Defending Yourself in Trial

Why would a criminal defendant choose to represent himself rather than have a lawyer?

The Constitution and the Supreme Court have given every accused person in the U.S. the right to be represented by a lawyer.  If he can’t afford one, there is a public defender system in every state to provide lawyers.

In over thirty years working with defendants there have been only a hand-full of accused people who insisted on defending themselves.  Once the defendant announces his intention to represent himself, what happens?  The judge has a number of choices:

1.  The judge can allow the lawyer to withdraw from the case or can discharge the Public Defender.  The defendant would then proceed on his own without any lawyer helping him in any capacity.

2.  The judge could order the defense lawyer to remain at the counsel table, next to the defendant but not participate in the trial.  If, at some point the defendant changes his mind about going it alone, he could ask the lawyer to start representing him again and participate in the trial.  Since the lawyer has been in the trial all along, he should be able to jump-in and pick-up the case–depending on the damage the defendant may have already done.

3.  The judge could order the lawyer to remain available for advice only.  The lawyer would not participate in the trial and could leave.  He would be available to answer legal questions if the defendant had any during the course of the trial.

Are any of these possibilities a good idea for a defendant to do?

No.  Beyond the obvious point that the accused isn’t trained on how to try a case, legal objections to damaging evidence used against him, and the skills of cross-examination, people don’t understand that there are really two trials going on at once.

1.  The defense lawyer battles the prosecutor in an effort to persuade the jury to decide the facts in favor of the defendant that will lead to a not guilty verdict.

2.  The defense lawyer also battles the prosecutor for the judge’s favor, trying to get the judge to make legal rulings favorable to the defendant–maybe even to win the case on that basis alone.

Here’s an example from a case I tried years ago.  I was appointed to represent a man accused of having sex with an underage girl.  As we worked through the witnesses at trial, he wasn’t happy with the way I handled his defense.  When the alleged victim took the stand, she changed her original story and it became obvious that she may have made-up the accusation.  At that point, the defendant fired me and “tried” the rest of the case himself.

After the jury found him guilty, one of the jurors told me, “We were thinking he was not guilty until he took-over his own defense.  He himself, convinced us that he was guilty.”

What do you think?  What if an accused person has an incompetent defense lawyer?  What should the person do?

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