From Tom via CrimProf Blog, I came upon this article which talks about the effectiveness of pro se felony defendants. It discusses a study showing that pro se defendants were as likely to get acquittals and more likely to get convictions on lesser offenses. They also go to trial more often.
Admittedly, I'm suspicious. I see a pro se win a traffic case every so often (maybe one out of every couple hundred). I also have seen the very occasional pro se win in a misdemeanor and I stress very occasional. I've never seen a pro se win a felony case. Never.
The time period of the study struck me as strange: even years from 1990 to 1998. Why such an unusual limitation on the information studied? It's not exactly the same as limiting the study to every third lunar month on the Jewish Calendar, but there needs to be some sort of explanation for parameters like that. As well, why an eight year (four year?) limit to the data used?
There are all sorts of potential points to pick at from what the news article reports. For instance, I really don't give the part about the pro se defendants being more likely to be convicted of a lesser included offense much weight. All that probably means is that if represented by a defense attorney the attorney would have been able to work a plea out which would have resulted in a lesser conviction without going to trial.
Still, it's not really fair to criticize when I haven't read the entire law article. I've seen enough erroneous or incomplete news articles to know better than to believe the article is explaining it all correctly. I looked on SSRN-LSN and North Carolina's Law Review site, but there was no sign of Professor Hashimoto's article. Without the article in hand, there's no way I can know if it addresses the issues I might have. Therefore, I thought I'd instead address the issue of why people choose to represent themselves.
According to the news article we lawyers think that those who try to represent themselves are "either mentally ill or stupid." I'd agree with the first part of that. I suspect that at the very least a large plurality of the people I've seen try to represent themselves on serious crimes have mental issues - probably not enough to be found legally insane or incompetent, but enough that we should be concerned about their perceptions and ideations of what can be accomplished in court. However, I don't know that I agree with the second. Most of the people whom I have seen try to represent themselves are of at least average intelligence. They are doing a dumb thing but it most likely comes from arrogance, stubbornness, or a desire to be a martyr - these are the things I'm going to address.
Arrogance - This is the guy who knows he's as smart or smarter than the attorney the court tried to give him and is better off representing himself. Let's assume he is - some of my clients have definitely been very bright individuals. Additionally, he will always knows what went on better than his attorney and he can look up all the legal matters involved. In a purely rhetorical debate he could probably crush the prosecutor. The problem is, he isn't going to get that debate.
This person is almost invariably tripped up by the training and experience he does not have. He finds the perfect case but doesn't know to sheperdize it and therefore doesn't know it was over ruled 12 years later. He doesn't know the Rules of the Supreme Court and therefore doesn't file his motions pretrial and has his case crippled. He doesn't know the rules of evidence and great swathes of his carefully prepared argument are excluded. Mind you, if this guy had been practicing law for six months he would probably have enough real world experience to do a good job of representing himself. However, he will be gaining his experience during the trial.
I watched a case along these lines a couple years back. Virginia's the only State in the US which illegalizes radar detectors. A pro se defendant demanded a jury on his charge of having a radar detector. His defense? The federal government had pre-empted Virginia's ability to regulate electronic waves and therefore only the federal government had the right to declare whether radar detectors are legal. At least, that's what I was able to surmise. He didn't file the motion pre-trial. He didn't argue the constitutional issue at least three days prior to the trial. Therefore, the issue was foreclosed; he tried to argue it but got shut down. In the end, despite an interesting legal issue, his case came down to only one question: did he have a radar detector? He did. Guilty.
stubbornness - This is the guy who is only going to see things his way. He thinks he can get past the fact that he's on videotape shoplifting. He thinks the law is what he believes it to be. He may even want to get convicted (the guys seeking death sentences). This guy gets slaughtered in the courtroom. The prosecutor buries him under the evidence and the legal argument he tries to make is shredded.
Quite often, the judges will not let these guys walk away from their lawyers. I can remember the day one of my clients tried to go pro se, telling the judge that I refused to do my job because I wouldn't argue that the law illegalizing marijuana is unconstitutional. The judge didn't relieve me and Client got 30 days suspended; I'm absolutely certain he still thinks that it's unconstitutional to make marijuana illegal.
Martyrdom - These are the guys who are determined to go down fighting. Mostly these are "true believers": drug activists, tax protestors, sovereign citizens, racial activists, etc. They usually know the (wrong-headed/unconstitutional/oppressors') law is against them, but they've got a point to make and, by gum, they're going to make it!
These people really, really want their day in court. I recall one day when I saw a prosecutor, at the behest of "standby" counsel, dropping all charges against one individual. The man was brought before the judge and told that his charges were dropped and became instantly and extremely upset. He started ranting about how the defense attorney wasn't allowed to act on his behalf and how he had specifically said that he didn't want an attorney when he was first brought before the court and therefore the charges should go to trial. He was entitled to his day in court. The judge tried to explain a few times that it was the prosecutor who decided whether to go forward with a charge - not him - but eventually gave up and had the ex-defendant removed.
Mind you, most of the time a pro se defendant doesn't fit neatly inside one of those categories. He usually cuts across two and sometimes all three.