Representing Yourself |
A defendant who represents herself is referred to as proceeding pro se or in pro per.1 You have the right to represent yourself, provided that the judge decides you’re “competent” (that you have enough experience and education to manage it).2 You needn’t have taken courses in law or be familiar with technical matters such as hearsay exceptions, to exercise your right to self-representation. However, you do have to understand the basic procedures undertaken by the defense and the prosecution: • Each side gets to make an opening statement
at the beginning of trial and a closing argument at its end. • Each side can put on witnesses and items of
physical evidence, and use subpoenas to force them to appear, if necessary. • Each side can cross-examine the other side’s
witnesses. • Each side can object to testimony or exhibits
on the basis of the rules of evidence, and the judge will then decide whether the material in question may be presented to the jury. • The prosecutor usually makes the first opening
statement and the last closing argument, and normally puts on all of her witnesses and exhibits before the defense puts on any. • Each side is responsible for submitting a set of jury instructions. The judge is required to verify that you’re familiar with how a trial works. He also has to confirm that you know you’re entitled to a court-appointed lawyer if you can’t afford one. Usually, the judge will start by warning you about the dangers of representing yourself. Then he’ll ask about your level of education, ability to speak English, whether you’ve ever been through a criminal trial before, etc. This conversation between you and the judge is called a “Faretta hearing.” 3 It’s rarely a separate proceeding; instead, it occurs at whatever point you tell the judge that you’re planning to represent yourself. Sometimes judges are pretty disrespectful during the Faretta hearing, especially when they’re talking about how unwise it would be for you to represent yourself.4 However, if you lose your temper in response (especially if you yell or swear), the judge will most definitely declare that you’re not competent to represent yourself. If the judge does decide you’re not competent, he’ll appoint a lawyer to represent you despite your wishes.
The one type of criminal matter in which it can be worthwhile to represent yourself is a case involving political activism (such as civil disobedience)—especially when the charges are misdemeanors and the amount of potential jail time is thus more limited. In political cases, judges often forbid defendants to talk about the reasons—philosophical or religious—for their actions. Such defendants may have a better chance of getting the message across if they represent themselves. Although a political defendant who represents herself is nonetheless more likely to lose the case than if she uses a lawyer, she may find the trial more satisfying. Anyway, if it’s clear that it’s impossible to win, then a political defendant has nothing to lose by representing herself—and speaking truth to power in the courtroom is itself an important form of activism. For inspiration, you might look at court statements by people such as Socrates, William Penn, Emma Goldman, Mohandas K. Gandhi, Dorothy Day, and Nelson Mandela.5 If you’re going to do time anyway, you might as well have your say. A middle ground between having a lawyer do everything and representing yourself alone, is to have a lawyer as “advisory counsel” or “co-counsel.” 6 The precise range of activities for advisory counsel or co-counsel to a pro se defendant varies according to the preferences of individual trial judges, so the following descriptions are just generalizations. Advisory Counsel: a lawyer who writes and argues motions, and stays in the courtroom during trial (either in the audience or at the defense table). Advisory counsel doesn’t speak in front of the jury, but can usually help with legal arguments to the judge, when the jury can’t hear. The defendant can pause periodically to get help from the advisory counsel, especially about procedural issues. Co-Counsel to a Pro Se Defendant: a lawyer who can write and argue motions, and speak to the jury and witnesses. Co-counsel sits with the defendant and they work as a team. This is sometimes referred to as “hybrid representation.” Having advisory counsel is awkward for the defendant, because it’s often difficult to stop in the middle of things to ask questions. Sometimes judges appoint advisory counsel whether the defendant wants it or not—particularly if the judge thinks she may want to declare the defendant incompetent at some point in the middle of the proceedings, and order the advisory counsel to take over representing the defendant. A pro se defendant with co-counsel has an advantage, in that the lawyer can do technical tasks, like making objections and cross-examining prosecution witnesses; while the defendant can do things like examine defense witnesses, or give the opening statement or closing argument. Judges are often resistant to allowing hybrid representation, but can sometimes be convinced if they’re assured that the lawyer and the defendant will figure out in advance exactly who’s going to do what, so they won’t be interrupting or talking over each other. |
