 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Parson6/17/2004
is "inconsistent with his client's expressed desire. In other factual situations, however, where the record is less clear as to whether the client objects to or agrees with counsel's purported waiver, or whether the client had been sufficiently informed to make such a choice, the waiver issue becomes more difficult to assess . While " he majority of circuits that have addressed this question have stated that a defendant's attorney can waive his client's Sixth Amendment confrontation right 'so long as the defendant does not dissent from the attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy[,]" the Sixth Circuit does not subscribe to the majority view. In Carter v. Sowders, the Sixth Circuit stated that a waiver of confrontation rights requires the defendant's personal and knowing consent:
Although a waiver may be implied and not express, there must be evidence in the record to support that implication . This court's statement in Evans v. United States, 284 F.2d 393(6th Cir. 1960) is directly applicable : "the record does not show that defendant knew or was advised of his rights. In order to constitute a waiver, there must be a voluntary relinquishment of a known right ." Id . at 395. We find Carter did not personally waive his right to confront Elam .
The district court found that Carter nonetheless effected a waiver of this right through the actions of his attorney, who appeared for the deposition and then departed . We find this conclusion inconsistent with Zerbst. As the Second Circuit stated in United States v. Crutcher, 405 F .2d 239, 243 (2nd Cir. 1968), cert. denied , 394 U .S . 908, 89 S .Ct. 1018, 22 L .Ed .2d 219 (1969), referring to defense counsel's decision to proceed with jury impaneling in the defendant's absence: " yen assuming [counsel] had the authority to act as Payne's counsel, he would not have had the ability to bind Payne to a decision of this type without obtaining Payne's consent." The Tenth Circuit came to a similar conclusion in Larson v. Tansy, 911 F .2d 392, 396 & n .2 (10th Cir. 1990):
The record indicates defendant's counsel, and not defendant, waived defendant's right of presence at trial . The trial court never directly addressed defendant concerning his counsel's request to conduct the remainder of the trial in defendant's absence . We hold that defendant did not waive his right to be present . . . . Even if defense counsel could have validly waived defendant's right to be present for the conclusion of his trial, where defense counsel did not consult with defendant concerning the waiver and did not obtain defendant's consent, the waiver will not be binding on defendant.
We similarly find that, even if Waller's action at the deposition could constitute a waiver of the defendant's rights under the Confrontation Clause, the waiver would not bind Carter in the absence of a showing that he consented.n3 As the Supreme Court stated in Farretta v. California , 422 U.S. 806, 819, 95 S .Ct. 2525, 2533, 45 L.Ed.2d 562 (1975): "it is the accused, not counsel, who must be `informed of the nature and cause of the accusation,' who must be `confronted with the witnesses against him' . . . . The right to defend is given directly to the accused, for it is he who suffers the consequences if the defense fails ."
n3 The Kentucky Supreme Court found that "Carter's right to confront Elam at the deposition was waived" because " mple notice of the deposition was provided to Carter's counsel . . . There was no evidence that Carter, personally, had a legal reason why he was unable to attend, and no proof that his presence would have made a difference
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|