Article I, § 7 of the Constitution of the State of Delaware provides that a criminal defendant “has the right to be heard by himself and his counsel.”10 This guarantees to a criminal defendant the right to legal representation.11 Denial of this right constitutes a violation of due process of law.12 The scope of this right under the Delaware Constitution is also governed by the Sixth and Fourteenth Amendments to the Constitution of the United States.13 Generally, the Delaware courts have not interpreted the provision of the Delaware Constitution as affording greater protection than the provision of the federal Constitution14, although in specific cases they may do so.15
A defendant in a criminal case is entitled to legal representation of his or her own choice and at his or her own expense16 as soon as adversary proceedings are initiated against him or her, whether by formal charge, preliminary hearing, indictment, information or arraignment. This right exists whether or not the defendant has requested counsel, and denial of the right will nullify any statements made by the defendant in the absence of counsel. The adverse effect of any other proceeding taken in such absence will also be nullified.17
Whether or not a criminal defendant has a right to counsel in connection with an identification of the defendant by the victim of a crime depends on the circumstances. The right to counsel attaches where there is a pre-arranged one-on-one identification after the defendant has been placed in custody.18 Where no criminal proceedings have been initiated and where the defendant has not been taken into custody in connection with the crime for which the identification is made, the right to counsel does not attach.19 Thus, the right to counsel was deemed not to attach when a victim was taken by a police officer to a location where several people were present and the victim identified the defendant with no suggestion from the police officer.20 Similarly, where, prior to arrest, a defendant went voluntarily to a police station and the victim identified the defendant from across the street and in the police station, the right to counsel was deemed not to attach as there was no intentional confrontation.21 The right to counsel does not attach to an unplanned, chance identification by the victim.22 Nor does the right attach to an identification by the victim from reviewing photographs, whether the photographic identification occurred before or after the initiation of criminal proceedings.23
The right to counsel does attach where the State participates in a psychological evaluation of an indicted individual.23.1
A defendant in a criminal case may waive the right to counsel, but only if such waiver is done knowingly, voluntarily and intelligently after being provided full, relevant information, including the fact, if it is the case, that counsel has attempted or is attempting to render legal service and assistance.24 The defendant must adhere to the tribunal’s rules of procedure.24.1 The burden is on the State to establish a valid waiver.25 When counsel has been designated and retained to represent a suspect and the suspect has clearly made the police aware of his or her desire to deal with the police only through counsel, denial of access by the lawyer to the suspect raises a heavy presumption against waiver.26
Other than the requirement that the waiver be made knowingly, voluntarily and intelligently, there are no specific requirements for a valid waiver. So long as the defendant has been advised of the availability of counsel, the waiver may be effective whether or not the defendant has availed himself or herself of the privilege of such consultation.27 These factors are to be considered with all other circumstances in determining whether the waiver was made knowingly, voluntarily and intelligently.28
The right of a defendant to represent himself or herself in a criminal proceeding is fundamental, and protected by the State and federal constitutions.28.1
At trial, if a defendant indicates a desire to defend himself or herself without the assistance of counsel, the trial judge should make a searching inquiry to determine whether the defendant truly appreciates the dangers and disadvantages of self-representation. The judge should advise the defendant, for example, (i) that the defendant will have to conduct the defense in accordance with the rules of evidence and criminal procedure, rules with which the defendant may not be familiar; (ii) that the defendant may be hampered in presenting the best available defense due to the defendant’s lack of knowledge of the law; (iii) that the effectiveness of the defense may be diminished by the defendant’s dual role as attorney and accused; (iv) the nature of the charges; (v) the statutory offenses included within them; (vi) the range of possible punishments; (vii) possible defenses to the charges and circumstances in mitigation; and (viii) all other factors essential to a broad understanding of the whole matter.29 This must be done at a hearing on the record.29.1 The Court should not accept a conclusory statement from the defendant that he is aware of his right to counsel and wishes to waive that right, but must make a searching inquiry of all the factors.29.2
If the request to proceed pro se occurs after the trial has begun, the court must also balance the prejudice resulting from a potential disruption of the proceedings against the defendant’s interests in proceeding pro se.29.3
Frequently, when a request for a criminal defendant to represent himself or herself is granted, the court will appoint “standby” counsel to be present to assist the defendant if and when the defendant so desires. Such counsel, however, may not substantially interfere with the defendant’s significant tactical decisions, may not control the questioning of witnesses, and may not speak instead of the defendant on any matter of importance, absent waiver by the defendant of the right of self-representation. A court should take steps to prevent standby counsel from destroying the jury’s perception that the defendant is representing himself or herself. For example, a criminal defendant may not be excluded from sidebar conferences in favor of standby counsel.29.4
Absent the effective waiver of the right to counsel, any statements made by the defendant while not represented by counsel and after the right to counsel has come into existence, and any evidence derived therefrom, is not admissible in evidence, and any adverse decision in any proceeding in the absence of counsel will be subject to reversal and nullification.30
If a criminal defendant who has requested to act pro se subsequently decides to be represented by counsel, such waiver of the right of self-representation must appear on the record.30.1 However, if a pro se defendant voluntarily absents himself or herself from the trial, that constitutes a waiver of the right to proceed pro se.30.2
If a criminal defendant acts pro se, he or she may not obtain a court-appointed expert, paid for by public funds, unless the defendant makes a specific showing of need. Need may not be based upon the fact that the defendant, appearing pro se, seeks assistance in understanding litigation procedure.30.3
A criminal defendant may be deemed to have forfeited the right to court-appointed counsel if the defendant engages in egregious conduct, such as verbally or physically abusive conduct toward his or her counsel, refusal to cooperate in trial preparation, and attempts to make the attorney engage in unethical behavior.30.4 Similarly, disruptive conduct in connection with a motion to proceed pro se may constitute a forfeiture of that right if that conduct prevents the court from determining whether the waiver of the right to counsel is knowing and intelligent.30.5
10. Del. Const. art. I, § 7.
11. Potter v. State, 547 A.2d 595, 600 (Del. 1988). See also Flamer v. State, 490 A.2d 104, 112 (Del. 1983), cert. denied, 464 U.S. 865 (1983) and cert. denied, 474 U.S. 865 (1985).
12. Bryan v. State, 571 A.2d 170, 175 (Del. 1990); Merritt v. State, 59 Del. 298, 219 A.2d 258, 59 (Del. 1966).
13. U.S. Const. ams. VI, XIV. The Sixth Amendment right to counsel is made binding upon the states pursuant to the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963).
14. Lovett v. State, 516 A.2d 455, 465 (Del. 1986), cert. denied, 481 U.S. 1018 (1987).
15. See Bryan v. State, 571 A.2d 170, 177 (Del. 1990).
16. See §§ 1:3-1:4 for a discussion of the right to appointed counsel and the right to counsel at the State’s expense.
17. Bryan v. State, 571 A.2d 170, 175-77 (Del. 1990); Shipley v. State, 570 A.2d 1159, 1166 (Del. 1990); Alston v. State, 554 A.2d 304, 308-10 (Del. 1989), cert. denied, 490 U.S. 1101 (1989); Deputy v. State, 500 A.2d 581, 589-90 (Del. 1985), cert. denied, 480 U.S. 940 (1987); Flamer v. State, 490 A.2d 104, 113 (Del. 1983), cert. denied, 464 U.S. 865 (1983) and cert. denied, 474 U.S. 865 (1985).
18. Mills v. State, 287 A.2d 656, 659 (Del. 1972); Jenkins v. State, 281 A.2d 148, 149-50 (Del. 1971).
19. Goodyear v. State, 348 A.2d 174, 178 (Del. 1975).
20. Brokenbrough v. State, 287 A.2d 657, 657-58 (Del. 1972).
21. Allen v. State, 453 A.2d 1166, 1167-68 (Del. 1982).
22. Bell v. State, 281 A.2d 151, 153 (Del. 1971).
23. Taylor v. State, 298 A.2d 332, 336 (Del. 1972); Brokenbrough v. State, 287 A.2d 657, 657-58 (Del. 1972); Reed v. State, 281 A.2d 142, 145 (Del. 1971).
23.1. Norman v. State, 976 A.2d 843, 857-58 (Del.), cert. denied, 130 S.Ct. 561 (2009).
24. Snowden v. State, 672 A.2d 1017, 1020 (Del. 1996); Briscoe v. State; 606 A.2d 103, 107 (Del. 1992); Bryan v. State, 571 A.2d 170, 175-76 (Del. 1990); Alston v. State, 554 A.2d 304, 311 (Del. 1989), cert. denied, 490 U.S. 1101 (1989); Deputy v. State, 500 A.2d 581, 590-92 (Del. 1985), cert. denied, 480 U.S. 940 (1987).
24.1 Snowden v. State, 672 A.2d 1017, 1020 (Del. 1996).
25. Flamer v. State, 490 A.2d 104, 113 (Del. 1983), cert. denied, 464 U.S. 865 & 474 U.S. 865 (1985).
26. Bryan v. State, 571 A.2d 170, 175 (Del. 1990).
27. Bryan v. State, 571 A.2d 170, 176 (Del. 1990).
28. Briscoe v. State, 606 A.2d 103, 107 (Del. 1992); Bryan v. State, 571 A.2d 170, 171 (Del. 1990).
28.1. Stigars v. State, 674 A.2d 477 (Del. 1996); Snowden v. State, 672 A.2d 1017, 1020 (Del. 1996).
29. Smith v. State, ___ A.2d ___, ___ (Del. 2010); Christopher v. State, 930 A.2d 894, 897 (Del. 2007); Briscoe v. State, 606 A.2d 103, 107-08 (Del. 1992); Boyer v. State, No., 286, 2008, Steele, J. (Del. Nov. 16, 2009) (ORDER), disposition reported at 985 A.2d 389 (Del. 2009) (TABLE) (judge saying “[I] want to be sure you understand the consequences of your decision. You will go to trial representing yourself. You will have to comply with the rules of evidence and the rules of the court, all those things” deemed insufficient).
29.1. Smith v. State, ___ A.2d ___, ___ (Del. 2010).
29.2. Smith v. State, ___ A.2d ___, ___ (Del. 2010); Briscoe v. State, 606 A.2d 103, 107 (Del. 1992).
29.3. Christopher v. State, 930 A.2d 894, 897 (Del. 2007); Zuppo v. State, 807 A.2d 545, 547-58 (Del. 2002).
29.4. Robinson v. State, 984 A.2d 1198, 1201-1202 (Del. 2009); Snowden v. State, 672 A.2d 1017, 1020-22 (Del. 1996).
30. Bryan v. State, 571 A.2d 170, 177 (Del. 1990). See also § 17:04 for a discussion of the prerequisites for the admissibility of admissions and confessions into evidence in a criminal trial.
30.1. Stigars v. State, 674 A.2d 477 (Del. 1996)
30.2. Super. Ct. Cr. R. 43(b); Comm. Pls. Ct. Cr. R. 43(b).
30.3. State v. Ashley, ID#9605003410, slip op. at 3-4, Carpenter, J. (Del. Super. Feb. 12, 1998) (refusing to appoint a jury expert and a pathologist).
30.4. Bultron v. State, 897 A.2d 758 (Del. 2006); State v. Carnevale, C.A. Nos. 0708000019, 0707008310, Welch, J. (Del. Comm. Pls. Apr. 2, 2008), app. dismissed, C.A. Nos. 0708000019CLS, 0707008310CLS, Scott, J. (Del. Super. Feb. 26, 2009).
30.5. Lopez v. State, 861 A.2d 1245, 1249-50 (Del. 2004).
© 2010 David L. Finger