The Sixth Amendment guarantees criminal defendants the right to legal counsel. And given the complexity of the criminal process, it’s usually a good idea to have legal representation. But criminal defendants have the option of waiving the right to an attorney and conducting their own defense. When a defendant decides to take on the prosecution without the assistance of a lawyer, it’s usually called pro per, pro se, or self-representation.
In 1975, the U.S. Supreme Court held that criminal defendants have a constitutional right of self-representation. (Faretta v. California, 422 U.S. 806 (1975).) In Faretta, the Court found that the Sixth Amendment not only provides the right to counsel in one’s defense, it implicitly protects a defendant’s right to control and present his or her own defense. The Court explained: “The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”
The right to self-representation, however, is not absolute. To exercise this right, a defendant must:
- “knowingly and intelligently” waive the right to counsel, and
- be able and willing to abide by courtroom rules and procedures.
Waiving the Right to an Attorney
Competent waiver. A defendant’s decision to waive the right to an attorney must be made knowingly and intelligently. This doesn’t mean the defendant needs to possess legal knowledge or skills, but the defendant must be aware of the dangers and disadvantages of self-representation. If a judge determines the defendant doesn’t comprehend the ramifications of waiving counsel, the judge can deny the request and appoint an attorney despite the defendant’s objection.
Standby counsel. Self-representation also hinges on the defendant being able to follow basic rules of courtroom procedure. A judge can terminate self-representation if a pro se defendant deliberately disrupts trial proceedings. A judge also has the option—even over a defendant’s objection— to appoint standby counsel to assist the defendant or be ready to take over the case should self-representation not work out.
Why Defendants Elect Self-Representation
Defendants might choose self-representation for several reasons. One is the cost of hiring a private attorney. A defendant who rejects the assigned public defender or doesn’t financially qualify for one must hire a private attorney—which can be expensive. A cheaper alternative is self-representation.
Another reason a defendant might opt to go pro se is distrust of lawyers, the government, or the criminal justice system in general. For example, in Faretta, the defendant rejected appointment of a public defender due to the office’s heavy workload. The Faretta defendant reasoned that—because the public defender was so overwhelmed with other cases—he could do a better job himself.
Things to Consider Before Going Pro Se
Most defendants don’t have legal training. So generally, the main disadvantage of self-representation for a defendant is the lack of legal skills necessary to effectively navigate the complex criminal process. Knowing the law and how courtroom procedures work can mean the difference between winning and losing a case.
Also, if an attorney errs while representing a criminal defendant, there’s a chance of getting the conviction reversed on appeal because all defendants have a constitutional right to “effective assistance of counsel.” But pro se defendants who make mistakes on their own cases can’t later object to a verdict by arguing against the quality of their own courtroom performance.
In criminal proceedings, the right to an attorney is so important the government must provide an attorney to any defendant who cannot afford one. The rationale is that assistance of trained legal counsel is necessary for a fair trial. The potential consequences of a guilty verdict are significant—incarceration, fines, and a criminal record. So, criminal defendants should carefully consider the consequences before choosing to proceed pro se—in most cases, it’s risky at best.
Questions for Your Attorney
- Do I have a right to standby counsel if I decide to waive my right to a public defender?
- If I’m not an attorney, can I represent a family member who does not want a public defender?
- If I choose to represent myself, am I allowed to ask the judge questions about the law and courtroom procedures?
- Can I change my mind about self-representation if my trial has already started?