Think Before You Waive Your Right to Legal Counsel

The police have taken you into custody for a crime you didn’t commit. Understandably, you feel a myriad of emotions – fear, anger, and impatience. The detective assures you that the best way to handle the situation is to tell your side of the story. You’ll be back in your life in short order. One caveat. First, you need to waive your right to legal counsel.

So, what should you do? Once again, you know you’ve done nothing wrong. As far as you’re concerned, there’s no chance that anything you say can be used against you. If you find yourself in this situation, take a deep breath. The person suggesting that you verbally spill your guts does not have your best interests at heart. Truth be told, you really should speak with an experienced criminal defense attorney before you make any statements.

Your right to legal counsel comes directly from the Fifth and Sixth Amendments of the United States Constitution. A proclamation of innocence is only one reason that some defendants decide to waive their right to an attorney. Some may feel that there is no legal defense for their actions. Still, others decide that the charges aren’t severe enough to warrant retaining a lawyer. And, of course – there is the issue of money.

When it comes to the latter, there are important considerations. The cost of freedom is priceless. Similarly, a criminal record can follow you through life.

Legal Counsel at Trial

Your right to legal counsel doesn’t stop when the police initially apprehend you. It continues through the duration of your case. When you make a first appearance in court, the judge will make sure you know you have the right to have an attorney advocate on your behalf.

Meanwhile, the court has standards when it comes to waiving your right to legal representation. In the New Jersey Supreme Court case, State v. Crisafi, the court considered whether the defendant “knowingly and intelligently waived his right to counsel” before representing himself in court.

In the Crisafi matter, the defendant was assigned a pool attorney from the Public Defender’s office. After the third appearance with that attorney, Crisafi informed the court that he did not want representation from the lawyer assigned to his case. The trial judge subsequently contacted the Public Defender’s office and was advised that they would not delegate another attorney to handle the matter. Crisafi had the option of remaining with the assigned lawyer or appearing pro se.

• When Crisafi returned to the court without a representative from the Public Defender’s office, the judge revisited the issue of him going pro se. The defendant had a different recollection of the events and said that he was being “forced” to try the case on his own.
• Moving forward, the judge requested a private attorney act as standby counsel to the defendant. His role would be to advise Crisafi on the legal technicalities of the case. Notably, Crisafi declined the private attorney’s offer to represent him at trial.
• As the trial proceeded, Crisafi consulted with the private attorney. At the conclusion of the case, the lawyer revealed that the defendant did not take his advice on many issues. Crisafi was ultimately found guilty and sentenced to a long jail term.

Knowingly and Intelligently Waiver of Right

The defendant appealed his case based on the unavailability of legal counsel. Both the United States and New Jersey Supreme Courts have spoken on the issue of waiving rights to an attorney. It is well established that the accused must “knowingly and intelligently” waive the right.  In fact, the defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'”

In reviewing the record in the Crisafi matter, the Supreme Court determined that the defendant was not fully advised of the consequences of self-representation. More specifically, the trial court judge did not notify Crisafi “on the record of the charges against him, possible sentences, and the dangers of proceeding without counsel.”

Meanwhile, the Supreme Court submitted that Crisafi was a unique matter. The court distinguished the defendant as a “court-wise criminal” who knew the consequences of waiving his right to legal counsel. In this particular case, Crisafi had his own trial strategies and the benefit of consulting with counsel. By all appearances, the “defendant ought to manipulate the system by wavering between assigned counsel and self-representation and by asserting violations of his right to counsel while rejecting every attorney assigned to his case.”

Convictions have been overturned because there was insufficient evidence that the defendant had knowingly and intelligently waived the right to counsel. This was not the case in the Crisafi matter.

Contact Us

When it comes down to it, you should think hard before waiving your right to legal counsel. At the Law Offices of Anthony Carbone, we represent our clients based on experienced criminal defense strategies. Contact our offices to learn how we can assist you.

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