However, as a minimum, a valid waiver requires that the defendant be present in open court and that waiver at least be discussed. Whether a waiver was understandingly made is determined by the facts and circumstances of each case. In this case, the record shows that defendant was present in open court when the trial court entered an order indicating that the matter would proceed to a bench trial. However, nothing shows that defendant's attorney expressly advised the court of defendant's desire to proceed with a bench trial while defendant stood silent. Nothing shows that defendant signed a written waiver of her right to a jury trial.
Nothing shows that jury waiver was discussed at any time.
We conclude that this record fails to show that defendant made an understanding waiver of her right to a jury trial. Defendant is therefore entitled to a reversal of her conviction and a new trial. Our conclusion is not changed by the State's contention that defendant's jury waiver should be upheld because defendant did not allege and prove that she was prejudiced by her choice of a bench trial over a jury trial. However, the State's reliance on those cases is misplaced because in those cases waiver had been made by the defendants' attorneys in open court while the defendants were present or the defendant had personally waived a jury trial in the presence of his counsel. We believe that this was simply not enough to show that defendant made an understanding waiver as required by Scott.