If you’ve been arrested, you may be wondering, “Should I represent myself in a criminal case?” To cut to the chase, the answer is a definite, “No!” However, it’s a reasonable question – and one that deserves a reasoned response. Here’s what you need to know about self-representation in a criminal case.
You Have the Right to Represent Yourself
The Sixth Amendment to the U.S. Constitution protects a criminal defendant’s rights. For example, it guarantees your right to a speedy trial, your right to a public trial, your right to an impartial jury, and your right to know the charges against you. It also guarantees your right to be represented by an attorney. In fact, in 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that criminal defendants who might be sent to prison if convicted are entitled to legal representation even if they cannot afford to hire an attorney.
But the day before Congress passed the Sixth Amendment, President George Washington signed into law The Judiciary Act of 1789. The primary purpose of the Act was to create the entire federal judiciary system, but it also guaranteed that defendants in federal court could represent themselves. It wasn’t until 1975 that the Supreme Court ruled that a criminal defendant had the right to self-representation in state courts.
In that case, Faretta v. California, Anthony Faretta asked to represent himself to fight a grand theft charge. After questioning him, the judge decided that Faretta didn’t understand enough about the law to represent himself and forced him to accept a public defender. Faretta was convicted, and a state appellate court agreed with the lower court’s ruling that the right of self-representation wasn’t protected by the Constitution. The U.S. Supreme Court disagreed, saying Faretta had the right to defend himself – without the assistance of an attorney.
If you choose to represent yourself in a legal proceeding, you are called a “pro se” litigant or a “pro se” defendant. Pro se is Latin, and means “on one’s own behalf.” While some legal matters, such as small claims civil suits, are often handled pro se, for criminal matters it is undeniably in your best interest to have an Oakland criminal defense attorney at your side.
Here are four scenarios that underscore why the answer to the question, “Should I represent myself in a criminal case?” is a resounding “No.”
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It’s Difficult to Navigate the Pre-Trial Process
When people think about the prospect of defending themselves, they often picture a courtroom and a jury trial. The truth is, the outcome of your case can be heavily influenced – or even decided – long before jury selection begins.
When the police interrogate you, you likely know that “anything you say can and will be used against you in a court of law.” You may not know that detectives and other law enforcement officials are allowed to lie to you in order to elicit incriminating evidence or a confession. For example, they can say that the person you were with is willing to testify against you in exchange for leniency, but that same option is open to you if you confess. The other person may not have said a word, but the police can tell you that the person is willing to make a deal. They might tell you that they have found evidence – a weapon or a series of text messages or a hard drive – that will definitely convict you, even if they don’t actually have a shred of evidence. Without an Oakland criminal defense lawyer at your side, law enforcement can trick you, tire you out, and wear you down until even you are doubting your story. An attorney can run interference, put a stop to questions and tactics that are out of line, and prevent you from saying something self-incriminating.
But the interrogation is only the first step. The pretrial phase is also when plea negotiations take place. If you are facing criminal charges for the first time – or the fifth time – it’s unlikely that you’ll be able to strike a favorable plea agreement. One reason is that your Oakland criminal defense attorney has the experience to review the evidence and assess whether or not the prosecution has a strong case. You don’t have a basis for comparison, so you may either get railroaded into pleading guilty or neglect to take a good deal and face more severe consequences when you lose at trial.
In some ways, representing yourself is like someone who chooses to sell their own house rather than use a real estate agent. Yes, it’s something you can DIY, and yes, the real estate agent takes a percentage of the sales price. However, you’ll likely sell your house more quickly and for more money if you use a real estate agent. You may be selling a house for the first time, but they’ve sold hundreds of houses. That allows them to streamline the selling process while maximizing your returns and avoiding common pitfalls. An attorney can play a similar role because they have gone through the legal process hundreds – or thousands – of times.
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The Rules Don’t Change if You’re Not a Lawyer
You have the constitutional right to represent yourself in a criminal case, but you likely don’t have the legal knowledge to do so. The rules and procedures aren’t waived for you because you haven’t been to law school. In the pre-trial phase, you may need to file a motion to set aside a complaint or a motion to suppress evidence. You may need to know the difference between a Pitchess motion and a Serna motion. You need to understand and cite the law and caselaw that undergirds your argument. You also need to go through the discovery process and make sure that you are sharing – and receiving – information relevant to your case. You may receive a list of two dozen potential prosecutorial witnesses, and you must decide which are likely to be called, what they are going to say, and how you are going to undercut their testimony.
When you get to the trial phase, you have to know how to select jurors. You must know what questions you are allowed to ask, for what reasons you are allowed to excuse jurors, and how many potential jurors you are allowed to excuse. During the actual trial, you need to look as though you know what you’re doing. You have to compose your opening argument, your witness questions, and your closing statement. You need to have the authority to plant the seeds of reasonable doubt in the minds of jurors. What are the chances of all of those pieces falling into place if it’s you have no formal legal training?
A report published by the Federal Judicial Center analyzed pro se litigants as seen through the eyes of federal court clerks and chief judges. It found that the overwhelming majority of judges reported that five issues arise in virtually all pro se cases:
- Motions and other filings that are unnecessary or indecipherable
- Problematic responses to motions
- Lack of knowledge about legal precedents that could help their cases
- Not knowing when to object to evidence or testimony
- Lack of understanding about the legal consequences of their actions
An Oakland criminal defense attorney has the training, knowledge, and experience to navigate every aspect of a criminal trial. They can look at a witness list and see the red herrings. They know which motions to file and when. They understand what constitutes a fair jury in your case. And they have the skill to put forth a rigorous, legally-sound defense that makes a jury doubt the prosecution’s argument.
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Even Misdemeanors can be Mishandled
When someone asks, “Should I represent myself in a criminal case?”, it may be because they believe they’re being charged with a misdemeanor, and that misdemeanors are really no big deal. This rationale is misguided for three primary reasons. The first is that charges can change over the course of a criminal investigation. What may start out as misdemeanor charges can morph into felony charges by the time your arraignment rolls around. The investigators may turn up new evidence or the prosecution may find a star witness. In the blink of an eye, you can be facing additional and more serious charges than you anticipated.
In the same vein, some crimes are considered “wobblers.” This means that they can be charged as either a misdemeanor or a felony. If you’ve had prior convictions, if the alleged incident was especially egregious, or if the crime occurred in the context of certain circumstances, you may suddenly be looking at felony charges.
Finally, even though the penalties for misdemeanors may pale in comparison to the penalties for felonies, a misdemeanor conviction does have consequences. You may face a substantial fine, you may still serve jail time, or you may have your license revoked. Any of these outcomes can impact your livelihood, your family life, and your future. The outcome of the DIY approach of self-representation can be devastating. In contract, an experienced Oakland criminal defense attorney has mastered the art of negotiating for a lesser charge and advocating for a lesser sentence.
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Don’t Make a Statement when Your Freedom is at Stake
Some people have a strong desire to represent themselves because they look around and see a criminal justice system that is stacked to work against them. They believe that Oakland criminal defense lawyers are part of that rigged system. The truth is, the criminal justice system isn’t always just. The system of mass incarceration is very real and has contributed to the systemic oppression of communities of color. That doesn’t mean that representing yourself is the best way to make a statement about the need for criminal justice reform.
While attorneys are, by definition, part of the criminal justice system, good defense attorneys know how to work that system to get the best possible outcomes for their clients. You simply don’t have that advantage when you represent yourself. Your political statement – while valid – will fall on deaf ears if you’re making it from behind cell bars.
Limits to Pro Se
While every criminal defendant deemed to be competent has the right to self-representation, that right is not without limits. Just as the First Amendment guarantees free speech but that right doesn’t extend to yelling “Fire!” in a crowded theater, there are some restrictions imposed on pro se defendants. In Martinez v. Court of Appeals of California, the U.S. Supreme Court unanimously decided that the Sixth Amendment does not guarantee a right to self-representation in a direct appeal following a criminal conviction. The opinion noted, “A pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.”
There are other circumstance under which a criminal defendant can’t opt to DIY the legal process. The Supreme Court ruled, in McKaskie v. Wiggins, that a judge may appoint an attorney to be on standby, even if the defendant objects. If a defendant has a severe mental illness, the Supreme Court ruled, states can set a higher standard for pro se competence than for competence to stand trial with an attorney.
The bottom line? While you generally have the legal right to represent yourself in a criminal case, it is rarely in your best interest to do so. An Oakland criminal defense attorney has the training, knowledge, and experience to produce the best possible outcome. You wouldn’t perform surgery without a medical degree and likely wouldn’t sell your home without a real estate license, so it doesn’t make sense to risk your freedom and your future by representing yourself in a criminal case without a lawyer by your side.
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