Even prior to Johnson, in 1930, the Supreme Court noted that "[t] hanks to the humane policy of the modern criminal law", a criminal defendant "may have counsel furnished him by the state."

—the United States Supreme Court found that, although a defendant may waive the right to a jury trial

It is settled that a criminal defendant may waive his constitutional right to trial by jury if the waiver is "knowing, voluntary, and intelligent."

Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the …

The court noted that "under the common law, the accused was not permitted to waive trial by jury, as generally he was not permitted to waive any right which was intended for his protection."

It has long been established that a criminal defendant may waive his or her Sixth Amendment jury trial right.

The Sixth Amendment phrase "trial by jury" means "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted...."

And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

The public policy of one generation may not, under changed conditions, be the public policy of another.

—the constitutional standard, which undergirds trial by jury, "was meant to confer a right upon the accused which he may forego upon his election. To deny his power to do so is to convert a privilege into an imperative requirement."