Attorneys do not always have a good reputation and the neverending supply of lawyer jokes is a testament to that. Some people perceive lawyers as being in cahoots with the judge or prosecutor, as charging too much for their services, or just believe that attorneys perform a service that anyone could do. Public defenders get treated worse than the private attorneys and are even sometimes perceived as not being real lawyers. This leads some defendants to opt to represent themselves in court. Is it possible to represent yourself in court in a criminal case? If so, is it a good idea?
Federal law has recognized the right to self-representation since the very beginning of our country. “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. §1654.
In Adams v. United States ex rel. McCann, 317 U.S. 269; 63 S.Ct. 236; 87 L.Ed 268 (1942), the U.S. Supreme Court recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a “correlative right to dispense with a lawyer’s help.” 317 U.S. at 279. Addressing an argument that a person cannot competently waive his right to counsel and his right to trial by jury except on the advice of counsel, the U.S. Supreme Court held “an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel.” 317 U.S. at 275. However, in order to represent himself, the accused must be informed of the benefit of counsel and the trial court must be satisfied that he or she knowingly or intelligently waive that right. Although a defendant is not required to possess the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he or she should be made aware of the dangers and disadvantages of self-representation so that the record establishes that “he knows what he is doing and his choice is made with eyes open.” 317 U.S. at 279. The judge should be asking the appropriate questions on the record to establish the waiver is knowingly and voluntarily.
Later, the U.S. Supreme Court held in Faretta v. California, 422 U.S. 806; 95 S.Ct. 2525; 45 L.Ed.2d 562 (1975) that the Sixth Amendment is made applicable to the states through the Fourteenth Amendment and guarantees that a defendant in a state criminal trial has an independent right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. It was improper for the state trial court to force a public defender on the defendant when he did not want it. The U.S. Supreme Court held that “[a]n unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction” and, “[u]nless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” 422 U.S. at 821.
The Michigan Constitution of 1963 also guarantees that “[a] suitor in any court of this state has the right to prosecute or defends his suit, either in his own proper person or by an attorney.” Const 1963, art 1, §13. The Michigan Supreme Court acknowledged the Faretta doctrine in People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975) and stated that, if a defendant requests to proceed pro se, “the trial judge shall inform him of the dangers and disadvantages of self-representation and seek affirmatively to establish on the record that the defendant knows what he is doing and his choice is made with eyes open. 395 Mich at 336-337. “The record should show whether the defendant is ‘literate, competent and understanding’ of the choice which confronts him and ‘voluntarily exercising his informed free will’ in declining to be represented by counsel and in seeking to represent himself.” 395 Mich at 337.
In People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), the Michigan Supreme Court established three requirements that should be met before the trial court grants a defendant’s request to dismiss his counsel and allow him to proceed in pro per:
- “First, the request must be unequivocal. This requirement will abort frivolous appeals by defendants who wish to upset adverse verdicts after trials at which they had been represented by counsel.” 398 Mich at 367.
- “Second, once the defendant has unequivocally declared his desire to proceed pro se the trial court must determine whether defendant is asserting his right knowingly, intelligently and voluntarily. The trial court must make the pro se defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. Defendant’s competence is a pertinent consideration in making this determination. But his competence does not refer to legal skills, for his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” 398 Mich at 368.
- “The third and final requirement is that the trial judge determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business.” 398 Mich at 368.
The Michigan Court Rules also provide guidance to trial courts to properly warning pro per litigants. At arraignment, “[t]he may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first:”
- “[A]dvising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation.” MCR 6.005(D)(1).
- “[O]ffering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.” MCR 6.005(D)(2).
“If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) need show only that the court advised the defendant of the continuing right to a lawyer’s assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings, the defendant must reaffirm that a lawyer’s assistance is not wanted.” MCR 6.005(E)(1).
There is no exact script that trial courts are given to meet these requirements, but the instructions must substantially comply. In People v Kimber, 133 Mich App 184; 348 NW2d 60 (1984), the Michigan Court of Appeals stated that, in addition to informing the pro se defendant that he will be held to the same standards as an attorney who appears in court, he should be told that such attorneys have the special skills and training to effectively handle a criminal defense that laypeople do not have. In People v Morton, 175 Mich App 1; 437b NW2d 284 (1989), the Michigan Court of Appeals held the trial court complied with these requirements and stating to the defendant that representing himself was analogous to acting as his own doctor and removing his own appendix was an adequate warning.
In People v Mack, 190 Mich App 7; 475 NW2d 830 (1991), the Michigan Court of Appeals concluded that the trial court did not err in allowing the defendant to represent himself (but had court appointed counsel available at the table on standby) under the following facts:
“Here, before allowing defendant to proceed in pro per, the trial court alerted defendant to the serious nature of the charges and that a conviction would result in a possible life sentence. Second, the trial court was willing to declare a mistrial early in the proceedings in order to allow defendant to retain counsel; however, defendant vehemently opposed that option, choosing instead to proceed on his own. Third, defendant had access to his appointed counsel throughout the proceedings and, in fact, deferred to appointed counsel on many occasions. Finally, at one point during the trial, the court instructed defendant on proper courtroom decorum and explained to defendant that he could not proceed in pro per if he engaged in disruptive behavior. In sum, we conclude that it is inconceivable that defendant did not know what he was doing.” 190 Mich App at 16.
In many cases, the trial court will appoint standby counsel to be available to a pro per litigant should he or she choose to utilize that assistance. However, there is no substantive right to standby counsel and the trial court has no obligation to grant such a request. In People v Dennany, 445 Mich 412, 446; 519 NW2d 128 (1994), the Michigan Supreme Court held that “a request to proceed pro se with standby counsel be it to help with either procedural or trial issues can never be deemed to be an unequivocal assertion of the defendant’s rights.” A defendant who requests to represent himself but wants standby counsel to assist him with procedural matters has not made an unequivocal waiver of counsel to warrant the trial court permitting this.
Defendants have the right to represent themselves, but is it a good idea? There are some benefits that may come from self-representation:
- SAVE MONEY: If the defendant intends to plead guilty anyway and it is to an offense where the sentence is the same for everyone (e.g. fines and costs), then hiring an attorney in those circumstances may not be value added.
- ADVANCING CERTAIN MOTIONS AND ARGUMENTS: Lawyers are bound by ethical codes and are prohibited from filing friviolous motions or making unfounded and improper arguments. A pro per defendant does not have these restrictions and can advance a position to the court that an attorney cannot.
- PERSONAL ACCESS TO DISCOVERY AND RESEARCH: A pro per defendant will receive discovery materials directly from the prosecutor’s office without a middleman. In some jails or prisons, a pro per defendant can sometimes gain greater access to the law library in order to conduct their research.
Despite these few advantages, there are far more drawbacks that make self-representation a bad idea. Licensed attorneys generally have three years of law school and a number of criminal cases under their belts, so they are trained and experienced in the law, rules and procedures that apply to mounting a criminal defense. Pro per defendants are expected to know and be bound by these rules and procedures. Not knowing how to conduct a defense is often fatal to their case. The judge will not hold your hand or help you out. In many criminal cases, the stakes can involve several years in prison. An appeals court will not give you a do-over if you are the cause of your mistakes at your own trial.
Pro per defendants may fire their attorney because they perceive them to be incompetent, but this is too often a big mistake. Your lawyer may not wish to follow your proposed plan of action because it is a frivolous argument or the lawyer knows from experience that it will amount to nothing. Just because your lawyer disagrees with you doesn’t mean they are stupid or wrong. Before you decide to proceed without an attorney, you should consider a second opinion at the very least. Our defense lawyers have many years of experience in all types of criminal cases from misdemeanors to murder and we have the skill to properly advise you and fight to achieve the best possible outcome available. The prosecutor has the resources of the government behind them, so you should have the benefit of sound legal counsel in your corner.
If you or a loved one has questions about any criminal matter or needs legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.