Comments on: Representing Yourself Pro Se: Crafty Legal Strategy or Fool’s Errand?

By: Gerald

Gerald — Sun, 05 Jun 2011 03:03:47 +0000

what about a civil case that has been in lpretrial stage for over two years with an attorney and is less than a month away from trial. Plaintiff goes to jail for a criminal matter, his lawers remove themselves from the case with the judges blessing. Then expect him to be prepared for trial without attorneys in less than a month. Civil unlimited case with multiple parties involved , banks, escrow companys, title company. needless to say he lost the case.

By: Gerald

Gerald — Sun, 05 Jun 2011 03:03:02 +0000

By: Pro se Answer

Pro se Answer — Mon, 06 Sep 2010 11:41:11 +0000

I will always say Pro se with out doing research and homework is not a good idea. Knowlege is your weapon when you are on your own.

Thanks for your article.

By: Ron

Ron — Sun, 09 Mar 2008 20:15:05 +0000

The law is clear: a criminal defendant has the constitutional right to represent him or herself. The judge has no discretion if the defendant expresses an unequivocal desire for self-representation and knowingly, voluntarily and intelligently waives the right to counsel. The judge is obliged to engage in a detailed colloquy intended, in part, to deter this usually bad decision, see: State v. Christensen, 40 Wn.App. 290, 295 n.2 (1985), but if the defendant answers the questions correctly, the judge must grant leave. There are many cases that were reversed because a defendant expressed an unequivocal desire and it was denied because a judge decided the defendant wouldn’t do a good job, it wasn’t in his or her best interests. See, for example State v. Imus, 37 Wn.App. 170 (1984) in which an illiterate defendant was granted a new trial because he was denied his right to represent himself. Competency is a different issue. No one who is incompetent can be tried at all, with or without a lawyer. A defendant who is competent to stand trial is competent to waive counsel. Judicial discretion comes in when a defendant wants to waive counsel that will result in a continuance of a trial. A judge can also force standby counsel on a pro se defendant, although the defendant may choose not to consult with standby counsel. And a defendant who is disruptive can have counsel forced upon him or her. There is no such thing as ineffective assistance when one is representing oneself. In felony courts in Washington, judges do not want defendants to waive counsel for two reasons: 1. it’s much harder to try the case, and 2. it is almost never in the defendant’s best interests. It’s not quite the same in courts of limited jurisdiction, where many judges are happy to accept uncounseled guilty pleas at arraignment (there’s a proposed supreme court rule that will require counsel at all arraignments, which is being fought by the Washington Association of Prosecuting Attorneys and a lot of municipal and district judges).

By: Matt

Matt — Thu, 06 Mar 2008 16:31:45 +0000

The issue, as I see it, isn’t with someone opting to proceed pro se. It is without question that a mentally competent adult should have the right to do so. Access to the judicial system is a fundamental right, after all. Having said that, the real problem arises from the accepted definition of “mentally competent.” Currently, one is considered competent to proceed with self representation if they are competent to stand trial. I have heard it said that mental competence sufficient to stand trial is the ability to tell the judge from a banana. Now, while your average two year old is able to distinguish between a *person* in a big, black robe, and a delicious yellow fleshy fruit… I would hardly consider that the standard by which we should determine whether one has the right to dig their own grave, as it were.

Allowing mentally competent individuals to defend themselves at trial is necessary, and shouldn’t be messed with. If anything – and I disagree with Jeff on this one – there should be a higher bar for appeal based on the fact that you are bucking the very system you are so vainly attempting to work within. Having said that, what I feel we really need is a generally accepted definition for “mentally competent” that includes cognitive ability, not just visual acuity.

And second, Tom mentioned the presumptive sentence one would receive upon not only going to trial, but going it alone. This is a legal reality that we cannot escape; going to trial will result in a longer/harsher sentence then would a plea, a deal, or any other means of not going to trial. I forget the terminology employed by my Criminal Law professor here, but it had something to do with the “trial tax.” The logical assumption being that if you are going to “waste” the state’s resources by forcing them to prove you guilty of something, we’re going to put you away for a longer period of time. The real comment I have on this one is that it’s real, and it sucks. As stated above, access to the judiciary is fundamental, and utilizing that access should not result in a stiffer penalty than making it “easy” for them to do their jobs. I can only imagine that in the case of a pro se defendant, this “tax” is magnified several times. And while as a law student, anyone electing to proceed in their own defense is presumptively insane, so far as I’m concerned, I don’t feel that this should result in said “tax.” Though, I doubt anything will change that.

Great article, Jay.

By: Jeff Richards

Jeff Richards — Thu, 06 Mar 2008 02:27:11 +0000

While you both make compelling arguments, America (generally) puts great value in self-determination. The Libertarian political movement is founded on that principle. Generally speaking, we preserve people’s ability to choose for themselves. And yeah, it may be a really bad idea to self-represent, but I have trouble accepting the idea that the court could ever force somebody who is mentally competent to be represented by a lawyer if they do not want one.

We can’t protect people from all of their bad decisions, even here, when the consequences are so great.

Of course, I cleverly ignore/defeat the entire argument over whether he’s competent to represent himself in this case. I’d personally prefer that the judge err on the side of incompetence, especially in borderline cases, because it is so difficult to self-represent even for competent, trained lawyers. But if a mentally competent adult wants to represent himself, I’m not sure the stakes should have any influence on the judge’s decision.

If it were all up to me, of course, I’d probably set a slightly lower bar for appeals based on new evidence after a pro se conviction as well. But we don’t want create too many incentives for people to self-represent in order to take another bite at the apple.

By: Dvd

Dvd — Thu, 06 Mar 2008 01:43:38 +0000

I tend to agree with you, Tom. Objecting to paternalist standards is popular, but in the end a judicial system is only legitimate if society views it as fair and effective. Once a system begins to lose that credibility through actions that, while perhaps protecting important individual choices, are perceived by the populace to result in essentially ‘show trials,’ the system’s foundations become shaky. Everyone likes a good David and Goliath story, but generally not when Goliath stomps on David. (Even if David was given the choice to use a champion or fight Goliath by himself.)

By: Tom

Tom — Wed, 05 Mar 2008 23:03:56 +0000

It seems to me that when faced with a defendant who wants to go pro se, a trial judge should (and probably does) take into account the presumptive sentence that the defendant will receive should he provide himself ineffective counsel and lose. This is especially so in view of the fact that the ineffective assistance claim is not available to such a defendant. It's definitely difficult to balance the general interest in assuring fair trials against an individual's right to represent him or herself, but I think that some paternalism by the court is acceptable, considering the consequences. So I guess it seems to me that, yes, a judge has the discretion to grant a defendant the right to proceed pro se, but I'm almost tempted so say that a judge who grants such a defendant's request has per se abused that discretion when the consequences are so great.