After being charged with a crime, a defendant will have several court proceedings they need to participate in to resolve the matter. The first thing a defendant should determine is their court representation strategy. Will they hire a private attorney, ask for a public defender, or represent themselves?
If a criminal defendant chooses to represent themselves in court, this is referred to a pro se representation. Instead of relying on a lawyer for representation and legal advice, a pro se defendant researches and argues their own case in front of the judge and the jury.
However, most lawyers and judges would agree that pro se representation is not always the best decision for a defendant facing criminal charges. This is because most people lack the skill and experience to put up the best defense. Many times when a defendant has self-representation, they will be convicted when a lawyer could help them get a not guilty verdict or a better deal.
On the other hand, the right to pro se representation is guaranteed by the U.S. Constitution. So, if the defendant chooses to represent themselves in a criminal trial, the court must honor that decision.
If a defendant chooses to represent themselves, they will need to take the following steps:
- Tell the court that they wish to proceed with pro se representation;
- Establish competency to stand trial (criminal defendants that lack competency cannot represent themselves pro se);
- File the appropriate court paperwork; and
- Meet all court deadlines and case requirements.
Keep in mind that these requirements may vary between states and particular courts. Additionally, some judges may allow or require a pro se defendant to work with a “standby attorney”. This provides a pro se defendant with a lawyer who is there to help if they need one to step in during a proceeding to help with procedure or arguments.
Many judges prefer this type of representation because it allows a defendant to assert their right to be pro se while still having traditional representation available if things get out of hand.
While the disadvantages to pro se representation carry more weight in most instances, there may be some advantages depending on the defendant’s situation. These may include:
- Familiarity: The majority of criminal defendants who choose to go pro se base their decision on a lack of trust in the judicial system. The defendants may believe that they know their cases best and are therefore in the best position to provide the greatest defense;
- Lower costs: Another common reason a defendant might choose pro se representation is the cost involved in hiring an attorney. If the defendant does not want the pro bono attorney, they will have to spare significant expense to hire a private attorney. However, even though pro se representation saves money it also provides a lesser chance of winning the case in most instances;
- Strategy Decisions: Having pro se representation means that the defendant solely calls the shots in their defense. This eliminates strategy disagreements between an attorney and client and the defendant feeling pressured to proceed with their case in a certain way. However, pro se defendants will still need to learn and follow the court’s rules; and
- Legal Experience: If the defendant is an attorney or has work experience in a legal setting, they may already be familiar with the judicial system and equipped with the tools needed to effectively argue their case.
Overall, pro se defendants have a lesser chance of winning their case than if they were represented by an attorney. Before making a representation decision, criminal defendants should consider the following disadvantages of proceeding in a pro se fashion:
- Lack of Training and Knowledge: Perhaps the greatest disadvantage of pro se representation is that most defendants are not adequately trained in the law to represent themselves. Most criminal defendants have not gone to law school or received any legal training. As such, they will lack the knowledge of how to argue a case and be unfamiliar with common criminal procedure requirements that courts impose;
- Inferior Argument Skills: Although a defendant might have some knowledge of the law, knowledge alone is not enough to win a case and persuade the judge or jury that they are not guilty. Again, the average person will usually find it difficult to argue if they lack training in communication and argumentation skills. Language barriers can further complicate these situations;
- Bias: Pro se defendants will generally have inherent bias because they cannot look at the case from the other party’s position. On the other hand, lawyers are trained to think this way in order to determine the best case strategy and arguments. Even defendants who are attorneys or have legal experience may have trouble getting rid of their bias when they are representing themselves; and
- Delays: Since many pro se defendants are unfamiliar with court/case rules and procedures, this may cause delays with case resolution. It can also result in sanctions against the defendant.
As mentioned, the decision to proceed as a pro se defendant will almost always be more risky than working with an attorney. At the very least you may wish to request an initial consultation with a criminal attorney, or meet with a public defender to determine what type of representation best suits your situation. You should not take any chances at all if you are unsure about your own abilities.