How to Take a Waiver of Counsel

[Editor’s note: For a discussion of waivers in the context of probation violation proceedings, see Jamie Markham’s recent post here.]

In the last batch of N.C. Court of Appeals’ decisions there were two more cases in which convictions were reversed because the trial judge failed to take a proper waiver of counsel. It’s time for a waiver primer. Here are the basic rules:

1. A waiver of the constitutional right to counsel – like all waivers of constitutional rights – must be knowing, voluntary, and intelligent.
2. When the defendant is indigent, he or she must waive two rights before being allowed to proceed pro se: (a) the right to assignment of counsel at state expense and (b) the right to assistance of counsel. Sometimes an indigent defendant wishes to waive only the right to assignment of counsel at state expense. This could occur, for example, when a family member has agreed to hire a lawyer for the defendant. When an indigent defendant waives the right to assigned counsel with the intention of making arrangements for private counsel, the judge should afford the defendant a reasonable period of time in which to retain counsel. If the defendant repeatedly fails to obtain counsel after having waived only the right to assigned counsel, the judge may consider whether the defendant has forfeited the right to assistance of counsel. However, absent such a forfeiture it is reversible error to allow a defendant who has waived only the right to assigned counsel to proceed pro se.
3. To properly take a waiver of counsel, the judge must make a thorough inquiry of the defendant; simply completing the Waiver of Counsel Form, AOC-CR-227 is insufficient and likely will result in reversible error. G.S. 15A-1242 provides that a defendant may proceed pro se only after the trial judge makes thorough inquiry and is satisfied that the defendant:

• Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when the defendant is so entitled;
• Understands and appreciates the consequences of this decision; and
• Comprehends the nature of the charges and proceedings and the range of permissible punishments.

The inquiry must be of the defendant, not defense counsel, and must be on the record. The N.C. Supreme Court has indicated that the following questions comply with the statutorily mandated inquiry:

• Are you able to hear and understand me?
• Are you now under the influence of any alcoholic beverages, drugs, narcotics, or other pills?
• How old are you?
• Have you completed high school? College? If not, what is the last grade you completed?
• Do you know how to read? Write?
• Do you suffer from any mental handicap? Physical handicap?
• Do you understand that you have a right to be represented by a lawyer?
• Do you understand that you may request that a lawyer be appointed for you if you are unable to hire a lawyer; and one will be appointed if you cannot afford to pay for one?
• Do you understand that, if you decide to represent yourself, you must follow the same rules of evidence and procedure that a lawyer appearing in this court must follow?
• Do you understand that, if you decide to represent yourself, the court will not give you legal advice concerning defenses, jury instructions or other legal issues that may be raised in the trial?
• Do you understand that I must act as an impartial judge in this case, that I will not be able to offer you legal advice, and that I must treat you just as I would treat a lawyer?
• Do you understand that you are charged with ________, and that if you are convicted of this [these] charge[s], you could be imprisoned for a maximum of ________ and that the minimum sentence is ________? [Add fine or restitution if necessary.]
• With all these things in mind, do you now wish to ask me any questions about what I have just said to you?
• Do you now waive your right to assistance of a lawyer, and voluntarily and intelligently decide to represent yourself in this case?

That’s it. That’s waiver 101. If there is interest, I can discuss a host of related issues, such as forfeiture of counsel, the life of the waiver, and withdrawal of the waiver.