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Losing the Right to Counsel

Exploring and Reforming Waiver by Conduct and Forfeiture in State Courts

Under the Sixth Amendment, a criminal defendant has both the right to counsel and the right to represent himself. These rights are mutually exclusive, and the default right is the right to counsel; to exercise the right to self-represent, a defendant must “knowingly and intelligently” waive the right to counsel and its attendant benefits. Typically, a defendant who self-represents does so after expressly invoking that right and affirmatively rejecting the right to counsel.

But trial courts frequently confront defendants whose conduct seems to abuse the right to counsel and confuses the exercise of their Sixth Amendment rights. This conduct ranges from delayed proceedings because of repeated requests to substitute counsel without good cause to threats and physical violence against counsel. Faced with such conduct, courts ask whether the right to counsel can be relinquished by means other than express waiver. In finding that it can be, courts apply existing doctrines of waiver by conduct and forfeiture to this new context. However, the courts largely fail to engage with the underlying theoretical justifications for those doctrines and offer little guidance for trial courts to determine when and how they should (and should not) be applied.

This Comment surveys state courts’ current approaches to waiver by conduct and forfeiture in the context of indigent defendants’ right to counsel, looking at both judicial practices and justifications as well as scholarly criticism and proposed alternatives. After reexamining the caselaw to demonstrate the theoretical justifications for the doctrines and noting how waiver is used in other criminal law contexts, this Comment offers guidelines for applying waiver by conduct and forfeiture to the right to counsel. These guidelines include general principles for analyzing factors that require case-by-case analysis as well as specific best practices concerning the substantive and procedural requirements of each doctrine.