DUI Newsroom

Criminal Defense - Does Self-Representation in a Criminal Case Ever Make Sense?

• Some defendants can afford to hire a lawyer, but don't do so because they think the likely punishment is not severe enough to justify the expense.
• Some defendants believe (often mistakenly) that an attorney who represented them previously was not competent, and figure they can do just as well on their own.
• Some defendants believe that lawyers are part of an overall oppressive system and seek to make a political statement by representing themselves.
• Some defendants want to take responsibility for their own destiny.
• Some defendants who are in jail awaiting trial can gain privileges through self-representation, such as access to the jail's law library.
• Self-represented defendants are not bound by lawyers' ethical codes. This means that a defendant who represents himself can delay proceedings and sometimes wreak havoc on an already overloaded system by repeatedly filing motions. However, this approach is not recommended, since it can be counted upon to backfire.

While it's not usually a good idea for criminal defendant to represent himself, it may make sense in some situations. The most obvious rule is that the less severe the charged crime, the more reasonable it is for a defendant to self-represent. For example, defendants charged with minor traffic offenses, shoplifting or simple assault (a fight) may get by without hiring an attorney, while defendants charged with felonies should rarely be without one. The most difficult situations involve misdemeanors, such as drunk driving or a repeat offense that, upon conviction, can easily result in at least some incarceration. Hiring an attorney in these situations may make sense because jail time and a fine are possibilities, and convictions may carry hidden costs (such as more severe punishment for yet another conviction at a later time, or vastly increased insurance rates). On the other hand, first-time offenders charged with non-violent crimes are not usually sentenced to jail, and judges and prosecutors often offer standard deals to all defendants, whether or not they are represented by an attorney. Thus, the most critical piece of information that defendants should try to learn is before deciding whether to hire an attorney is what the punishment is likely to be if they are convicted, both immediately and in the future (if the defendant is arrested or convicted for a similar crime).

How To Find Out What The Punishment Is Likely to Be
 
It can be difficult to learn about judges' common sentencing practices. Typical sentences aren't usually listed in statutes or court rules (although sentencing in federal court is a big exception). However, some states do have what are called determinate sentencing laws. These laws provide specific sentences for specific types of offenses -- allowing the judge to add or subtract a year or two in either direction depending on the circumstances. Other states have indeterminate sentencing laws, which allow the judge to sentence an offender for a period of time between a minimum sentence and a maximum sentence -- for instance between two and ten years. The person will be released when a parole board agrees to the release.

If a defendant wants to find out what his or her punishment is likely to be if he or she is convicted, the defendant might take the following steps:

• Pay a private defense attorney for an hour of consultation. An experienced defense attorney can often make accurate predictions as to likely punishment.
• Ask a relative or close friend who is or who knows an attorney for informal, unpaid advice.
• Talk to an attorney from the public defender's office.
   
   

Self-Representation at the Arraignment

In most criminal courts the arraignment is where the defendant first appears before a judge and enters a plea of guilty or not guilty to the offense charged. Assuming the defendant plans to enter a plea of not guilty, which almost every defendant does at this early stage, the court will then:

• set a date for the next procedural event in the case
• consider any bail requests the defendant or the prosecutor makes (usually if the defendant is at liberty at the arraignment, the defendant will continue at liberty without a change in bail status)
• appoint a lawyer for the defendant upon the defendant's request and a showing of eligibility, and
• ask the defendant (or the defendant's lawyer if he or she is represented) to "waive time" (that is, give up the defendant's right to have the trial or other statutory proceedings occur within specified periods of time). See Key Aspects of Modern Criminal Procedure for more information about the defendant's right to a speedy trial.

Most people can handle an arraignment without a lawyer. However, if the defendant can get the court to appoint a lawyer for him or her without having to delay the arraignment, or the defendant is able to arrange for private representation before the arraignment, having a lawyer at this stage is always better.

Self-Representation with the Help of a Legal Coach

Defendants who choose to represent themselves are wise to seek an attorney willing to serve as a "legal coach." The goal of hiring a legal coach is to combine a lawyer's knowledge with the defendant's own time. Because the defendant pays for the lawyer's help only occasionally, the cost of a legal coach can be far less than turning the entire case over to a private attorney.
Not all attorneys are willing to serve as legal coaches. Some are worried about their liability if they give wrong advice based on incomplete information; others do not want to be involved with a case unless they are in control of it. Thus, if a defendant is considering going it alone and thinks he or she will want a lawyer's help, the defendant should, if possible, get the earliest possible start to lining one up.

Copyright © 2003 Nolo.