State v. Erb

Under Article I, Section 11, of the Oregon Constitution, a waiver of the right to counsel must be voluntarily and intelligently made.

Defendant appealed that the trial court committed a reversible error in allowing her to proceed without counsel. Defendant admits that she signed a document which waived her right to counsel, but argued that she did not do so “intelligently.” Under Article I, section 11, of the Oregon Constitution, a waiver must be “voluntarily” and “intelligently” made. The Court of Appeals recognized that “intelligently” means with knowledge and understanding. The State argued that Defendant understood her right to counsel, under the “totality of circumstances” test, when she 1) signed the waiver, 2) had a conversation with the court about proceeding pro se, and 3) is regarded as highly educated. The Court of Appeals disagreed with the State, and found that Defendant did not “substantially appreciate” the material risks of self-representation. The Court of Appeals found that Defendant's conversation with the trial court and her waiver were insufficient. Defendant's conversation with the judge was extremely general and did not provide any specific examples in which she may be disadvantaged. Additionally, there was no evidence that Defendant had any experience with the criminal justice system and did not have an opportunity to observe counsel. The state failed to show that Defendant knowingly waived her right to counsel under the totality of circumstances. Reversed and remanded.