Your Right to Represent Yourself in a Criminal Case

Criminal defendants can only represent themselves if a judge determines that they are competent to do so. The community as a whole has an interest in achieving justice, and a trial in which an incompetent defendant self-represents isn't a fair one.

Do Criminal Defendants Have a Right to Self-Representation?

The case that established that defendants have a right to represent themselves was Faretta v. California, U.S. Sup. Ct. 1975. However, the right of self-representation is not absolute.

The Faretta case said that a judge may allow self-representation if a defendant is competent to understand and participate in the court proceedings. But a defendant's request for self-representation must not interrupt or delay the start of the trial. A judge can terminate a defendant's self-representation if the defendant deliberately engages in misconduct. Judges can also appoint standby counsel over a defendant's objection.

Judge's Role When a Defendant Asks to Waive Counsel

A judge must determine that a defendant's waiver of counsel is knowing and intelligent. To make this determination, the judge needs to assess whether the defendant understands the seriousness of the charges and the punishment allowed under the law, the risks of self-representation, and the complexity of legal rules.

Competency Questions

To determine competence, the judge often weighs factors such as:

• the defendant's age
• the defendant's level of education
• the defendant's familiarity with English, and
• the seriousness of the crime with which the defendant is charged.

No single factor determines the result, and a defendant doesn't need the legal skills of a professional lawyer to qualify for self-representation. As long as a defendant is competent, knowingly gives up the right to an attorney, and understands court proceedings, the defendant is entitled to self-represent.

Judge Cannot Assist in Defense

Judges typically also inform defendants that they will be held to the same standards as attorneys in the courtroom. The defendant will need to follow the rules of evidence and procedures on their own and without the assistance of the judge.

Examples of Self-Representation Requests

Below are examples of how judges evaluate self-representation requests in criminal cases.

Example: Ella Mental is charged with burglary. Ella has only a grade school education, and she has been in and out of mental institutions for much of her life. Ella tells the judge that she wants to represent herself in the burglary case. The judge allows Ella to do so, on the ground that Ella has been convicted of various crimes three times in the past and is thus familiar enough with criminal law to represent herself. Ella goes to trial, and her questions to the prosecution witnesses are garbled and, for the most part, ruled improper by the judge. Ella is convicted. The judge should not have allowed Ella to represent herself. The mere fact that Ella has three prior convictions does not demonstrate that she is capable of knowingly giving up her right to an attorney and representing herself. In view of her limited education, her history of mental problems, and her inability to participate meaningfully in the trial, the judge should have ignored Ella's wishes and appointed a lawyer to represent her.

Example: Lexi Khan is charged with assault and battery, and she wants to represent herself. Lexi speaks English, but English is her second language, and she has trouble understanding some words. She also has trouble reading a law book that the judge asks her to read. In the arraignment court, Lexi refused to enter a plea and repeatedly said that the whole system is biased and that she wanted nothing to do with it. Over Lexi's objection, the judge appoints an attorney to represent her. Taking all the circumstances into account, the judge properly exercised discretion when denying Lexi's request for self-representation. In view of Lexi's language difficulties and refusal to participate in the arraignment proceedings, Lexi is not capable of representing herself at trial in a meaningful way.

Example: Dane Gerous is charged with aggravated sexual assault and asks to represent himself. The judge's questioning reveals that Dane did not finish high school and has no previous legal experience. However, Dane accurately summarizes the charge that he is facing. Also, when the judge reads a statute to Dane, he can explain what it means in his own words. The judge should allow Dane to represent himself. The charge is serious, and the judge may believe that Dane would be better off with a lawyer. However, Dane has demonstrated sufficient ability to understand and participate in the proceedings, and thus, he has a right to represent himself.

Can the Judge Appoint Standby Counsel for a Defendant?

Judges can appoint standby counsel for a self-represented defendant, even if the defendant objects. In complex and serious cases, a judge commonly will appoint one or more standby counsel to be present during the entire case.

Standby counsel's role is limited. While the case is proceeding, a defendant can ask standby counsel for assistance with technical issues and procedures. But standby counsel cannot actively participate in the defense without the defendant's consent. This means the defendant is in charge of their case strategy.

If the defendant chooses not to go forward with self-representation, standby counsel can step in and take over the defense. This situation could also happen if the judge terminates the defendant's self-representation due to disruptive behavior or misconduct.

Should You Represent Yourself in a Criminal Case?

It's critical to note, though, that the fact that one can self-represent doesn't mean that one should. Almost everyone who works in the criminal justice system agrees that self-representation is normally a bad idea, in no small part because the defendant usually lacks anything near the necessary training and experience of a criminal defense lawyer.

FAQs on Self-Representation in Criminal Cases

Below are some common questions regarding self-representation in a criminal case.

What Do the Terms "Pro Se" and "Pro Per" Mean?

Judges and lawyers typically refer to defendants who represent themselves with the terms "pro se" (pronounced pro say) or "pro per." Both come from Latin and essentially mean "for one's own person."

What Is the Competency to Self-Represent vs. Competency to Stand Trial?

Whether a defendant is mentally competent to stand trial is a different issue. A time-honored principle in American law holds that we should not subject someone to trial who lacks the capacity to understand the nature and purpose of the legal proceedings against him, to consult with his lawyer, or to help in the preparation of his defense. Someone competent to stand trial is oriented as to time and place and has a reasonable degree of rational understanding. (18 U.S.C. § 4241.)

A judge has the power to decide that a defendant is mentally competent to stand trial, yet not competent enough to represent himself. (Indiana v. Edwards, U.S. Sup. Ct. 2008.)

Why Do Criminal Defendants Choose Self-Representation?

Criminal defendants might choose to go pro se based on a number of reasons, such as:

• distrust in the criminal justice system and indigent defense counsel
• inability to choose their public defender or substitute new counsel if their relationship becomes strained
• lack of control in tactical case decisions and defense strategies
• little protection from ineffective assistance of counsel, or
• pressure to plead guilty from counsel.

It's also no secret that public defenders' caseloads (nationwide) are too high.