111.2Right to Counsel
- Ensure that all defendants in custody have either retained or waived counsel, or been appointed counsel if they are indigent.
- Ask the court to inquire about the status of counsel for any defendants charged with felony or misdemeanor offenses for which probation or incarceration is a possibility.
Regularly check the jail list to determine if in-custody defendants have been transported to court so the judge may inquire whether defendants are indigent and entitled to court-appointed counsel.
If a defendant charged with a felony appears at a probable cause, probation revocation, bail, or extradition hearing without counsel, review the court file. If there is no written waiver-of-counsel form, or if there is a denial-of-appointed-counsel form, request that the court advise defendant of his or her rights and determine whether defendant is indigent (AOC-CR-226) and waives the right to counsel (AOC-CR-227). Secure a written waiver of counsel before calling any witness.
Additionally, before arraigning a non-represented defendant in a misdemeanor case, ask the court to determine whether defendant is indigent (AOC-CR-226) and, after defendant is advised of his rights, request that the court provide appointed counsel or obtain a written waiver of counsel (AOC-CR-227) in the following situations:
- Traffic offenses which may result in probation or incarceration, such as DWI or DWLR;
- Worthless check cases when the defendant’s prior conviction level makes probation or incarceration probable;
- Larceny or shoplifting cases when defendant’s prior conviction level makes probation or incarceration probable;
- All cases of nonsupport and assault on a female when defendant’s prior conviction level makes probation or incarceration probable;
- All other misdemeanor cases where you are seeking an active sentence, a suspended sentence that you may later seek to activate, or a fine greater than $500;
- All cases when defendant is on probation, or when you are aware that defendant has recently been released from probation or incarceration; and
- All probation revocation hearings.
At an early stage of all felony cases, and in misdemeanor cases appealed to superior court, request the court to advise any unrepresented defendants of their rights. Do not proceed to call a case with an unrepresented defendant for trial unless there is a written waiver-of-counsel form in the court file (AOC-CR-227).
Using the affidavit
An indigent defendant’s affidavit of income and expenses may be a fertile source of information for cross-examination when defendant’s employment or financial status is an issue. For example, the defendant in an armed robbery case may testify that he had no need for money because he was gainfully employed at the time, but the affidavit of indigency may indicate otherwise.