Defending Oneself in Court

While the Faretta decision upholds the right to self-representation, the judge is still required to make certain you understand the possible disadvantages of your decision. Called a Faretta hearing, the issue of competency is decided in a verbal exchange between the judge and the defendant. According to Katya Komisaruk in Representing Yourself, the judge must "warn you of the dangers." He or she will ask questions about your level of education, understanding of and ability to speak English, and your understanding trial procedures. At this point, the judge cannot determine how well you may perform in court, only that you understand the proceedings and consequences.

In addition, State v. Crisafi in 1992 spelled out the appropriate areas of inquiry:

• the disadvantages of self-representation
• knowledge about the charges and punishment for them
• the risk of an unsuccessful defense
• knowledge of rules of evidence procedures
• the difficulties of acting as one's own counsel

In cases where these conditions are met and the judge still refuses to grant the defendant's request, such as in State v. Thomas in New Jersey, in which Thomas proved his knowledge of the laws and his ability in a prior case to win an acquittal, then a conviction may be vacated. If the judge cannot show that a defendant would create a disorderly proceeding and the defendant conforms to the requirements of competence, the judge may not deny his request to represent himself. This cannot merely be a matter of the judge's disagreement over how the defendant would handle the case.

McKaskle v. Wiggins was another landmark case, defining the role of standby counsel in a criminal trial where the defendant opted to go pro se. Wiggins was charged with robbery and elected to waive counsel. His first trial resulted in a conviction, but it was overturned on a technicality. After Wiggins requested counsel for a second trial, he subsequently decided to defend himself and asked that counsel be barred from interfering. Nevertheless, he sometimes allowed or even requested their participation. He was once again convicted, so he filed an appeal, claiming that their participation had violated his Sixth Amendment right. The federal court agreed that counsel should not interfere without permission but found that Wiggins' attorneys had not interfered. The appeal was dismissed, and this case set a precedent for the behavior of standby counsel.

Now let's see how some notorious pro se cases turned out.