¶19 (dissenting) — Because the loudest silence cannot waive a defendant’s fundamental right to a jury trial in a criminal case, I respectfully dissent. Here, the trial court violated Candi Lee Bange’s jury trial right when, after we remanded the matter back to the trial court, it failed to secure her jury trial waiver before holding a bench trial. Therefore, I would reverse and remand for trial.
¶20 It is a bedrock principle of constitutional law that criminal defendants have a constitutional right to a jury trial. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”); Wash. Const, art. I, §§ 21, 22 (“The right of trial by jury shall remain inviolate” and “[i]n criminal prosecutions the accused shall have the right... to have a speedy public trial by an impartial jury.”). A defendant may waive this right if he makes the waiver knowingly, voluntarily, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984) (citing State v. Forza, 70 Wn.2d 69, 71, 422 P2d 475 (1966)). Similarly, under state and federal rules of criminal procedure, defendants have a jury trial right unless they waive this right in writing. Fed. R. Grim. P. 23(a)(1); CrR 6.1(a). Defendants cannot passively waive their jury trial right. See Acrey, 103 Wn.2d at 207. And the State bears the burden of proving that defendants have affirmatively waived their constitutional rights. State v. Stegall, 124 Wn.2d 719, 730, 881 P.2d 979 (1994).
*855A. Waiver Does Not Apply to Subsequent Proceedings
¶21 In the criminal context, while Washington courts have not addressed whether a trial court must secure a second jury trial waiver from a defendant on remand after the defendant waived that right for an earlier-scheduled trial on the same matter, federal courts have held that a jury trial waiver does not apply on remand from an appeal, unless the waiver expressly includes subsequent proceedings. I would follow this well-articulated reasoning.
¶22 I agree with United States v. Lee, in which the Sixth Circuit Court of Appeals held that a jury waiver does not bind a party after an appellate court assumes jurisdiction and reverses a trial court judgment:
We have found no precedent deciding the question whether a defendant’s consent to trial by a magistrate continues in force after reversal by a reviewing court, but there are two related situations that may suggest the proper rule. . . . The second situation is when a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial. In that situation the general rule is that a litigant is not bound by his prior waiver of a jury trial.... Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal.
539 F.2d 606, 608-09 (6th Cir. 1976) (emphasis added). The Lee court supports its holding by citing the Alabama Supreme Court’s Cross v. State: “ ‘the agreement to waive the right of trial by jury must[,] ordinarily!,] be construed to apply only to the particular trial at which it is made.’ ” Lee, 539 F.2d at 609 (quoting Cross v. State, 78 Ala. 430, 432 (1885)). Again, in Lee, the court reasoned that the defendant’s waiver, which referred only to the earlier trial, applied strictly to that trial and not subsequent proceedings.
*856¶23 Although Washington courts have not addressed this issue in a criminal context, they have emphasized the importance of jury trial rights and the application of jury waiver in subsequent civil proceedings. The majority cites Wilson v. Horsley for the proposition that following a reversal of a trial court judgment, the case stands exactly as it stood before the first trial. 137 Wn.2d 500, 974 P.2d 316 (1999). But, we must recognize fundamental differences between the jury trial right for civil and criminal litigants. Civil litigants must demand a jury trial or else they waive the preserved right. U.S. Const, amend. VII; Wash. Const. art. I, § 21; Fed. R. Crv. R 38(d); CR 38(d). In contrast, criminal defendants do not need to request a jury trial but instead automatically receive a jury trial unless they affirmatively waive that right. “Limiting the waiver of a jury trial to the initial proceedings is also justified by the fact that conditions could be ‘wholly different at the second trial from what they were at the first.’ ” Wilson, 137 Wn.2d at 510 (quoting Nedrow v. Mich.-Wis. Pipe Line Co., 246 Iowa 1075, 1078, 70 N.W.2d 843 (1955)).
¶24 In a criminal case, the right to a jury trial is a fundamental right, so a jury waiver should never be presumed. See Lee, 539 F.2d at 609. A defendant enjoys the right to a jury trial in proceedings following remand from an appeal, even if the initial trial was not completed. That jury trial right is the same right that the litigant had during the initial proceedings. It abides until it is waived, just like in the first proceeding.
¶25 A trial court must seek a new jury waiver for subsequent proceedings because the circumstances of the subsequent proceedings may be wholly different than they were initially. Wilson, 137 Wn.2d at 510. Specifically, there may be a different judge or jury pool during subsequent proceedings. Wilson, 137 Wn.2d at 510. Conversely, the court in subsequent proceedings may be the same court that had ruled against the defendant in the initial proceedings. Lee, 539 F.2d at 609. Most importantly, though, trial *857courts must obtain new jury trial waivers following remand of a criminal case, as “a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal.” Lee, 539 F.2d at 608-09. Otherwise, if after remand the trial court applies a defendant’s earlier jury waiver that does not expressly contemplate subsequent proceedings, the trial court relieves the State of its burden to show that the defendant waived her jury trial rights in all subsequent proceedings. Accordingly, Bange’s waiver no longer applied 21 months after Lewis County Superior Court dismissed her case and our court assumed jurisdiction on appeal.
B. Bange Did Not Waive Her Rights after Remand
¶26 Our courts have repeatedly explained that a defendant’s silent acquiescence does not provide the court any basis for concluding that a defendant’s jury-trial election met constitutional standards. See Stegall, 124 Wn.2d at 730-31; see also State v. Hos, 154 Wn. App. 238, 249, 225 P.3d 389, review denied, 169 Wn.2d 1008 (2010) (rejecting State’s argument that Hos ratified her attorney’s oral waiver of her jury trial right by failing to object during two discussions on the record relating to having a bench trial). The record must contain an “affirmative, unequivocal waiver by defendant.” Acrey, 103 Wn.2d at 207.
¶27 After remand, although Bange stood silent as the State and defense counsel twice referenced a bench trial, Bange never expressed any affirmative, unequivocal intent to waive her jury right. Here, Bange’s trial commenced 21 months after the trial court initially dismissed the charges. And, importantly, though the trial court recited Bange’s various trial rights, it did not advise her of her jury trial right, so Bange might not have known that she still possessed her jury trial right. Therefore, she did not rewaive her jury trial right on remand. Accordingly, I believe Bange is entitled to a jury trial because her initial jury trial waiver *858did not expressly waive her jury trial right for all subsequent trials and, after remand, the trial court needed to secure her jury trial waiver before proceeding to a bench trial. Therefore, I would reverse and remand.
Review denied at 176 Wn.2d 1030 (2013).