                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

WILL MOSES PALMER,                          
                Plaintiff-Appellant,
                                                    No. 06-15458
                v.
M. VALDEZ; N. WALKER, Sergeant;                      D.C. No.
                                                   CV-03-04213-SI
R. LEBEDEFF; S. HENLEY; B. GIBBS;
                                                       OPINION
G. R. SALAZAR,
             Defendants-Appellees.
                                            
         Appeal from the United States District Court
            for the Northern District of California
        Susan Yvonne Illston, District Judge, Presiding

                    Argued and Submitted
          August 11, 2008—San Francisco, California

                       Filed March 24, 2009

 Before: Eugene E. Siler, Jr.,* M. Margaret McKeown and
          Consuelo M. Callahan, Circuit Judges.

                Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge McKeown




   *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

                                  3717
3720                   PALMER v. VALDEZ




                          COUNSEL

Michelle Friedland (argued) and Martin D. Bern of Munger,
Tolles & Olson, LLP of San Francisco, California for the
plaintiff-appellant.

Julianne Mossler, Deputy Attorney General (argued), Edmund
G. Brown, Jr., Attorney General, David S. Chaney, Chief
Assistant Attorney General, Frances T. Grunder, Senior
Assistant Attorney General, and Michael W. Jorgenson,
Supervising Deputy Attorney General of San Francisco, Cali-
fornia for the defendants-appellees.


                          OPINION

CALLAHAN, Circuit Judge:

   William Palmer, a California state prisoner, appeals from
the district court’s judgment in favor of prison officials in his
pro se 42 U.S.C. § 1983 action alleging violations of the
Eighth Amendment. Following a bench trial, Palmer argues
                      PALMER v. VALDEZ                    3721
that the district court erred by (1) imposing an unconstitu-
tional condition on Palmer’s waiver of his right to trial by
jury, and (2) denying Palmer’s request for the appointment of
counsel pursuant to 28 U.S.C. § 1915(e)(1). We have jurisdic-
tion to hear this appeal pursuant to 28 U.S.C. § 1291. We
affirm the district court’s decision.

                               I

  On September 16, 2003, Palmer filed a complaint under 42
U.S.C. § 1983, alleging that six prison officials violated his
Eighth Amendment rights by using excessive force on two
separate occasions. Proceeding pro se, Palmer properly
requested trial by jury.

   As the case proceeded, Palmer made three motions for
appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1).
On August 23, 2004, Palmer argued that counsel was war-
ranted because he lacked the ability to conduct necessary dis-
covery while incarcerated. On January 4, 2005, Palmer argued
he had recently incurred an injury that caused him severe pain
while sitting thus making it difficult to draft and review nec-
essary documents to effectively litigate his claim. On Decem-
ber 5, 2005, Palmer argued that counsel was necessary
because he had been denied access to his legal documents for
three months as a result of prison officials’ actions and
because he was suffering debilitating pain from an unsuccess-
ful surgery that made it difficult to draft and review docu-
ments. The district court denied each motion.

   A month later, on January 12, 2006, the court issued an
order setting the pre-trial conference date for February 6,
2006, and a trial date of February 7, 2006. In the court order,
the court noted that subpoena forms for four non-inmate wit-
nesses had been sent to Palmer. Palmer’s criminal investiga-
tor, whom Palmer asked to serve additional copies of these
four subpoenas, was present when the trial date was
announced. Later in open court, the pre-trial conference was
3722                      PALMER v. VALDEZ
moved to January 30, 2006, and the trial date was set for Jan-
uary 31, 2006. In addition to the four non-inmate witnesses,
on January 18, 2006, the court received and issued Palmer’s
writs of habeas corpus ad testificandum for inmates Halbert
and Singleton.

   Palmer received the subpoena forms, completed them, and
returned them to the court in time for them to be issued on
January 26, 2006. Palmer received the issued subpoenas on
January 30, 2006, during pre-trial conference, and stated that
he intended to have them served before trial the next day.1

   On January 24, 2006, Palmer mailed a motion requesting
that thirteen witnesses be permitted to testify by telephone;
the motion was filed by the district court on January 30, 2006.2
Palmer alleged that he had been denied the privilege of using
the phone while incarcerated, and had not been able to secure
loans from friends to cover the costs of serving subpoenas.

   One of Palmer’s witnesses, Singleton, had verbally refused
the January 18, 2006 court order to appear voluntarily. The
court offered to have Singleton extracted from his cell and
brought to court to testify, but Palmer had declined to have
Singleton compelled to testify in person.

   At the pre-trial conference, held on January 30, 2006,
Palmer again moved for Singleton, who Palmer thought was
a “very important” witness, to testify telephonically. The
court declined the request noting that the jury would have a
right to see the witness and that the courtroom did not “have
the high-tech video screens and that kind of thing.” Defen-
dants’ counsel inquired whether Palmer would want to waive
the jury. The court stated that it did not want to put any pres-
  1
    On appeal, Palmer does not challenge the timing of the court’s mailing
of the subpoenas.
  2
    Palmer requested telephonic testimony for thirteen witnesses. Ulti-
mately six of the witnesses testified during the bench trial.
                      PALMER v. VALDEZ                        3723
sure on Palmer and Palmer indicated that he was not inclined
to waive the jury. Accordingly, the court did not change the
date for the jury trial, which was scheduled to begin the next
day.

  At the beginning of trial on January 31, 2006, Palmer rec-
ognized that most of his witnesses were not present and made
a motion to continue. Palmer asserted that his witnesses had
been confused over the date of the trial. The defendants
objected to a continuance. The district court denied Palmer’s
motion noting that the defendants and all of defendants’ wit-
nesses were present and that Palmer’s witnesses were unavail-
able due to his failure to serve the subpoenas, as opposed to
confusion over the trial date.

   Palmer then requested that his witnesses be permitted to
testify by telephone. He stated: “You gave me another alterna-
tive yesterday, I guess, in the event that some of these wit-
nesses wouldn’t be here. That would be to have a judge trial
where you can — we can use the telephonic method.” He con-
tinued: “[this] means like present my witnesses through the
telephone. So if they’re not going to be here personally, I
would like to at least have a judge trial where we can do that
— the witnesses on the stand by phone, whatever.” The court
asked Palmer if he wanted to waive a jury, and Palmer
responded that he did if his witnesses could testify by tele-
phone. The defendants agreed to waive trial by jury, and the
dialogue concluded with the following exchange:

    THE COURT: All right. Well, [the defendants] are
    willing to [waive trial by jury.] Is that what you want
    to do?

    MR. PALMER: I don’t really have a choice, your
    honor. Yes.

    THE COURT: You do have a choice. You can go
    forward with the jury trial right now if you want, or
    you can waive it. I don’t care. It’s up to you.
3724                    PALMER v. VALDEZ
    MR. PALMER: I’ll waive it.

   The district court then held a three-day bench trial at which
fifteen witnesses testified. Palmer made no objection to the
bench trial either during or after the trial. At the conclusion
of the trial, the district judge entered findings of fact and con-
clusions of law and ruled that Palmer take nothing on his
complaint. Palmer filed a timely notice of appeal to this court.

                                 II

   [1] On appeal, Palmer challenges the loss of his right to
jury trial. “The right to a jury trial is a question of law
reviewed de novo.” Kulas v. Flores, 255 F.3d 780, 783 (9th
Cir. 2001). The Seventh Amendment guarantees the right to
a jury trial “[i]n Suits at common law, where the value in con-
troversy shall exceed twenty dollars.” U.S. Const. Am. VII.
Like other constitutional rights, the right to a jury trial in civil
suits can be waived. See United States v. Moore, 340 U.S.
616, 621 (1951); Kulas, 255 F.3d at 784. A valid waiver in a
civil trial “must be made knowingly and voluntarily based on
the facts of the case.” Tracinda Corp. v. DaimlerChrysler AG,
502 F.3d 212, 222 (3d Cir. 2007); accord Nat’l Equip. Rental,
Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977). Further-
more, any party’s “knowing participation in a bench trial
without objection is sufficient to constitute a jury waiver.”
White v. McGinnis, 903 F.2d 699, 703 (9th Cir. 1990) (en
banc).

   [2] Palmer contends that the district court imposed an
unconstitutional condition by allowing telephonic testimony
only before a bench trial. We disagree. The record shows that
the bench trial was a strategic choice by Palmer arising out of
a dilemma of his own making. Leading up to the trial, Palmer
had rebuffed the court’s offer to have his key witness
extracted from his prison cell after the witness refused to vol-
untarily appear. Moreover, on the eve of trial, Palmer realized
that he had failed to ensure the presence of a number of his
                             PALMER v. VALDEZ                           3725
witnesses. He then renewed his request to be allowed to pre-
sent telephonic testimony. Federal Rule of Civil Procedure 43
provides that a court may, in its discretion, allow the tele-
phonic transmission of testimony “[f]or good cause in com-
pelling circumstances and with appropriate safeguards.”3 The
district court denied the motion. Palmer agrees that it was
within the district court’s discretion to deny the motion and
we find that the court did not abuse its discretion in doing so.
See Fed. R Civ. P. 43(a) Advisory Committee Notes address-
ing 1996 amendments.4
  3
   Fed. R. Civ. P. 43(a) provides:
      At trial, the witnesses’ testimony must be taken in open court
      unless a federal statute, the Federal Rules of Evidence, these
      rules, or other rules adopted by the Supreme Court provide other-
      wise. For good cause in compelling circumstances and with
      appropriate safeguards, the court may permit testimony in open
      court by contemporaneous transmission from a different location.
   4
     The Advisory Committee Notes to the 1996 Amendments contain the
following advice:
      Contemporaneous transmission of testimony from a different
      location is permitted only on showing good cause in compelling
      circumstances. The importance of presenting live testimony in
      court cannot be forgotten. The very ceremony of trial and the
      presence of the factfinder may exert a powerful force for truthtel-
      ling. The opportunity to judge the demeanor of a witness face-to-
      face is accorded great value in our tradition.
      ...
      The most persuasive showings of good cause and compelling cir-
      cumstances are likely to arise when a witness is unable to attend
      trial for unexpected reasons, such as accident or illness, but
      remains able to testify from a different place.
      ...
      A party who could reasonably foresee the circumstances offered
      to justify transmission of testimony will have special difficulty in
      showing good cause and the compelling nature of the circum-
      stances.
3726                       PALMER v. VALDEZ
   [3] The following day, as trial was set to commence,
Palmer realized that whatever efforts he had belatedly made
to secure his witnesses had not produced their appearance.
Facing the prospect of having to prove his case to a jury with-
out his witnesses, Palmer seized on a suggestion that had been
made the day before and stated that he would waive his right
to a jury trial if he could present his witnesses by telephone.
Palmer did not request that he be allowed to present tele-
phonic testimony to the jury. The district court determined
that the defendants would agree to waive their right to a jury
trial and questioned Palmer to make sure he understood his
request.5 It then granted Palmer’s request and a bench trial
ensued. At no time following the district court’s grant of his
request to present telephonic testimony in a bench trial did
Palmer advise the district court that he thought that he had
been improperly denied his constitutional right to a jury trial.

   [4] An individual may waive his or her right to a civil jury
trial and we have held that knowing participation in a bench
trial without objection may be sufficient to constitute a jury
waiver. White, 903 F.2d at 703. Although Solis v. County of
Los Angeles, 514 F.3d 946, 956 (9th Cir. 2008), holds that
“[n]ot every participation in a bench trial constitutes consent
to the waiver of a jury trial,” it affirms that the right to a jury
trial may be waived. Id. at 953. In Solis, we noted that Solis
had brought his prior jury demand to the district court’s atten-
tion during the period between the bench trial notice and the
trial, and had reiterated his demand for a jury trial in his sec-
ond motion for counsel that was filed after the district court
held that he had waived his jury right. Id. Here, by contrast,
it was Palmer who sought to waive his jury right in response
  5
    Federal Rule of Civil Procedure 38(d) provides that a proper demand
for a jury trial “may be withdrawn only if the parties consent.” The defen-
dants here were not compelled to agree to Palmer’s waiver of his right to
a jury trial and request to present telephonic testimony. If they had not
waived their right to a jury trial, Palmer presumably would have had to
present his case to a jury as best as he could.
                            PALMER v. VALDEZ                            3727
to his failure to procure the attendance of his witnesses. More-
over, he never suggested to the district court that his proposed
resolution of his problem constituted an improper condition-
ing of his constitutional right to a jury trial.6 On this record,
we conclude that Palmer knowingly and voluntarily waived
his right to a jury trial and that the district court’s acceptance
of Palmer’s waiver did not violate his constitutional right to
a jury trial.

                                     III

    [5] Palmer also challenges the district court’s refusal to
appoint counsel to assist him. A district court’s refusal to
appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) is
reviewed for an abuse of discretion. See Campbell v. Burt,
141 F.3d 927, 931 (9th Cir. 1998). Generally, a person has no
right to counsel in civil actions. See Storseth v. Spellman, 654
F.2d 1349, 1353 (9th Cir. 1981). However, a court may under
“exceptional circumstances” appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v.
Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004),
cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128
(2005). When determining whether “exceptional circum-
stances” exist, a court must consider “the likelihood of suc-
cess on the merits as well as the ability of the petitioner to
articulate his claims pro se in light of the complexity of the
legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983). Neither of these considerations is dispositive
  6
    Palmer’s comment to the district court — “I don’t really have a choice”
— did not invoke his constitutional right to a jury trial. Indeed, the court
responded that Palmer did have a choice; he could go forward with a jury
trial or waive it. Palmer simply responded that he would waive a jury trial.
Such a short colloquy at the commencement of a civil trial, when the
plaintiff is trying to adjust to the absence of many of his witnesses, does
not indicate that the plaintiff is invoking his constitutional right to a jury
and does not put the court or the defendants on notice that a constitutional
right has been invoked.
3728                   PALMER v. VALDEZ
and instead must be viewed together. Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986).

    [6] Palmer asserts that he should have been appointed
counsel because he was likely to succeed on the merits, the
pain from his surgery limited his ability to prepare for trial,
and prison officials had denied him access to his legal docu-
ments, thereby limiting his ability to prepare for trial. The dis-
trict court was sensitive to Palmer’s predicament. It
questioned Palmer and defense counsel before trial to ensure
that Palmer had sufficient access to his legal documents, and
it limited the length of the trial days and provided three break
periods. At the conclusion of the trial, the district court noted
that Palmer had done “quite a good job” putting on his case,
and that he was well-organized, made clear points, and pres-
ented the evidence effectively. We conclude that Palmer has
not made the requisite showing of exceptional circumstances
for the appointment of counsel and that the district court did
not abuse its discretion in denying his requests for the
appointment of counsel. See Wilborn, 789 F.2d at 1331 (“If
all that was required to establish successfully the complexity
of the relevant issues was a demonstration of the need for
development of further facts, practically all cases would
involve complex legal issues.”).

  For the foregoing reasons, the district court’s judgment in
favor of the defendants on Palmer’s civil action is
AFFIRMED.



McKEOWN, Circuit Judge, concurring in part and dissenting
in part:

   The Seventh Amendment right to a jury trial in civil cases
is a bedrock principle of our civil justice system. Here, the
district court presented Will Moses Palmer with a classic
Hobson’s choice: If Palmer wished to present evidence
                            PALMER v. VALDEZ                            3729
through telephonic testimony, the district court demanded that
he waive his constitutional right to a jury trial; if he opted to
present his case to a jury, the district court would forbid him
from examining his witnesses through telephonic testimony.
Because the district court presented Palmer with an unconsti-
tutional condition, I respectfully dissent. I concur in the
majority’s determination that the district court did not abuse
its discretion in denying Palmer’s motion for the appointment
of counsel.

I.       BACKGROUND

   The majority disposition has left unsaid some important
details. Palmer brought a pro se suit against defendants—
prison officials at Salinas Valley State Prison—alleging that
he was maliciously and unconstitutionally beaten during two
separate incidents in December 2002. His case depended
largely on the testimony of eyewitnesses who allegedly
viewed the beatings. When Palmer arrived for the first day of
his trial, Palmer informed the district court that his witnesses
were not present. The court determined that the witnesses had
not been properly served. Palmer informed the court that he
could not “even present [his] case” without the witnesses and
requested a continuance of the trial. Defense counsel objected,
arguing that all six defendants were present, their witnesses
were subpoenaed, and the case was “ready to go.” The district
court declined to grant a continuance.

   Concerned that he could not adequately present his case,
Palmer brought up an option the district court had offered to
him the day before1 —the opportunity to present some of his
witnesses via telephonic testimony, so long as he opted for a
bench trial instead of a trial by jury. The district court
responded by asking if Palmer wanted to waive a jury trial
     1
    The district court originally initiated a conversation about the possibil-
ity of telephonic testimony because one of Palmer’s desired witnesses
refused to leave the prison to testify.
3730                   PALMER v. VALDEZ
and present his witnesses via telephone. Defendants acqui-
esced in the waiver. Palmer responded, “I don’t really have a
choice, Your Honor. Yes.” The district court remarked, “You
do have a choice. You can go forward with the jury trial right
now if you want, or you can waive it. I don’t care. It’s up to
you.” Of course, were Palmer to proceed with a jury trial, it
would be without his key witnesses. Consequently, Palmer
agreed to waive his right to a jury trial, proceeded with a
bench trial, and took the judge up on the option of telephonic
testimony. The district court ultimately determined that
Palmer failed to establish an Eighth Amendment violation and
ruled in favor of defendants.

II.    ANALYSIS

   As the Supreme Court has observed, “the right of jury trial
in civil cases at common law is a basic and fundamental fea-
ture of our system of federal jurisprudence which is protected
by the Seventh Amendment.” Jacob v. City of New York, 315
U.S. 752, 752-53 (1942). Like other constitutional rights, the
right to a jury trial may be waived. Solis v. County of Los
Angeles, 514 F.3d 946, 953 (9th Cir. 2008). However, “[a]
right so fundamental and sacred to the citizen . . . should be
jealously guarded by the courts.” Jacob, 315 U.S. at 752-53.
And, “courts should indulge every reasonable presumption
against waiver.” Solis, 514 F.3d at 953 (internal citations
omitted). With that presumption in mind, I turn to Palmer’s
appeal.

   The district court offered Palmer a benefit—the opportunity
to present witnesses via telephonic testimony—in exchange
for his agreement to waive his constitutional right to a jury
trial. Palmer does not disagree with the prison officials that
the district court could have refused to allow telephonic testi-
mony in the first place. Indeed, from an evidentiary and court
administration standpoint, the decision whether to permit wit-
nesses to testify via telephone was undoubtedly within the
district court’s discretion. See Fed. R. Civ. P. 43(a) & Advi-
                       PALMER v. VALDEZ                    3731
sory Comm. Notes on 1996 Amendments (permitting contem-
poraneous transmission of testimony from location outside the
court for good cause). But this case does not present an evi-
dentiary or administrative issue. Rather, it demands consider-
ation of a question the majority disposition conspicuously
avoids—whether the district court could properly condition
Palmer’s right to a jury trial on the form of testimony.
Although from what can be gleaned from the record, the dis-
trict court was apparently trying to accommodate Palmer,
those good intentions came unhinged when the ultimate
choice offered was pegged to Palmer’s constitutional right
under the Seventh Amendment.

   Under the doctrine of unconstitutional conditions, the
Supreme Court has explained that “even though a person has
no ‘right’ to a valuable governmental benefit and even though
the government may deny him the benefit for any number of
reasons, there are some reasons upon which the government
may not rely.” Perry v. Sinderman, 408 U.S. 593, 597 (1972).
Specifically, the government cannot condition a benefit on a
basis that infringes upon an individual’s constitutionally guar-
anteed interest. Id. The reasoning behind the doctrine is
sound: A court cannot allow the government to accomplish
through a condition something it cannot demand outright. See
id.

   To determine whether the government has violated the
unconstitutional conditions doctrine, the court must look to
whether the condition placed upon the receipt of a benefit
“further[s] the end advanced as the justification for the prohi-
bition.” Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837
(1987). In other words, the “government cannot impose a con-
dition for a reason not germane to one that would have justi-
fied denial” of the benefit. Kathleen M. Sullivan,
Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1460
(1989).

  The district court offered no rationale for its link between
permission to use telephonic testimony and a bench trial.
3732                   PALMER v. VALDEZ
Indeed, it is difficult to divine a legitimate reason under this
circumstance as to why use of telephonic testimony was con-
ditioned on waiver of a jury trial. The only possible link
between the district court’s condition and a total ban on tele-
phonic testimony would result from an assumption that
judges, as opposed to juries, are better equipped to deal with
telephonic testimony. Thus, the argument would go, the risks
of telephonic testimony—particularly a potentially diminished
ability to discern witnesses’ credibility—would be less acute
in a bench trial than in a trial before a jury. This argument is
flawed because the law gives no edge to judges in assessing
credibility.

   “Under our system of jurisprudence a properly instructed
jury of citizens decides whether witnesses are credible. The
trial judge is deemed to have no special expertise in determin-
ing who speaks the truth.” United States v. Cravero, 530 F.2d
666, 670 (5th Cir. 1976); see also United States v. Giampa,
758 F.2d 928, 935 (3d Cir. 1985); United States v. Blasco,
581 F.2d 681, 684-85 (7th Cir. 1978). Thus, the jury would
be no more disadvantaged than the judge in evaluating the
demeanor of a witness appearing via telephone or video. One
might posit that in an ideal world having the fact-finder view
the witnesses in person permits a better evaluation of credibil-
ity. Rule 43 of the Federal Rules of Civil Procedure essen-
tially adopts this approach. But, even that assumption is not
universally held. See Richard L. Marcus, Completing Equity’s
Conquest? Reflections on the Future of Trial Under the Fed-
eral Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725, 757-62
(1989).

   Use of both contemporaneously transmitted and pre-
recorded testimony has been sanctioned by the Supreme
Court, circuit courts, the Federal Rules of Civil Procedure,
and the Federal Rules of Evidence. Federal Rule of Civil Pro-
cedure 43(a) contemplates the very circumstance that arose
here: “For good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in
                       PALMER v. VALDEZ                    3733
open court by contemporaneous transmission from a different
location.” The Notes to the 1996 Amendments to Rule 43
underscore the benefits of presenting live testimony, but make
no distinction between cases involving a judge and those with
a jury.

   Contemporaneously transmitted telephonic and audiovisual
testimony is utilized in many different scenarios. For exam-
ple, in a criminal case, the Supreme Court approved the use
of one-way closed circuit television testimony by a child vic-
tim of sexual abuse. Maryland v. Craig, 497 U.S. 836 (1990).
The Ninth Circuit has also acknowledged the propriety of
telephonic testimony in the civil arena. In Zolotukhin v. Gon-
zales, 417 F.3d 1073, 1076 (9th Cir. 2005), we criticized an
immigration judge’s refusal to permit the telephonic testi-
mony of petitioner’s expert. We have also explicitly approved
the use of telephonic testimony by the Securities and
Exchange Commission during the course of disciplinary pro-
ceedings: “Nor do we agree with [the] suggestion that the . . .
credibility findings are undermined because [the witness] tes-
tified at the hearing by telephone.” Alderman v. S.E.C., 104
F.3d 285, 288 n.4 (9th Cir. 1997).

   The discovery and evidentiary rules provide opportunity for
another form of out-of-court testimony—the electronic pre-
sentation of pre-recorded testimony taken at depositions. Fed-
eral Rule of Civil Procedure 30(b) allows for the recording of
depositions by “audio, audiovisual, or stenographic means.”
And deposition testimony—whether simply recorded or taken
via telephone or video—is often presented at trial to highlight
an admission by a party opponent, see Fed. R. Evid.
801(d)(2), or where the witness is unavailable, see Fed. R.
Evid. 804. These provisions make no distinction between
bench trials and those involving a jury. The point is that while
live testimony is preferred, our system is set up to make spe-
cific use and accommodation of testimony via electronic
means.
3734                  PALMER v. VALDEZ
   Absent insurmountable logistical considerations or some
compelling reason—none of which is present here—I see no
germane reason to distinguish between a bench trial and a jury
trial in determining whether to allow telephonic testimony.
Because limiting Palmer to a bench trial was unrelated to
legitimate reasons for a total ban on telephonic testimony, the
district court violated Palmer’s Seventh Amendment right to
a jury trial by burdening this right with an unconstitutional
condition.

   In response to the majority’s focus on what it considers to
be Palmer’s lack of diligence in obtaining witnesses for trial,
the district court’s sanction for this delay should not have
been grounded on a constitutional choice. And, the fact that
Palmer did not object on constitutional grounds to the jury
waiver option simply signals the obvious—as Palmer put it,
at that point, he had no choice. Participation in a bench trial
can hardly constitute “knowing consent” if it was driven by
an unconstitutional condition.

   Typically, the final stage of analysis would be whether the
error was harmless. However, the government did not make
that argument. In fact, at oral argument, counsel for the gov-
ernment explicitly conceded this point. By hanging its hat on
the sole issue of whether there was error, the government
waived any argument that the error was harmless. United
States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir. 2002).
I would reverse and remand for a new trial.
