(dissenting) — I dissent from the majority holding concluding that Brand knowingly, intelligently and voluntarily waived his right to jury trial.
Based on Brand's written waiver, as well as his own and his counsel's statement in court, the majority holds that Brand knowingly, intelligently and voluntarily waived his right to jury trial. This conclusion does not follow from the record of the proceedings for three reasons: (1) the trial judge did not take the minimal steps necessary to ensure that Brand understood his right to jury trial; (2) the judge could not have intelligently consented to acceptance of the waiver, pursuant to CrR 6.1(a); and (3) given that the question of Brand's mental capacity had arisen, the judge failed to make a sufficient inquiry on that matter prior to accepting waiver.
A criminal defendant's right to a jury trial is fundamental. Duncan v. Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968). Waiver of the right to a trial by jury by an accused must be knowing, intelligent and voluntary. State v. Forza, 70 Wn.2d 69, 70-71, 422 P.2d 475 (1966). In order to preserve the right to jury trial, courts should indulge every reasonable presumption against waiver, absent an adequate record to the contrary. Seattle v. Williams, 101 Wn.2d 445, 451, 680 P.2d 1051 (1984); State v. Wicke, 91 Wn.2d 638, 645, 591 P.2d 452 (1979).
*791Because waiver is an "intentional relinquishment or abandonment of a known right", Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938), it is axiomatic that the defendant must first understand the guaranties included in that right before he can effectively waive it. Yet, that is exactly what is missing from the record in this case — evidence that Brand understood the critical differences between a jury trial and a bench trial.
Some federal circuit courts have adopted rules either advising or mandating district courts to provide information to defendants on the record to help ensure that defendants understand the basic mechanics of a jury trial before deciding whether to waive that right. E.g., United States v. Cochran, 770 F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 275 (6th Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981). District courts in those circuits must or should inform defendants that (1) 12 members of the community compose a jury; (2) the defendant may take part in jury selection; (3) jury verdicts must be unanimous; and (4) the judge alone decides guilt or innocence if the defendant waives a jury trial. Cochran, 770 F.2d at 853; Martin, 704 F.2d at 274-75; Delgado, 635 F.2d at 890.
We ought to require no less. By providing this information, either orally or in written form, the trial judge will be better able to discern whether the defendant understands the full ramifications of the waiver of his constitutional right to jury trial. Further, if the judge does not verify that the defendant understands this distinction, either through an oral inquiry or a written waiver form, then the record does not support a finding of knowing, intelligent and voluntary waiver of this right. See State v. Downs, 36 Wn. App. 143, 145, 672 P.2d 416 (1983) (purpose behind written waiver requirement of CrR 6.1(a) is to ensure that waiver is knowing, intelligent and voluntary), review denied, 100 *792Wn.2d 1040 (1984); State v. Bray, 23 Wn. App. 117, 122, 594 P.2d 1363 (1979).14
Moreover, CrR 6.1(a) expressly requires that a defendant's written waiver have the "consent of the court." Surely, the record therefore must show evidence of knowing, intelligent and voluntary waiver to enable a judge to intelligently consent to acceptance of that waiver. The judge in this case had no evidence from which he could conclude that Brand knew of the critical differences between judge and jury trials.15 Thus he had no basis for concluding that Brand had knowingly, intelligently and voluntarily waived his right.
The trial judge also failed to conduct a sufficient inquiry of Brand's capacity to effectively waive a constitutional right. Generally, a judge's determination of whether a waiver is knowing, intelligent and voluntary depends on all the facts and circumstances surrounding the case, including the experience and capabilities of the accused. Johnson, 304 U.S. at 464; Downs, 36 Wn. App. at 145. In Downs, the court denied a challenge to the adequacy of a jury waiver, stating that "absent circumstances that initially raise a question regarding the defendant's capacity to waive a jury trial, the trial court need not conduct an independent inquiry on that issue prior to accepting waiver." 36 Wn. *793App. at 145 (citing State v. Likakur, 26 Wn. App. 297, 300-01, 613 P.2d 156 (1980)). But the converse of this statement is also true: when circumstances are presented that raise a question regarding capacity to waive a jury trial, the trial court must conduct an independent inquiry prior to accepting the waiver. Cf. State v. Kolocotronis, 73 Wn.2d 92, 102, 436 P.2d 774 (1968).
In this case, such circumstances were presented. As the majority points out, the record before the trial judge showed that Brand had been examined by mental health professionals six times while in jail awaiting trial. The judge also knew that Brand's defense at trial would be diminished capacity at the time of the crime. While it is true that no one asserted that Brand was incompetent to stand trial, the judge had enough information on his mental state to warrant an independent inquiry and caution in accepting a waiver of a constitutional right.
The record contains no evidence that Brand knowingly, intelligently and voluntarily waived his right to jury trial, nor did the trial judge effectively consent to acceptance of the waiver. The trial judge also failed to make a sufficient inquiry into Brand's capacity. Accordingly, I would remand to the trial court for evidentiary hearing as to whether Brand's waiver was knowing, intelligent and voluntary.
Review denied at 114 Wn.2d 1002 (1990).
It would be a simple matter to create a written waiver form that includes such a provision. The Whatcom County Superior Court utilizes a standard form containing language substantially similar to the following:
I, the undersigned Defendant, am aware of the following matters concerning waiver of my right to a jury trial:
X. Under the Constitution of the United States and the State of Washington, the statutes of the State of Washington, and the Criminal Rules for Superior Court, I am entitled to a trial by a jury of my fellow citizens who would determine my guilt or innocence.
2. In a jury trial, the State must convince all of the twelve citizens of my guilt beyond a reasonable doubt. In a trial by judge, the State must only convince the judge beyond a reasonable doubt.
For instance, Brand may have believed that a simple majority (7-to-5) vote of a jury would have been sufficient to convict. If so, waiver would not have seemed to be significant.