The Implied Waiver of Right to Counsel
| Publication year | 1988 |
| Pages | 1533 |
| Citation | Vol. 08 No. 1988 Pg. 1533 |
1988, August, Pg. 1533. The Implied Waiver of Right to Counsel
In contrast to some constitutional rights established by implication, the Sixth Amendment right to counsel is affirmatively and un-ambiguously expressed.(fn1) The bright line is clear: the right is available to one accused of a crime who faces the prospect of imprisonment if convicted. The right applies equally to an indigent person as well as to one financially able to pay for representation. An indigent person facing imprisonment is entitled to court-appointed counsel at state expense. The right to assistance of counsel is applicable to the states through the Fourteenth Amendment due process clause. The right attaches when adversarial proceedings ensue.(fn2)
In order to be meaningful, the right to assistance of counsel must be effective.(fn3) However, the right to counsel becomes murky when defendants expressly or impliedly waive the right and represent or are forced to represent themselves.
This article discusses the waiver of the right to counsel, specifically, the implied waiver as opposed to an express waiver.(fn4)
The right to counsel may be waived. The waiver may be express or implied, depending on the circumstances of the particular case. The waiver must be knowingly, intelligently and voluntarily made. A trial court has a duty to assure the right has been waived, and must make the defendant aware of the dangers of self-representation.(fn5)
There is a strong presumption against the waiver, and the burden is on the state to show the waiver was knowingly, intelligently and voluntarily made. The waiver will not be presumed from a silent record. However, an indigent defendant is responsible for complying with reasonable procedures to determine his or her eligibility for court-appointed counsel.(fn6)
The basic legal standards establishing a waiver of the right to counsel are straightforward and expressed through the case law at the federal and Colorado appellate court levels. A problem arises, however, in understanding what facts will support the legal underpinnings of the implied waiver of the right to counsel. Two recent Colorado decisions underscore the difficulty a trial judge faces when determining whether, because of a defendant's conduct, to force the defendant to go to trial unrepresented, even though the defendant may be demanding to be represented as the jury is being impaneled.
Implied waiver of counsel is not a hypothetical legal issue to be pondered by legal scholars in a vacuum. It happens almost every day in the course of a busy trial judge's criminal docket. The circumstances arise with both indigent and non-indigent defendants. The following explanations are typical. "Well, judge, I didn't have time to see the public defender, but I still want him to represent me." "I'm not entitled to a public defender and I want a private attorney to represent me, but I can't afford one right now." "I've talked to a lawyer and he has agreed to represent me but I first have to bring him some money and I'm not sure when I will be able to pay him." When such dialogues occur during pre-trial proceedings, little difficulty arises. However, problems result when they occur on the morning of the trial.
An analysis of two cases, People v. Arguello(fn7) and King v. People,(fn8) shows that the trial judge must make an...
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