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18.1 Self Representation

    18.1.1 Self Representation Instructions
    18.1.2 Self Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial
    18.1.3 Self Representation On Appeal
    18.1.4 Self Representation: Instruction To Accused Regarding Dangers Of Self Representation
    18.1.5 Self Representation: Court May Deny Request For Self-Representation Made After Start Of Jury Selection
    18.1.6 Self-Representation: Exclusion Of Pro Se Defendant From Sidebar Conferences
    18.1.7 Self Representation: Whether Judge Must Warn Defendant Of Dangers
    18.1.8 Defective Faretta Waiver As Structural Error
    18.1.9 Self-Representation: No Denial Of Right When Standby Counsel Gives Advice To Potential Defense Witness
    18.1.10 Failure To Inform Defendant Of Maximum Penalty Made Faretta Waiver Invalid

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RATIONALE: If the jury does not understand that the defendant properly and legally decided to represent himself, there may be a danger that the jury will speculate that the defendant was not given an attorney due to the defendant's misconduct.

POINTS AND AUTHORITIES: Upon request, the defendant is entitled to have the jury instructed to draw no inference adverse to the defendant from the defendant's exercise of the right of self representation. (People v. Crandell (CA 1988) 46 C3d 833, 876-77 [251 CR 227]; see also Faretta v.California (1975) 422 US 806 [95 SCt 2525; 45 LEd2d 562].)

USE NOTES: Obviously a request for instruction on this matter will usually have to be made personally by the defendant since he/she will not be represented by counsel. However, in cases where counsel is discharged, there may be an opportunity for counsel to suggest to the defendant and/or court that instruction on this matter be considered.

    This instruction may be appropriate when the defendant is acting as cocounsel as well as when the defendant is acting alone. However, when the defendant is acting alone it may be appropriate for the judge to inquire as to whether the defendant wishes to request this instruction. This instruction must be requested because any advantage to the defendant in giving such an instruction is "debatable" because it may have the effect of highlighting the very fact that it is intended to minimize. (Crandell, 46 C3d at 877.)

APPELLATE PRACTICE NOTE: The United States Supreme Court has held that a defendant does not have the right under the federal constitution to self representation on direct appeal from a judgment of conviction. (Martinez v. Court of Appeal of California (1999) 526 US 1064 [119 SCt 1453; 143 LEd2d 540 (Mem)].)

See Manual On Recurring Problems In Criminal Trials [A. Pro Se Representation]

See also Benchbook For U.S. District Court Judges [1.02.6 Assignment Of Counsel Or Pro Se Representation: Other Sources].

SAMPLE INSTRUCTION # 1: [Self Representation From Outset]:

    Even though _________ was at first represented by a lawyer he has decided to continue this trial representing himself and not use the services of a lawyer. He has a perfect right to do that. His decision has no bearing on whether he is guilty or not guilty, and it should have no effect on your consideration of the case.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 6 [Discharge Of Defense Counsel During Trial] (1988).]

SAMPLE INSTRUCTION # 2: [Self Representation After Discharge Of Defense Counsel]:

    Even though the defendant (name) was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.22 [Discharge Of Defense Counsel During Trial] 2000).]

    A defendant in a criminal trial has a constitutional right to represent [himself] [herself]. You must not draw any inference from the fact that a defendant represented [himself] [herself] during any part of the trial. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.

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PRACTICE NOTE: See Bell v. Hill (9th Cir. 1999) 190 F3d 1089; see also Menefield v. Borg (9th Cir. 1989) 881 F2d 696, 701 [accused who represents himself at trial but asks for an attorney to represent him at a motion for a new trial is entitled to have one appointed].

See Manual On Recurring Problems In Criminal Trials [A. Pro Se Representation]

See also Benchbook For U.S. District Court Judges [1.02.6 Assignment Of Counsel Or Pro Se Representation: Other Sources].

See also 8th Circuit Model Jury Instructions - Criminal 2.22.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 6.

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    See FORECITE National™ 295.1.2.5 [Self Representation On Appeal].

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PRACTICE NOTE:  In U.S. v. Hayes (9th Cir. 2000) 231 F3d 1132, 1138, the court held that while a trial court's general reference to the consequences of waiving the right to counsel may be sufficient to satisfy Faretta, "merely suggesting that there are consequences in the abstract is not enough; there must be some instruction or description, however minimal, of the specific dangers and disadvantages of proceeding pro se."  To address this problem and provide guidance to the courts, the Hayes court suggested the following "illustrative discussion" that it said would comport with Faretta:

The court will now tell you about some of the dangers and disadvantages of representing yourself. You will have to abide by the same rules in court as lawyers do. Even if you make mistakes, you will be given no special privileges or benefits, and the judge will not help you. The government is represented by a trained, skilled prosecutor who is experienced in criminal law and court procedures. Unlike the prosecutor you will face in this case, you will be exposed to the dangers and disadvantages of not knowing the complexities of jury selection, what constitutes a permissible opening statement to the jury, what is admissible evidence, what is appropriate direct and cross examination of witnesses, what motions you must make and when to make them during the trial to permit you to make post-trial motions and protect your rights on appeal, and what constitutes appropriate closing argument to the jury. 

(Hayes, 231 F3d at 1139; cf. California Judges Benchbook, CRIMINAL PRETRIAL PROCEEDINGS (1991) ["The defendant should be made aware of the disadvantages of self-representation. The defendant should be warned that (a) self-representation is almost always unwise and the defendant may conduct a defense to his or her own detriment; (b) the defendant will have to abide by the same rules as lawyers and will get no assistance from the judge; (c) the People will be represented by experienced counsel who will have the advantage of skill, training and ability; and (d) the defendant will have no special library privileges nor a staff of investigators at his or her beck and call." H. § 1.45 [citing People v. Lopez (1977) 71 CA3d 568, 573 [138 CR 36] ["The prosecution will be represented by an experienced professional counsel who, in turn, will give him no quarter because he does not happen to have the same skills and experience as the professional. In other words, from the standpoint of professional skill, training, education, experience, and ability, it will definitely not be a fair fight. It would be Joe Louis vs. a cripple, or Jack Nicklaus vs. a Sunday hacker."].)

    See also FORECITE National™ 18.1.7 [Self Representation: Whether Judge Must Warn Defendant Of Dangers].

See Manual On Recurring Problems In Criminal Trials [A. Pro Se Representation]

See also Benchbook For U.S. District Court Judges [1.02.6 Assignment Of Counsel Or Pro Se Representation: Other Sources].

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PRACTICE NOTE: In some jurisdictions, a motion for self-representation made after trial has begun is subject to the court’s discretionary balancing of the defendant’s legitimate interests against the potential disruption and delay of proceedings. (See State v. Christian (MN 2003) 657 NW2d 186; see also United States v. Wesley (8th Cir. 1986) 798 F2d 1155.) The Christian court also held that, for purposes of analyzing the timeliness of the motion, trial begins when the jury selection process begins. (Christian, 657 NW2d at 192-93; see also Robards v. Rees (6th Cir. 1986) 789 F2d 379 [motion is timely if made before any "meaningful trial proceedings"; such proceedings commence with the beginning of jury selection]; State v. Worthy (MN 1998) 583 NW2d 270 [motion for substitute counsel made during jury voir dire untimely].)

See Manual On Recurring Problems In Criminal Trials [A. Pro Se Representation]

See also Benchbook For U.S. District Court Judges [1.02.6 Assignment Of Counsel Or Pro Se Representation: Other Sources].

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FORECITE National™
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