Posted: July 14, 2022
Rules of Criminal Procedure – Comment Period Closed August 28, 2022
URCrP008. Appointment of counsel. (AMEND). The language of this rule has been amended to clarify when the right to counsel applies to defendants charged with a criminal offense. The rule also includes a new subsection to explain the right to self-representation and how a defendant may waive the right to counsel. The colloquy courts should engage with defendants seeking to waive the right is provided in this addition. Finally, the rule clarifies the prerequisite qualifications for attorneys appointed to represent defendants charged in capital cases.
(b)(1)(A) “Prior to accepting a waiver of the right to counsel, the court will engage in a colloquy with the defendant to ensure that such waiver is knowing, intelligent, and voluntary. The colloquy must inform the defendant of the dangers, disadvantages, and consequences of self-representation, including the applicability of legal defenses which may be available.”
The last phrase of this subsection is of great concern. What does “including the applicability of legal defenses which may be available” mean? Won’t this require the court to give legal advice about possible defenses to a defendant? How would a judge have enough knowledge about a case to give such advice to a defendant, anyway, unless a preliminary hearing had already occurred? Even then, that takes us back to my question about legal advice. How can the court warn the defendant about the risks of self-representation–including the fact that the court cannot help the defendant with his/her case–and then immediately offer advice regarding the applicability of legal defenses which may be available? This phrase is a call for legal advice from the bench.