12 Reasons Not to Risk Representing Yourself in Court
By Michael Knight
There's a well-known saying in the legal profession: "The lawyer who represents himself has a fool for a client." [variations of this quotation have been attributed to Abraham Lincoln as well as others.] What on earth does this mean? Wouldn't someone representing himself be the most familiar with the facts and circumstances of the case? Wouldn't the person representing himself be the most interested party in winning, since a loss for an attorney means a lost case, but for the accused it means the loss of his property, liberty, or possibly even his life! Unfortunately, the answer is not as simple as it might seem. The practice of law is a specialization among specializations. The law in practically every field demands experts who are aware of the law (though it's constantly shifting) and those familiar with the dance of courtroom and appellate procedure. If you are planning your will, then you want a well-versed lawyer in that field. If you have a medical malpractice case, or a tort negligence case, or a contract dispute, then, again, you want a professional who knows those laws well. If you are facing criminal charges or are filing an appeal on a criminal conviction, then you absolutely want a lawyer who is an expert in these types of cases. Even a licensed attorney would be foolish to represent himself in a criminal proceeding. That is how specialized the fields of law have become. And if this applies to attorneys, then it applies tenfold to those without a law degree.
Before I go further, I need to make a few statements and beliefs clear. In my view, EVERY SINGLE PERSON, no matter how apparently guilty, deserves to have effective legal representation when criminal charges are being made. A criminal trial must, fundamentally, be a fair procedure whereby society ensures that it does not immorally punish the innocent. Unfortunately, errors occur due to a variety of factors. While we cannot in this article discuss the sources, biases, and various factors that contribute to such unfairness and the conviction of innocent persons, we can discuss why it is foolhardy for a defendant, ANY DEFENDANT, to ever legally represent himself in a criminal proceeding.
I must also make the following points clear. While I argue here against conspiracy theories that are running rampant among the populace, I am not denigrating or disparaging people who examine our legal system. Anyone with eyes to see should be able to comprehend the numerous problems in our criminal justice system. Anyone can and absolutely should question the way our system works. What I am arguing against are theories that are so wildly incorrect that all they do is serve to distract people from actual options and legal knowledge that could help their situation. The law is difficult enough to understand in its natural state without worrying about false notions like the federal government being a commercial corporation, or sovereign citizen resistance, or any other conspiracies of generally unforgivable scope. I do not wish to shame any person believing in these types of things, but I can tell you that of all I've seen, most of these conspiracy theories are generally unbelievable (if you have sufficient expertise to see through the numerous issues) and ultimately, will in no appreciable way, help those who believe them. If you believe that the government has been replaced by a corporation, or if you believe that only statutes are "real laws," or if you believe that the supreme court was intended to hear all criminal cases, I would ask how this belief in any way pragmatically helps you. Even if that were true (and it certainly is not), how does that in any way provide one with options to protect or secure their freedom? It does not. A criminal defense attorney should concentrate on legal strategies that are helpful to their clients. Going down the rabbit hole of legal conspiracies wastes time (a very precious commodity) and distracts from real world options that need to be weighed and considered. If you believe that reform is needed, you are right. If you wish to advocate for a better system, please do. But these things will not help the defendant who has already been swept up into the system.
And one last note. I understand that the present "criminal justice system" (I hate that phrase) is not just unfair, but it is almost broken beyond repair. People with more money have more access to legal resources to secure better outcomes. Poorer people will likely have to rely on a public defender. And while I mean no disrespect to most public defenders (as these are the true believers, the people fighting in the trenches, and for little pay or recognition), they are usually over worked, under-staffed, under-funded, and often have very little time to directly interact with the defendants. The current state of affairs for criminal trials is not only a violation of the most basic and sacred of principles in a free society, i.e., that the accused has a right to a fair trial, but it is often a mockery of justice and a blot on our society. We can and must do better.
With that out of the way, let's consider why a person should not represent himself in a criminal proceeding. I must admit, that when one does a web search of "reasons to not represent oneself" you find a variety of articles and resources. Yet, I found these articles to be not only not very helpful, but actually to be somewhat misleading as they do a poor job of explaining the real difficulties of self-representation.
A quick Google search will provide you with several basic reasons not to represent yourself in court. I discuss six of those reasons below, and then will add an additional six reasons that I believe also need to be included.
1. Lack of knowledge of the substance of law: You will need to read up on the statutory law regarding the crime of which you are accused. You will need to understand how to analyze the elements of the applicable statutes. Further, you will need to be familiar with relevant case law regarding the scope and interpretation of the relevant statutory terms as well as any terms of culpability included.
2. Lack of knowledge regarding courtroom procedure and appellate procedure: The law is about so much more than simply knowing the criminal statutes. Procedure governs everything, whether it's marshaling evidence, challenging statements, questioning witnesses, or interacting with others in the courtroom. Procedure governs the way that trials are conducted. It takes many years of study, mentorship, and experience for professional attorneys to master these rules. Most judges are exacting in their enforcement of procedural rules. If you don't know or understand the rules of criminal court procedure, you may not even have the chance to argue your case. You could even make an error that lands you in contempt of court, at which point you will be fined and/or thrown into jail. Just to reiterate: we are only on point #2 and your mistake might land you in jail before the trial is finished.
3. Lack of courtroom experience: Being unfamiliar with courtroom conduct, you might also become emotional, upset, angry, or defensive when under pressure. The prosecutor may say something that gets under your skin. You cannot afford to let your emotions cloud your judgment. Your every word, facial expression, and action will be under the scrutiny of the jury. You cannot afford to let things get personal. You need an advocate that will champion your cause and yet always act strategically.
4. You might make incriminating statements: Defense attorneys are well versed in the manner of presenting and defending cases. They know what to bring up, what to focus on, and what to avoid saying/doing. The slightest slip that is self-incriminating could cost you your entire case.
5. If you defend yourself, no one will help you conduct your case: No one is going to help you keep your case on track. Court rules do not allow any of the court staff to assist you. The prosecutor will obviously not help you. And the judge is forbidden to assist. The only help you may receive from the judge is a lengthy explanation of your rights. But after that, you will be entirely on your own.
6. You will face even higher chances of convictions: Let's face it. The deck is already stacked against you... even with adequate legal counsel. You'll only be decreasing your already low chances of winning at trial. Self-representation simply isn't worth the risk, no matter how familiar you may be with the law.
All of these factors place you at an automatic disadvantage against a well-seasoned prosecutor. Attempting to represent yourself will only compound this disadvantage.
Those are the points commonly provided on legal websites. However, there are still more important reasons not to represent oneself. I offer an additional six issues.
7. Your lack of experience can ruin not only your criminal trial but also your future appeals. For example, an error may occur during the trial but you fail to place an objection on the record. When you appeal your case, you may be deemed as having waived the issue and thus precluded from appealing it. You must formally object to any and every error on the court record, and cite the reason for the objection, to preserve the issue for appeal. One slip up can eliminate the ability to plead an error on appeal that otherwise could have overturned the case or perhaps allowed for a retrial. You're effectively risking both your trial and your later appeals when you represent yourself.
8. The law is deceptively hard to understand because it uses terms of art. The law is FILLED with terms of art, each of which have a history of jurisprudence behind them. But these terms aren't flagged. They don't stand out. You might read the phrase "reasonably prudent person" or "knowingly" and say, "I know what these words mean," but you will only be fooling yourself. The words do not have their normal dictionary meaning. These terms each have statutory definitions and/or extensive case law that precisely defines them. But without an education in law, you won't even know which of these words and phrases have a special meaning. It cannot be emphasized enough, you will almost certainly misunderstand the law's meaning and proper application. This reason alone, disregarding all previous considerations, should be enough to dissuade any person from undertaking the daunting task of self-representation.
9. Another reason the law is difficult to understand is due to the relationship between common law and statutory law. Statutes are like little islands of law and they are all connected by the sea of the common law. Occasionally people (who are not lawyers) will try to argue that the common law has no basis in the U.S. The reason this is false is because most states early on passed formal legislation (i.e., statutes) that ADOPTED the common law and incorporated it into the states hierarchy of laws.
(One example of this can be read in the very beginning of Indiana's statutory code: Indiana Code 1-1-2-1:
"The law governing this state is declared to be:
First. The Constitution of the United States and of this State.
Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.
Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.")
This is one specific refutation of the idea that the common law does not apply in the United States, which I have seen too many people erroneously suggest. And this is a very basic concept. Failure to understand our laws almost certainly means that you will fail to win your case.
10: Another difficulty in understanding the law is judicial precedent: Precedent binds courts of lower authority to follow the holdings of higher courts. But precedent only applies downward to LOWER courts, not to courts in other circuits/jurisdictions. The Indiana Supreme Court's holdings, for example, are binding on local courts and the appellate court for the state of Indiana. It has nothing to do with how courts in other states might decide a case, even when addressing the very same legal concepts. Further, federal circuit courts are bound to follow higher appellate courts but only for that same circuit. And while federal appellate courts must follow the precedent set by the U.S. Supreme Court, the Supreme Court itself is bound by NO PRECEDENT. The supreme court remains free to reconsider former positions and arrive at a different decision. In order to successfully argue your case (to say nothing of winning it), you need to have a firm understanding of how judicial precedent operates and know how to shepardize the cases upon which you might rely. Obviously misunderstanding which laws apply to your case would be a critical failure.
11: The disparity of resources cannot be overemphasized: You will be combating experts in criminal prosecution with years of experience and enormous financial and investigatory resources at their disposal. Do you have access to multiple legal encyclopedias, access to statutory codes, and various case law and precedent and explained in such a fashion that a non-lawyer can understand the meaning and application thereof? Do you have a police force that can sweep the crime scene and collect evidence? Do you have detectives to help you conduct an investigation and build a theory of the crime? (Yes, you are not required to figure out who the real culprit is, but the best defense is often establishing who actually did commit the crime.) Do you have a means of collecting and examining forensic evidence? Do you have a wealth of financial resources you can use to fund your defense? Most likely not.
12: One last important issue is that legal conspiracy theories abound. Conspiracy theories crop up endlessly, advancing peculiar uses of random, out of context, legal sources. People with no legal training often buy into these distortions that seem plausible on the surface but ultimately make no sense when one is familiar with the interpretation of laws. Why do I bring this up? Because I see FAR TOO MANY posts like that which are shared among defendants and the wrongfully convicted. I've seen several "sovereign citizens" thrown in jail for their refusal to follow courtroom procedure. Still others attempting their own defense will proceed by arguing against the validity of the law. People desperate for help reach out to grab what they believe is a lifeline, but is ultimately a wildly unproductive waste of their time. These weird theories waste time for people that need to be focusing on building a legitimate and convincing case for trial or for their appeal.
I truly hope that these reasons make it clear that, in the field of criminal law, one cannot afford to make these kinds of mistakes. The accused deserve to have the best legal help that they can find. If you cannot afford to hire a private defense attorney there still might be other options. There are criminal defense clinics and wrongful conviction clinics in law schools. Perhaps a clinic could represent you. Public defenders are available, but if that option does not entice you, there are other options. A law firm may agree to take your case pro bono (i.e., for free). Yet another option is innocence projects and wrongful conviction programs. These independent programs/institutes may be able to provide help in your case. Any of these options would be far better than attempting to defend your own case. I sincerely hope that those who require effective legal representation will pursue the counsel that they so desperately need and most certainly deserve.