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Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and lower state and federal courts, these are cornerstones of our system of criminal justice.

However, a significant corpus of cases has developed that allows, under certain circumstances, a "forfeiture," an "implicit waiver," or a "waiver by conduct" of the right to counsel. Given the scrutiny courts have extended to "knowing and intelligent" waivers of the right to counsel, this is contradictory, if not troubling. These cases-from both federal and state appellate courts and the lower courts generating the litigation-seem to be in direct contravention of United States Supreme Court precedent on this matter. Under that jurisprudence, a defendant has an unequivocal right to certain information before a waiver is found, and a demand (contemporaneously and on later inquiry) for an unequivocal and intelligent relinquishment of those rights. This newer "implicit waiver" bypasses that inquiry for a defendant who later finds himself without protection-or an attorney, for example-without having expressly decided to forego counsel's representation.

A particular line of cases addressing circumstances unique to the stress of a trial has created the doctrines of forfeiture and implicit waiver of trial counsel. A defendant, for example, may constructively waive the right to trial representation by agitating his lawyer, court personnel, or others in such a way as to deliberately delay or derail the trial.

There is very little formal literature on this topic, although a very recent online ABA Journal has drawn attention to it in a fairly sensational way. Otherwise, a survey of law reviews and other secondary literature reveals little explanation or insight. The United States Supreme Court has never explicitly addressed the constitutionality of the waiver by conduct, constructive waiver, or forfeiture doctrines or the processes by which courts apply them.

This project began with an attempt to define, describe, and disambiguate forfeiture from implicit waiver/waiver by conduct, and to discuss the rationales and policies behind why these doctrines have emerged (yet highlighting the reasons why criminal defendants might reasonably attempt to disrupt the process). Many of these court opinions explore puzzling, contradictory definitions of both the terms and application of the doctrines. But as the survey produced more and more shades of gray, sifting the doctrines and approaches became less interesting than looking beneath them for the analytical assumptions and legal underpinnings of these doctrines.

Ultimately, however, what may be most useful to courts and practitioners, as well as students of this area of the law, are ideas for avoiding the circumstances that bring such cases to the state and federal appellate courts. Take, for example, Davis v. Frazier, which illustrates the stakes for the defendant, the possibility of a full meltdown of the judicial process, and the vast expense (dare I say waste) of resources as it has wound its way through habeas and appellate courts for more than ten years. ... Would not a five-minute colloquy on the record, warning Mr. Davis of the dangers both of continuing his disruptive conduct and proceeding pro se, have been more judicially efficient than nearly ten years of appellate and postconviction litigation?

It clearly would have been more efficient, and some jurisdictions require these sorts of warnings before counsel can be waived or forfeited by conduct. Other states and federal circuits, however, do not require special warnings, hearings, or other process before criminal defendants are forced to proceed without counsel. This Article attempts to not only catalogue jurisdictional approaches to this problem but to consider the values and principles underlying the variety of approaches on the subject. And while no one-size-fits-all answers will magically clarify puzzles that have perplexed a number of state and federal appellate judges, there is enough of a problem here to warrant some study, organized thinking, and perhaps even modification of existing approaches.