Johnson v. Zerbst 304 U.S. 458 (1938)

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JOHNSON v. ZERBST 304 U.S. 458 (1938)

Defendants who neither sought nor were offered counsel were convicted in a federal court. The Supreme Court held that the sixth amendment requires counsel in all federal criminal proceedings unless the right is waived. This holding is mainly of historical interest, but the case retains remarkable vitality and is often cited because of its definition of waiver. Starting with the proposition that there is "every reasonable presumption against "waiver," the Court declared: "A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege."

Johnson 's strong suspicion of waiver of the right to counsel is reiterated in many decisions. In Von Moltke v. Gillies (1948) the Supreme Court established a duty of the trial judge "to investigate [waiver of counsel] as long and as thoroughly as the circumstances of the case before him demand." The Court has also said that waiver must affirmatively appear on the record and will not be presumed from a silent record.

Although the Court's definition of waiver applies to all fundamental rights, and although Johnson is cited in fourth amendment and Fifth Amendment cases, the definition has been rigorously applied only in the right to counsel context that spawned it.

Barbara Allen Babcock

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Johnson v. Zerbst 304 U.S. 458 (1938)

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