Wis JI-Criminal SM-30

Scope 2

I. Express Waiver of Counsel 3

A. Suggested Inquiry 3

B. Use Of A Written Form 5

C. Suggested Findings 6

1. Waiver of Counsel Accepted 6

2. Waiver of Counsel Denied 6

D. Commentary 7

II. Forfeiture of Counsel 8

A. Suggested Inquiry 8

B. Suggested Findings 9

C. Commentary 9

III. Self-Representation 11

A. Understanding the Disadvantages of Self-Representation 12

B. "Competence" for Self-Representation 13

IV. Appointment of Standby Counsel 16

V. "Hybrid" Representation 18

VI. Court Appointment of Counsel for Defendants Who Do Not

Qualify Under State Public Defender Guidelines 18

SM-30 WAIVER AND FORFEITURE OF COUNSEL; SELF-REPRESENTATION; STANDBY COUNSEL; "HYBRID

REPRESENTATION"; COURT APPOINTMENT OF COUNSEL

Scope

This Special Material addresses issues that may arise when a defendant expresses the

desire to waive counsel or appears without counsel after being directed to obtain

representation. In these situations, the trial court must identify accurately the situation

that is presented, make the required inquiry and make proper findings.

When a defendant affirmatively wishes to waive counsel, an inquiry must be

conducted to determine whether the defendant's waiver is voluntarily and

understandingly made. This includes assuring that the defendant understands the benefits

of being represented by counsel and the disadvantages of proceeding without counsel.

The waiver inquiry must also explore the defendant's competence for self-representation.

The Committee concluded that defendants who lack competence to represent themselves

cannot execute a valid waiver of the right to counsel. A suggested inquiry, suggested

findings, and commentary relating to waiver of counsel are found in Part I.

A defendant may also be found to have forfeited the right to counsel. Forfeiture may

occur in situations where the defendant has failed to obtain counsel, has refused to

cooperate with counsel, or through other conduct has so seriously interfered with the

orderly administration of the case that the right to counsel will be found to have been

forfeited. A trial court must warn a defendant that, if the defendant persists in specific

conduct, the court will find that the right to counsel is forfeited. The court must also

engage in a colloquy designed to assure that the defendant understands the benefits of

being represented by counsel and the disadvantages of proceeding without counsel. As

with the express waiver of counsel, the inquiry must also explore the defendant's

competence for self-representation. The court should make a clear ruling when the court

deems the right to counsel to have been forfeited and make factual findings to support

that ruling. A suggested inquiry, suggested findings, and commentary relating to

forfeiture of counsel are found in Part II.

What makes these cases difficult is that a constitutional right of the defendant is in

question regardless of how the case is resolved. The defendant has the right to be

represented by counsel but also has the right to waive counsel and proceed pro se.

Further, the Wisconsin Supreme Court has reaffirmed the rule that Wisconsin trial courts

must evaluate a defendant's competence to proceed pro se whenever defendants seek to

represent themselves. Part III discusses the considerations relating to evaluation of

competence for self-representation.

Parts IV and V consider related issues: the appointment and role of standby counsel;

and so-called hybrid representation, which occurs when a represented defendant seeks to

engage in self-representation only during certain stages of the trial.

Attempts to waive counsel, conduct that may result in forfeiture of counsel, and

attempts at self-representation are often connected with the problems confronting

defendants who do not qualify for State Public Defender representation who nevertheless

cannot afford to retain private counsel. Courts have the inherent power to appoint

counsel in some situations. This is discussed in Part VI.

I. Express Waiver of Counsel

A. Suggested Inquiry

THE COURT MUST BE SATISFIED THAT THE DEFENDANT UNDERSTANDS

THE PROCEEDINGS BEFORE ACCEPTING THE WAIVER. THE FOLLOWING

ARE EXAMPLES OF AREAS THAT SHOULD BE THE SUBJECTS OF INQUIRY.

ANSWERS INDICATING THE NEED FOR MORE INFORMATION SHOULD BE

PURSUED. QUESTIONS SHOULD BE PHRASED IN A WAY THAT

ENCOURAGES STATEMENTS FROM THE DEFENDANT THAT GO BEYOND

SIMPLE "YES" AND "NO" ANSWERS. 1

- Age

- Education and vocational training

- Present employment and employment history

- Present mental health condition and mental health history

- Present alcohol use and history of alcohol use

- Present medication or drug use

- Difficulty in understanding the court

IF THE DEFENDANT UNDERSTANDS THE PROCEEDINGS, THE COURT

MUST ASSURE THAT THE DEFENDANT UNDERSTANDS THE RIGHT TO

COUNSEL AND UNDERSTANDS THE BENEFITS OF BEING REPRESENTED. 2

1. "Do you want to be represented by a lawyer?"

2. "Do you understand that you have a constitutional right to be represented by a

lawyer in this case?"

3. "Do you understand that you have the right to hire your own lawyer?"

4. "If you do not have enough money to hire your own lawyer, you may be entitled

to have a lawyer appointed to represent you. Do you understand that?" 3

5. "You are charged with ____________________, which carries a maximum

penalty of imprisonment for __________ years and a fine of __________, or both. If you

are represented by a lawyer, he or she may discover information or facts which would be

helpful in your defense. A lawyer may find that you have a defense to the charge or that

there are facts which may result in a lighter penalty. I want you to take this into

consideration in deciding whether or not you want a lawyer to represent you."

"The trial will continue under the same legal rules that would apply if you had a

lawyer. If you represent yourself, you will have to follow these rules. Because you are

not trained in the law, this will make it hard for you to challenge the evidence presented

by the state and hard for you to present any evidence that you want to present."

"If you decide to testify you will be sworn as a witness and can give testimony while

you are acting as a witness. You will be asked questions by the other side at that time.

However, you cannot try to testify while acting as your own lawyer."

6. "Do you understand that a lawyer may be able to help you present your case and

that it will be very difficult for you to do a good job being your own lawyer?"

7. "Do you now wish to reconsider your decision not to have a lawyer?"

8. "Has anyone told you that you should not ask for appointment of a lawyer to

represent you?"

9. "Has anyone made any promises or any threats or has anyone used any influence

or pressure of any kind or force of any kind to get you not to ask for the appointment of a

lawyer?"

IF THE DEFENDANT INDICATES A CHANGE OF MIND AND NOW WANTS

TO BE REPRESENTED BY A LAWYER, THE COURT SHOULD REFER THE CASE

TO THE STATE PUBLIC DEFENDER OR ALLOW THE DEFENDANT TO SEEK

PRIVATE COUNSEL.

IF THE DEFENDANT AFFIRMS THE DESIRE TO WAIVE COUNSEL, THE

COURT SHOULD INQUIRE INTO THE DEFENDANT'S COMPETENCE FOR SELF-REPRESENTATION. INQUIRY INTO THE FOLLOWING AREAS IS

RECOMMENDED; THE INFORMATION MAY HAVE BEEN ELICITED BY

QUESTIONS ALREADY ASKED. 4

- Level of education

- Level of literacy

- Ability to communicate in the courtroom

- Physical or psychological disability that may affect the ability to communicate in

the courtroom

B. Use Of A Written Form

A standard form for a waiver of counsel has been adopted by the Judicial

Conference. See, Waiver of Right To Counsel, CR-226.

Section 971.025(1) provides: "In all criminal actions and proceedings. . . the parties

and court officials shall use the standard court forms adopted by the judicial conference

. . ." The form may be supplemented with additional material. § 971.025(2).

Despite the fact that the use of the form is required, case law continues to require that

the trial court conduct a colloquy to assure that a waiver of counsel is knowing and

voluntary.

A proper integration of the colloquy and the form is illustrated by State v. Polak,

2002 WI App 120, 254 Wis.2d 585, 646 N.W.2d 845. The waiver of counsel was found

to be supported by an adequate colloquy, the court noting that "we place particular

emphasis on the written waiver of counsel form, used in conjunction with the oral

colloquy, because that form unequivocally states Polak's awareness of the assistance an

attorney could provide and that an attorney might discover helpful things unknown to

Polak." Polak, ¶19. The court observed that the form was not used as a substitute for the

colloquy, but to supplement it.

C. Suggested Findings

1. Waiver of Counsel Accepted

AFTER THE COURT HAS CONDUCTED THE FOREGOING INQUIRY AND IF

THE DEFENDANT PERSISTS IN THE REFUSAL TO BE REPRESENTED BY

COUNSEL AND APPEARS TO BE COMPETENT TO REPRESENT HIMSELF OR

HERSELF, THE COURT SHOULD MAKE FINDINGS OF FACT THAT INCLUDE

FINDINGS ON THE FOLLOWING TOPICS:

- that the defendant understands the proceedings, understands the nature and

seriousness of the charge, and understands the maximum penalties that can be

imposed if the defendant is convicted;

- that the defendant understands that a lawyer may be of assistance, understands that

a lawyer may be appointed if the defendant is indigent, and understands the

disadvantages of self-representation;

- that the defendant voluntarily and freely waives the right to be represented by

counsel and is making a deliberate choice to proceed without counsel; and

- that the defendant has the minimal competence necessary to try to represent himself

or herself because [refer to the court's evaluation of the four factors identified in

Pickens].

PROPER FINDINGS SHOULD CONCLUDE WITH AN EXPRESS STATEMENT

THAT THE COURT CONCLUDES THAT THE DEFENDANT'S REQUEST FOR

SELF-REPRESENTATION IS GRANTED. 5

THE COMMITTEE SUGGESTS THAT A BRIEF INSTRUCTION BE GIVEN TO

THE JURY IN A CASE WHERE THE DEFENDANT HAS WAIVED COUNSEL. SEE

WIS JI-CRIMINAL 70.

2. Waiver of Counsel Denied 6

DENIAL OF A WAIVER OF COUNSEL MUST BE SUPPORTED BY ONE OF

THE FOLLOWING FINDINGS: (1) THAT THE DEFENDANT DOES NOT UNDERSTANDINGLY AND VOLUNTARILY WAIVE COUNSEL; (2) THAT THE

DEFENDANT DOES NOT UNDERSTAND THE DISADVANTAGES OF SELF-REPRESENTATION; OR (3) THAT THE DEFENDANT LACKS THE MINIMAL

COMPETENCE NECESSARY TO TRY TO REPRESENT HIMSELF OR HERSELF.

PROPER FINDINGS SHOULD CONCLUDE WITH AN EXPRESS STATEMENT

THAT THE COURT CONCLUDES THAT THE DEFENDANT'S REQUEST FOR

SELF-REPRESENTATION IS DENIED, SUPPORTED BY FINDINGS OF FACT

THAT INCLUDE FINDINGS ON THE BRACKETED MATERIAL THAT APPLIES:

- the defendant does not understand the seriousness of the charge and the maximum

possible penalties; or

- the defendant does not understand that a lawyer may be of assistance and that a

lawyer may be appointed if the defendant is indigent; or

- the defendant does not understand the disadvantages of self-representation; or

- the defendant does not possess the minimal competence necessary to try to

represent himself or herself because [refer to the court's evaluation of the four factors

identified in Pickens]. 7

D. Commentary

The questions in Part I. A. are recommended for use whenever it is necessary to

accept an express waiver of counsel. The defendant's answers to the recommended

questions will undoubtedly suggest additional questions that should be asked to enable

the court to make a full and complete determination that the defendant understands the

proceedings and the right to have a lawyer, including one appointed at public expense if

the defendant is indigent. A voluntary waiver of counsel will not be inferred from a

silent record. 8

The questions assume that the defendant has made clear the intention to proceed

without counsel. While the burden is on the court to make a record, the Committee

believes that the defendant should always have the opportunity to discuss the matter with

a lawyer (e.g., with a public defender if one is available.) 9

Pickens v. State 10 held that a valid waiver of counsel in a self-representation case

requires that the record reflect the following:

(a) the deliberate choice to proceed without counsel;

(b) awareness of the seriousness of the charges and the possible penalties; and

(c) awareness of the difficulties and disadvantages of self-representation.

Pickens, 96 Wis.2d 549, 563.

While the Pickens decision recommended that a colloquy with the defendant address

these issues, the Wisconsin Supreme Court later mandated that they be covered. In State

v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997), the court stated:

[T]he circuit court must conduct a colloquy designed to ensure that the

defendant: (1) made a deliberate choice to proceed without counsel, (2) was

aware of the difficulties and disadvantages of self-representation, (3) was aware

of the seriousness of the charge or charges against him, and (4) was aware of the

general range of penalties that could have been imposed on him.

The waiver of counsel inquiry has been modified in light of Klessig to explicitly address

each of the required issues, including the disadvantages of self-representation.

II. Forfeiture of Counsel

A. Suggested Inquiry

THE COURT SHOULD IDENTIFY THE CONDUCT OF THE DEFENDANT

THAT THE COURT BELIEVES PROVIDES A BASIS FOR FINDING A

FORFEITURE OF THE RIGHT TO COUNSEL AND THEN ADDRESS THE

DEFENDANT AS FOLLOWS:

"If you continue to engage in this conduct, the court will find that you are giving up

your right to be represented by a lawyer. If that happens, the trial will continue and you

will not have a lawyer to represent you.

1. "Do you understand that?

"You are charged with ____________________, which carries a maximum penalty

of imprisonment for __________ years and a fine of __________, or both. If you are

represented by a lawyer, he or she may discover information or facts that would help your

defense. A lawyer may find that you have a defense to the charge or that there are facts

which may result in a lighter penalty.

2. "Do you understand?

"The trial will continue under the same legal rules that would apply if you had a

lawyer. If you represent yourself, you will have to follow these rules. Because you are

not trained in the law, this will make it hard for you to challenge the evidence presented

by the state and hard for you to present any evidence that you want to present.

"If you decide to testify, you will be sworn as a witness and can give testimony while

you are acting as a witness. You will be asked questions by the other side at that time.

However, you cannot try to testify while acting as your own lawyer.

3. "Do you understand that a lawyer may be able to help you present your case and

that it will be very difficult for you to do a good job being your own lawyer?"

B. Suggested Findings

AFTER THE COURT HAS MADE THESE STATEMENTS AND ASKED ALL

THE QUESTIONS AND IF THE DEFENDANT PERSISTS IN THE CONDUCT, THE

COURT THEN, ON THE RECORD, SHOULD MAKE FINDINGS OF FACT THAT

INCLUDE THE FOLLOWING TOPICS:

- that the defendant understands the charge, understands that a lawyer may be of

assistance, and understands that the disadvantages of self representation; and

- that the defendant has refused to waive counsel expressly, but that the defendant has

engaged in the following conduct: (describe conduct or refer to the conduct

described in the colloquy with the defendant); and

- that this conduct has seriously disrupted the fair administration of justice in that:

(describe the effects of the defendant's conduct); and

- that this requires the court to conclude that the defendant has forfeited the right to

counsel.

C. Commentary

"Forfeiture" of counsel refers to situations where the defendant does not expressly

waive counsel but, by conduct, gives up the right to representation. Other terms used to

describe this situation are "constructive waiver," "waiver by conduct," and "waiver by

operation of law." The term "forfeiture of counsel" is used here because it emphasizes

that what is occurring is the loss of a right without the express waiver that is usually

required. These situations often involve defendants who have difficulty getting along

with counsel and thus may present questions whether to grant a motion to discharge

counsel or a motion by counsel to withdraw.

In State v. Newton, [decided sub nom. State v. Cummings, 199 Wis.2d 721, 546

N.W.2d 406 (1996)], the Wisconsin Supreme Court held that "there may be situations. . .

where a circuit court must have the ability to find that a defendant has forfeited his right

to counsel" [199 Wis.2d 721, 757] and found that the case before it presented that

situation: "There can be no doubt from the record that Newton's behavior was

manipulative and disruptive and that his continued dissatisfaction was based solely upon

a desire to delay." 199 Wis.2d 721, 754. The court noted that a similar forfeiture

situation was presented in State v. Woods, 144 Wis.2d 710, 424 N.W.2d 730 (Ct. App.

1988).

The Newton decision recommended that "trial courts in the future, when faced with a

recalcitrant defendant," follow four steps spelled out in the dissenting opinion before

finding that a defendant has forfeited counsel 11:

(1) provide explicit warnings that, if the defendant persists in specific conduct, the

court will find that the right to counsel is forfeited;

(2) engage in a colloquy indicating that the defendant has been made aware of the

difficulties and dangers inherent in self-representation;

(3) make a clear ruling when the court deems the right to counsel to have been

forfeited; and

(4) make factual findings to support the court's ruling.

To implement this four-step approach, the Committee recommends the statements

and questions set forth in Part II. A. A finding that the right to counsel is forfeited will

mean that the defendant will proceed without a lawyer. Where counsel is waived

expressly, an inquiry into competence for self-representation is required. [See discussion

in Section I.] It is not clear that an inquiry into competence for self-representation is

required or would be appropriate where the right to counsel is forfeited rather than

expressly waived.

In State v. Coleman, 2002 WI App 100, 253 Wis.2d 693, 644 N.W.2d 383, the court

found that grounds for forfeiture of counsel were not established. There were three

significant omissions: no specific warning that firing his attorneys would result in

forfeiture of his right to counsel; no colloquy to determine understanding of the

difficulties of proceeding without counsel; and, no clear ruling that Coleman had

forfeited his right to counsel. The trial court was also deficient in not making a finding

that Coleman was competent to represent himself. SM-30 is referred to as a "helpful

discussion." Coleman, footnote 3.

III. Self-Representation

Defendants in criminal cases have the right, under both the United States 12 and

Wisconsin Constitutions, 13 to represent themselves. Where there has been a clear 14 and

timely15 request to exercise this right, the trial court must conduct a careful inquiry

covering several different concerns. The trial court must first assure that there is an

intelligent and voluntary waiver of the right to be represented by counsel. (As discussed

in Part I.) Self-representation cases also often present situations where the defendant has

failed to obtain counsel, has refused to cooperate with counsel, or through other conduct

has so seriously interfered with the orderly administration of the case that the right to

counsel will be found to have been forfeited. (As addressed in Part II.) A finding of

competence for self-representation is required where the defendant has forfeited the right

to counsel, just as it is where there is an express waiver of counsel. State v. Coleman,

2002 WI App 100, 253 Wis.2d 693, 644 N.W.2d 283.

In addition to the waiver inquiry, the court must assure that the defendant

understands the disadvantages of self-representation. The trial court is also required to

inquire whether defendants are "competent" to represent themselves. This requirement

has been reaffirmed by the Wisconsin Supreme Court in 1997 and 2005. (See State v.

Klessig and State v. Ernst, below.)

The leading Wisconsin case on self-representation is Pickens v. State. 16 Pickens held

that a valid waiver in the self-representation case requires that the record reflect the

following:

(a) the deliberate choice to proceed without counsel;

(b) awareness of the seriousness of the charges and the possible penalties; and

(c) awareness of the difficulties and disadvantages of self-representation.

Pickens, 96 Wis.2d 549, 563.

While the Pickens decision recommended that a colloquy with the defendant address

these issues, the Wisconsin Supreme Court later mandated that they be covered. In State

v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997), the court stated:

[T]he circuit court must conduct a colloquy designed to ensure that the

defendant: (1) made a deliberate choice to proceed without counsel, (2) was

aware of the difficulties and disadvantages of self-representation, (3) was aware

of the seriousness of the charge or charges against him, and (4) was aware of the

general range of penalties that could have been imposed on him.

The waiver of counsel inquiry 17 has been modified in light of Klessig to explicitly

address each of the required issues, including the disadvantages of self-representation.

In State v. Ernst, 2005 WI 107, _21, 283 Wis.2d 300, 699 N.W.2d 92, the Wisconsin

Supreme Court held: "We conclude that the Klessig colloquy requirement was and is a

valid use of the court's superintending and administrative authority, . . . and that such a

rule does not conflict in any way with the United States Supreme Court's decision in

Tovar. . ." The reference is to Iowa v. Tovar, 541 U.S. 77 (2004), where the court held

that a valid waiver of the Sixth Amendment right to counsel did not require specific

advice from the court that waiver of counsel might result in a viable defense being

overlooked and losing the opportunity for an independent opinion on whether pleading

guilty is a wise choice.

A. Understanding the Disadvantages of Self-Representation

The disadvantages of self-representation are to a significant degree the mirror image

of the benefits of representation by counsel that are described in the waiver of counsel

inquiry. The additional factors that should be covered include the general conclusion that

self-representation is not wise (the old adage that "the lawyer who represents himself has

a fool for a client" was used several times by the trial court in the Pickens case) and the

more specific caution that the rules governing courtroom procedures will be applied

during the trial and that the defendant will be expected to abide by them. In Pickens, the

trial court gave the following advice:

Do you understand that this is a courtroom, we operate under certain legal rules,

and you will be expected to comply with those. I will perhaps give some latitude

because you are not trained in the law, but you will have to, even though you are

not educated in the law, try your lawsuit in accordance with those rules. Do you

understand that?

Pickens, 96 Wis.2d 549, 560-61.

It may be advisable to elaborate upon some of these matters by explaining the

following:

(1) that the judge will not represent the defendant or protect the defendant's interests

in the same manner a lawyer would;

(2) that if the defendant wishes to testify, the defendant must be sworn as a witness

and submit to cross-examination – the defendant cannot try to "testify" while acting in the

"lawyer" capacity;

(3) that valid objections to questions will be sustained despite the fact that lack of

legal training will make it difficult for the defendant to conduct direct or

cross-examination in the proper way.

In State v. Clutter, 230 Wis.2d 472, 477, 602 N.W.2d 324 (Ct. App.1999), the court

addressed the risks that are involved with a decision to proceed pro se:

Inherent in a defendant's decision to represent himself is the risk that a

defense not known to him will not be presented during trial. When a defendant

undertakes pro se representation that is the risk he knowingly assumes. If his

strategy in proceeding pro se results in a valid defense being waived, it reflects

the hazards of his decision to waive counsel. To rescue this defendant from the

folly of his choice to represent himself would diminish the serious consequences

of the decision he made when he elected to waive counsel.

B. "Competence" for Self-Representation

Even if there has been a valid waiver of counsel and the defendant understands the

disadvantages of self-representation, the trial court must assure that the defendant has the

"competence" or capacity for self-representation. This is not the same as "competency to

stand trial." 18 "Thus, despite the fact that a defendant has been found competent to stand

trial, it may, nevertheless, be determined that he lacks the capacity to represent himself."

Pickens v. State, 96 Wis.2d 549, 568.

In State v. Klessig, 199 Wis.2d 397, 544 N.W.2d 605 (Ct. App. 1996), the court of

appeals eliminated the requirement for an inquiry into competence for self-representation,

holding that law "changed when the United States Supreme Court decided Godinez v.

Moran, 113 S. Ct. 2680 (1993)." In Godinez, the court concluded that the only inquiry

into competence required for a waiver of the right to counsel was the competence

necessary to stand trial. The court of appeals' Klessig decision concluded:

Once a defendant has been found competent to stand trial, a trial court may not

engage in further or heightened competency requirements addressing the

defendant's possession of skills, intelligence or experiences that would be

sufficient to permit him to adequately represent his best interests at trial. 199

Wis.2d 397, 405.

The Wisconsin Supreme Court reversed the court of appeals in State v. Klessig, 211

Wis.2d 194, 564 N.W.2d 716 (1997), reaffirming the Pickens holding that competency

for self-representation is different from competency to stand trial:

We thus reaffirm the holding in Pickens as still controlling on the issue of

competency. In Wisconsin, there is still a higher standard for determining

whether a defendant is competent to represent oneself than for determining

whether a defendant is competent to stand trial. . . . Accordingly, the circuit

court's determination of a defendant's competency to proceed pro se must appear

in the record.

The court of appeals had held that the Pickens requirement no longer applied because

the United States Supreme Court decision in Godinez v. Moran established that there was

a single standard for competency – if a defendant was competent to stand trial that

defendant could represent himself without further inquiry into his ability to do so. The

Wisconsin Supreme Court concluded that Godinez was concerned with minimal

requirements and allowed states to impose higher standards as a matter of state law. The

court said its reaffirmation of the higher Pickens standard "stems from the independent

adoption of the higher standard by the state as allowed under Godinez."

Wisconsin, with its reaffirmed Pickens standard, is in the minority in recognizing a

requirement of "competence" for self-representation. The majority view in the country

apparently stresses the awareness of the disadvantages of proceeding pro se – if the

defendant understands the disadvantages but wishes to go ahead, self-representation

should be allowed. For example, the ABA Standards for Criminal Justice refer to

"competence to represent oneself" but define it in terms of understanding the

consequences of the decision to proceed without a lawyer. 19

The Pickens court recognized that the determination of competence for

self-representation "must necessarily rest to a large extent upon the judgment and

experience of the trial judge" and that "the trial court must be given sufficient latitude to

exercise its discretion in such a way as to insure that substantial justice will result." 96

Wis.2d 549, 569.

Factors to consider in determining whether the defendant "possesses the minimal

competence necessary to conduct his own defense" include:

(1) education

(2) literacy

(3) fluency in English

(4) any physical or psychological disability which may significantly affect his ability

to communicate a possible defense to the jury.

Pickens v. State, 96 Wis.2d 549, 569; reaffirmed in State v. Klessig, 211 Wis.2d 194,

212.

CAUTION: Persons of average intelligence are entitled to represent themselves. A

request for self-representation "should be denied only where a specific problem of

disability can be identified which may prevent a meaningful defense from being offered,

should one exist." Pickens, 96 Wis.2d 549, 569. Technical legal knowledge, as such, is

not relevant to an assessment of a knowing exercise of the right to defend oneself.

Faretta v. California, 422 U.S. 806, 836 (1975).

The cases dealing with self-representation recognize the difficult position of the trial

judge. The difficulty is due to the fact that the defendant has a constitutionally-protected

right on either side of the issue. The court addressed this in Klessig, stating that if the

defendant's competence for self-representation is not established, "the circuit court must

prevent the defendant from representing himself or deprive him of his constitutional right

to the assistance of counsel. However, if the defendant knowingly, intelligently, and

voluntarily waives his right to the assistance of counsel and is competent to proceed pro

se, the circuit court must allow him to do so or deprive him of his right to represent

himself." State v. Klessig, 211 Wis.2d 194, 203-04. Complete and proper findings are

extremely important in these cases. 20 If the request for self-representation is granted, the

record must reflect that the defendant:

1. understands the seriousness of the charge and the maximum possible penalties;

2. understands that the defendant has the right to be represented by a lawyer;

3. understands that if the defendant is indigent, a lawyer will be appointed at public

expense;

4. understands the advantages of being represented by counsel and the disadvantages

of self-representation; and

5. has the minimal competence necessary to try to conduct his or her own defense.

These matters are reflect in the suggested findings included in Part I. A.

If the request for self-representation is denied, the Committee has concluded that,

based on the Klessig decision, the waiver of counsel must be denied. That is, the right to

waive counsel, in Wisconsin, depends on a finding that the defendant is competent to

proceed pro se. A defendant who is not competent to proceed pro se, cannot waive

counsel. The suggested findings included in Part I. B. reflect this conclusion.

IV. Appointment of Standby Counsel

"Standby counsel" refers to the appointment of a lawyer to assist the defendant whose

request for self-representation has been granted.

The authority to appoint standby counsel is recognized as included in the inherent

powers of the trial court. 21 The U.S. Supreme Court first addressed the issue in Faretta v.

California: 22

Of course, a State may – even over objection by the accused – appoint a "standby

counsel" 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.

422 U.S. 806, 835 n.46.

In McKaskle v. Wiggins, 23 the Court elaborated as follows:

Accordingly, we make explicit today what is already implicit in Faretta: A

defendant's Sixth Amendment rights are not violated when a trial judge appoints

standby counsel – even over the defendant's objection – to relieve the judge of the

need to explain and enforce basic rules of courtroom protocol or to assist the

defendant in overcoming routine obstacles that stand in the way of the defendant's

achievement of his own clearly indicated goals. Participation by counsel to steer a

defendant through the basic procedures of trial is permissible even in the unlikely

event that it somewhat undermines the pro se defendant's appearance of control over

his own defense.

465 U.S. 168, 184.

The proper role of standby counsel was also discussed in McKaskle v. Wiggins. The

question was whether the standby counsel is limited to a "seen but not heard" sort of

assistance: Is counsel to participate only upon the defendant's request or may counsel

directly participate in the trial, unsolicited by the defendant?

The Court held that unsolicited participation by standby counsel does not

impermissibly infringe on the defendant's right to self-representation. Two general limits

on standby counsel were recognized:

(1) defendants are entitled to preserve actual control over the case they choose to

present to the jury; and

(2) participation by standby counsel should not be allowed to destroy the jury's

perception that defendants are representing themselves.

Specific actions which do not infringe upon the right to self-representation include:

(1) any actions taken at the specific or implied invitation of the defendant;

(2) assistance in overcoming routine procedural or evidentiary obstacles (e.g.,

introducing evidence or objecting to testimony);

(3) ensuring the defendant's compliance with basic rules of courtroom protocol and

procedure.

McKaskle v. Wiggins, 465 U.S. 168, 183.

The Wisconsin Supreme Court elaborated upon the role of standby counsel in

Contempt in State v. Lehman, 137 Wis.2d 65, 403 N.W.2d 438 (1987). The defendant

Lehman had fired four attorneys appointed by the State Public Defender and the fifth was

allowed to withdraw. The State Public Defender refused to appoint another attorney and

the court granted Lehman's request to appear pro se. However, the trial court appointed a

lawyer to serve as standby counsel. The Supreme Court clarified that "courts possess the

inherent power to appoint counsel," including standby counsel, and to order the county to

pay the cost. "The decision to appoint standby counsel in this case was based, as it

should be, on a determination that the needs of the Trial Court and not the Defendant,

would be best served by doing so." 137 Wis.2d 65, 77 [emphasis in original]. The court

emphasized that "the chief purpose of the appointment of counsel in cases like the present

one is to serve the interests of the trial court. . . ." 137 Wis.2d 65, 78.

The Lehman decision was reaffirmed in State v. Newton [decided sub nom. State v.

Cummings, 199 Wis.2d 721, 546 N.W.2d 406 (1996)]. The court again emphasized that

appointment of standby counsel is based on the needs of the trial court to help the trial

proceed in an orderly fashion and is not tied to the defendant's right to counsel. 199

Wis.2d 721, 756. In both Lehman and Newton, the court expressly noted that it was not

dealing with possible constitutional claims in a situation where a defendant who, having

waived (or forfeited) counsel, made a request for standby counsel which was denied by

the trial court.

V. "Hybrid" Representation

Occasionally defendants seek to conduct portions of their own defense while they are

represented by counsel. For example, Wisconsin cases have involved requests that a

represented defendant be allowed to make opening statements or closing arguments. It

has been claimed that the right to self-representation requires that defendants be allowed

to represent themselves and be represented by counsel in the same case.

The United States Supreme Court has held that the Sixth Amendment to the U.S.

Constitution does not require trial courts to permit "hybrid" representation. McKaskle v.

Wiggins, 465 U.S. 168, 183. The Wisconsin Supreme Court has reached the same

conclusion with respect to a claim based on the Wisconsin Constitution. Moore v. State,

83 Wis.2d 285, 265 N.W.2d 540 (1978). In Moore, the trial court's refusal to allow the

represented defendant to examine witnesses was upheld. Also see Robinson v. State, 100

Wis.2d 152, 301 N.W.2d 429 (1981), where the defendant was not permitted to make a

closing argument in addition to the one made by counsel. 24

A danger in allowing represented defendants partially to represent themselves is

illustrated by what happened in State v. Johnson, 121 Wis.2d 237, 358 N.W.2d 824

(1984). Johnson presented his own opening statement but did not testify. The prosecutor

responded in his own opening to emphasize that Johnson's statement was not testimony

and not evidence. The defendant claimed on appeal that this was unfair comment on his

right not to testify. The court of appeals affirmed the conviction and adopted a "partial

waiver" rule for this sort of situation which allows a limited prosecutorial comment in

response to the defendant's statement. But the court noted the dilemma that the situation

presents to both the prosecutor and the trial judge. 121 Wis.2d 237, 245.

VI. Court Appointment of Counsel for Defendants Who Do Not Qualify Under

State Public Defender Guidelines

It is increasingly common for trial courts to be confronted with defendants who do

not meet the financial criteria of the Office of the State Public Defender but who cannot

afford to retain private counsel. These defendants may not wish to waive counsel

expressly. And their inability to obtain counsel may result in continuances where, upon

returning again without counsel, defendants may find their conduct characterized as that

which justifies a finding of forfeiture of counsel. There are other negative effects as well,

such as reluctance by prosecutors to discuss the case with unrepresented defendants. This

can result in delay and even in the unavailability of plea concessions or sentence

recommendations that would be freely offered if counsel was present.

There is a provision for court review of the public defender's indigency

determination. Under § 977.07(3), a court "may review any indigency determination

upon its own motion or the motion of the defendant and shall review any indigency

determination upon the motion of the district attorney or the state public defender."

Review under this authority is limited to examining the public defender's application of

the legislative criteria and the accompanying mathematical computations. State v. Dean,

163 Wis.2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991)

Trial courts also have inherent power to appoint counsel for defendants who do not

meet the criteria for appointment of counsel by the Office of the State Public Defender.

In State v. Dean, 163 Wis.2d at 513, the court stated:

The legislature cannot limit who is constitutionally entitled to an attorney. The

creation of the public defender's office is not the exclusive means for assuring

counsel to indigents and did not negate the inherent power of the court to appoint

when the public defender declines to act. Douglas Co. v. Edwards, 137 Wis.2d

65, 77, 403 N.W.2d 438, 44 (1987). The trial court therefore is required to go

beyond the public defender's determination that a defendant does not meet the

legislative criteria and determine whether the "necessities of the case" and the

demands of "public justice and sound policy" require appointing counsel. See

Sparkman [v. State], 27 Wis.2d 92, 98, 133 N.W.2d 776, 780 (1965).

Dean held that the burden of proof lies with the defendant to convince the court that

appointment of counsel is necessary despite the defendant's failure to meet the public

defender's indigency criteria. The decision identified the following considerations that

relate to the trial court's decision:

(1) The defendant must present evidence of his or her assets, income, liabilities and

attempts to retain counsel. 25

(2) The court is not required to conduct an independent inquiry but must ask enough

questions to decide the issue. The court cannot restrict itself to the criteria mandated by

the legislature in § 977.07(2) but should consider all evidence that is relevant to the

defendant's present ability to retain counsel.

(3) In deciding, the court must consider whether the defendant has sufficient assets

to retain private counsel at the market rate prevailing in the community. It must disregard

the public defender's established cost of retained counsel in Wis. Adm. Code sec. SPD

3.02(1). 26

Aside from the procedurally-oriented considerations, the basic question is whether

the "necessities of the case" and the "demands of public justice and sound policy" require

appointment of counsel.