When a person is charged with committing a crime (he’s called the “defendant”), the Sixth Amendment to the US Constitution gives him the right to a lawyer. To be specific, in the words of the Amendment, he’s given the right to the “assistance of counsel.” It may sound odd, but this right to counsel includes the right to self-representation – the right to go to trial without an attorney and defend yourself. In legal jargon, term “pro se” describes a person who represents himself.

Nonetheless, the right to act pro se right isn’t absolute or automatic. It’s possible that you may not be allowed to represent yourself in court. A judge has to give you permission to do so, and you have to convince him to let you. And, it’s not always a good idea to represent yourself in a criminal case. You need to think carefully about representing yourself because the consequences of “losing” the case can be severe.

Getting Permission

The criminal trial process is different from state to state. However, in general, after a defendant has been arrested and the prosecution decides to put him on trial, the defendant makes his first appearance in court and before a judge at the arraignment or preliminary hearing. This is a short hearing where the court does several things, such as explain to the defendant the crime he’s been accused of committing, set a trial date, and appoint an attorney to represent the defendant, but only if the defendant requests one and he can show that he can’t afford one.

So, if you want to represent yourself, you can tell the judge at the arraignment. Of course, if you don’t do it then and an attorney is either appointed to you or you hire your own, you still may be able to represent yourself, so long as you ask very early on in the criminal process. Regardless, though, you always need the court’s permission.

After You Ask

Once you tell the judge that you’d like to act pro se, the judge will likely hold a hearing where you’ll have to answer some questions. The purpose of the hearing is to make sure that you understand exactly what you’re asking for. When you want to represent yourself you are, in effect, waiving or giving up your Sixth Amendment right to counsel. And that’s a big deal. The courts need to make sure that criminal trials are fair. So, the judge needs to make sure that you’re making a knowing, intelligent and voluntary waiver. In other words, you have to convince the judge that you understand what it means to go to trial without a lawyer and that you’re capable or “competent” to represent yourself.

As a general rule, the judge can’t let you represent yourself if he doesn’t think you’re competent to do so. Sometimes, if the judge has doubts about a defendant’s competence, he’ll appoint an attorney to protect the defendant’s rights until competency can be determined. This may involve requiring the defendant to undergo a psychological or other health-related evaluation.

Standby Counsel

It’s possible that the judge will appoint a standby counsel. The idea here is to let you exercise your right to self-representation while at the same time making sure that the trial runs smoothly;  that you have help, if needed; and that there’s someone who can take over the trial if the court ends your self-representation, such as if you become ill or you refuse to follow proper courtroom procedure.

Doesn’t the appointment of standby counsel violate my right to self-representation? Not necessarily. Your rights aren’t violated so long as you have control over the case. That’s so even if the appointed counsel takes some action in your case, even if you don’t want her to. The appointment of standby counsel won’t violate your rights so long as you can:

  • Control the theory of your defense and how it’s presented in court
  • Make motions
  • Participate in voir dire – the jury selection process
  • Question witnesses, and
  • Speak to the judge and the jury
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