Article IV. Rules on Criminal Proceedings in the Trial Court · Part A. Waivers and Pleas · Last amended 1984 · Last verified July 20, 2026
In one sentenceRule 401 requires a judge to personally address a defendant in open court, and confirm the defendant understands the charge, the possible sentence, and the right to a lawyer, before accepting a waiver of counsel in any case where imprisonment is possible.
(a)Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not
permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1)the nature of the charge;
(2)the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3)that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(b)Transcript. The proceedings required by this rule to be in open court shall be taken verbatim, and upon order of the trial court transcribed, filed and made a part of the common law record.
Plain-English Summary
Before any defendant gives up the right to a lawyer, a judge has to make sure that choice is informed. Rule 401 requires this to happen in open court, not through a form or a private conversation with staff. The judge must speak with the defendant directly and confirm, on the record, that the defendant understands three things: the charge being faced, the range of punishment that could follow (including any added exposure from prior convictions or consecutive sentences), and the right to have a lawyer, appointed free of charge if the defendant can't afford one.
This rule only applies when the offense carries the possibility of imprisonment. It doesn't reach purely fine-only offenses. If the judge skips any of the three required topics, the waiver can be challenged later, which is why courts tend to follow a set script rather than improvise.
The proceeding must be recorded verbatim. Whether that record gets transcribed into a written transcript, though, is left to the trial judge; the rule requires transcription only when the court orders it.
Frequently Asked Questions
Can a defendant waive the right to a lawyer without saying so in open court?
No. Rule 401 requires the waiver to happen in open court, with the judge addressing the defendant directly rather than accepting a waiver filed in writing or made off the record.
What three things must the judge confirm the defendant understands?
The nature of the charge, the minimum and maximum sentence the defendant faces (including extra exposure from prior convictions or consecutive sentences), and the right to counsel, including appointed counsel if the defendant can't afford one.
Does this rule apply to every criminal charge?
It applies whenever the offense could lead to imprisonment. Charges punishable only by a fine fall outside the rule.
Is the waiver hearing always transcribed?
It's always taken down verbatim, but it's only transcribed into a written record if the trial court orders that done.
What happens if the judge doesn't cover all three required topics?
A waiver taken without full compliance is open to challenge on appeal, since the rule exists to guarantee the defendant made an informed choice.
Committee Comments
(Revised April 27, 1984)
Rule 401, as adopted in 1967 (36 Ill. 2d R. 401), covered (1) waiver of indictment, (2) waiver of counsel, (3) pleas of guilty, and (4) the requirement of representation by counsel in open court on a guilty plea or waiver of counsel or waiver of indictment by persons under 18 years of age. In 1970, items (3) and (4) were transferred to Rules 402 and 403 respectively (43 Ill. 2d Rules 402, 403), and waiver of counsel and waiver of indictment were separated into separate lettered paragraphs (a) and (b), respectively (43 Ill. 2d R. 401(a), (b)), in order to give a clearer and more specific statement of the requirements for each type of waiver, since in a given case both waivers might not occur, or might occur at different times. In 1975, the Code of Criminal Procedure of 1963 was amended to abolish the requirement of indictment, and in 1978, to reflect this change, paragraph (b) of Rule 401 (58 Ill. 2d R. 401) was rescinded and former paragraph (c) became the present paragraph (b). With regard to waiver of counsel, the 1970 amendments made no major change in substance, although they made explicit some requirements that were only implicit in the rule as originally adopted. For example, Rule 401 as originally adopted merely stated that the defendant must understand “the consequences [of the charges against him] if found guilty” (36 Ill. 2d R. 401(b)), while paragraph (a)(2) defines these consequences. The definition is the same as in Rule 402, paragraph (a)(2), concerning admonition of the consequences when a plea of guilty is accepted. See the committee comments to Rule 402.
Original Rule 401 (36 Ill. 2d R. 401), and Rule 401(a), as amended in 1970 (43 Ill. 2d R. 401(a)), required waiver of counsel only in cases in which the defendant was accused of a crime punishable by imprisonment in the penitentiary. In 1974, this paragraph of the rule was amended (58 Ill. 2d R. 401(a)) to conform to the decision of the Supreme Court of the United States in Argersinger v. Hamlin (1972), 407 U.S. 25, in which it was held that no imprisonment may be imposed, absent a knowing and intelligent waiver, unless the defendant was represented by counsel at his trial.
The present paragraph (b) is derived from the last two sentences of paragraph (b) of former Rule 401 (36 Ill. 2d R. 401).
In 1984 paragraph (b) was amended to require transcription of the verbatim report of waiver proceedings only when ordered by the trial court. This brings Rule 401(b) into line with Rule 402(e), which requires transcription of guilty-plea proceedings in felony cases to be transcribed only when ordered by the trial court.
1*The committee comments to Rules 401, 402, and 403 are those of the special committee appointed by the court to recommend rule revisions in the areas covered by those rules.
Amendment History
Amended June 26, 1970, effective September 1, 1970; amended effective September 1, 1974; amended September 29, 1978, effective November 1, 1978; amended April 27, 1984, effective July 1, 1984.
Source & verification. Rule text, official Committee Comments, and
amendment history are reproduced verbatim from the Illinois Supreme Court Rules,
promulgated by the Supreme Court of Illinois. Last verified July 20, 2026.
· Official source
Also known as:waiver of counselright to a lawyer criminal caseself-representation admonishmentpro se criminal defendant illinoiswaiving right to counselopen court counsel warning