Gideon's Vuvuzela: Reconciling the Sixth Amendment's Promises with the Doctrines of Forfeiture and Implicit Waiver of Counsel

Sarah L. Gerwig-Moore, Mercer University School of Law

Abstract

This piece addresses a relatively rare but nonetheless problematic circumstance related to the right to counsel and the loss of that right. When criminal defendants disrupt the judicial process with behavior ranging from refusal to meet with an attorney to violent outbursts, circuits and states have a range of approaches and procedures—many conflicting, some constitutionally problematic, none coordinating. Some states and circuits, allow trial courts to find a “forfeiture” or “implicit waiver” of the right to counsel without first warning the defendant of the risks of proceeding pro se and of the consequences of continued disruptive behavior. Other appellate authority on the topic stands for an opposite proposition. (I am still in the process of preparing it, but the project will also include color-coded maps of state/ circuits’ approaches to these doctrines to help better demonstrate the range of procedures on a fundamental and important question.)

Even with circuit and state splits on the issue, the United States Supreme Court has not addressed the issue. This is the first and only national survey of state and federal approaches to forfeiture and implicit waiver and offers practical, balanced recommendations for reconciling the doctrines with other authority on the right to counsel and on waivers of that right.