Waving the Right to Counsel

By Thomas Seigel, Attorney and Former Federal Prosecutor
Criminal charges that could result in jail time entitle the defendant to a free lawyer. The deck is stacked against defendants who choose to represent themselves.

Is it ever a good idea to waive your right to counsel in a criminal case and represent yourself? Deciding to handle your case pro se—a Latin phrase meaning “for yourself”—is almost never the right call. You wouldn’t perform surgery on yourself and probably don’t even cut your own hair. Why, then, would persons untrained in the law act as their own lawyer in serious legal matters?

Let’s look at how to waive the right to counsel and the reasons self-representation is normally a bad idea.

The Right to Counsel

In criminal matters, the right to an attorney is in both the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment, as interpreted by the Supreme Court, gives individuals the right to have an attorney present whenever they are in custody and being interrogated by law enforcement. The Sixth Amendment provides individuals with the right to counsel during all critical stages of court proceedings. In practice, this means all persons charged with any crime for which incarceration is possible are entitled to an attorney from the very first court appearance. If you cannot afford an attorney in situations where the right to counsel applies, you may request a court-appointed lawyer free of charge.

Waiving the Right to Counsel During Custodial Interrogation – Fifth Amendment

From TV and the movies, most people are familiar with the Miranda warnings given by police when they arrest people or otherwise restrain their freedom of movement. Those warnings notify the subjects of their right to an attorney even if they cannot afford one, the right to remain silent, and that their statements can be used against them in court.

In practice, after giving the Miranda warnings, law enforcement will often ask arrested individuals to waive their right to have an attorney present during questioning. Indeed, they might ask them to sign a document indicating they have been advised of their rights, understand them, and choose to waive them. The police do this so that they can interview persons in custody and later use their statements against them in court.

The consequences to defendants who waive their rights and voluntarily speak to law enforcement are almost never good. Even in trying to explain themselves, unrepresented defendants often make mistaken or confusing statements that could hurt their chances in court. Prosecutors do not have to introduce evidence of statements made by defendants to prove their innocence, but they will make sure a jury hears testimony from interviewing officers about all of the statements indicating defendants’ guilt.

If law enforcement questions you in custody without advising you of your rights and getting a waiver, your statements will very likely be inadmissible in the case against you. Also, by waiving your right to counsel during custodial interrogation, you are not waiving the right to have a lawyer in your court case. Further, you can always withdraw a waiver of the right to counsel at any time.

Waiving the Right to Counsel in Court – Sixth Amendment

In a criminal matter, a judge must ensure that pro se defendants understand their constitutional right to an attorney and the potential consequences of acting without counsel. So when a defendant decides to proceed pro se in court, the judge will always ask many questions to make sure that the defendant appreciates the risks involved. If a judge fails to make a clear record of a defendant’s knowing and voluntary decision to waive the right to counsel, a later conviction could be reversed on appeal because of that failure.

Even when a judge decides initially that pro se representation is appropriate, if the judge believes that a pro se defendant needs help at any point in the proceedings, the court might appoint a lawyer, so-called “shadow counsel,” to sit with the defendant to give advice and be available to take over as the attorney of record in the middle of the case. Judges, however, cannot provide legal advice to unrepresented parties during the court proceedings. They must remain neutral and can only advise a pro se defendant of the importance of having representation.

The Pitfalls of Self-Representation

If you choose to represent yourself, understand that the world you're entering is complicated and often obtuse. Because legal proceedings are governed by complex sets of rules and laws, lawyers go through rigorous training and qualification. Attorneys must graduate from law school and pass a state bar exam before they are permitted to practice law. Listening to lawyers and judges discuss a point of law in a court can often sound like a foreign language to the layperson.

The pitfalls of self-representation are legion. Even in a fairly simple case, such as an assault, legal concepts like “self-defense” or “adequate provocation” will likely be misunderstood by the non-lawyer. In addition, the pro se defendant will not know the rules of evidence and could lose the case simply because a crucial piece of evidence was not properly introduced or kept out. Further, your opponent, a prosecutor, will show no mercy in exploiting your ignorance in order to win the case. The dangers of self-representation are indeed too numerous to mention.

If you are considering acting as your own lawyer, you should at least consult with an attorney at the earliest stage of your case to discuss how self-representation might play out in light of the legal and factual issues involved. Lawyers are unlikely to ever advise you to act pro se, but they can at least help explain the particular dangers in your unique circumstances and guide you on how to navigate those hazards should you choose to proceed on your own.

Questions to Ask My Lawyer

Do parties ever act pro se in my type of case?

What legal issues would cause problems for a layperson in this case?

Could I start off pro se and retain you later if I need help?

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