Liberty Planet Weblog

Do you Understand the Charges?

Posted on: June 7, 2012

Many of us involved in the “legal reform” movement have understood for most of twenty years that when a judge asks a defendant if “Do you understand the charges against you,” something “funny” is happening. We believe the judge isn’t merely asking if we comprehend the charges on an intellectual basis.

Instead, we suspect that, by using the word “understand” as a term of art, the judge is actually asking if we agree, consent, or even contract to be subject to the charges claimed by the plaintiff or prosecution. The implication of this suspicion is that we must agree to “understand” the charges before the judge can proceed. I.e., if we expressly refuse to “understand” the charges, the court might not be able to proceed against us.

However, even though we’ve “understood” that “somethin’ funny” is goin’ on whenever the court asks “Do you understand the charges?,” I, at least, have not precisly understood what the judge means when he asks that question.


Recently, while researching the concept of “adequate notice,” I stumbled upon the following footnote in the A.D. 1976 U.S. Supreme Court case of HENDERSON v. MORGAN, 426 U.S. 637:

[ Footnote 13 ] A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e. g., Johnson v. Zerbst, 304 U.S. 458, 464-465, or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. Smith v. O’Grady, 312 U.S. 329.” [Emphasis added by Adask.]

Note that in this case, the Supremes decided the validity of a sentence imposed on a man who pleaded guilty to an alleged crime or criminal offense. This case does not specifically address the circumstances of a defendant who pleaded “Not Guilty”.

Nevertheless, I’m fascinated by the possibility that all pleas (Guilty, Not Guilty, Nolo Contendre, etc.) may be deemed involuntary and therefore unconstitutional if the defendant does “not understand the nature of the constitutional protections that he is waiving”.

Let’s assume that the “The State vs this state” hypothesis regularly discussed on this blog is valid. Let’s suppose that our “entry” into “this state” is always deemed to be voluntary. Let’s suppose that we are always charged “in this state” and therefore deprived of the “constitutional protections” that would be afforded to us within The State (The State of Texas, The State of New York, etc.). IF it were true that our pleas “in this state” are always ultimately voluntary (we may also have the right to demand that our case be tried within The State and thus the choice between the venues of The State and “this state” is voluntary), then it might follow that defendants are presumed to “understand” that they are “waiving” the “constitutional protections” of The State whenever they enter a plea (perhaps any plea) “in this state”.

According to the court, if a defendant does not understand that his “plea of guilt” (this does not expressly include “not guilty” pleas–but it might), his plea cannot be construed as an intelligent and voluntary waiver of his constitutional protections. Therefore, his plea must therefore be rejected as unconstitutional. The whole prosecution can be defeated if the defendant did not truly “understand the charges”–and associated waiver of constitutional protections . . . unless. . . there was “proof that he in fact understood the charge.”

So, if the judge started the proceedings by asking the defendant on the record, “Do you understand the charges against you?,” and if the defendant answered “Yes,” would the defendant’s answer on the record constitute proof that the defendant in fact “understood” the charge–and therefore understood and consented to any waiver of constitutional protections that was inherent in that charge? Footnote 13 implies that the answer may be Yes.

If so, then it may be that a defendant’s statement that he “understands the charges” would be tantamount to declaring that he understands and consents to waive the constitutional protections of The State in order to enjoy the “convenience” of being subjected to the administrative process of “this state”.

If that conjecture were valid, then it would seem to follow that any plea (Guilty, Not Guilty, Nolo Contendre, etc.) to a court of “this state” (as signified by the courtroom’s gold-fringed flag?) would not only address the issue of guilt or innocence relative to the specific charge, but would also implicitly address the “waiver of constitutional protections” of The State for the convenience of administrative process “in this state”.

I.e., if it were true that a man who pleaded Guilty to a charge waived his constitutional protections of The State to consent to be charged “in this state,” it would follow that even a defendant who pleads Not Guilty might also thereby consent to be charged “in this state” and thereby waive the “constitutional protections” of The State.

I have no proof to support the previous conjecture, but Footnote 13 (supra) is evidence that the conjecture might be roughly correct.

IF this conjecture were roughly correct, whenever a judge asks if you “understand the charges” he may really be asking if you understand the venue and consent to be tried in the administrative venue of “this state” without constitutional protections available in the venue of The State (of the Union).

If so, it’s possible that a correct answer to “Do you understand the charges against you?” might be something like “For the record, I do understand the charges against me within The State of Texas and I do not understand any charges against me within ‘this state’.”

Or, you answer more efficiently if you said “I do not understand the charges against me in the territorial venue of “this state”.

Or, you might try, “I do not understand any charge against me that requires or presumes that I have voluntarily waived any of my constitutional protections.”

If you know your stuff, you might simply answer “No.”

There’s a variety of possible answers to the “Do you understand” question. But you’d better be knowledgeable if you want to deny that you “understand the charges”. You can bet that the judge will respond with questions or persuasion designed to trick you into “understanding the charges against you”. If you can weather the judge’s attempts to ensnare you, hard to say what’ll happen then.

At the point where it becomes clear that you will not consent to “understand the charges,” the judge may order you sent off for a mental health evaluation. Mental health care is the judge’s ultimate trump card. It’s oppressive and vindictive, but it happens.

Faced with the possible threat of a mental health care evaluation, anyone willing to implement a “denial of understanding” strategy should proceed with great caution. If you dare to experiment with the “I do not understand the charges” strategy, you’d better think about it first and devise the most prudent statement(s) possible to implement that strategy without causing yourself grief.

For example, before you go before a judge who might subject you to a mental health care evaluation, you might want to pay a professional psychologist or psychiatrist for a professional evaluation of you mental health. If a judge threatened you with mental health care and you produced a document signed by a professional within the last two weeks that declared you to mentally competent, the judge might be stymied.

Further, you might want to begin to advance the venue issue in relation to a case against you, long before the case reaches the court. If the venue issue is as powerful as I suspect, and if the court sees the issue coming before you get to court, the system might cause your case to be dismissed or settled out of court to save the court from embarrassment.

But if you wait until you’re actually in court to spring a “denial of understanding” strategy, you’ll have placed the judge in an untenable position. I.e., assuming the strategy is valid, the judge will be forced to essentially admit that validity in public (in court), or abuse his authority to try to slap you down and “save face”.

I suspect that it’s better to provide an express or implied notice that you intend to deny “understanding” any charges filed “in this state” long before you get to court. This early warning will give the court and system an opportunity to turn you loose without admitting why they did so.

That’s not an ideal outcome. We’d all like to play the part of the young-hero-defendant whose courage and intellect destroys a corrupt court system. But as a practical matter, it may be more prudent to simply earn an unheralded dismissal during the pre-trial phase of a proceeding.

Source: Adask


1 Response to "Do you Understand the Charges?"

if I own a R-1 property and I need to build a house for myself do I have to take out a county permit ?

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