After being charged with a crime, the defendant will need to determine their court representation strategy. They must decide whether they will hire a private attorney, ask for a public defender, or represent themselves. When a criminal defendant chooses to represent themselves in court, this is referred to as a pro se representation. 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 who is facing criminal charges. This is because most people lack the skill and experience necessary to put up the best defense. It is common that when a defendant has self-representation they will be convicted, while a lawyer could have helped them avoid a conviction or receive a reduced sentence.
However, the right to pro se representation is guaranteed by the U.S. Constitution. Additionally, the reality of the legal world is that self representation is often necessary. An example of this would be how it may be difficult for someone to justify paying for an attorney’s time in order to dispute a minor traffic violation. However, the more severe the offense and punishment, the more important it is that a defense lawyer is consulted.
Judges will treat pro se litigants the same way that judges treat attorneys. What this means is that if someone decides to undertake self-representation, the court will expect them to:
- Meet all deadlines;
- Attend all hearings;
- Fill out all proper forms;
- Follow the rules of court;
- Abide by the rules of evidence;
- Understand legal language; and
- Speak on their own behalf in a formal setting.
What Are The Advantages Of Representing Yourself?
In many types of proceedings, the system is specifically designed to be accessible to non-lawyers. Examples include small claims court, traffic court, and certain administrative hearings. Not only would going pro se be a viable option, it is the only option, as some of these proceedings do not even allow representation by lawyers.
Some lawyers will represent you for free (or, pro bono) if you qualify as very low income. This is an option that you should always consider, as any lawyer can navigate the legal system far more efficiently than a layperson can.
If a defendant chooses to represent themselves, they must take the following steps:
- Tell the court that they wish to proceed with pro se representation;
- Establish competency to stand trial, as criminal defendants that lack competency cannot represent themselves pro se;
- File the appropriate court paperwork; and
- Meet all court deadlines and case requirements, as previously mentioned.
It is important to note that these requirements may vary between states, as well as specific 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 available to assist if they need help with procedure or arguments.
Many judges prefer this type of representation, because the defendant can assert their right to be pro se while still having traditional representation available. Some advantages of self representation include:
- Familiarity: The majority of criminal defendants who choose to self represent base their decision on an overall lack of trust in the judicial system. The defendants believe that they know their cases best, and as such are in the best position to provide the greatest defense;
- Reduced Costs: Another common reason for self representation is the cost associated with hiring an attorney, if the defendant does not want the court appointed attorney;
- Strategy Decisions: As they are self represented, the defendant solely determined their defense. This eliminates strategy disagreements between an attorney and client, as well as the defendant feeling pressured to proceed with their case in a specific way; and
- Legal Experience: If the defendant is an attorney themselves or has work experience in a legal setting, they may already be familiar with the judicial system. As such, they may be equipped with the tools needed to effectively argue their case.
Something else to consider is that it can be difficult to learn about a judges’ common sentencing practice for a specific crime, as they are generally not listed in statutes or court rules. One way to find out what a punishment will be is to pay for an hour-long consultation with a private attorney, or to speak with a lawyer at the public defender’s office.
What Are The Disadvantages Of Representing Yourself?
In criminal cases, it is generally advised that you avoid representing yourself. Even if you cannot afford a private lawyer, you have the constitutional right to the counsel of a public defender. One advantage to doing so would be that public defenders generally have much more trial experience than a private criminal defense attorney.
Parties in civil law should also avoid self-representation under specific circumstances. Examples include:
- Highly emotional family law cases, such as divorce or child custody;
- Bankruptcy; and/or
Additionally, there are specific phases of judicial proceedings which are considerably harder without an attorney. Examples include drafting a complaint or counterclaim, as well anything associated with procedural law.
As was previously mentioned, 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 associated with self representation:
- Lack of Training and Knowledge: Most defendants are not adequately trained in the law to represent themselves, as most criminal defendants have not gone to law school or received any legal training. Because of this, they will lack the knowledge of how to argue a case, and will also be unfamiliar with common criminal procedure requirements that courts impose;
- Inferior Argument Skills: Knowledge alone is not enough to win a case and persuade the judge or jury that they are not guilty. The average person will generally find it difficult to argue if they lack training in communication and argumentation skills. Additionally, 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, while lawyers are trained to think in terms of the best case strategy and arguments. It is important to note that even defendants who are attorneys, or who have legal experience, may not be able to see past their bias when they are representing themselves; and
- Delays: Because many self represented defendants are unfamiliar with court and case rules and procedures, this may cause delays with case resolution, or even sanctions against the defendant.
What Else Should I Know About Self Representation?
To reiterate, a self-represented criminal defendant can hire a lawyer to assist in their pro se defense. This attorney can review documents and prepare for the various hearings associated with a criminal defense; however, not all attorneys are willing to do this. An example of this would be how if one of these lawyers gives advice and the self represented defendant misunderstands that advice or uses it incorrectly, the lawyer may be professionally liable.
If someone attempts to represent themselves but later decides to hire a lawyer, they may do so. However, either that person or the attorney must notify the court of the change in representation. In some circumstances, they may need to ask the court for permission to do so. Additionally, the legal process will continue from where the case left off; the case will not restart simply because the self-represented person changed their mind about hiring an attorney.
If the counsel you have is ineffective, you do have the option of representing yourself. However, in most cases, you should find a new attorney to pick up where the old lawyer left off.
Should I Represent Myself?
If you decide to represent yourself, you will need to gain an understanding of the basic workings of the legal system in your jurisdiction. Additionally, many criminal lawyers offer their services as trial coaches.
This means that they will advise a party acting pro se on how to navigate the legal system, and develop an overall trial strategy. This generally costs 10-20% of what it would cost for the same lawyer to actually represent you in court.