(concurring in part and dissenting in part). I concur with parts n and m of the majority’s opinion that the prosecutor did not impermissibly shift the burden of proof during closing argument by stating that the failure of a defense witness to appear at trial was “convenient,” and that there was sufficient evidence presented at trial to sustain the trial court’s verdict. I must dissent, however, from the majority’s decision to sanction the trial court’s stated policy of giving defendants lower sentences for having a bench trial. I believe that such a policy should not be institutionalized because it punishes defendants who exercise their constitutional right to a jury trial.
Defendant’s argument is that his constitutional right to a jury trial was not voluntarily waived because the waiver was based on defense counsel’s representation to him that if he proceeded with a jury trial, he would receive a harsher sentence.
Following his convictions and sentencing, defendant moved through appellate counsel for a new trial, challenging the voluntariness of his waiver of a jury trial. An evidentiary hearing was conducted on March 22, 1996, and March 26, 1996. At the hearing held on *524March 22, 1996, defense counsel admitted that he told defendant that if he elected to have a bench trial he would receive a less harsh sentence.1 Specifically, defense counsel stated the following in response to questions by defendant’s appellate counsel:
A. I was concerned about the nature of the proofs against him, and I indicated to him on other occasions that we didn’t have the strongest case in my view. . . . And I told him that if he had a trial by jury and was convicted, I felt that he would get a higher sentence. If he had a trial and was convicted with a Judge — I think the term I used was something in the nature of a safety net. I said that with regard to sentencing, it’s the practice of most Judges — I felt that Judge Boyle would be no different — that if he had a non-jury trial in this case and if he was convicted- — -I also said that Judge Boyle would give him a fair trial. I said if *525they didn’t have enough proof to convict him, he would be found not guilty, but if he were convicted, I felt that his sentence would have [sic] less than it would have been if he were convicted by a jury.
Q. You told him that there may be a difference in the sentence he could received [sic] if he was convicted by a trial with a jury or a trial with a Judge?
A. Yes.
Q. And specifically, you said that it was your opinion that he would get more time if convicted before a jury?
A. In effect, I told him that he would get less time if he were convicted by a Judge.
Q. That was the message you were trying to convey to him essentially, that if he got convicted after a trial by a jury, he could get more time; is that correct?
A. I was explicit about that, yes.
At the hearing conducted on March 26, 1996, defendant testified that his trial counsel told him that if he had a jury trial and was found guilty, the trial court would give him the maximum possible sentence. However, if defendant elected a bench trial, then he would receive a sentence within the guidelines range. Defendant maintained that he wanted a jury trial, that he was innocent of the charges against him, and that he elected a bench trial only because of trial counsel's representations to him concerning sentencing. Although the trial court denied defendant’s motion for a new trial, it made the following observations on the record:
But if it is a bench trial and I score [the sentencing guidelines], then I lower the sentence to reflect the fact. . . that [it] is [sic] been a bench trial. . . . And my docket now is current. I’m among the most current Judges in this bench. I am consistently within the top if you exclude the four *526Judges — there are three or four of us that compete to be at the top and have the most timely dockets, and the reason I am able to do that is because defendant’s [sic] waive. And why do defendant’s [sic] waive? Because their attorneys tell them precisely what [defense counsel] said he told Mr. Godbold in this case. The attorney makes a judgment about the likelihood of winning or losing either before a bench trial or a jury trial. I want attorneys to tell defendants. I’ve never told them to tell them that, but I do want attorneys to tell defendants that they’re going to get a sentence concession for a bench trial if they do. That does not mean the flip side, that they get punished for exercising their right to trial because they do not. . . .
. . . Now, the United States Supreme Court and the Michigan Supreme Court have recognized where parties come together and they plea bargain, a Judge is perfectly right to lower sentences in light of the saving of court time. If that is recognized in a plea based system, it certainly ought to be recognized in a waiver based system .... That there’s nothing wrong with creating a legal and cultural mill in which defense lawyers can tell [a] client, “You’re going to get convicted by a jury, and you’re going to get convicted by a Judge and that’s my professional advise [sic].” However, it will lower the sentence if it’s a bench trial.
It is a well-established rule that a trial court may not take into consideration the fact that the defendant pleaded guilty or waived a jury trial in determining the term of the sentence. People v Earegood, 383 Mich 82, 85; 173 NW2d 205 (1970). A trial court may not take into consideration a defendant’s decision to exercise his constitutional right to a jury trial, or a defendant’s refusal to plead guilty, in determining the term of the sentence. People v Snow, 386 Mich 586; 194 NW2d 314 (1972); People v Mosko, 190 Mich App 204, 211; 475 NW2d 866 (1991), aff’d on other grounds *527441 Mich 496; 495 NW2d 534 (1992); People v Hogan, 105 Mich App 473, 486; 307 NW2d 72 (1981); People v Travis, 85 Mich App 297, 303; 271 NW2d 208 (1978); People v Bottany, 43 Mich App 375, 385; 204 NW2d 230 (1972). As succinctly stated in People v Atkinson, 125 Mich App 516, 518; 336 NW2d 41 (1983), “no accused person should face the dilemma of either waiving trial or facing retaliatory sentencing as a consequence of insisting on a trial.” Moreover, in People v Cobbs, 443 Mich 276, 283; 505 NW2d 208 (1993), our Supreme Court held that to avoid the potential for coercion, a trial court must not state or imply alternative sentencing possibilities that could result from the defendant’s future procedural choices, such as an exercise of the defendant’s right to a trial by jury or by the court.2
The constitutional right to a trial by jury, US Const, Am VI; Const 1963, art 1, § 14, “is among the most fundamental rights provided by our judicial system.” People v Rodgers, 119 Mich App 767, 771; 327 NW2d 353 (1982). A defendant’s waiver of the constitutional right to a trial by jury must be voluntary. MCR 6.402(B); People v Shields, 200 Mich App 554, 560-561; 504 NW2d 711 (1993). The courts will not permit a procedure that needlessly chills the exercise of a constitutional right, such as the right to a trial by jury. Rodgers, supra, p 770. Further, courts indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v Zerbst, 304 US *528458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938). I would conclude that the trial court’s stated procedure of giving a more lenient sentence if the defendant waives the right to a jury trial rendered defendant’s waiver in this case to be involuntary. The trial court’s procedure needlessly chills a defendant’s right to a trial by jury.
In a case such as this, involving the waiver of a trial by jury, there is no bargaining between the defendant and the prosecutor such as in a plea bargain. In a plea bargain situation, the defendant and the prosecutor will bargain for the exchange of the defendant’s constitutional rights with a reduction in the charges or the waiver of certain charges, or with a specific sentence agreement probably representing a fairly lenient sentence. In a plea bargain situation, the defendant knows exactly what he will receive, and bargains openly with the prosecutor for the outcome. When a defendant waives his right to a jury trial, there is no such exchange between the defendant and the prosecutor. The prosecutor offers the defendant nothing in exchange for waiving the right to a jury trial. Therefore, I disagree with the majority’s attempt to analogize a guilty plea situation with a bench trial situation. The two are simply not analogous. In a bench trial situation, the defendant bargains for nothing; the trial court decides both the verdict and the sentence. Therefore, a defendant does not know, or participate in, the outcome of a bench trial.3
*529The majority’s assertion that the “analysis of the dissenting opinion would suggest that the multitude of defendants who have waived jury trials or pleaded guilty on the basis of the expectation of some degree of leniency in sentencing have done so involuntarily, as the result of coercion,” ante, p 517, is simply not correct. As has been stated, there is a very real difference between a guilty plea and a bench trial. Rather, the real issue is whether it is inherently coercive to inform defendants that they will receive a harsher sentence if they exercise their constitutional right to a jury trial thereby rendering their waiver of that right to be involuntary. Therefore, the majority’s insistence that the trial court based defendant’s sentence on proper sentencing considerations does not address defendant’s principal argument.
Further, the trial court’s claim that it will give a more lenient sentence to the defendant if the defendant elects a bench trial is actually illusory to the defendant because the trial court does not state before trial what the sentence will be if the defendant chooses a bench trial or if the defendant continues with a jury trial. Therefore, there is no record support for the defendant that he would receive a more lenient sentence if he elects a bench trial because the defendant has no idea what the sentence might be either way. As such, it is difficult to know whether the defendant truly received a “benefit” in this case. There is no benefit to the defendant where the defendant does not know the exact sentencing consequences of waiving his right to a jury trial other than the trial court’s assertion that the sentence will be lower.
*530I cannot sanction the trial court’s actions in this case. To do so would effectively punish a defendant for exercising his constitutional right to a jury trial. Legal scholars have commented on the institutionalization of differentiating between jury trials and bench trials:
Jury waiver, although largely a matter of regional custom, tends to vary depending upon the offense category. The pattern is similar to that for guilty pleas, suggesting that the motivations are similar. “Paramount is the expectation of a lesser sentence if the conviction comes in a bench trial rather than from a jury, just as the plea of guilty carries a lesser sentence than the verdict of guilty. The defendant who does not want to wholly deprive himself of the possibility of an acquittal, but wants to assure a modicum of leniency in case of conviction, might be moved to waive the jury. There is some modest evidence that jury waiver may accomplish this.” [LaFave & Israel, Criminal Procedure (Criminal Practice Series, 1984), § 21.1(h), p 704, quoting Kalven & Zeisel, The American Jury (1966), pp 26-27.]
However, as LaFave & Israel have stated, institutionalizing this differential is unconstitutional. See Kalven & Zeisel, id., pp 26-27; United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968) (a statute declaring that a defendant can receive the death penalty only if recommended by a jury, and that the penalty can be avoided by waiving a jury trial or by pleading guilty, is unconstitutional because the inevitable effect is to discourage the assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial); State v Dansinger, 521 A2d 685 (Me, 1987) (even absent a statutory scheme such as in Jackson, a trial court’s action expressly basing a higher sentence *531on the defendant’s exercise of the right to a jury trial is constitutionally impermissible).
The trial court’s conclusion that rewarding a defendant for electing a bench trial that saves the court’s time does not necessarily translate to punishing a defendant for exercising the constitutional right to a jury trial is incongruous. It, of course, necessarily follows that rewarding a defendant with a more lenient sentence for waiving a jury trial punishes the defendant for exercising the right to a jury trial by giving that defendant a more harsh sentence. A defendant has the constitutional right to a jury trial and cannot be penalized for exercising that right. Mosko, supra, p 211.
I would hold that defendant’s waiver of his right to a juiy trial was involuntary in this case. Defendant was told by defense counsel that the trial court would consider at sentencing whether defendant waived a jury trial and that defendant would receive a more lenient sentence if he waived a jury trial and was convicted. Defendant also stated that he wanted a jury trial and waived it only because of these representations by counsel. The trial court’s statements on the record show that defendant would indeed have been punished for exercising his right to a jury trial by receiving a more harsh sentence.4 Such conduct chills a defendant’s right to a jury trial and renders any waiver of that constitutional right involuntary. The *532coerced waiver of the right to a trial by jury is a structural defect in the constitution of the trial mechanism that cannot be regarded as harmless. People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994); Rodgers, supra, p 771.
I would reverse and remand for a new trial.
Justice Levin has written rather forcefully regarding this practice in his dissenting statement when the Court denied leave to appeal in People v Green, 445 Mich 894; 519 NW2d 853 (1994):
It is common, or common-place, for defendants to waive jury trial in Recorder’s Court in expectation that the judge will find, or reward them with a finding of, guilt of a lesser offense, or with a reduced sentence on the charged offense, or both. It appears that with relatively few exceptions, the expectation is fulfilled. The practice is so endemic that it has become a factor in the decisional process whether to grant leave to appeal.
In the instant case, we should grant leave to appeal to consider whether a trial judge must, at least in a first-degree murder case, affirmatively disabuse the defendant of any such expectation.
We should also grant leave to appeal to consider whether the trial judge should have granted defendant Louis Green’s motion to disqualify the judge from presiding at the posttrial hearing on Green’s motion for a new trial, which asserted that his trial lawyer had promised that, if he would waive a jury trial, the judge would convict him of an offense less than first-degree murder.
On the basis of this statement, it appears that the majority will find support from our Supreme Court; however, the institutionalizing of this procedure has serious constitutional and social implications. Herding criminal defendants through trial courts under the guise of efficiency does not equate to justice.
The minority, ante, p 517, n 4, criticizes my reliance on these cases involving claims of retaliation or punishment for the exercise of a constitutional right. This appears to be a distinction with no real difference. If a defendant is threatened with receiving a harsher sentence for opting for a jury trial, then this serves to effectively chill exercising the right to a trial by jury.
The majority’s reliance on Corbitt v New Jersey, 439 US 212; 99 S Ct 492; 58 L Ed 2d 466 (1978), is misplaced because Corbitt involved a guilty plea situation. Guilty pleas involve participation and negotiation by the defendants, and the defendants know exactly what they will receive at the end of that negotiation.
The majority’s assertion that there is no basis to conclude that defendant’s exercise of his right to a jury trial would have been considered in fashioning the sentence after a conviction by a jury is incorrect. The trial court stated at the evidentiary hearing on March 26, 1996, “There’s no question in my mind Mr. Godbold would have been convicted in five minutes by a jury in this case and the sentence would have been higher than the sentence I imposed.”