Miss. R. Crim. P. 7.1

As amended through March 21, 2024

Rule 7.1 - Right to Counsel; Waiver

(a)Right to be Represented by Counsel. A defendant shall be entitled to be represented by counsel in any criminal proceeding. The right to be represented shall include the right to consult in private with an attorney or the attorney's agent, without unnecessary delay, after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation therefor.

(b)Right to Appointed Counsel. An indigent defendant shall be entitled to have an attorney appointed in any criminal proceeding which may result in punishment by loss of liberty, in any other criminal proceeding in which the court concludes that the interests of justice so require, or as required by law. The determination of the right to appointed counsel, and the appointment of such counsel, is to be made no later than at the indigent defendant's first appearance before a judge.

(c)Waiver of Right to Counsel. When the court learns that a defendant desires to act as his/her own attorney, the court shall conduct an on-the-record examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:

1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, then the court will appoint one free of charge to defend or assist the defendant in his/her defense.

2. The defendant has the right to conduct the defense and may elect to do so and allow whatever role (s)he desires to his/her attorney.

3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.

4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.

5. Other matters as the court deems appropriate.

After informing the defendant and ascertaining that the defendant understands these matters, the court will ascertain whether the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine whether the defendant has exercised this right knowingly and voluntarily and, if so, make the finding a matter of record. At the time of accepting a defendant's waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings. Additionally, the court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney. Such advisory counsel shall be given notice of all matters of which the defendant is notified.

(d)Withdrawal of Waiver. A defendant may withdraw a waiver of the right to counsel at any stage of the proceedings but will not be entitled to repeat any proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.

(e)Unreasonable Delay in Retaining Counsel. If a non-indigent defendant appears without counsel at any proceeding after having been given reasonable time to retain counsel, the cause may proceed. If an indigent defendant who has refused appointed counsel in order to obtain private counsel appears without counsel at any proceeding after having been given reasonable time to retain counsel, the court shall appoint counsel unless the indigent defendant waives the right under section (c). If the indigent defendant continues to refuse appointed counsel, the cause may proceed.

Miss. R. Crim. P. 7.1

Adopted eff. 7/1/2017.

Comment

Rule 7.1 establishes guidelines for the representation of both indigent and non-indigent criminal defendants. The basis of Rule 7.1 is the right of an accused to be represented by counsel in all criminal prosecutions. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence."); Miss. Const. art. 3, § 26 ("In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both . . . .").

For the purposes of subsection (a), the term "criminal proceeding" includes any stage of the criminal process, without regard to whether a "criminal proceeding" has or has not been commenced under Rule 2.1. The provision that a defendant may consult with the attorney's agent is added for the attorney's convenience.

Rule 7.1(b) is adopted from Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); and Mississippi Code Section 99-15-15. See also Alabama v. Shelton, 535 U.S. 654, 661-62, 122 S. Ct. 1764, 1769-70, 152 L. Ed. 2d 888 (2002).

Under section (b), there are two pertinent inquiries in determining when counsel is to be appointed to represent an indigent defendant. The first inquiry is whether the right to appointed counsel arises at all. See Dunn v. State, 693 So. 2d 1333, 1339 (Miss. 1997) (citing Scott v. Illinois, 440 U.S. 367, 374, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979)). The second inquiry is if the defendant is entitled to appointed counsel, at what point in the process is counsel to be appointed. Regarding this second inquiry, Mississippi law provides that "[t]he accused shall have such representation at every critical stage of the proceedings . . . where a substantial right may be affected." Miss. Code Ann. § 25-32-9(2). Specifically:

[u]nder Mississippi law, the right to counsel attaches earlier than does the sixth amendment right. Williamson [v. State], 512 So. 2d [868,] 876 [(Miss. 1987)]; Page v. State, 495 So. 2d 436, 439 (Miss. 1986). This right attaches "once the proceedings against the defendant reach the accusatory stage." Williamson, 512 So. 2d at 876; Page, 495 So. 2d at 439. The "accusatory stage" is defined by Mississippi law to occur when a warrant is issued or, "by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit." Miss. Code Ann. § 99-1-7(1972). This right to counsel [also] "attaches at the point in time when 'the initial appearance . . . ought to have been held. . . .'" Veal [v. State], 585 So.2d [693,] 699 [(Miss. 1991)] (emphasis added).

Ormond v. State, 599 So. 2d 951, 956 (Miss. 1992). See also Weeks v. State, 804 So. 2d 980, 995 (Miss. 2001); Sanders v. State, 801 So. 2d 694, 700 (Miss. 2001) (citing Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994)) ("The Sixth Amendment right to counsel attaches once the proceedings reach the accusatory stage.").

Rule 7.1(c) provides the standards for waiver of the right to counsel, applicable throughout these rules. It is derived from former Rule 8.05 of the Uniform Rules of Circuit and County Court and adopts the constitutional standard set down in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948); and Argersinger, and followed by the Mississippi Supreme Court in Conn v. State, 251 Miss. 488, 170 So. 2d 20 (1964). See also Bradley v. State, 58 So. 3d 1166, 1170 (Miss. 2011); Patton v. State, 34 So. 3d 563, 565-69 (Miss. 2010).

Subsection (c) also allows, but does not require, the court to appoint advisory or standby counsel. Although a criminal defendant has an absolute right to defend pro se under the Sixth Amendment, there may be instances where a court will deem the appointment of standby counsel advisable and in the defendant's best interest. See Patton, 34 So. 3d at 567; McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); United States v. Theriault, 474 F. 2d 359 (5th Cir. 1973), cert. denied, 411 U.S. 984 (1973).

Under Rule 7.1(d), the defendant can decide at any stage of the proceedings that it was a mistake to waive counsel. The court should encourage an unrepresented defendant, at all stages, to obtain counsel. But while the defendant's right to withdraw waiver of counsel is unlimited, a defendant is not allowed to use late appointment or retention of counsel to disrupt orderly and timely processing of the case. Thus, a defendant cannot delay a scheduled proceeding, nor repeat one already held, solely because of a change of heart concerning the need for counsel.

Rule 7.1(e) protects the court against dilatory tactics by the defendant in retaining counsel while at the same time preserving the defendant's right to counsel. See Sample v. State, 320 So. 2d 801, 804 (Miss. 1975) ("We recognize that the defendant must be given a reasonable opportunity to employ and consult with the attorney of his choosing."). It allows an indigent defendant the opportunity to make a good faith, though unsuccessful, effort to obtain private counsel, even though the proceeding may be delayed. See McConnell v. United States, 375 F. 2d 905 (5th Cir. 1967); Cleveland v. United States, 322 F. 2d 401 (D.C. Cir. 1963), cert. denied, 375 U.S. 884 (1963).