The doctrine of waiver by conduct (also spelled waiver-by-conduct) appears, at first glance, to be redundant since, by definition, a waiver can be implied by conduct; it does not need a written expression.
However, particularly in the United States, in criminal law, the Courts are loath to imply waivers of fundamental constitutional rights by mere conduct.
Thus, a doctrine of waiver by conduct has been developed and is used where an accused is abusing his right to counsel to such an extent that the Court, after warnings, strips that right from the accused and proceeds either pro se (self-represented) or in the absence of the accused from the courtroom.
In US v Goldberg, the United States Court of Appeal wrote that waiver by conduct occurs as follows:
"Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel."
REFERENCES:
- Duhaime, Lloyd, Legal Definition of Sixth Amendment
- Illinois v Allen 397 US 337 (1970)
- US v Goldberg 67 F. 3d 1092 (1995)