NCJ Number
39774
Journal
Yale Law Journal Volume: 86 Issue: 2 Dated: (DECEMBER 1976) Pages: 292-316
Date Published
1976
Length
25 pages
Annotation
EXAMINATION OF A PROCEDURAL DEFICIENCY RESULTING FROM THE SUPREME COURT DECISION IN FARETTA V CALIFORNIA (1975), WHICH AFFIRMED THE CRIMINAL DEFENDANT'S RIGHT TO DEFEND PRO SE UPON INTELLIGENT WAIVER OF THE RIGHT TO COUNSEL.
Abstract
THIS NOTE EXAMINES CIRCUMSTANCES IN WHICH THE POSSIBILITY OF A PRO SE DEFENSE WHICH IS SIGNIFICANTLY INFERIOR TO WHAT MAY BE EXPECTED OF THE PROSECUTION, BECOMES ALMOST A CERTAINTY. THE SITUATION IS ONE IN WHICH A DEFENDANT WHO CHOOSES TO REPRESENT HIMSELF IS JAILED BEFORE TRIAL. PRETRIAL INCARCERATION WILL CAUSE A DEFENDANT TO PRESENT AN INADEQUATE DEFENSE BECAUSE IT PREVENTS EFFECTIVE DEFENSE PREPARATION, AS FEW JAILS PROVIDE EITHER ACCESS TO LEGAL RESEARCH MATERIALS OR THE MEANS TO INVESTIGATE FACTUAL ASPECTS OF THE CASE TO PRETRIAL DETAINEES. THIS NOTE ARGUES THAT THERE EXISTS A DUE PROCESS RIGHT TO AN ADEQUATE OPPORTUNITY TO PREPARE. WHEN A DEFENDANT EXERCISES HIS RIGHT OF SELF-REPRESENTATION, HE DOES NOT WAIVE THIS RIGHT TO PREPARE, AND THUS, IF THE STATE RESTRICTS A PRO SE DEFENDANT'S PREPARATION BY JAILING HIM BEFORE TRIAL, IT MUST PROVIDE ALTERNATIVE MEANS OF PREPARING A DEFENSE. A PRACTICAL ALTERNATIVE MEANS OF PREPARING A DEFENSE IS SUGGESTED AND THAT IS THE APPOINTMENT OF STANDBY COUNSEL TO AID THE DETAINEE IN HIS TRIAL PREPARATION. (AUTHOR ABSTRACT MODIFIED)...EB