Posted: January 24, 2024
Rules of Criminal Procedure – Comment Period Closed March 9, 2024
URCrP008. Appointment of Counsel. Amend. The Supreme Court’s Advisory Committee on the Rules of Criminal Procedure recently amended Rule 8 to clarify the responsibility of judges during a self-representation colloquy to waive the right to counsel. The Committee’s efforts aimed to emphasize the right to self-representation as a constitutional right directly related to the right to counsel and the right to appointed counsel for indigent defendants. Additional provisions to the Rule include amendments to the qualifications for appointment on capital cases to require that attorneys representing those defendants have sufficient criminal practice, experience, and training. The Rule is approved for a 45-day public comment period.
(c)(1)(A) seems overly broad and a little ambiguous. I’d like to see a list on what specific dangers and consequences the Court would like trial courts to discuss with the defendants prior to waivers. I understand that with each case/charge the dangers and consequences will be different, but I think leaving it as is opens the door to any pro se defendant making an argument that the trial court did not discuss x, y, or z (insert danger of choice) with them prior to the waiver.
Adding experience and training requirements for attorneys appointed on capital cases seems like a common sense move. When the stakes are so high, we should make sure whoever is appointed isn’t biting off more than they can chew.
I am writing to express my support for the amendments in proposed-subsection (d) of the rule relating to the qualifications of appointed capital counsel. The added requirement that at least one of the appointed attorney’s criminal law experience be as defense counsel is critical. The skills necessary to defend a capital case are vastly different from the skills related to prosecuting a capital case. I don’t think it’s possible to list all the important differences in this comment. But the one that springs to mind is investigating and presenting mitigation evidence. Effectively presenting mitigation evidence to the jury to convince them that they should spare the defendant the death penalty is arguably one of the most important aspects of a capital case. The ability to effectively present the horrible experiences, traumas, abuses, and addiction issues of a capital defendant to convince the jury that the defendant deserves mercy is an art. And the stakes are too high and the risk is to great, that someone without the necessary defense experience could present the evidence ineffectively and actually cause the jury to decide, based on the mitigating evidence, that the defendant’s life isn’t worth saving.
I also have 2 stylistic questions/comments:
Lines 61-62 are confusing (I also recognize that it appears those lines are unchanged from the previous version of the rule). Do those lines mean that every appointed attorney must have at least 5 years active practice in the law? If so what about: each appointed attorney must have at least five years experience in the active practice of law.
Lines 63-64: The use of “at least” in these lines reads awkwardly in my opinion. I think the “at least” is intended to give the judge discretion to consider other factors that he or she may believe are relevant. If so, I think there is probably a clearer way to say that. I don’t know what a better or clearer way might be, but it might be worth considering an edit.
I agree with the substance of Sarah’s comment.
Lines 63-64: Perhaps changing “at least” to “at a minimum”?
Also, it seems like the new subsection (h) really should be a part of (f).
Utah Attorney General Office comments on proposed Utah R. Crim. P. 8 changes:
The proposed revisions could benefit from clarification to emphasize what defendants must understand before representing themselves. For example, proposed rule 8(c)(1)(B)(ii) requires a judge to explain “that the case is subject to the Rules of Criminal Procedure and the Rules of Evidence.” Stating “that the case is subject to” employs abstract language that could confuse defendants. The rule could benefit from more direct language, such as directing judges to explain “that all parties in the case, including the defendant, will be bound by” the rules of evidence and criminal procedure. See Faretta v. California, 422 U.S. 806, 836 (1975) (noting the defendant had been warned he “would be required to follow all the ‘ground rules’ of trial procedure”).
The proposed revision also provides that “As part of its colloquy, the court may inquire as to the defendant’s literacy, educational background, and legal training to assess the defendant’s understanding of the consequences of waiver.” The use of a permissive “may” in this section suggests that such an inquiry is optional. But Utah caselaw holds that district courts “should … carefully evaluate the accused’s background, experience, and conduct insofar as they indicate what the accused understands in attempting to waive the right to counsel.” State v. Bakalov, 1999 UT 45, ¶23, 979 P.2d 799. United States Supreme Court precedent similarly holds that these factors are relevant. See Faretta, 422 U.S. at 807, 835-36 (noting that questioning “revealed that Faretta had once represented himself in a criminal prosecution” and “had a high school education” and holding that Faretta knowingly, intelligently, and voluntarily waived his counsel because, among other things, the record showed that he “was literate”); Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (“whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts” of the case, “including the background” and “experience” of the defendant). And Utah courts have reversed convictions for failure to inquire into these sorts of factors. See State v. Patton, 2023 UT App 33, ¶19, 528 P.3d 1249 (holding that the district court “did not perform a complete colloquy” because it “did not inquire about Patton’s education, understanding of the legal system, or knowledge of the Utah procedural or evidentiary rules”). The rule should therefore be revised to make clear that an inquiry into these factors is mandatory (“will inquire”) and not merely discretionary.
The rule would also benefit by making explicit the consequences of a finding that a defendant has not knowingly, intelligently, and voluntarily waived the right to counsel. This could be accomplished through a new subsection providing that when a court finds a defendant’s waiver is not knowing, intelligent, and voluntary, the court will deny self-representation.
Other proposed revisions create inconsistencies with controlling precedent and should be altered or deleted.
First, proposed rule 8(a)(3) states that “A defendant has the right to self-representation if the defendant waives the right to counsel as described in paragraph (c).” Strictly speaking, that is true—a defendant who has waived counsel in the manner described in the rules has a right to self-representation. Court rules, however, are generally interpreted in light of the expressio unius canon, which holds that “to express or include one thing implies the exclusion of the other, or of the alternative.” McKitrick v. Gibson, 2021 UT 48, ¶38, 496 P.3d 147; see also Clark v. Archer, 2010 UT 57, ¶9, 242 P.3d 758 (court rules are interpreted using the “general rules of statutory construction”). Stating that a defendant “has the right to self-representation if the defendant waives the right to counsel as described” in the rule could therefore be read to imply that a defendant does not have the right to self-representation if the defendant does not waive as described in the rule.
That implication would conflict with the U.S. Supreme Court’s articulation of the right to self-representation in Faretta, which does not make the right conditional on completing a waiver colloquy or on any explicit waiver at all. Faretta grounded the right to self-representation in the structure of the Sixth Amendment to the federal constitution, which the Court said “grants to the accused personally the right to make his defense.” Id. at 819 (emphasis added). The Court was emphatic about the importance of honoring a defendant’s right to self-representation. It said that to deny a defendant “in the exercise of his free choice the right to dispense” with the assistance of counsel “is to imprison a man in his privileges and call it the Constitution.” Id. at 815 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 280 (1942)).
But the Court also said the right to self-representation is not without guardrails. As relevant here, the Court explained that “in order to represent himself, the accused must ‘knowingly and intelligently’ forgo” the “benefits associated with the right to counsel.” Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). The Court further instructed that the accused “should be made aware of the dangers and disadvantages of self-representation.” Id. Nowhere does Faretta require a colloquy. Nor does it say there must be an express waiver of “the benefits associated with the right to counsel.” Id.
The proposed language should be revised to clarify that the right to self-representation is not conditional upon the colloquy or on any formal waiver finding by the court. One possibility could be: “A defendant who waives the right to counsel as described in paragraph (c) has the right to self-representation. But a waiver colloquy or waiver finding is not necessary for a defendant to have the right to self-representation.” The second sentence in the quotation marks makes clear that absence of a colloquy or waiver finding is not itself grounds for reversal, as set forth in State v. Frampton, 737 P.2d 183, 188 (Utah 1987), State v. Bozarth, 2021 UT App 117, ¶41, 501 P.3d 116, and other cases.
Second, the revision fails to mention the possibility of a court appointing standby counsel if the court deems it necessary to protect indigent defendants’ rights to counsel. Standby counsel can serve “to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Faretta, 422 U.S. at 834, n.46. And they can also serve as a resource while the defendant carries out the primary duties of representation such as questioning witnesses, delivering arguments, and conducting hearings. See Bozarth, 2021 UT App 117, ¶47.
But the proposed revisions do not mention the possibility of appointing standby counsel. And for the reasons discussed above, this failure to mention the possibility of standby counsel could be read to imply, under the expressio unius canon, that appointment of standby counsel is impermissible. Proposed rule 8(c)(i)(C)(1)(i)(2), moreover, does not fill this hole. It only permits courts to appoint counsel “for the limited purpose of consulting with the defendant regarding the waiver of counsel”; it does not permit courts to appoint standby counsel.
Accordingly, a new paragraph should be added that expressly grants courts the discretion to appoint standby counsel for indigent defendants when they elect to represent themselves. This new paragraph should clarify that standby counsel is “to aid…if and when the accused requests help” and is not responsible for conducting the representation. Faretta, 422 U.S. at 834 n.46.
Third, the proposed rule directing judges to examine defendants’ understanding “that the elements of the charged crime(s) are governed by the laws and ordinances of the State of Utah and its political subdivisions” and “that there may be legal defenses governed by the laws of the United States, the State of Utah, and Utah’s political subdivisions” adds topics that no authority requires defendants to demonstrate knowledge of before exercising their right to self-representation. Nothing in Frampton requires courts to advise defendants that a specific jurisdiction’s laws apply or that defenses might exist. 737 P.2d at 188 n.12. And Faretta simply says that a 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.’” 422 U.S. at 835 (quoting Adams, 317 U.S. at 280). Faretta also stressed that legal knowledge wasn’t the touchstone for self-representation. See id. (“[Defendant’s] technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.”). Requiring defendants to express such legal knowledge before permitting them to waive counsel thus risks denying defendants their constitutional right to self-representation. The better approach would therefore be to include in the rule only those topics recognized in existing caselaw as important elements of the waiver colloquy.
Finally, proposed rule 8(c)(3) permits defendants to “revoke the waiver of counsel and either retain counsel or seek the appointment of counsel.” Read literally, this would appear to permit defendants to revoke valid waivers at any time and for any reason. That creates considerable potential for mischief. Defendants cannot use disruptive conduct “indefinitely to avoid being tried on the charges brought” against them. Illinois v. Allen, 397 U.S. 337, 346 (1970). Likewise, “[t]he right of self-representation is not a license to abuse the dignity of the courtroom.” Faretta, 422 U.S. at 834 n.46. And judges can terminate self-representation when it becomes clear that a defendant is abusing his or her rights and disrupting the court. Id.; McKaskle v. Wiggins, 465 U.S. 168, 173-74 (1984).
The better approach would therefore be to remove the proposed 8(c)(3) entirely. The circumstances which might or might not justify a revocation of a waiver of counsel are so numerous and varied as to make it impossible to practically capture them in a single rule. Alternatively, and at a minimum, the rule should expressly acknowledge the substantial discretion, as recognized in caselaw, that trial judges have to regulate waivers of counsel (and revocations of waivers of counsel) where appropriate. A trial judge is best positioned to strike an appropriate balance between recognizing the right to self-representation with preserving the proceeding’s integrity and fairness. Id.; see also Allen, 397 U.S. at 345-47. Trusting the judge to oversee changes with waivers also parallels how the proposed rule permits defendants to exercise the right to self-representation. The proposed rule requires a colloquy about a defendant’s ability to undertake that representation knowingly and voluntarily, before the “court” accepts the waiver. Considering these factors, the rule should follow existing practice and have the judge oversee a waiver, rather than permit defendants to waive and revoke their waivers at will.