• alisasmith3

Unheard voices of misdemeanor defendants on the right to counsel.

Updated: Jul 16, 2019

Misdemeanor defendants waive their right to counsel more often than not. Why do they forfeit this foundational right?

Although every state has either a statutory or judicially-approved mechanism for defendants to contribute or replay the costs of public counsel, Florida has one of the most stringent cost-sharing models in the country, which includes a $50 application fee that is not subject to judicial waiver. The Supreme Court has upheld cost-sharing laws, but the Court has not directly addressed the constitutionality of application fees (i.e., a fee for the court to evaluate if defendants are too poor to hire an attorney), nor has scholarly works examined whether these fees chill or dissuade defendants from asserting their right to counsel.

The Preliminary Study

In a preliminary study of this issue, 14 defendants, who plead to misdemeanor crimes at arraignment waived counsel. When asked why they waived counsel, the defendants focused on expedience and efficiency, wanting their case to be over without delay. Most did not think they needed a lawyer.

The overarching focus was on expedience and efficiency. Defendants' short-sighted, results-oriented approach was reinforced by trial judges, who emphasized the quickness of the proceedings. Trial judges did not adequately advise defendants of their rights, nor were they advised of the advantages of using a lawyer or the disadvantages of proceeding without one. Most defendants explained that they did not "need" a lawyer or they implied that a lawyer was unnecessary because the charge was minor. Without proper advisement, defendants seem to hold the incorrect presumption that legal counsel is dispensable and misdemeanor crimes are "minor" without long-term consequences.

The Current Project

The proposed research will expand on the preliminary work by:

(1) Interviewing defendants who waive their constitutional rights, and those that do not to assess variation in their reasons for proceeding with and without counsel;

(2) Asking defendants who waive counsel whether mounting costs-sharing fees, including application fees, chilled their assertion of the right to counsel;

(3) Inquiring whether trial judges inadvertently send defendants the message that misdemeanor crimes are unimportant and lawyers are unnecessary; and

(4) Examining whether defendants who are adequately informed about the advantages and disadvantages of proceeding with and without counsel, the potential for short- and long-term consequences of misdemeanor arrests and convictions, and the availability of free counsel would choose counsel.

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