ORDER GRANTING APPLICATION FOR WRIT OF CERTIORARI

Petitioner/Defendant-Appellant Luis Gomez-Lobato's application for writ of certiorari filed on December 21, 2012, is hereby accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling.

CONCURRING OPINION BY ACOBA, J.

I would hold that the waiver of the right to jury trial in this case was invalid, because under the circumstances, the Family Court of the Third Circuit (the court) did not engage Petitioner/Defendant-Appellant Luis Gomez-Lobato (Gomez-Lobato) in an on-the-record colloquy that would ensure that he fully understood the right that he was waiving.1 I would also hold that in the future, in order to ensure that a waiver of the constitutional right to a trial by jury, Haw. Const. art. I, § 14, is knowingly, intelligently and voluntarily made, courts must conduct an on-the-record colloquy that includes informing the defendant that (1) twelve members of the community compose a jury, (2) defendants may take part in jury selection, (3) jury verdicts must be unanimous, and (4) the court alone decides guilt or innocence if defendants waive a jury trial. See State v. Friedman, 93 Haw. 63, 68, 996 P.2d 268, 273 (2000) (citations omitted).

Such an admonition is especially imperative where there is a "salient fact," see State v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), such as the language barrier in this case, that should alert the court of the need to ensure that the defendant fully understands his or her waiver of jury trial. Indeed, "inherent in the nature of justice is the notion that those involved in the litigation should understand and be understood." In re Doe, 99 Haw. 522, 534, 57 P.3d 447, 459 (2002).

I.

A.

On October 26, 2010, Gomez-Lobato was charged by Complaint with Abuse of Family or Household Member, Hawai`i Revised Statutes (HRS) § 709-906(1) (Supp. 2010).2 On December 22, 2010, Gomez-Lobato appeared before the court,3 assisted by a Spanish language interpreter. Gomez-Lobato was provided with a waiver of jury trial form, and the court called a recess in order for the interpreter to review the form with Gomez-Lobato outside of the courtroom. The form stated as follows4:

Upon returning to the courtroom after the recess, the following exchange took place:

(Emphasis added.) The waiver of jury trial form signed by Gomez-Lobato was in the English language.

On March 1, 2011, an Amended Complaint was filed, changing the dates on which the offense was allegedly committed.

The bench trial took place on March 9, 2011.5 The proceedings were conducted with the assistance of a Spanish language interpreter. At the conclusion of trial, the court found Gomez-Lobato guilty and sentenced him to thirty (30) days imprisonment and 30 days imprisonment suspended for two years on the condition that he comply with the terms and conditions of probation.6 The Judgment of Conviction and Sentence was filed on March 15, 2011.

B.

Gomez-Lobato appealed to the Intermediate Court of Appeals (ICA), alleging that the court plainly erred because it (1) did not obtain a valid waiver of Gomez-Lobato's right to trial by jury, and (2) sentenced Gomez-Lobato based on uncharged conduct, namely, attempted murder. Respondent/Plaintiff-Appellee State of Hawai`i (the State) responded that (1) the colloquy and facts of the case indicate a valid waiver, and (2) the court did not sentence Gomez-Lobato for an uncharged crime and did not rely on any fact outside the record of the trial.

In his Reply Brief, Gomez-Lobato maintained that he did not knowingly, intelligently and voluntarily waive his right to trial by jury because there was a language barrier, and the court elicited only one word "yes" or "no" responses, rather than determining whether Gomez-Lobato clearly understood the constitutional right he was giving up.7 Gomez-Lobato also explained that, in his view, the judge's words concerning attempted murder indicated that the judge had in mind a felony crime when sentencing Gomez-Lobato.

The ICA issued a Summary Disposition Order (SDO) on October 25, 2012.8 State v. Gomez-Lobato, No. CAAP-11-0000338, 128 Haw. 312, 288 P.3d 130, 2012 WL 5272234 at * 1 (App. Oct. 25, 2012) (SDO). The ICA held that under the totality of the circumstances, "`taking into account the defendant's background, experience, and conduct[,]'" id. (quoting Friedman, 93 Hawai`i at 70, 996 P. 2d at 275), "Gomez-Lobato failed to demonstrate by a preponderance of the evidence that his waiver was involuntary[,]" id. at * 2. In support of this conclusion, the ICA noted that (1) Gomez-Lobato provided no authority supporting the proposition that the court had to do more than ask him yes or no questions about his waiver, (2) Gomez-Lobato had the assistance of an interpreter and the court recessed so that the interpreter could review the waiver form with Gomez-Lobato, (3) after recess Gomez-Lobato's attorney stated that he had reviewed the form, and (4) the court asked Gomez-Lobato a number of questions about his understanding, to which he responded "Yes." Id. at * 1. The ICA entered its Judgment on November 23, 2012.9

II.

On certiorari to this court, Gomez-Lobato argues, with respect to his first point, that he did not validly waive his right to trial by jury, and that the ICA erred in affirming the court's sentence. The State did not file a Response to the Application.

III.

A.

The right to trial by jury is a fundamental right protected by the sixth amendment to the United States Constitution10, article I, section 14 of the Hawai`i Constitution11, and by statute. See Hawai`i Revised Statutes (HRS) § 806-60 (1993) ("Any defendant charged with a serious crime shall have the right to trial by a jury of twelve members. `Serious crime' means any crime for which the defendant may be imprisoned for six months or more.")12; see also State v. Ibuos, 75 Haw. 118, 120, 857 P.2d 576, 577 ("In Hawai`i, a statutory right to a jury trial arises whenever a criminal defendant can be imprisoned for six months or more upon conviction of the offense.") (citing HRS § 806-60).

Hawai`i Rules of Penal Procedure (HRPP) Rule 5(b)(1) requires that "the court shall in appropriate cases inform the defendant that he has a right to a jury trial in the circuit court or may elect to be tried without a jury in the district court." See Ibuos, 75 Hawai#I at 120, 857 P. 2d at 577. "[A]ppropriate cases" are those cases where the defendant has a constitutional right to a jury trial. See Friedman, 93 Hawai`i at 68, 996 P. 2d at 273 (2000) (citing Ibuos, 75 Hawai`i at 120, 857 P. 2d at 577).

"A defendant may, orally or in writing, voluntarily waive his or her right to trial by jury[,]" but for a valid waiver, "the trial court has a duty to inform the accused of that constitutional right." Id. (citing Ibuos, 75 Haw. at 120, 857 P. 2d at 577) (citation omitted)). The colloquy preceding any waiver of the right to jury trial serves several functions: "`(1) it more effectively insures voluntary, knowing and intelligent waivers; (2) it promotes judicial economy by avoiding challenges to the validity of waivers on appeal; and (3) it emphasizes to the defendant the seriousness of the decision [to waive a jury trial].'" Id. (quoting United States v. Cochran, 770 F.2d 850, 851-52 (9th Cir. 1985)) (alterations omitted) (other citations omitted).

HRS § 806-61 (1993) provides that "[t]he defendant in a criminal case may, with the consent of the court, waive the right to a trial by jury either by written consent filed in court or by oral consent in open court entered on the minutes." (Emphasis added.) This is reiterated in Hawai`i Rule of Penal Procedure (HRPP) Rule 23(a), which provides that "[c]ases required to be tried by jury shall be so tried unless the defendant waives a jury trial with the approval of the court. The waiver shall be either by written consent filed in court or by oral consent in open court entered on the record." (Emphasis added.) While the foregoing rule and statute seem to indicate a written form would suffice to effect a waiver, a colloquy between the court and the defendant in open court and on-the-record would appear necessary in waiving a constitutional right to a jury trial. This court has required an oral waiver in the context of entrance of a guilty plea, see State v. Vaitogi, 59 Haw. 592, 585 P.2d 1259 (1978), and the waiver of the right to counsel, see Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970). Ibuos, 75 Haw. at 121 n. 1, 857 P. 2d at 576 n. 1. Similarly, the constitutional nature of the right to trial by jury requires that a waiver of that right be made on-the-record. See Haw. Const. art. I, § 14. The Hawai`i Constitution controls over any inconsistent language permitting waiver by written consent alone.

While a defendant may waive his or her right to a jury trial, the waiver must be made knowingly, intelligently, and voluntarily. Id.; see also State v. Han, 130 Haw. 83, 89, 306 P.3d 128, 134 (2013) (noting that the waiver of a fundamental right must be made knowingly, intelligently, and voluntarily). "The failure to obtain a valid waiver of this fundamental right constitutes reversible error." Friedman, 93 Hawai`i at 68, 996 P. 2d at 274 (citing Ibuos, 75 Hawai`i at 120, 857 P. 2d at 577).

B.

As discussed supra, "the validity of a criminal defendant's waiver of his or her right to a jury trial presents a question of state and federal constitutional law."13 Friedman, 93 Hawai`i at 67, 996 P. 2d at 272. This court reviews questions of constitutional law, including the waiver of a jury trial, under the right/wrong standard. Id. Gomez-Lobato's waiver of jury trial was deficient for two reasons.

First, as a general matter, the court's colloquy consisted of only yes and no questions, and under the circumstances, was not sufficient to gauge his understanding of the constitutional right. Second, his language barrier was a "salient fact" requiring that the court conduct an on-the-record colloquy to ensure Gomez-Lobato's understanding of the right. In connection with this ground, because Gomez-Lobato went over the form with the interpreter outside the presence of the court, the court should have inquired of Gomez-Lobato as to his understanding of the matters on the form, so that the court could be assured that such matters were correctly translated to him.

IV.

As noted, "[f]or a valid waiver of the right to a jury trial, the trial court has a duty to inform the accused of that constitutional right." Friedman, 93 Hawai`i at 68, 996 P. 2d at 273. This is accomplished through a colloquy conducted in open court. Id. "`Colloquy' is defined as `[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant's understanding of the proceedings and of the defendant's rights.'" Han, 130 Hawai`i at 90, 306 P. 3d at 135 (emphases in original) (quoting Black's Law Dictionary 300 (9th ed. 2009)). Under the circumstances of this case, it does not appear that the court properly engaged Gomez-Lobato in such a colloquy, and therefore did not adequately ascertain his understanding of the proceedings.

In the exchange between the court and Gomez-Lobato, the court made a number of omissions. Namely, it did not ask Gomez-Lobato any questions about the content of the jury trial waiver form or the rights articulated on the form itself, but instead only asked whether he generally understood what he was "doing and signing" prior to initialing the form. That question by itself does not indicate that Gomez-Lobato understood what a jury trial means or that he was waiving the right to a jury trial. As discussed infra, inquiring directly of the defendant as to his understanding of the material parts of the form may help the court to confirm that the waiver form was properly translated for the defendant. Finally, the court's last question, "[d]o you have any questions for me?" also would not provide any indication as to whether the defendant understood his right to a jury trial, because the court had not articulated the content of the right to the defendant in the first instance.

Although in State v. Sprattling, 99 Haw. 314, 55 P.3d 276 (2002), discussed further, infra, this court upheld the defendant's waiver of the right to jury trial where the defendant answered the court's questioning with, in effect, yes or no responses, that case is distinguishable from the instant case. See 99 Hawai`i at 315, 55 P. 3d at 276. In Sprattling, the trial court articulated to the defendant the content of the right to a jury trial, including that he would have an opportunity to select twelve people from the community to make a decision on guilt or innocence. Id. As a result, when the defendant answered "yes" or "I understand that, sir[,]" id., the defendant was answering questions about what the right to jury trial actually meant. In this case, on the other hand, Gomez-Lobato only answered questions about the act of signing the waiver form, and generally whether he understood the form. The questions did not address any specific portions of the form, or the substance of the right at issue.

Under the circumstances of a case, simply asking yes or no questions, even in connection with a signed jury trial waiver form, may not sufficiently confirm that a criminal defendant understands the right that he or she is waiving. Asking the defendant to articulate back to the court his or her understanding of the right at issue may establish an "oral exchange" that would provide assurance of "the defendant's understanding of the proceedings and of the defendant's rights." Han, 130 Hawai`i at 90, 306 P. 3d at 128 (citation omitted).

In Friedman, this court noted that the colloquy suggested that the defendant was aware of his right to trial by jury, because "[the defendant] did not simply acknowledge his right to a jury trial with a simple `yes'; rather, [the defendant] articulated to the trial court that `[a] jury trial is where the outcome of . . . whether it's guilty or not is to be determined by 12 adults instead of a judge.'" 93 Hawai`i at 70, 996 P. 2d at 268. The discussion between the court and Gomez-Lobato, therefore, did not establish that he understood the right that he was waiving by signing the form, and that he knowingly, intelligently, and voluntarily gave up that right. His waiver of the right to trial by jury would therefore be invalid on these grounds alone.

V.

A.

Additionally, Gomez-Lobato's lack of English proficiency was a "salient fact" the court was required to consider in conducting its colloquy. In Duarte-Higareda, a federal case discussed in Friedman at length, see Friedman, 93 Hawai`i at 69, 996 P. 2d at 274, the defendant had used a Spanish language interpreter throughout the proceedings, but signed a written jury waiver form that was written entirely in English. 113 F.3d 1003. Duarte-Higareda held that "[the defendant's] language barrier, like [] mental illness, is a salient fact that was known to the district court and put the court on notice that [the defendant's] waiver might be less than knowing and intelligent[.]" Id. (emphasis added). The Ninth Circuit thus held that the language barrier triggered an additional reason for the district court to engage in a colloquy with the defendant "to carry out its `serious and weighty responsibility' of ensuring that a defendant's jury waiver is voluntary, knowing, and intelligent." Id. (quoting United States v. Christensen, 18 F.3d 822, 826 (9th Cir. 1994)).14

Recently, this court, in Han, employed the rationale in Friedman in holding that the trial court's colloquy with the defendant regarding his right to testify or not to testify was insufficient, because of the "salient fact" of the defendant's language barrier. See Han, 130 Hawai`i at 92, 306 P. 3d at 137. Previously, the ICA had interpreted Friedman to require that the court conduct the specific, four-part on-the-record colloquy articulated in Friedman whenever there is a "salient fact" drawing the court's attention to the fact that the defendant may not understand the right to jury trial he or she is waiving. See State v. Barros, 105 Haw. 160, 169, 95 P.3d 14, 24 (App. 2004) ("[The defendant] has failed to direct us to any `salient fact' bearing upon his ability to understand his jury waiver. . . such as the defendant's lack of English in Duarte-Higareda . . . that would have created the need for an extensive colloquy by the trial court[.]") (emphasis omitted) (internal quotation marks and citations omitted), cert. denied, 105 Haw. 196, 95 P.3d 627 (2004); State v. Mitchell, 94 Haw. 388, 395, 15 P.3d 314, 321 (App. 2000) ("[The defendant] has not pointed to any `salient fact' indicating an inability to understand or to make a constitutionally effective waiver of his jury trial right, that would have created the need for an extensive colloquy by the court.") (citation omitted).

There is no question that Gomez-Lobato's language barrier in the instant case was a "salient fact" within the meaning of Duarte-Higareda, as articulated by this court in Friedman. Gomez-Lobato was assisted by a Spanish language interpreter throughout trial and, as noted, in reviewing the jury trial waver form. Thus, having established that there was a "salient fact" that could inhibit the defendant's understanding, pursuant to this court's holding in Friedman, 93 Hawai`i at 69, 996 P. 2d at 274, the court was required to relate the specific, four-part inquiry discussed supra, in its colloquy with Gomez-Lobato.

B.

Additionally, the use of a Spanish language interpreter to assist Gomez-Lobato out of the presence of the court in reading the English language jury trial waiver form should have alerted the court of the need to conduct a more complete on-the-record colloquy with Gomez-Lobato regarding his signing of the jury trial waiver form. Pursuant to HRPP Rule 28(b), the court may appoint an interpreter to assist a criminal defendant.15 This is in accordance with procedural due process, which requires that "an individual whose rights are at stake understand the nature of the proceedings he or she faces." In re Doe, 99 Hawai`i at 533, 57 P. 3d at 458. The court in this case should have asked the defendant to articulate back, through the interpreter, the contents of the right that he was waiving.

By having Gomez-Lobato describe for the court in his own words, with the assistance of the interpreter, the right to jury trial, the court would have had a basis for concluding that the translation by the interpreter enabled Gomez-Lobato to understand the jury trial waiver form, and accordingly, the nature of the constitutional right to a trial by jury. Haw. Const. art. I, § 14. The colloquy that the court did conduct with Gomez-Lobato provided no such assurances, because the court did not question Gomez-Lobato on the substance of the right he was waiving.

Based on the insufficiency of the colloquy at trial, the case must be remanded for a new trial. As will be discussed infra in the next section, however, the circumstances of this case highlight the need for a uniform inquiry to be given where the defendant is waiving his or her right to a jury trial.

VI.

This court has provided guidance to the courts as to the type of colloquy that should be conducted in order to ensure that a defendant's waiver of the right to a jury trial is valid. As discussed supra, during the colloquy, a court should inform the defendant that "`(1) twelve members of the community compose a jury, (2) the defendant may take part in jury selection, (3) a jury verdict must be unanimous, and (4) the court alone decides guilt or innocence if the defendant waives a jury trial.'" Friedman, 93 Hawai`i at 69, 996 P. 2d at 274 (quoting Duarte-Higareda, 113 F. 3d at 1002) (citation omitted).

This court has not heretofore adopted the requirement in a published opinion that the above four-part advisement be included in the colloquy given in every case.16 State v. Kaupe, No. 22725, slip op. at 18 (Haw. May 10, 2001) (mem.). However, as discussed infra, the ICA in a published opinion did hold that the four-part advisory derived from Friedman was apropos in a jury trial waiver proceeding. State v. Valdez, 98 Haw. 77, 79, 42 P.3d 654, 656 (App. 2002) (stating that "we believe the four-part colloquy referred to in Friedman is apropos"). In determining whether such an admonition should be required, a brief historical discussion of the evolution of this court's law in this area is instructive.

In 1972, in State v. Olivera, 53 Haw. 551, 497 P.2d 1360 (1972), this court upheld as valid a defense counsel's waiver of jury trial on behalf of his client, where the waiver was given in the presence of the defendant. 53 Haw. at 551-52, 497 P. 2d at 1361. It was concluded that under the circumstances, the defendant was "well informed" of his right to trial by jury. Id. at 553, 497 P. 2d at 1362. Later, this court held in State v. Swain, 61 Haw. 173, 599 P.2d 282 (1979), that "a defendant's waiver of his constitutional right must be knowing and voluntary[.]" 61 Haw. at 175, 599 P. 2d at 284. There, the State argued that defense counsel had implicitly waived the defendant's right to jury trial by proceeding to trial. Id. Swain concluded that where the attorney stated that the defense was "ready to proceed" to trial, the defendant had not effectively waived his right to jury trial because "[a]lthough an attorney may waive the right to trial by jury for his client, express or implied concurrence of the defendant must be obvious for the waiver to be effective." Id. at 176, 599 P. 2d at 287.

State v. Young, 73 Haw. 217, 830 P.2d 512 (1992), overruled Olivera and Swain, by requiring that "it is the defendant who must make the waiver, upon being well informed of his right to trial by jury." 73 Haw. at 221, 830 P. 2d at 514 (emphasis added). Young explained that "[i]t is a better practice for the trial court to exact a knowing and voluntary waiver from the defendant either in writing or orally in open court at the time of the arraignment and plea." Id. (citing United States v. Cochran, 770 F.2d 850, 852 (9th Cir. 1985)). Thus, Young concluded, "[i]n order to provide clearer instructions to the lower courts and to ensure the safeguard of the right to jury trial, we now overrule Olivera." Id. at 221, 830 P. 2d at 515.

In Ibuos, the prosecution argued that Young was limited to situations where defense counsel's waiver was ambiguous, but did not require that defense counsel could never waive the right to a jury trial on behalf of his or her client. 75 Haw. at 122, 857 P. 2d at 578. Ibuos rejected that argument, and stated that "we now clarify that the personal waiver requirement of Young applies to situations beyond the ambiguous waiver in Young." Id.

Following Ibuos, in Friedman, this court discussed the attributes of a valid waiver of the right to jury trial. Friedman, 93 Hawai`i at 68-71, 996 P. 2d at 273-76. There, the trial court had engaged in the following colloquy with the defendant:

Id. at 66, 996 P. 2d at 271 (emphases added). On appeal, Friedman had argued that the trial court had a duty to inform him of all four of the aspects of a jury trial described in Duarte-Higareda. Id. at 69, 996 P. 2d at 274 (citing Duarte-Higareda, 113 F. 3d at 1002) (citation omitted). At that time, Friedman rejected a bright line rule requiring all four advisements to be given, and held instead, that under the circumstances, Friedman had not demonstrated that his waiver was involuntary, and failed to point "to any `salient fact' bearing upon his ability to understand his jury waiver that would have created the need for an extensive colloquy by the trial court[.]" Id. at 70, 996 P. 2d at 275.

In Sprattling, the defendant challenged the sufficiency of his jury trial waiver, and this court reviewed the circumstances under which the waiver was made, concluding that it was valid. 99 Hawai`i at 315, 55 P. 3d at 279. It noted, inter alia, that the defendant was assisted by capable counsel, and that the district court had informed him that he could select twelve members of the community as jurors, and that if he chose to waive his right, the judge would determine his guilt or innocence. Id. at 322, 55 P. 3d at 286. Thus, the court had articulated two of the components of a jury trial to the defendant, but this court did not require that the court inform the defendant of all four components. Id.

In Valdez, discussed infra, the ICA reiterated the advice to trial courts from Friedman. Valdez, 98 Hawai#I at 79, 42 P. 3d at 656. As noted, the ICA stated that it was "apropos" that trial courts inform defendants of the four-part advisement set forth in that case to ensure valid jury trial waivers and to curtail the number of appeals premised on defective waivers. Id.17 In Valdez, the ICA stated as follows:

Valdez, 98 Hawai`i at 79, 42 P. 3d at 656 (emphases added) (second alteration added, other alterations in original).

VII.

In practice, courts have articulated the right to a jury trial in a number of different ways to defendants, leading to a number of appeals, some with merit and some without, on whether the defendant's waiver was in fact made knowingly, intelligently, or voluntarily. Where such important rights are at stake, and where the remedy of a violation of such a right is a remand for a new trial, the advantage of requiring courts to include a specific inquiry on-the-record is readily apparent.

Indeed, the reasons underlying the requirement that a court conduct a colloquy at all support the mandate of certain specific questions. First, the Friedman inquiry would be more effective than the current, generalized requirement of ensuring knowing, intelligent, and voluntary waivers, because it would specifically advise each criminal defendant of the nature of a jury trial, and therefore, what rights the defendant would be foregoing.

Second, the inquiry would limit the number of appeals, because appellate courts would no longer be reviewing the content of the colloquy on a case-by-case basis, but would instead consider whether the court's colloquy included the four-part advisement, curtailing the potential defective waiver claims that could be appealed. Courts would be assured that cases would not be vacated on appeal for failure to properly set forth the nature of a jury trial and the consequences of waiving such a trial. Third, a more in-depth description of the jury trial process would serve to emphasize to the defendant the seriousness of what he or she would be deciding to waive and to lend confidence to the parties and the courts that the waiver was properly made.

The four-part advisement described in Friedman is already contained in the Hawai`i Criminal Bench Book.18 Thus, no undue hardship would result from mandating that the above model inquiry be given as part of the colloquy in each case where the defendant has expressed an intent to waive his or her right to a jury trial.

VIII.

The majority notes that where a defendant is assisted by an interpreter, defense counsel is obligated to explain to the defendant the waiver of a constitutional right, and that, in this case, it is not clear whether defense counsel did in fact explain the waiver to Gomez-Lobato. Majority's opinion at 14-15 n. 8. It is evident that counsel has a duty to his or her client based on the client's right to effective counsel to explain the contents of a jury trial waiver form. But, such a duty does not excuse the court from ensuring that the defendant understood the right being waived, before accepting a waiver of a jury trial.

It is well-established that the waiver of a jury trial is a personal one. See Young, 73 Haw. at 221, 830 P. 2d at 514. Insofar as the majority indicates that a defendant could waive his right based on the explanation by the defense counsel, it poses a new limitation on the court's obligation to ensure that the waiver is validly made. Further, the uncertainty as to whether defense counsel explained the waiver form through the interpreter, or whether the interpreter simply went over the text of the waiver form with the defendant is further reason for requiring a uniform inquiry to assure validity of waivers.

The majority also concludes there was ambiguity in the court's colloquy with respect to whether Gomez-Lobato discussed "this" with his attorney and whether by "this" the court meant the waiver form, the waiver of the right to jury trial, or the initialing and signing of the form. Majority's opinion at 14 n. 7. Again, such ambiguity illustrates precisely why this court should adopt for the trial courts a specific inquiry to include in the court's colloquy, to ensure that not only Gomez-Lobato, but all defendants, understand this right, so that on appeal, a reviewing court can determine whether or not a particular exchange resulted in a valid waiver. In this case, as discussed supra, the exchange did not result in a valid waiver.

IX.

Hawai`i case law requires that specific admonitions be given in other cases where the rights at stake are those of a fundamental constitutional nature. For example, in the context of the criminal defendant's right to testify, the trial court must conduct two separate advisements to a defendant explaining the right, one at the start of trial — the "Lewis advisement", see State v. Lewis, 94 Haw. 292, 296-97, 12 P.3d 1233, 1237-38 (2000), and one at the close of the defendant's case — the "Tachibana colloquy", see Tachibana v. State, 79 Haw. 237 n. 9, 900 P.2d 1304 n. 9 (1995). Han, 130 Hawai`i at 90, 306 P. 3d at 135. The second of these advisements requires the court to engage in a specific colloquy with the defendant where he or she has indicated the preference not to testify, advising him or her

Id. (quoting Tachibana, 79 Hawai`i at 236 n. 7, 900 P. 2d at 1303 n. 7). Significantly, one of the rationales that this court has recognized for requiring this specific colloquy is "`the minimization of post-conviction disputes over the actual waiver of the right to testify[.]'" Han, 130 Hawai`i at 88, 306 P. 3d at 133 (emphasis added) (quoting Lewis, 94 Hawai`i at 295, 12 P. 3d at 1236).

Lewis expanded upon Tachibana, requiring that the court give an additional advisement regarding the defendant's right to testify or not to testify. 94 Hawai`i at 297, 12 P. 3d at 1238. On this point, Lewis stated that, "we now mandate that . . . the trial courts `prior to the start of trial, shall (1) inform the defendant of his or her personal right to testify or not to testify and (2) alert the defendant that, if he or she has not testified by the end of the trial, the court will briefly question him or her to ensure that the decision not to testify is the defendant's own decision.'" Id. (quoting Tachibana, 79 Hawai`i at 237 n. 9, 900 P. 2d at 1304 n. 9). This additional advisement, like the Tachibana colloquy, was instituted in order to "limit[] any post-conviction claim that a defendant testified in ignorance of his or her right not to testify." Id.

Additionally, in State v. Murray, 116 Haw. 3, 169 P.3d 955 (2007), this court held that the trial court must conduct a colloquy regarding waiver of proof of an element of the offense. 116 Hawai`i at 12, 169 P. 3d at 964. There, this court discussed the requirement that a defendant could stipulate to the element of a prior felony conviction only if the court engaged in an on-the-record colloquy with the defendant "acknowledging the prior felony conviction and acceding to the stipulation." Id. at 13, 169 P. 3d at 965. Thus, in the context of a stipulation as to an element of the offense, this court also required that the trial court conduct a colloquy to obtain an informed on-the-record acknowledgment of the defendant's waiver of the prosecutorial obligation to prove each element of a crime beyond a reasonable doubt. Id. Notably, Murray grounded its specific mandate in the reasoning in Ibuos and Tachibana, stating that "[t]hose cases indicate that a colloquy between the trial court and defendant is the best way to ensure that a defendant's constitutional right . . . is protected, and that the defendant has knowingly and voluntarily waived such a right." Id. at 12, 169 P. 3d at 964.19

X.

As constituted in Hawai`i, requiring as part of the colloquy, a specific inquiry of criminal defendants on their right to a jury trial would not, in effect, be foreign to our procedure at all. Instead, it would be a salutary measure to effectuate the guidance that has existed in this jurisdiction since Friedman was decided in 2000. See Friedman, 93 Hawai`i at 69, 996 P. 2d at 274.

If the court fails to advise the defendant in accordance with this four-part inquiry, then the defendant's waiver of the right to trial by jury would be deemed invalid unless the prosecution can show that the error was harmless beyond a reasonable doubt with respect to the defendant's waiver of his or her right to a jury trial. That is, the State must then show that there is no reasonable possibility that the error might have contributed to the defendant's waiver of his or her right. See State v. Schnabel, 127 Haw. 432, 450, 279 P.3d 1237, 1255 (2012). However, if the court's colloquy includes this advisement, the defendant's waiver will be presumptively valid, and the defendant must show, by a preponderance of the evidence, that his or her waiver was involuntary. See Friedman, 93 Hawai`i at 69, 996 P. 2d at 274 (citing Ibuos, 75 Haw. at 121, 857 P. 2d at 578).

It is not difficult to foresee that courts will continue to be faced in the future with similar questions as to the validity of jury trial waivers. The frequency with which this issue has arisen indicates that a specific inquiry should be included in the colloquy with respect to the right to trial by jury. Just as this court, in Young, overruled Olivera's holding that defense counsel could waive the right to jury trial on behalf of their clients, similarly Friedman's holding as to the nonobligatory nature of the Duarte-Higareda four-part inquiry should be overruled, in favor of the assurance that in every case, the defendant's right to a jury trial has been waived knowingly, intelligently, and voluntarily.20

XI.

Despite the majority's holding that such a four-part inquiry is not required as part of the colloquy, individual courts are free to institute such procedures to protect the jury trial right and to avoid recurring appeals from disparate waiver colloquies. This may be easily accomplished, as set forth in Valdez, 98 Hawai`i at 79, 42 P. 3d at 656, and the Hawaii Criminal Bench Book.

XII.

In accordance with the above, I would therefore hold that Gomez-Lobato's waiver of the right to jury trial was insufficient in this case, and thus the March 15, 2011 judgment of the court must be vacated, and the case remanded for a new trial. Furthermore, in my view, a trial court must engage the defendant in the on-the-record colloquy that includes a four-part inquiry described herein, subject to harmless error review on appeal.