 Idaho at
965, 703 P.2d at 729. After considering the importance of the fundamental right to a jury trial as
expressed by the United States Supreme Court and authority from other jurisdictions (whether
based upon statute, court rule, or state constitution) requiring a defendant’s personal waiver, this
Court held that a waiver may not be accepted “unless the defendant, after being advised by the
court of his right to a trial by jury, personally waives his right to trial by jury, either in writing or
in open court for the record.” Id. at 966, 703 P.2d at 730 (quoting American Bar Association
Standards for Criminal Justice, Vol. III, ch. 15, Trial by Jury, § 1.2(b) (1980)). The Court opined
that: “a requirement that the Court personally address the defendant will not constitute an undue
burden on the courts where this very important right is at issue.” 2 Swan, 108 Idaho at 966, 703
P.2d at 730.
        Here, the district court did not discuss with Vasquez her right to trial by jury at which the
State would have the burden of proving her guilt, nor did it obtain Vasquez’s personal waiver of
that right in open court. Vasquez has thus established a clear violation of her right to a jury trial
under Article I, § 7 of the Idaho Constitution, satisfying the first two prongs of the Perry test for
fundamental error. Because we conclude that a defendant’s express personal waiver is required


1
        See State v. Swan, 108 Idaho 963, 965 n.2, 703 P.2d 727, 729 n.2 (Ct. App. 1985).
2
        Our holding that a defendant’s personal waiver is required under the Idaho Constitution is
consistent with the current Idaho Criminal Rules. The year after Swan was decided, the Idaho
Supreme Court adopted a criminal rule that has remained unchanged for nearly thirty years and
sets an even more stringent standard than that expressed in Swan for waiver of a jury trial in a
felony case. Idaho Criminal Rule 23(a) states:
        In felony cases issues of fact must be tried by a jury, unless a trial by jury is
        waived by a written waiver executed by the defendant in open court with the
        consent of the prosecutor expressed in open court and entered in the minutes.




                                                   4
by the Idaho Constitution, we do not address whether the same requirement is imposed by the
Sixth Amendment.
B.     Whether the Error Affected the Defendant’s Substantial Rights
       The remaining issue is whether Vasquez has satisfied the third prong. According to
Perry, that third element requires that: “the defendant must demonstrate that the error affected
the defendant’s substantial rights, meaning (in most instances) that it must have affected the
outcome of the trial proceedings.” Perry, 150 Idaho at 226, 245 P.3d at 978.
       In this appeal, Vasquez makes no argument that the invalid waiver of her right to a jury
trial “affected the outcome of the trial proceedings.” That is, she does not assert the record
demonstrates that, had the district court asked her personally whether she was waiving her jury
trial right, she would have said no or that a jury as the trier of fact would have acquitted. Instead,
Vasquez contends that she is relieved of the burden to show prejudice because a constitutionally
invalid waiver of the right to a jury trial is a structural defect that necessitates reversal without a
demonstration of actual prejudice.
       Vasquez’s structural defect argument implicates the “in most instances” hedge in the
Perry opinion’s articulation of the prejudice prong of the fundamental error test. The inclusion
of that parenthetical qualification is explained in the Perry opinion, where the Idaho Supreme
Court fashioned a new fundamental error test for Idaho courts. In Perry, the Idaho Supreme
Court relied largely upon the United States Supreme Court’s expression in Olano of a three-part
inquiry to determine when federal appellate courts should reverse on grounds of plain error to
which no objection was made in the trial court. Perry, 150 Idaho at 225, 245 P.3d at 977. While
discussing the third prong of the Olano test, the Idaho Supreme Court explained:
       The reason the parenthetical--(in most instances)--was inserted into the third
       prong above is because the U.S. Supreme Court in Olano declined to determine
       whether unobjected to constitutional violations rising to the level of structural
       defects will satisfy the “affect substantial rights” prong without a showing of
       actual affect on the outcome of the case.
               ....
               The State of Idaho shares the same conflicting interests as the federal
       government when it comes to review of unobjected to error, and we find that the
       U.S. Supreme Court struck an appropriate balance between these competing
       interests in their opinion in Olano.
Perry, 150 Idaho at 225-26, 245 P.3d at 977-78 (citations omitted). The Idaho Supreme Court
then adopted the three-pronged fundamental error test stated above, including the third prong


                                                  5
with the “in most instances” parenthetical. It is thus apparent that the Perry Court, like the
United States Supreme Court in Olano, left open the question whether a constitutional violation
rising to the level of structural error would satisfy the third prong without a showing of actual
effect on the outcome of the trial. In view of that question, which is as yet unresolved in Idaho
law, we must determine whether a trial court’s failure to take a valid waiver of a jury trial
constitutes structural error and, if so, whether a showing of structural error satisfies the third
prong of the Perry test.
       1.      A constitutionally invalid waiver of a jury trial is a structural defect
       To answer the first of these inquiries, we again consult the Perry opinion. The Idaho
Supreme Court there discussed structural defects as follows:
               In Arizona v. Fulminante, 499 U.S. 279 (1991), the Court elaborated on its
       statements in Chapman that some constitutional rights are so basic to a fair trial
       that the violation of those rights requires an automatic reversal and is not subject
       to harmless error analysis. Chief Justice Rehnquist, writing for the majority on
       the issue, noted that constitutional error could essentially be broken down to two
       different categories: 1) trial errors “which [occur] during the presentation of the
       case to the jury, and which may therefore be quantitatively assessed in the context
       of other evidence presented in order to determine whether [their] admission was
       harmless beyond a reasonable doubt;” and 2) structural defects which affect “the
       framework within which the trial proceeds, rather than simply an error in the trial
       process itself” and thus are so inherently unfair that they are not subject to
       harmless error analysis. Id. at 307-308, 310. Explaining why certain
       constitutional violations amount to structural defects, the U.S. Supreme Court
       noted that “‘[w]ithout these basic protections, a criminal trial cannot reliably serve
       its function as a vehicle for determination of guilt or innocence, and no criminal
       punishment may be regarded as fundamentally fair.’” Id. at 310 (quoting Rose v.
       Clark, 478 U.S. 570, 577-78 (1986)). See also U.S. v. Gonzalez-Lopez, 548 U.S.
       140, 148 (2006) (“[Structural defects] ‘defy analysis by harmless-error standards’
       because they ‘affect the framework within which the trial proceeds,’ and are not
       ‘simply an error in the trial process itself.’” (quoting Fulminante, 499 U.S. at
       309-10)).
               The U.S. Supreme Court has found that the following errors constitute
       structural defects: (1) complete denial of counsel (Gideon v. Wainwright, 372
       U.S. 335 (1963)); (2) biased trial judge (Tumey v. Ohio, 273 U.S. 510 (1927)); (3)
       racial discrimination in the selection of a grand jury (Vasquez v. Hillery, 474 U.S.
       254 (1986)); (4) denial of self-representation at trial (McKaskle v. Wiggins, 465
       U.S. 168 (1984)); (5) denial of a public trial (Waller v. Georgia, 467 U.S. 39
       (1984)); (6) defective reasonable-doubt instruction (Sullivan v. Louisiana, 508
       U.S. 275 (1993)); and (7) erroneous deprivation of the right to counsel of choice
       (U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006)). Although there may be other
       constitutional violations that would so affect the core of the trial process that they

                                                 6
       require an automatic reversal, as a general rule, most constitutional violations will
       be subject to harmless error analysis. Neder v. U.S., 527 U.S. 1, 8 (1999). (“‘[I]f
       the defendant had counsel and was tried by an impartial adjudicator, there is a
       strong presumption that any other [constitutional] errors that may have occurred
       are subject to harmless-error analysis.’” (quoting Rose v. Clark, 478 U.S. 570,
       579 (1986) (alterations in the original))).
Perry, 150 Idaho at 222-23, 245 P.3d at 974-75.
       An invalid waiver of a jury trial is not within the Perry list of structural defects
theretofore identified by the United States Supreme Court. However, the Perry list does not
purport to be exclusive. The opinion expressly states that there may be other constitutional
violations not yet recognized that would so affect the core of the trial process that they require an
automatic reversal. Id. at 223, 245 P.3d at 975.
       To assess whether an invalid waiver of a jury trial constitutes structural error, we begin
with Fulminante’s instruction that distinguishes between: (1) trial errors “which [occur] during
the presentation of the case to the jury, and which may therefore be quantitatively assessed in the
context of other evidence presented in order to determine whether [their] admission was
harmless beyond a reasonable doubt;” and (2) structural defects which “defy analysis by
harmless-error standards’’ because they “affect[] the framework within which the trial proceeds”
and are not “simply an error in the trial process itself.” Fulminante, 499 U.S. at 307-10. In a
later case, the United States Supreme Court held that an erroneous deprivation of the right to
counsel of choice is structural error, resting its determination primarily upon “the difficulty of
assessing the effect of the error” under harmless error standards. United States v. Gonzalez-
Lopez, 548 U.S. 140, 149 n.4 (2006). Applying these standards, a constitutionally invalid waiver
of a jury trial appears to fit within the category of structural error. It is not an error in the trial
process but a defect in the framework within which the trial proceeds, and the difficulty of
assessing the effect on the trial outcome of an invalid waiver is readily apparent. 3



3
        It might be said that in the present case it is easy to determine that a jury trial would not
result in a different outcome because Vasquez was found guilty following a bench trial. In our
view, that is not a correct analysis for two reasons. First, to determine whether an invalid waiver
of the right to a jury trial is a structural defect, a court should consider the category of defect
generically, not with regard to the circumstances of an individual case. Second, it is impossible
to know whether Vasquez would have proceeded with a bench trial had she first been asked if
she was willing to waive her right to a jury trial where the State would bear the burden to prove
her guilt to a jury of her peers.
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        We note that in Swan, this Court treated the invalid waiver of a jury trial as if it were a
structural defect. This Court reversed the defendant’s conviction with no discussion of any
requirement that the defendant show prejudice (such as by demonstrating that he would not have
waived the right if he had been asked); that his court trial was unfair; or that had the case been
presented to a jury, the result would have been different. 4 The Swan Court did not refer to the
error as a “structural defect,” but that term was not coined by the United States Supreme Court
until several years later in Fulminante.
        The conclusion that a defective jury trial waiver is a structural defect is bolstered by two
United States Supreme Court decisions finding structural error where a defendant’s right to a
jury trial was denied or infringed. In each case, the Court rested its decision on the fundamental
importance of the constitutional right to a jury. In Duncan v. State of Louisiana, 391 U.S. 145
(1968), the defendant was convicted of simple battery at a court trial. The trial court had denied
the defendant’s request for a jury trial because the Louisiana Constitution called for jury trials
only when capital punishment or imprisonment at hard labor could be imposed. Id. The
Supreme Court held that the Sixth Amendment independently guaranteed Duncan the right to a
jury trial in state courts on all criminal charges that do not qualify as petty offenses and that
Duncan’s charge was not a petty offense. Duncan, 391 U.S. at 161-62. In reversing the
conviction without requiring a showing of prejudice, the Duncan Court acknowledged that it did
not believe “that every criminal trial--or any particular trial--held before a judge alone is unfair
or that a defendant may never be as fairly treated by a judge as he would be by a jury,” id. at 158,
but that “our conclusion is that in the American States, as in the federal judicial system, a general
grant of jury trial for serious offenses is a fundamental right, essential for preventing
miscarriages of justice and for assuring that fair trials are provided for all defendants.” Id. at
157-58.    The Supreme Court further emphasized the importance of protecting a criminal
defendant’s right to a jury trial, stating:
        The guarantees of jury trial in the Federal and State Constitutions reflect a
        profound judgment about the way in which law should be enforced and justice
        administered. A right to jury trial is granted to criminal defendants in order to
        prevent oppression by the Government. Those who wrote our constitutions knew
        from history and experience that it was necessary to protect against unfounded

4
        See also State v. Bennion, 112 Idaho 32, 37, 730 P.2d 952, 957 (1986) (stating “[t]he
right to a jury trial is a fundamental right, and must be guarded jealously”).


                                                 8
       criminal charges brought to eliminate enemies and against judges too responsive
       to the voice of higher authority. The framers of the constitutions strove to create
       an independent judiciary but insisted upon further protection against arbitrary
       action. Providing an accused with the right to be tried by a jury of his peers gave
       him an inestimable safeguard against the corrupt or overzealous prosecutor and
       against the compliant, biased, or eccentric judge. If the defendant preferred the
       common-sense judgment of a jury to the more tutored but perhaps less
       sympathetic reaction of the single judge, he was to have it. Beyond this, the jury
       trial provisions in the Federal and State Constitutions reflect a fundamental
       decision about the exercise of official power--a reluctance to entrust plenary
       powers over the life and liberty of the citizen to one judge or to a group of judges.
       Fear of unchecked power, so typical of our State and Federal Governments in
       other respects, found expression in the criminal law in this insistence upon
       community participation in the determination of guilt or innocence. The deep
       commitment of the Nation to the right of jury trial in serious criminal cases as a
       defense against arbitrary law enforcement qualifies for protection under the Due
       Process Clause of the Fourteenth Amendment, and must therefore be respected by
       the States.
Duncan, 391 U.S. at 155-56 (footnote omitted).
       Also relevant to our inquiry is Sullivan v. Louisiana, 508 U.S. 275 (1993), where the
Supreme Court considered whether a constitutionally deficient reasonable doubt instruction may
be harmless error. The Court held that it could not:
       Another mode of analysis leads to the same conclusion that harmless-error
       analysis does not apply: In Fulminante, we distinguished between, on the one
       hand, “structural defects in the constitution of the trial mechanism, which defy
       analysis by ‘harmless-error’ standards,” 499 U.S., at 309, 111 S. Ct., at 1265, and,
       on the other hand, trial errors which occur “during the presentation of the case to
       the jury, and which may therefore be quantitatively assessed in the context of
       other evidence presented,” id., at 307-308, 111 S. Ct., at 1252, 1264. Denial of
       the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error
       of the former sort, the jury guarantee being a “basic protectio[n]” whose precise
       effects are unmeasurable, but without which a criminal trial cannot reliably serve
       its function, Rose, supra, 478 U.S., at 577, 106 S. Ct., at 3105. The right to trial
       by jury reflects, we have said, “a profound judgment about the way in which law
       should be enforced and justice administered.” Duncan v. Louisiana, 391 U.S., at
       155. The deprivation of that right with consequences that are necessarily
       unquantifiable and indeterminate, unquestionably qualifies as “structural error.”
Sullivan, 508 U.S. at 281-82 (emphasis added).
       Most other jurisdictions that have considered the precise issue presented here hold that a
defective waiver of the right to a jury trial is reversible error, without a showing of actual
prejudice, whether the requirement of a personal waiver derives from state constitutional


                                                 9
provisions, from statutes, or from court rule. 5 For example, in Fortune v. United States, 59 A.3d
949, 954-55 (D.C. 2013), the trial court failed to obtain Fortune’s personal waiver of his right to
a jury trial as required by statute before conducting a court trial. The District of Columbia Court
of Appeals found that plain error occurred by this failure and concluded:
                While there are strong arguments on both sides of the issue, we are
       persuaded that the importance of the right to a jury trial, the explicit statutory
       command in this jurisdiction that trial shall be by jury absent an express waiver by
       the defendant in open court, and the relative inability of a reviewing court to
       engage in review of whether the error affected the defendant’s rights, all counsel
       in favor of holding that the failure to make the prescribed determination of waiver
       is a structural error, one that obviates the need for further inquiry into whether the
       defendant’s substantial rights were affected by the error. We so hold.
Fortune, 59 A.3d at 956-57. See also Jackson v. United States, 498 A.2d 185 (D.C. 1985)
(absent showing that trial court obtained the defendant’s personal waiver of his right to jury trial
in compliance with procedures contemplated by statute and rule providing right to jury trial,
defendant’s convictions were per se reversible error).
       In State v. Baker, 170 P.3d 727, 728 (Ariz. Ct. App. 2007), “the trial court confirmed
with the prosecutor and defense counsel their desire to submit the matter on a stipulated record,”
and thereafter found the defendant guilty. Baker appealed, contending that he had never waived
his right to a jury trial. The Court of Appeals of Arizona agreed and reversed the conviction on
the determination that the error was structural. Id. at 731-32.
       In People v. Ernst, 881 P.2d 298, 299-300 (Cal. 1994), on separate occasions two
different defense attorneys waived a jury trial in the defendant’s presence.         Following his
conviction on a court trial, Ernst appealed, asserting that the judgment should be reversed
because he had not personally and expressly waived his right to a trial by jury. Id. at 299. The
Supreme Court of California held that these proceedings did not comply with a state
constitutional requirement that the waiver of a jury be by the consent of both parties “expressed
in open court by the defendant and the defendant’s counsel.” Id. at 300. The Court determined
that absent a defendant’s personal and express waiver, structural error had occurred. Id. at 302-
03; accord McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998) (counsel was deficient in failing to
inform defendant of right to jury trial and prejudice was presumed because error was structural);
State v. Bakke, 498 N.W.2d 819, 822 (N.D. Ct. App. 1993) (failure to obtain defendant’s
5
       Other states have their own standards for reviewing errors in criminal cases and do not
necessarily require a constitutional violation for structural error to occur.
                                                 10
personal waiver of right to jury trial is per se reversible error); Doughty v. State, 470 N.E.2d 69,
70 (Ind. 1984) (failure to obtain defendant’s personal waiver of right to jury trial is per se
reversible error); People v. Brown, 327 N.Y.S.2d 820, 820-21 (N.Y. App. Div. 1971) (failure to
obtain defendant’s personal waiver of right to jury trial by “written instrument” is per se
reversible error); State v. Ibey, 352 A.2d 691, 692 (Vt. 1976) (failure to obtain defendant’s
personal waiver of right to jury trial is per se reversible error). But see United States v. Williams,
559 F.3d 607, 615 (7th Cir. 2009) and Johnson v. State, 994 So. 2d 960, 965-66 (Fla. 2008), both
holding that such error is not structural.
        Like the majority of other courts, we conclude that the failure to obtain a defendant’s
personal waiver of the right to a jury trial before conducting a court trial is a structural defect.
        2.      A structural defect satisfies the “affected substantial rights” prejudice prong
                of the fundamental error test
        Having concluded that the failure to obtain a defendant’s personal waiver of the right to a
jury trial is a structural defect, we must next determine whether demonstration of a structural
defect satisfies the “affect substantial rights” prejudice prong of the Perry test for structural
error. The Perry opinion, like the United States Supreme Court’s Olano analysis, does not
resolve whether a structural error satisfies this third prong without the need for a showing that
the error affected the outcome of the trial proceedings.
        We conclude that a showing of structural error does satisfy the Perry fundamental error
standard without demonstration of actual prejudice. We reach this conclusion because one of the
characteristics of structural defects as described by the United States Supreme Court is that they
“defy analysis by harmless-error standards.” Fulminante, 499 U.S. at 309-10. The Supreme
Court has said that deprivation of the right to trial by a jury properly instructed on the reasonable
doubt standard has “consequences that are necessarily unquantifiable and indeterminate.”
Sullivan, 508 U.S. at 282. In holding that the deprivation of the right to counsel of one’s choice
constitutes structural error, the Court stated that “we rest our conclusion of structural error upon
the difficulty of assessing the effect of the error.” Gonzales-Lopez, 548 U.S. at 149 n.4. Indeed,
the Court referred to “the irrelevance of harmlessness” in determining whether a constitutional
defect was structural. Id. Thus, a structural defect is typically a type of error for which the effect
on the defendant’s trial outcome cannot be demonstrated.
        The Idaho Supreme Court has seen fit to adopt a fundamental error doctrine that allows
appellate review of clear constitutional errors even though the claim of error was not preserved
                                                  11
by objection below. Under the Perry formula, where the error is of such a nature that its
probable effect on the outcome of the proceedings can be evaluated, the appellant bears the
burden to show prejudice, but that burden would be inherently impossible for an appellant to
meet in most cases of structural error. It would seem inconsistent with the fundamental error
doctrine as articulated in Perry to hold that appellate relief is not available because the effect on
the proceedings is “necessarily unquantifiable and indeterminate,” Sullivan, 508 U.S. at 282,
where the defect is a deprivation of one of the most fundamental constitutional safeguards of fair
trial proceedings such as the right to counsel, the right to a jury trial, the right to an unbiased
judge, or the right to a jury selected without racial discrimination. Accordingly, we conclude
that a structural defect satisfies the Perry prejudice prong without a showing of a probable actual
effect on the outcome of the case.
                                                III.
                                         CONCLUSION
       Vasquez has shown that fundamental error occurred when the district court conducted a
court trial without first obtaining Vasquez’s personal, express waiver of her right to a jury trial.
Therefore, the judgment of conviction is vacated and this case is remanded to the district court
for proceedings consistent with this opinion.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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