dissenting:
In dissenting, I concede extreme dexterity in the use of judicial tools to Judge Phillips. It is the choice of the place to apply them to which I object. The majority has converted the fact that something has never been done into a justification for doing it.1 Of course, there must always be a first time, but this is not the case in which such an uncertain manner of proceeding should be invoked. When one’s liberty is at stake is not the occasion for fudging the rules and especially their questionable application by the trial judge only to avoid the inconvenience that would follow upon making the rules, drafted in large measure to ensure fair trial, applicable.
Rule 23(b) of the Federal Rules of Criminal Procedure reads:
Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
The rule calls for the approval by the court of a written stipulation of the parties. Clearly, court approval is present here, but the required writing is not. It is true that *734the “plain meaning” of “in writing” as used in Rule 23(b) has been whittled away when the defendant’s express, knowing and intelligent consent or assent has been given orally in open court. See, e.g., United States v. Lane, 479 F.2d 1134, 1136-37 (6th Cir.1973); United States v. Ricks, 475 F.2d 1326, 1328 (D.C.Cir.1973); United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir.1971). In open court, the stenographer’s almost certain presence ensures the equivalent of writing by the defendant. To be sure, the conversation in chambers at issue here regarding the juror’s dismissal was recorded. I agree that, in this case, no star chamber coercion actually took place. Avoiding such a possibility of coercion is certainly one justification for the open court requirement. It is not the only rationale, however.
In chambers, without the jury’s presence, is a more informal environment than that of open court. Fisher’s “uh-huh”, his only resort to the glory of our civilization, the English tongue, is evidence of just such informality. The requirement of a writing signed by the defendant as mandated by the rule or by what has been deemed its equivalent, questioning of the defendant in open court, serves more than just to provide evidence of consent. It serves to “underscore the significant decision faced by the parties.” United States v. Reyes, 603 F.2d 69, 71 (9th Cir.1979).
An understanding of that significance is precisely why evidence of express, voluntary, and knowing consent has been held to be so important. See United States v. Taylor, 498 F.2d 390, 392 (6th Cir.1974) (In finding that oral stipulation by counsel was not enough the court stated: “[Wjaiver of a jury trial, even the waiver of one juror, is the waiver of a basic and important right which cannot be accomplished upon ‘a silent record.’ ”) (citation omitted). The procedure has been compared to that required by Fed.R.Crim.P. 11 governing the acceptance of a guilty plea and to Fed.R.Crim.P. 23(a) governing a defendant’s complete waiver of a jury trial. See Reyes, 603 F.2d at 71 (“Both the requirement of a writing signed by the defendant, and questioning of the defendant in open court, indicate to the defendant that the decision whether to agree to a jury of less than twelve persons is an important step in the trial.”).
Though the majority concludes that Fisher’s consent, arguably express and voluntary, was also knowing,2 I cannot agree. Finding no evidence that the consent was “not knowing” is hardly finding evidence that Fisher knew to what he was consenting. It is a fundamental truth that it is difficult to prove a negative.3 By no stretch of the imagination can Fisher’s “uh-huh” in response to the judge’s assumption that the procedure was all right with him be found to be a knowing, much less an intelligent, waiver.
The district judge was obviously annoyed at the juror. He stated to her that “I’m somewhat disappointed. I asked you to pay attention to the questions and to listen to them, and this is causing a great deal of problems for us, because we have let the other jurors go.” Joint Appendix at 53. There is no evidence that Fisher knew what those problems were or knew that he personally had a say in the matter. Given the judge’s demonstrated impatience with the juror, it would not be unreasonable to conclude that Fisher’s “uh-huh” was uttered to avoid disappointing the judge further. Nothing adds up to star chamber tactics but it does point out why the requirement of a brief colloquy between judge and defendant in open court should remain the minimum requirement. Without it, we are left to glean inferences that the consent was knowingly and expressly given from less than direct language in the more informal atmosphere of chambers. Stretching *735“no evidence that the consent was not knowing” to the equivalent of “evidence of knowing consent” is without justification.
Furthermore, Fisher was entitled to informed legal advice when the question of whether to proceed with an eleven member jury came up. The question was an involved technical one for those learned in the law, not for a presumably uninformed layman like Fisher. His counsel, with becoming candor, freely admits that he was unaware of the requirements of Rule 23(b) and so was in no position to take a stand or to advise on the question. An interruption should have taken place to permit defendant’s counsel to inform first himself, then Fisher. The atmosphere of a meeting in chambers to discuss the matter while most, but not all of, the jury is out in court, waiting to begin the trial, is hardly conducive to a defendant’s insisting on delay to inform himself. The majority relies on the fact that a written stipulation waiving a juror “may be negotiated and signed out of court.” (Emphasis supplied.)4 Ironically, the adequate assistance of counsel required by Fisher here would probably come outside the hearing of the court. With the resulting opportunity to inform himself, counsel could hardly have allowed a simple “uh-huh”, uttered immediately and without reflection, to stand as a knowing and intelligent consent by someone unaware of the intricacies of Rule 23(b) and the safeguards it is intended to create. Certainly Fisher’s utterance in the presence of court and prosecuting counsel precluded the giving of confidential advice out of their hearing, advice to which Fisher was entitled. At the very least, interruption for a brief colloquy in open court between the judge and Fisher would ensure that Fisher was fully apprised of his rights and the significance of his decision to relinquish them.
The majority also finds the requisite express, intelligent, and knowing consent in the failure of counsel and Fisher to object when the agreement to proceed with eleven jurors was announced in open court.5 As I have stated, Fisher’s “uh-huh” in chambers possibly can be found to be express, in the sense of uttered out loud. Such express consent, however, cannot properly be found through Fisher’s silence when the judge, in open court, announced that counsel had agreed to proceed with eleven jurors and Fisher did not leap up in protest. The majority concedes that Fed.R.Crim.P. 23(b) need not be stretched in the present case to hold that “a defendant may be bound by his counsel’s oral consent.” Op. at 732. Neither, however, by the same token, should a defendant be bound by counsel’s or his own complete silence under the circumstances here. The complete muteness of Fisher and of his counsel, too, is of concern. It simply did not constitute express consent. To call “silence” evidence of express consent turns language on its head. Certainly a rule permitting objections after verdict presents an opportunity for sandbagging. There was, however, no sign of such skullduggery here. The holding here permitting an “uh-huh” in chambers followed by no objection in open court to qualify as express, knowing and intelligent consent places us at the top of a very slippery slope.
As for the other contentions asserted by Fisher, I agree with the majority opinion. The majority stretches Rule 23(b), however, to the point where the objective is to ensure only the mock appearance of a fair and unbiased trial. Such a stretch is a distorted one, and I respectfully dissent.
. The majority states: "No court, as far as we have been able to determine, has held that a defendant's oral consent given in chambers is sufficient under Rule 23(b) to waive the right to a twelve member jury.” Op. at 732.
. See Op. at 732 ("[Fisher] presents no facts that would support any inference that the waiver was not knowing.’’).
. While it is often said that "not to decide" is "to decide," the same does not follow for "not knowing" and "knowing." Casting on the defendant the burden of proof, the assuming in the circumstances we are here considering, that silence means consent, essentially eviscerates the safeguards Rule 23 was so careful to erect to protect against a decision not fully considered to abandon a valued right to twelve jurors.
. Op. at 732.
. The majority states: "Following the in-chambers session, the court announced in open court that an agreement had been reached to proceed with eleven jurors. At no time did Fisher or his counsel raise any objection to the proceedings.” Op. at 732. The judge, however, specifically announced that "but for the agreement of counsel that we could proceed with eleven jurors, we would have had to — everything that we’ve done today would have gone for nought.” Joint Appendix at 54.