Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or in Latin. This week’s word is the latter.

Written by: Jay D. Hall

Pro se is a term used to describe a person who represents themselves in a legal action. The Latin term pro se literally means “for self.”

In a criminal action, a person may represent himself if they are deemed competent to do so. The competency level is not a high bar; a defendant need only be competent to stand trial in order to represent himself. When competency is in question, most courts rely on expert testimony from psychiatrists for a complete determination of competency. However, critics point out that, in reality, it takes a higher order of mental function than a court requires to adequately represent yourself in trial. The only thing a court can do is impose co-counsel on a defendant representing themselves to assist the defendant with the trial. Of course, if a defendant chooses self-representation, he cannot later appeal on the grounds of ineffective counsel.

Some courts have used the language “waiver of counsel” when describing a person’s choice to self represent. This phrase is misleading, suggesting there is no right to self-represent. In fact, the right to self-representation is not a waiver of the right to counsel.  Instead, it is a separate freedom – the Supreme Court has recognized that one’s right to self-representation can be naturally read into the Sixth Amendment.

One final note: in a civil action there is no analogous fundamental right to self-representation. Most courts allow at least some minor civil appearances to be done pro se, though which proceedings are permitted vary by jurisdiction.