As a general rule, the less severe the charged crime, the more sensible self-representation may be. Defendants charged with minor traffic offenses should rarely hire an attorney; defendants charged with serious misdemeanors and felonies should rarely be without one.
The most difficult decisions involve less serious misdemeanors such as drunk driving, possession of small amounts of drugs, shoplifting, and the like. Hiring an attorney in these situations may make sense because jail time and a fine are possibilities, and convictions may carry hidden costs (for example, more severe punishment for a second conviction). On the other hand, first-time offenders are not usually sentenced to jail, and judges and prosecutors often offer standard deals to all defendants for these types of offenses, whether or not they are represented by counsel.
What You Need to Learn
The most critical piece of information that defendants should try to learn before deciding whether to hire an attorney is what the likely—rather than possible—punishment would be upon conviction. Often the likely punishment for an offense is far less than the maximum possible punishment set out in the law.
Example: A law states that the offense of shooting a deer out of season is punishable by a $1,000 fine and six months imprisonment. However, the actual punishment routinely meted out for a first offense may be a $50 fine and an administrative suspension of the offender’s hunting permit. Comparing the likely sentence to the costs of an attorney, the defendant may choose self-representation.
Example: Jay Walker is charged with drunk driving. According to the statute, upon conviction Jay may lose his license for up to a year, be sent to county jail for up to six months, and have to pay a $2,000 fine. Jay learns that the judge does not send first offenders like Jay (whose blood alcohol reading was just barely over the limit) to jail. Instead, the judge routinely imposes a fine of $400 and sends offenders to driving school. Balancing the likely consequences of a conviction in this judge’s court against the cost of an attorney (and the substantial possibility that a conviction will result anyway), Jay decides to plead guilty without hiring an attorney.
Of course, the key is to learn what, exactly, the local custom might be for cases like yours. This is classic "insider information," not available on websites or books. Only someone who works in the system is likely to know what cases like yours will settle for, or what sentences various judges are likely to give defendants who lose at trial. To learn this information, you might need to consult with a lawyer who practices in your area and who handles cases like yours.
When Self-Representation Probably Isn't a Good Idea
Defendants seriously considering representing themselves should probably pay for or accept free legal representation (if it’s available) when one or more of the following factors exists:
- Conviction is likely to result in a prison sentence.
- The case is likely to go to trial.
- The defendant has a prior criminal record.
- The defendant is in custody and as a result may not have access to a law library.
- The defendant is anxious and feels overwhelmed about being charged with a crime.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.