Legal Question in Constitutional Law in Florida

Sixth Amendment Right to Counsel

I need help. My questions are, as follow:

1. Under what circumstances can a judge force an accused to defend himself in a criminal proceeding, including a sentencing hearing, without the assistance of counsel ?

2. Under what circumstances can a judge appoint counsel over a defendant's objection ?

3. What can a judge do to a defendant in a criminal matter who does not wish to waive any of his rights or privileges, including the Fifth Amendment right to remain silent, and refuses to answer questions regarding his indigency ?

4. What can a judge do to a defendant who appears at a criminal proceeding without counsel, invokes his Fifth Amendment right to remain silent, and refuses to knowingly and voluntarily waive his right to the assistance of counsel ?

5. What can a judge do to a party, witness or potential juror, who based on his sincerely-held religious beliefs invokes his First Amendment rights to freedom of religion/expression, and refuses to take any kind of oath, affirmation, attestation or declaration under penalty of perjury ?

6. Under what circumstances can a judge throw a defendant who does not wish to waive his rights or privileges in jail ?

Thank you, in advance, for your help.


Asked on 3/15/05, 8:37 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Sixth Amendment Right to Counsel

1. A judge can deny counsel to a defendant who has previously persuaded the court to let him represent himself, but only if the request is so late that granting it would unduly interfere with the administration of justice or if there is some other very strong reason to view the request as a delaying tactic. Also, in some jurisdictions, a judge can deny counsel to a defendant who does not face jail time even if he is convicted as charged.

2. Counsel can be appointed over the defendant's objections when the defendant fails to persuade the court that he is capable of defending himself competently. The court must let the defendant argue that he can do the job himself, but must say no when it appears the defendant won't be effective in court.

3. Your right to remain silent does not apply to questions about your indigency, since they are not relevant to whether you are innocent or guilty and are merely administrative matters. Besides, it is your job to show the court that you actually are indigent. If you won't answer the court's questions you won't be able to prove your indigency and the state will not pay for your lawyer. Alternatively, it might pay for the lawyer and then bill you for her services.

4. The court can -- indeed, must -- appoint counsel to ensure that the defendant's interests are protected.

5. Someone whose religion forbids him to "swear" may "affirm" or "declare" instead. Someone who refuses to do that can be held in contempt. I am not aware of any religion which would have a problem with such an oath, but if the witness can show that his religion forbids it then he probably can't testify.

6. Such a refusal is no reason to jail a defendant, but it is also no reason to let him go. If there are other sufficient reasons to jail him (like having been convicted or failure to post bail), then he goes to jail.

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Answered on 3/16/05, 2:35 pm


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