The Right to Represent Yourself in Criminal Proceedings
A criminal defendant sometimes will decide to handle their case pro se instead of hiring an attorney. They may feel that they do not need to pay a private attorney or go through the process of working with a public defender if the case is simple and minor. However, a defendant needs to get approval from a judge before they can represent themselves. While the U.S. Supreme Court has acknowledged the right of a defendant to represent themselves, this right hinges on their competency. A pro se defendant must show that they are able to understand the proceedings and must knowingly waive the right to an attorney.
In making this decision, the judge will consider the defendant’s age and education, as well as the gravity of the charges. If the defendant does not speak English as their first language, the judge may evaluate whether they will be able to understand the use of English in court. In terms of the defendant’s education, they will not be expected to have the same level of knowledge and skill as an attorney. Being competent to represent yourself in a trial is not the same as being mentally competent to stand trial.
Deciding Whether to Represent Yourself
Most people in the criminal justice system will say that a defendant should almost never go without representation. They simply lack the familiarity with the law and the system that a professional attorney will have accumulated. If you could face substantial penalties upon a conviction, you should seriously consider retaining counsel. People who are facing charges of violent crimes or other serious felonies should never go without an attorney. Moreover, a crime that may not carry significant criminal penalties may involve collateral consequences that you might want to avoid. A motor vehicle offense might not lead to jail time, for example, but it might result in a license suspension and increased insurance premiums.
While the federal criminal justice system provides specific sentencing guidelines, many state criminal laws give judges greater discretion. Many of them are known as indeterminate sentencing laws, which means that the judge may have a minimum sentence and a maximum sentence to consider, but a broad range lies between them. A few states use determinate sentencing laws, which provide a narrower range of penalties. To make sure that you understand the potential consequences, you may want to schedule a consultation with a private attorney or talk with an attorney in the public defender’s office.
Sometimes a judge will appoint standby (advisory) counsel when a defendant represents themselves. The standby counsel will be present in the courtroom to answer the defendant’s questions and give advice. The standby counsel might be asked to take over the defense if the judge thinks that it is necessary for a fair and orderly trial.
Reasons Why Defendants Choose Self-Representation
If a defendant is certain that they have no defense to a crime, and the sentence does not greatly vary upon a conviction, they may not feel that it is worthwhile to hire a lawyer. Some defendants choose to represent themselves because they have lost confidence in defense lawyers following a previous negative experience, although this may not have been the lawyer’s fault. Other defendants distrust the system and feel that going outside it makes a statement of resistance. If they are already in jail, a defendant may welcome the privileges that come with handling their own case, such as getting permission to use the library.
Since a defendant is not a professional attorney, they do not need to cooperate with the court process. They can file frivolous motions to disrupt the case, possibly discouraging the prosecutor from pursuing it. This tactic usually does not pay off, though, and a judge who finds it irritating may be tempted to sentence a defendant more harshly if they are convicted.
The Right to Counsel
A defendant who chooses to represent themselves does not give up the right to legal counsel. A defendant can hire an attorney at any time in the case. Similarly, a defendant can consult with an attorney at any time for advice while continuing to represent themselves in court.
Handling the Arraignment Without a Lawyer
One stage at which a defendant may not need an attorney is the initial arraignment. This is because the process is relatively formulaic. The defendant generally will enter a plea of not guilty, and then the judge will set a date for the next step in the case. The judge also may consider any bail requests that either side raises. A defendant often asks for a public defender at this stage and shows that they cannot afford an attorney, after which the judge will appoint a public defender. If the defendant can find a private attorney or get a public defender appointed before the arraignment, though, they should not hesitate to make these arrangements.