Your Right to Represent Yourself in a Criminal Case

You must be legally "competent" before a judge will allow you to represent
yourself in a criminal trial.
Defendants cannot represent themselves unless a judge determines that they are
competent to do so. The community as a whole has an interest in achieving justice,
and a trial in which an incompetent defendant self-represents isn't a fair one.
Defendants cannot represent themselves unless a judge determines that they are
competent to do so. The community as a whole has an interest in achieving justice,
and a trial in which an incompetent defendant self-represents isn't a fair one.
The case that established that defendants have a right to represent themselves
was Faretta v. California, U.S. Sup. Ct. 1975. The Faretta case said that a judge
must allow self-representation if a defendant is competent to understand and
participate in the court proceedings.
"Pro Se" and "Pro Per"
Judges and lawyers typically refer to defendants who represent themselves with the
terms "pro se" or "pro per," the latter being taken from “in propria persona.” Both
"pro se" and "pro per" come from Latin and essentially mean “for one’s own
person.”
To determine competence, the judge often weighs factors such as:

 the defendant’s age

 the defendant’s level of education
 the defendant’s familiarity with English, and
 the seriousness of the crime with which the defendant is charged.
No single factor determines the result, and a defendant doesn’t need the legal skills
of a professional lawyer to qualify for self-representation. As long as a defendant is
competent, knowingly gives up the right to an attorney, and understands court
proceedings, the defendant is entitled to self-represent.
It's critical to note, though, that the fact that one can self-represent doesn't mean
that one should. Almost everyone who works in the criminal justice system agrees
that self-representation is normally a bad idea, in no small part because the
defendant usually lacks anything near the necessary training and experience.
Example: Ella Mental is charged with burglary. Ella has only a grade school
education, and she has been in and out of mental institutions for much of her life.

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Ella tells the judge that she wants to represent herself in the burglary case. The
judge allows Ella to do so, on the ground that Ella has been convicted of various
crimes three times in the past and is thus familiar enough with criminal law to
represent herself. Ella goes to trial, and her questions to prosecution witnesses are
garbled and for the most part ruled improper by the judge. Ella is convicted. The
judge should not have allowed Ella to represent herself. The mere fact that Ella has
three prior convictions does not demonstrate that she is capable of knowingly
giving up her right to an attorney and representing herself. In view of her limited
education, her history of mental problems, and her inability to participate
meaningfully in the trial, the judge should have ignored Ella’s wishes and
appointed a lawyer to represent her.
Example: Lexi Khan is charged with assault and battery, and wants to represent
herself. Lexi speaks English, but English is her second language and she has
trouble understanding some words. She also has trouble reading a law book that
the judge asks her to read. In the arraignment court, Lexi refused to enter a plea,
and repeatedly said that the whole system is biased and that she wanted nothing to
do with it. Over Lexi’s objection, the judge appoints an attorney to represent her.
Taking all the circumstances into account, the judge properly exercised discretion
when denying Lexi’s request for self-representation. In view of Lexi’s language
difficulties and refusal to participate in the arraignment proceedings, Lexi is not
capable of representing herself at trial in a meaningful way.
Example: Dane Gerous is charged with aggravated sexual assault, and asks to
represent himself. The judge’s questioning reveals that Dane did not finish high
school,and has no previous legal experience. However, Dane accurately
summarizes the charge that he is facing. Also, when the judge reads a statute to
Dane, he is able to explain what it means in his own words. The judge should
allow Dane to represent himself. The charge is serious, and the judge may believe
that Dane would be better off with a lawyer. However, Dane has demonstrated
sufficient ability to understand and participate in the proceedings, and thus he has a
right to represent himself.

Competency to Stand Trial

Whether a defendant is mentally competent to stand trial is a different issue. A

time-honored principle in American law holds that we should not subject someone
to trial who lacks the capacity to understand the nature and purpose of the legal
proceedings against him, to consult with his lawyer, or to help in the preparation of
his defense. Someone who is competent to stand trial is oriented as to time and
place, and has a reasonable degree of rational understanding. (18 U.S.C.A. § 4241.)

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A judge has the power to decide that a defendant is mentally competent to stand
trial, yet not competent enough to represent himself (Indiana v. Edwards, U.S.
Sup. Ct. 2008).