Dependent and Neglect Proceedings

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Rule 303: Notification and Waiver of Rights.

(a)   Right to Attorney.

(1)   Notification of Right to an Attorney.  In all proceedings in which a party is by law entitled to representation by an attorney, the court shall expressly inform the party of the right to an attorney. If a party waives the right to an attorney, the court shall inform the party of the continuing right to an attorney at all stages of the proceedings.

(2)  Waiver of Right to an Attorney.  No party shall be deemed to have waived the assistance of an attorney until and unless:

(A) The party has been fully informed of the right to an attorney;

(B) The party subsequently knowingly and voluntarily waives the right to an attorney; and

(C)  The waiver is confirmed in writing by the party.

(3)  Appointment of Attorney.  When an indigent party who is entitled to an attorney does not knowingly and voluntarily waive the right to an attorney, the court shall appoint an attorney to represent that party. 

(b)  Notification and Waiver of Additional Rights.

(1)  Notification and Waiver Where Party Represented by an Attorney.  When the party is represented by an attorney, the attorney shall fully advise that party of the party’s rights under the Constitution of the United States, the Constitution of Tennessee, any other law, and any rule of court. The party shall make the decision whether or not to waive those rights, after full consultation with the party’s attorney. The obligation of the attorney to advise the party of the party’s rights in no way diminishes the court’s obligations both to advise the party of the party’s rights and to ascertain whether waivers of those rights are made knowingly and voluntarily.

(2)  Waiver of Rights Where Party Not Represented by an Attorney.  When the party is not represented by an attorney, that party may not waive any rights guaranteed to the party under the Constitution of the United States, the Constitution of Tennessee, any other law, or any rule of court unless the Court has fully advised the party of the party’s rights and has determined that he or she knowingly and voluntarily waives those rights. 

(3)  Notification of Rights to a Party Who has Waived the Right to an Attorney.  At the outset of any juvenile court hearing, the court shall advise any party who has waived the right to an attorney or who does not have an attorney of:

(A) The privilege against self-incrimination;

(B) The right cross-examine adverse witnesses;

(C) The right to present testimony on the party’s behalf;

(D) The right to subpoena evidence on the party’s behalf;

(E) The right to appeal any final order, the time limits for and manner in which the right to appeal can be perfected, and the right to an attorney on appeal.

 

(c)    Knowing and Voluntary Waiver.

(1)  Criteria for Knowing and Voluntary Waivers.  A court shall not accept a waiver or deem a waiver to have been made voluntarily and knowingly if the party is or was unable to make an intelligent and understanding decision because of the party’s mental condition, education, experience, the nature or complexity of the case, or any other relevant factor.

(2)  Procedure for Making and Confirming Waivers.  Any and all waivers of rights shall be made orally and in open court, and shall be confirmed in writing by the party and the judge. When the party is not represented by an attorney, the court shall advise that party in open court of the right to an attorney. The court shall not proceed with the hearing unless that party has waived the right to an attorney in accordance with the provisions of this rule.

Advisory Commission Comments.

In a proceeding in which a party is entitled to counsel and in which the court has determined the individual is not indigent, the court should allow the party a reasonable time to retain counsel. However, if a party engages in a “cat and mouse” game with the court in order to impede the judicial process, then the court may make a determination that the party has effectively waived the right to counsel. State v. Houston, 2013 Tenn. Crim. App. LEXIS 112, 2013 WL 500231 (Tenn. Crim. App., Feb. 11, 2013).

A waiver of any right shall be made orally and in open court and confirmed in a writing signed by both the judge and the party waiving the rights. The confirming document may be a preprinted form, but it must specify the rights that are being waived and must acknowledge that the individual is choosing to waive those rights.

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