To be effective, the waiver "must consist of an intelligent and competent decision by the accused to relinquish a known right." State v. Swint, 3 Or. App. 528, 529, 475 P.2d 434 (1970); see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S Ct 1019, 82 L Ed 1461 (1938); Patton v. United States, 281 U.S. 276, 312-13, 50 S Ct 253, 74 L Ed 854 (1930). Article I, section 11, provides, in part:
There have been indirect references to the timing of the waiver in previous cases, but we treat those references as dicta. See State v. Barber, 343 Or. 525, 529, 173 P.3d 827 (2007) (in discussing the peculiarity of the waiver provision, the court stated that "Article I, section 11, not only recognizes a right but also specifies the only way in which that right may be lost, viz., by a written waiver executed before trial commences, together with trial court consent"); State v. Swint, 3 Or. App. 528, 475 P.2d 434 (1970) (waiver of jury after the state had rested its case was upheld as competent). Neither of those cases presented the issue of when a defendant may waive his jury trial right or contained any discussion of the timing of the waiver.
To be effective, the waiver "must consist of an intelligent and competent decision by the accused to relinquish a known right." State v. Swint, 3 Or. App. 528, 529, 475 P.2d 434 (1970). The validity of defendant's waiver of his right to jury trial is not at issue in this case.