intelligent waiver in Colorado

2021And we even used the right to counsel as an example, stating that " [w] hile courts indulge every reasonable presumption against the waiver of a fundamental constitutional right, ‘the determination of whether there has been an intelligent waiver of [the] right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case .’ " Id. ( alteration omitted ) ( quoting Johnson v. Zerbst , 304 U.S. 458 , 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 ( 1938 ) ) . ¶39 Our prior decisions therefore illustrate our unwavering support for the trial court 's consideration of t

2021And we even used the right to counsel as an example, stating that " [w] hile courts indulge every reasonable presumption against the waiver of a fundamental constitutional right, ‘the determination of whether there has been an intelligent waiver of [the] right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case .’ " Id. ( alteration omitted ) ( quoting Johnson v. Zerbst , 304 U.S. 458 , 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 ( 1938 ) ) . ¶39 Our prior decisions therefore illustrate our unwavering support for the trial court 's consideration of t

1967There is some authority in support of this contention, however, we prefer to follow the rule in Shultz v. United States, 351 F.2d 287 (10th Cir.), wherein the court applied objective tests and stated that the determination of the voluntariness of the consent must be tested by the totality of the circumstances surrounding the purported waiver of a constitutional right.

1967There is some authority in support of this contention, however, we prefer to follow the rule in Shultz v. United States, 351 F.2d 287 (10th Cir.), wherein the court applied objective tests and stated that the determination of the voluntariness of the consent must be tested by the totality of the circumstances surrounding the purported waiver of a constitutional right.

2021And we even used the right to counsel as an example, stating that " [w] hile courts indulge every reasonable presumption against the waiver of a fundamental constitutional right, ‘the determination of whether there has been an intelligent waiver of [the] right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case .’ " Id. ( alteration omitted ) ( quoting Johnson v. Zerbst , 304 U.S. 458 , 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 ( 1938 ) ) . ¶39 Our prior decisions therefore illustrate our unwavering support for the trial court 's consideration of t

2018Taylor, 414 U.S. at 19 -20 , 94 S.Ct. 194 (rejecting the defendant's assertion that there can be no effective waiver, "unless it is demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him"); see also United States v. Riddle , 249 F.3d 529 , 534-35 (6th Cir. 2001) ("To hold that such a waiver of a defendant's ... presence would be effective only after an on-the-record colloqu

2018Taylor, 414 U.S. at 19 -20 , 94 S.Ct. 194 (rejecting the defendant's assertion that there can be no effective waiver, "unless it is demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him"); see also United States v. Riddle , 249 F.3d 529 , 534-35 (6th Cir. 2001) ("To hold that such a waiver of a defendant's ... presence would be effective only after an on-the-record colloqu

2014P. 23(a)(5)(II) cannot itself amount to error at all, much less plain error, for largely the reasons articulated in my separate opinion in Moore v. People, 2014 CO 8 , 318 P.3d 511 , also announced today, I1 do not believe the majority opinion presents a consistent and integrated theory of the constitutional waiver at issue or makes clear whether a defendant must nevertheless understand the substance of those advisements to make an intelligent waiver.

2014P. 23(a)(5)(II) cannot itself amount to error at all, much less plain error, for largely the reasons articulated in my separate opinion in Moore v. People, 2014 CO 8 , 318 P.3d 511 , also announced today, I1 do not believe the majority opinion presents a consistent and integrated theory of the constitutional waiver at issue or makes clear whether a defendant must nevertheless understand the substance of those advisements to make an intelligent waiver.

2014By placing the burden of proof on the prosecution in a subsequent collateral attack on the effectiveness of the waiver, contrary to the universally accepted view concerning the burden of proof in collateral attacks, see, e.g., Johnson, 304 U.S. at 468 , 58 S.Ct. 1019 (in collateral attack, "presumption of regularity" requires defendant to bear burden of convincing court that waiver of his right to counsel was not made competently and intelligently); Lamb v. People, 174 Colo. 441 , 484 P.2d 798 (1971) (in motion for post-conviction relief pursuant to Crim.

2014By placing the burden of proof on the prosecution in a subsequent collateral attack on the effectiveness of the waiver, contrary to the universally accepted view concerning the burden of proof in collateral attacks, see, e.g., Johnson, 304 U.S. at 468 , 58 S.Ct. 1019 (in collateral attack, "presumption of regularity" requires defendant to bear burden of convincing court that waiver of his right to counsel was not made competently and intelligently); Lamb v. People, 174 Colo. 441 , 484 P.2d 798 (1971) (in motion for post-conviction relief pursuant to Crim.

2006After reasoning that a voluntary, knowing, and intelligent waiver of jury sentencing is required, the majority summarily concludes that no evidence in the record supports an effective waiver by the defendant, and in fact, that a defendant sentenced before the United Supreme Court's holding in Blakely v. Washington, *1197 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), could not possibly make an intelligent waiver of his constitutional right to jury sentencing.

2006After reasoning that a voluntary, knowing, and intelligent waiver of jury sentencing is required, the majority summarily concludes that no evidence in the record supports an effective waiver by the defendant, and in fact, that a defendant sentenced before the United Supreme Court's holding in Blakely v. Washington, *1197 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), could not possibly make an intelligent waiver of his constitutional right to jury sentencing.

1985In the context of self-representation, the defendant must in addition "be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.' [Citation omitted.]" Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562 (1975).

1985In the context of self-representation, the defendant must in addition "be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.' [Citation omitted.]" Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562 (1975).

1971However, the imposition here by the trial court of the so-called “per se exclusionary rule” as defined in Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) was erroneous.

1971However, the imposition here by the trial court of the so-called “per se exclusionary rule” as defined in Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) was erroneous.