NCJ Number
76186
Journal
California Western Law Review Volume: 13 Issue: 1 Dated: (1976-1977) Pages: 46-64
Date Published
1977
Length
19 pages
Annotation
This article examines the scope of self-representation in the context of recent recognition by the Federal courts that a criminal defendant's right to proceed in pro se has constitutional underpinnings emanating from the Bill of Rights.
Abstract
The right of the criminally accused to defend themselves has historically been conferred by statute and by the constitutions in most States. More recently, the Federal courts have recognized that the pro se right is of constitutional dimensions. Because it was the first time that the United States Supreme Court has spoken directly on the subject, the germinative case in this area is generally regarded to be 'Faretta v. California' (1975). It is apparent that the sixth amendment rights of self-representation and assistance of counsel are closely interwoven. It is equally apparent that the existence of one works as a waiver of the other. Therefore, the trial courts must apply the rule which outlines the parameters of the constitutional right of self-representation. This rule comprises several essential elements. First, the demand must be timely and it must be unequivocal. Second, the trial judge must make inquiry on the record when demand for self-representation is made. Third, the competency of the accused must be tested by the standard applied to the waiver of a constitutional right. Fourth, the accused must make a knowing, intelligent, and voluntary decision to waive his right to assistance of counsel and to proceed pro se. The article notes that the use of advisory counsel often serves a particularly salutary purpose for the court when self-representation is demanded. Further, refusal by the trial court to permit a defendant to proceed pro se when all criteria are met constitutes reversible error; on the other hand, where the right to proceed per se is granted, the defendant often proceeds at his own peril. Despite drawbacks, the right to self-representation will continue to be exercised. Accordingly, both the judiciary and bar must fully appreciate the ramifications of this right and must endeavor in every case to carefully advise the accused of the hazards inherent in pro se proceedings. The article includes 99 footnotes.