Forfeiture of the Right to Counsel: A Doctrine Unhinged from the Constitution

Stephen A. Gerst, Phoenix School of Law

Abstract

The Sixth Amendment right to an attorney is so fundamental that the United States Supreme Court has carefully developed requirements to ensure that an indigent defendant does not go to trial in any criminal case where there is a possibility of a deprivation of freedom without an attorney unless there is an affirmative waiver of the right to counsel on the record. However, the Supreme Court has not addressed what the record must show for finding that a defendant has lost his right to counsel as a result of the defendant's own misconduct toward the court or the defendant's attorney. Both federal and state courts recognize the authority of a court to terminate a defendant's right to appointed counsel where the defendant has been warned on the record. Starting in 1995, however, state courts began imposing forfeiture of the right to appointed counsel without warning. The author contends that forfeiture without warning of the right to assistance of counsel for misconduct by a defendant towards the court or counsel has no constitutional support in the principles which have defined the right to counsel, is arbitrary in its application within the judicial system, and has become a refuge for courts which have inadequately complied with established principles to protect fundamental rights.