Criminal Law & Procedure: Counsel: Right to Counsel

Criminal Law & Procedure: Trials: Defendant's Rights: Right to Counsel

Even though a defendant is guaranteed the right to counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, the defendant is entitled to waive such right. However, the defendant's waiver must be voluntary, knowing, and intelligent.

Once a defendant has indicated to a trial court that he or she wants to waive his or her right to counsel, the trial court must make sure that the defendant is aware of the advantages and disadvantages of representing himself or herself. The trial court must make an inquiry as to whether the defendant has the sufficient intelligence to appreciate the disadvantages of self-representation. The trial court must examine the defendant on the record and must examine the circumstances under which the waiver is being made.

A trial court's failure to make a defendant aware of the dangers of self-representation may invalidate the defendant's waiver of his or her right to counsel. The trial court may not merely explain certain trial procedures to the defendant and inquire if the defendant understands the procedures. The trial court must ensure that the defendant understands the impact of his or her waiver.

After a trial court determines that a defendant has voluntarily and intelligently waived his or her right to counsel, the trial court should provide the defendant with a written statement of his or her waiver, which statement should be signed by the defendant. If the defendant signs the statement, it should be included in the record. However, the written statement is not mandatory.

A valid waiver of a defendant's right to counsel is normally reviewed in an appeal by an appellate court's examination of the record. The appellate court analyzes the admonishments from a trial court to the defendant and the defendant's responses in order to determine whether the waiver was made voluntarily, knowingly, and intelligently. Although a trial court is not required to make specific findings about the defendant's age, background, or experience, the appellate court reviews the overall record and the circumstances of the defendant's case.

A defendant's waiver of his or her right to counsel must be voluntary. The defendant cannot be forced to proceed without counsel based on external circumstances, such as the failure of the defendant's attorney to appear on behalf of the defendant. The defendant's failure to request the appointment of counsel does not constitute a waiver of his or her right to counsel. Also, the defendant's request for substitute counsel does not constitute a waiver of his or her right. However, if the defendant attempts to disrupt a trial court's proceedings by insisting on the removal of his or her counsel during a trial or by refusing to proceed to trial with his or her appointed counsel, the defendant may be deemed to have waived his or her right to counsel.



Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.