MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part I(A) 1    Duty Of Court To Determine That Waiver Of Counsel Is Made Knowingly And Voluntarily

CAVEAT: See Publication Preface and Caveats

FORECITE National™ Related To This Issue:

18.1 Self Representation

In order to proceed pro se, the defendant must knowingly and intelligently waive his or her right to counsel.

Faretta v. California, 422 U.S. 806 (1975)
Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)
United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)
United States v. Salerno, 61 F.3d 214 (3d Cir. 1995)

The judge must interrogate the defendant to be sure that he or she understands the disadvantages of self-representation; the nature of the charge; the range of penalties; that the defendant will be proceeding alone in a complex area where experience and professional training are greatly to be desired; that an attorney might be aware of possible defenses to the charge; and that the judge believes it would be in the best interests of the defendant to be represented by an attorney.

The court should not delegate this inquiry to the prosecutor.

United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988)

Several circuits have taken the position that no specific inquiries or special hearings must be conducted to determine whether the defendant has knowingly and intelligently waived the right to counsel.

United States v. Tompkins, 623 F.2d 824 (2d Cir. 1980)
United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982)
United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)
United States v. Bell, 901 F.2d 574 (7th Cir. 1990) (judge must make sufficient inquiry to satisfy itself that the defendant in fact understands the dangers involved in self-representation)

It is not necessary that the court issue any particular warning or make specific findings of fact before it finds that a defendant has made a knowing and intelligent waiver of the right to counsel and permits the defendant to proceed pro se. However, such on-the-record findings are recommended.

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

In the absence of a Faretta colloquy, neither waiver nor waiver by conduct can be found, although an alleged death threat issued by the defendant might be egregious enough to warrant forfeiture of right to counsel.

United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995)

A defendant's assertion of the right to self-representation must be unequivocal. A defendant who vacillates between assertion of the right to proceed pro se and assertion of the right to counsel may be presumed to be requesting the assistance of counsel.

Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)

A defendant may make a conditional waiver, but it must be unequivocal.

A request for substitution of counsel is not an unequivocal waiver.

A defendant will not normally be deemed to have waived the right to counsel by reluctantly agreeing to proceed pro se under circumstances where it may appear there is no choice.

United States v. Salerno, 61 F.3d 214 (3d Cir. 1995)

A defendant who invokes the right to proceed pro se only as an alternative to the appointment of a particular defense attorney as his or her counsel is considered to have made an unequivocal request to proceed pro se, and must be allowed to do so.

Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)

If the defendant is to be shackled, Faretta requires that the trial judge inform the defendant of the effect shackling would have on his ability to represent himself.

Abdullah v. Groose, 44 F.3d 692 (8th Cir. 1995)
See also Davidson v. Riley, 44 F.3d 1118 (2d Cir. 1995)

The court should warn an incarcerated defendant who wishes to proceed pro se that he or she will have limited access to legal materials.

United States v. Pina, 844 F.2d 1 (1st Cir. 1988)

The court must determine that the defendant is mentally competent to make the decision to appear pro se. The competency standard for waiving counsel is the same as the standard for standing trial.

Godinez v. Moran, 113 S. Ct. 2680 (1993)
Branscomb v. Norris, 47 F.3d 258 (8th Cir. 1995)
United State v. Cash, 47 F.3d 1083 (11th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part I(A) 2    Right Of Defendant To Appear Pro Se After Commencement Of Trial

CAVEAT: See Publication Preface and Caveats

FORECITE National™ Related To This Issue:

18.1 Self Representation

Once a trial has begun, the right of the defendant to discharge his or her counsel and to appear pro se is sharply curtailed.

Sapienza v. Vincent, 534 F.2d 1007 (2d Cir. 1976)
Chapman v. United States, 553 F.2d 886 (5th Cir. 1977)

A motion to proceed pro se is timely if made prior to the impaneling of a jury unless the motion is shown to be a delaying tactic.

Chapman v. United States, 553 F.2d 886 (5th Cir. 1977)
Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982)
See also Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

The appointment of standby counsel to represent the defendant does not violate the defendant's Sixth Amendment right to proceed pro se even if the appointment is made over the defendant's objection.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Standby counsel cannot be allowed to take over the defendant's case. The Sixth Amendment requires that a pro se defendant be allowed to control the organization and content of his or her defense. The defendant is to use the advice of standby counsel as he or she sees fit.

McKaskle v. Wiggins, 465 U.S. 168 (1984)
United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

There is, however, no absolute bar on standby counsel's unsolicited participation in the presentation of a pro se defendant's case before the jury. Standby counsel may properly assist the pro se defendant before the jury in completing tasks the defendant clearly wishes to complete, such as introducing evidence and objecting to testimony. Standby counsel may also help ensure the defendant's compliance with the basic rules of courtroom protocol and procedure. However, standby counsel's participation may not be so intrusive as to destroy the jury's perception that the defendant is representing himself or herself.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Standby counsel is also permitted to participate in the presentation of a pro se defendant's case outside the presence of a jury. However, the pro se defendant must be allowed to address the judge freely on his or her own behalf, and disputes between counsel and the pro se defendant must be resolved in the defendant's favor in matters that are normally left to the discretion of counsel.

McKaskie v. Wiggins, 465 U.S. 168 (1984)

A defendant's right of self-representation was violated by his exclusion from thirty bench conferences even though his standby counsel participated in the conferences.

United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995)

Standby counsel should be appointed to assist the defendant and to replace the defendant if the court should determine during trial that the defendant can no longer be permitted to proceed pro se.

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)
United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973)
United States v. Maya-Gomez, 860 F.2d 706 (7th Cir. 1988)

Standby counsel's job is to assist the defendant in procedural matters the defendant is unfamiliar with and to facilitate a speedy and efficient trial by avoiding the delay often associated with pro se representation.

McKaskle v. Wiggins, 465 U.S. 168 (1984)
United States v. Norris, 780 F.2d 1207 (5th Cir. 1986)
United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

The defendant does not have an absolute right to standby counsel of his or her choice.

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

A defendant may appear pro se or by counsel but has no right to appear partly by himself or herself and partly by counsel.

United States v. Shea, 508 F.2d 82 (5th Cir. 1975)
United States v. Hill, 526 F.2d 1019 (10th Cir. 1975)
United States v. Cyphers, 556 F.2d 630 (2d Cir. 1977)
United States v. Campbell, 61 F.3d 976 (1st Cir. 1995)
United States v. Olano, 62 F.3d 1 180 (9th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

When the accused proceeds pro se, the court's role is not altered and no new obligations are imposed on the trial judge.

United States v. Trapnell, 512 F.2d 10 (9th Cir. 1975)

A defendant who proceeds pro se does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to become an advocate for or to assist and guide a pro se defendant.

United States v. Pinkey, 548 F.2d 305 (10th Cir. 1977)
Birl v. Estelle, 660 F.2d 592 (5th Cir. 1981)
United States v. Merrill, 746 F.2d 458 (9th Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part I(A) 8    Pro Se Representation: When One Of Several Defendants Acts Pro Se

CAVEAT: See Publication Preface and Caveats

FORECITE National™ Related To This Issue:

18.1 Self Representation

When one codefendant elects to proceed pro se, the court must take steps prior to trial to ensure that his or her actions do not prejudice the remaining codefendants.

United States v. Sacco, 563 F.2d 552 (2d Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats

18.1 Self Representation

When a defendant repeatedly fails to secure counsel of his or her choice through dilatory conduct, the court may deny an additional continuance for the purpose of securing counsel even if it results in the defendant's being unrepresented at trial.

United States v. Kelm, 827 F.2d 1319 (9th Cir. 1987)
United States v. Gallop, 838 F.2d 105 (4th Cir. 1988)
United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998)

Proof of dilatory tactics must appear in the record.

United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987)

Before proceeding with a criminal prosecution against an unrepresented defendant who has not expressly waived counsel, the court must inquire on the record into the defendant's financial ability to retain counsel and must inform the defendant of his or her right to court-appointed counsel.

United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987)

A defendant's persistent and unreasonable demand for dismissal of successive appointed counsel may be treated as the functional equivalent of a knowing and voluntary waiver of counsel.

United States v. Fazzini, 871 F.2d 635 (7th Cir. 1989)

A defendant who is abusive to his or her counsel may waive right to counsel.

United States v. McLeod, 53 F.3d 322 (11th Cir. 1995)
United States v. Leggett, 162 F.3d 237 (3d Cir. 1998)
United States v. Brock, 159 F.3d 1077 (7th Cir. 1998)