Comment by Melinda A. Nicholson
A criminal defendant has the constitutional right to the assistance of counsel and the alternative constitutional right to represent himself. Because these two rights are exclusive in nature, the right to counsel must be waived in order to invoke the right to self-representation. Currently, the circuit courts follow two different approaches regarding the requisite scope of inquiry that a trial judge must perform in order to find a defendant's waiver of the right to counsel valid. The two approaches are the totality of the circumstances approach and the mandatory, formal inquiry approach.
This Comment will discuss the evolution of the right to counsel and the right to self-representation. It will then evaluate the two different types of inquiry approaches, highlighting a few of the circuit cases utilizing the different approaches in order to illustrate how the approaches are applied. The Comment will then argue that the United States Supreme Court should adopt the mandatory, formal inquiry approach as the proper resolution of the circuit court split based upon both the relevant precedent and various policy considerations.
About the Author
Melinda A. Nicholson. J.D. candidate 2005, Tulane University School of Law; B.A. 2003, Tulane University.
Citation
79 Tul. L. Rev. 755 (2005)