As a general rule, some decisions in the course of a criminal trial are made by the defendant and others are made by defense counsel. A defendant decides, for example, whether to testify and whether to plead guilty. Counsel typically decides strategy issues, such as which jurors to strike, which witnesses to call, and whether and how to conduct cross-examination. However, in North Carolina, the doctrine of absolute impasse affects these rules. Under this doctrine, when defense counsel and a fully informed criminal defendant reach an absolute impasse as to tactical decisions, the client’s wishes must control. The seminal North Carolina case on absolute impasse is State v. Ali, 329 N.C. 304, 404 (1991), which grounded the rule on the principal-agent nature of the attorney-client relationship. In this post I’ll address some frequently asked questions about the absolute impasse rule.
Are there any limitations on the rule?
Yes. The absolute impasse rule applies only when the defendant’s wishes with regard to trial strategy are lawful. State v. Williams, 191 N.C. App. 96, 104-05 (2008) (even if there was an absolute impasse as to jury selection tactics, defense counsel could not defer to the defendant’s wishes to engage in racially discriminatory jury selection).
What exactly is an absolute impasse?
In order for an absolute impasse to occur, the defendant and defense counsel must be locked in controversy regarding a matter of trial strategy, such as whether to strike a prospective juror. However, not all disagreements between a defendant and defense counsel rise to the level of an absolute impasse. Compare State v. Freeman, __ N.C. App. __, 609 S.E.2d 17, 21 (2010) (the defendant and counsel reached an absolute impasse over whether to accept or strike a juror), and State v. White, 349 N.C. 535, 567 (1996) (absolute impasse existed as to whether to present certain evidence), with State v. McCarver, 341 N.C. 364, 385 (1995) (“we find no indication in the record of ‘an absolute impasse’ between the client and the defense team as it concerned trial tactics”), State v. Wilkinson, 344 N.C. 198, 211-12 (1996) (citing McCarver and finding no indication in the record of an absolute impasse), and Williams, 191 N.C. App. at 99 (rejecting the defendant’s argument that an absolute impasse existed regarding jury selection; while the defendant was dissatisfied with the fact that he was required stand trial at all, he did not have a specific disagreement with counsel regarding the use of peremptory challenges). If the defendant defers to counsel’s decision, there is no absolute impasse. Williams, 191 N.C. App. at 103-04 (the defendant deferred to defense counsel’s decision).
What should defense counsel do in the event of an absolute impasse?
When an absolute impasse arises, defense counsel should make a record of the circumstances, his or her advice to the defendant, the reasons for the advice, the defendant’s decision, and the conclusion reached. Ali, 329 N.C. at 404. The better practice is to do this on the record in open court. Id. (defense counsel made such a record in open court).
What should the trial judge do in the event of an absolute impasse?
When an absolute impasse is brought to the trial judge’s attention, the judge must require defense counsel to abide by the defendant’s wishes. Failure to do so constitutes reversible error. State v. Freeman, __ N.C. App. __, 690 S.E.2d 17, 21-22 (2010).
Does this issue ever arise outside of the context of jury selection?
Yes. Although a number of cases deal with absolute impasse in the context of jury selection, see, e.g., State v. Ali, 329 N.C. 394 (1991); State v. Freeman, __ N.C. App. __, 690 S.E.2d 17, 21-22 (2010); State v. Mitchell, 353 N.C. 309, 323 (2001); State v. Buchanan, 330 N.C. 202, 207-08 (1991), the issue arises in other contexts such as:
- whether to present evidence, State v. White, 349 N.C. 535, 563 (1998) (where there was an absolute impasse between the defendant and his counsel over the presentation of mitigating evidence concerning domestic violence while the defendant was growing up, the trial court did not err by following the defendant’s wishes and prohibiting counsel from presenting the controversial evidence); State v. Grooms, 353 N.C. 50, 84-86 (2000) (the trial court did not err by finding that the defendant and defense counsel had reached an absolute impasse over whether to present mitigating evidence during the capital sentencing proceeding and by prohibiting defense counsel from presenting evidence in mitigation);
- examination of witnesses, State v. Brown, 339 N.C. 426, 434-35 (1994) (the trial court properly required counsel to abide by the defendant’s wishes regarding examination of witnesses);
- whether to move for a mistrial, State v. Green, 129 N.C. App. 539, 552 (1998) (trial court followed the defendant’s wishes regarding whether to move for a mistrial), aff’d, 350 N.C. 59 (1999) (per curiam); and
- with regard to jury instructions, State v. Brown, 339 N.C. 426, 434-35 (1994) (trial court properly required counsel to abide by the defendant’s wishes regarding jury instructions).
