Self-representation at a criminal trial?

There are a number of ways you can deal with a criminal trial. Most commonly, people hire an experienced attorney. Occasionally, people represent themselves “pro se”. This article will address some of the rights and steps associated with self-representation.


Can I represent myself at trial?

Many people have probably heard the saying “a lawyer who represents themselves has a fool for a client.”  While it can feel odd picking someone else to advocate for you, representing yourself in a setting you are (hopefully) unfamiliar with isn’t necessarily the right call either.  But the answer is yes.  Constitutionally, yes, you can represent yourself, if a few conditions are met.

First – you have to let the judge know you want to represent yourself.

Second – you have to honestly intend to represent yourself.  Self-representation isn’t “to be used as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process.  If you don’t tell the judge early enough that you want to represent yourself, you’ll waive the right.  The Fourth Circuit Court of Appeals held in United States v. Dunlap that once a trial has started, the decision to allow a defendant to proceed pro se is up to the judge.

Third – and importantly, the judge has to determine the defendant is aware of what they’re doing.  The court might talk about this in terms of “competence,” but “competence” here has a different meaning than when we’re talking about “competence” to stand trial.  In the Supreme Court case Indiana v. Edwards, 554 U.S. 164 (2008),  the defendant suffered from schizophrenia and yet was still competent to stand trial.  Even so, the trial judge held Edwards wasn’t competent to represent himself, even though he wanted to.  The constitutional requirement someone is competent to stand trial is different than the requirement that someone be competent enough to represent themselves.

To determine competence to represent yourself, judges will look at a lot of things like your age, education, and the consequences of the crime charged.  All of these factors are important, not just one.  Judges should also discuss the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. This discussion is cursory, designed to bring awareness; it is not legal advice.


Can I have a lawyer help me at trial?

If you choose self-representation but still want the court to appoint a lawyer to help (known as standby counsel), you still have to waive your right to an attorney.  A defendant does not have an absolute right to both self-representation and the assistance of counsel. The court can appoint standby counsel even if the defendant doesn’t want the help. 

Standby counsel does very little, if anything, at trial.  They may not even sit next to the defendant.  This is because they don’t want to give the jury the idea that the defendant isn’t in control of presenting their own defense.  If you invite standby counsel to help, it’s assumed you’re OK with the attorney taking control of the case and assisting as necessary.  If you want to represent yourself after you’ve asked for help, make it clear that you want to represent yourself . . . again.


Can I have an attorney represent me at trial?

Yes.  The right to representation by counsel in a criminal proceeding is a fundamental right.  The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”  If you’re going to hire your own attorney, a judge should allow that attorney to represent you unless they have “good cause” not to.  Otherwise, this is a violation of the Sixth Amendment, and the defendant may be entitled to relief. Even if you can’t afford an attorney, you may have the right for one to be appointed to you, especially if a there is a risk jail time or the actual deprivation of a person’s liberty.

You don’t, however, have the right to the public defender of your choosing.

It is absolutely critical to have an attorney (specifically, a criminal defense attorney) represent you at trial.  Attorneys are held to high standards.  The constitutional right to counsel means competent counsel.  A defendant who was found guilty may be entitled to relief if they can show an attorney didn’t provide adequate representation.  To determine if relief is available, there is a two-part test.  First, the attorney’s performance has to be below an objective standard of reasonableness.”  Second, it has to result in prejudice to the defendant. If you represent yourself, you’ve lost this argument without ever getting the opportunity to make this argument. A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel.

Self-representation has its drawbacks but if you’re adamant about representing yourself at trial — for financial reasons because you’re convinced that no one will represent your interests as zealously as you will yourself, or for other reasons — make sure to educate yourself on the criminal process and what to expect.