Does a waiver of counsel need to be discussed in open court?

This court, in United States v. Dujanovic, 486 F.2d 182, 188 (9th Cir. 1973), indicated that a district court should not grant a defendant's request to waive representation of counsel and serve as his own counsel, without discussing with the defendant, in open court, whether the waiver was knowingly and intelligently made, with an understanding of the charges, the possible penalties, and the dangers of self-representation. This is clearly the preferable procedure and should be followed by district courts in every case.

This court has, however, held that a failure to do so will not, in every case, necessitate reversal. In Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), we held that the omission of the colloquy between the defendant and the court was not per se reversible error, when the record reveals a knowing and intelligent waiver. That case involved an unusual fact situation in which the background and experience of the defendant in legal matters was apparent from the record. Later cases emphasized that this was a limited exception, to be applied in rare cases.