Consequences of Self-Representation

Consequences of Self-Representation

The limits just covered decide whether a defendant may proceed alone. Two further rules decide what follows once that question has been answered, and they point in opposite directions. A defendant who validly elects self-representation and is then convicted cannot later claim to have been denied the effective assistance of counsel, because the quality of a defense the defendant chose to run personally is a risk that came with the choice.¹ A trial court that wrongly refuses a valid request to proceed pro se commits an error that is not tested for harmlessness, and the defendant is entitled to automatic reversal.² The first consequence falls on the defendant who received what was requested and the second on the court that withheld it, and the next two sections take them in that order.

Assumed Risk

The first consequence falls on the defendant who received exactly what was requested. After Faretta v. California held that a State may not force a lawyer on an unwilling accused, the Court named the price of that freedom: "whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of the 'effective assistance of counsel.'"³ A convicted pro se defendant therefore has no claim that his own cross-examination, objections, or choice of witnesses fell short of what the Sixth Amendment demands. Courts have applied the point consistently, even in cases where a lawyer reviewing the record would find ample grounds for such a claim.⁴

The bar rests on two separate reasons, and the first comes from what an ineffective-assistance claim measures. In Strickland v. Washington the Court held that a convicted defendant attacking counsel's work must show, first, that counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and second, that the deficiency prejudiced the defense, meaning a reasonable probability that the result would have differed without counsel's errors.⁵ The claim exists because the Sixth Amendment envisions counsel playing a role the adversarial system needs in order to produce a just result, so a lawyer whose conduct undermines the reliability of the trial has failed the accused.⁶ Every step of that inquiry assumes a lawyer whose conduct can be judged against a professional standard. A defendant who has waived counsel has no such lawyer, because the performance under review is the defendant's own, and it was taken on by choice.

The second reason is an incentive. The Faretta right exists because the defendant, and not the lawyer or the State, will bear the personal consequences of a conviction, so the decision whether to defend alone belongs to the defendant even when the decision is unwise.⁷ Honoring that decision while letting the defendant disown its results would create a position that cannot lose. If the trial goes well, the defendant has won with a self-run defense, and if it goes badly, the defendant can return on appeal and attack the very performance that was insisted upon. The choice would then cost the defendant nothing, and the system would absorb the full cost of every self-conducted defense that failed. Justice Blackmun's dissent in Faretta saw the risk in blunt terms, warning that the Court's opinion "bestows a constitutional right on one to make a fool of himself."⁸ The majority accepted that cost, reasoning that a defendant may conduct his defense to his own detriment and that his choice must still be honored.⁹

Assuming the risk also means following the rules. The right to proceed alone carries no license to ignore the relevant rules of procedural and substantive law, so a trial judge insists that the pro se defendant follow the same rules of evidence and trial practice that bind lawyers.¹⁰ Judges nevertheless make routine accommodations for a lack of legal training, and the defendant's own testimony shows how. A defendant who takes the stand may want simply to tell the story in a narrative, but a narrative answer gives the prosecutor no chance to object before the information reaches the jury, which the prosecutor could do after a question is asked and before the answer is given. A court may therefore require the defendant to question himself: ask a question, give the prosecutor a chance to object, and then answer.¹¹ That mechanic is a practical courtroom accommodation and not a rule of constitutional law, but it displays the pattern. The court adjusts how the procedure runs so that the rules of evidence still operate, and the substance of those rules stays the same.

Because the bar is so severe, it is fair only if the defendant has been told about it. The preferred warnings at the waiver stage include that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his own representation, and that defenses and rights a lawyer would know about may be lost permanently if they are not timely asserted.¹² This ties the assumed-risk rule back to the knowing-and-intelligent waiver inquiry from the earlier sections, since the risk is one the record is supposed to show the defendant understood when choosing to go alone. The rule also reaches only so far. It attaches to a defendant who has elected self-representation, so it presupposes a valid election, and whether the waiver was knowing, intelligent, and voluntary remains the separate question taught above.¹³ The Faretta passage itself speaks only to a complaint that the quality of the defendant's own defense denied effective assistance of counsel, and it leaves the rest of what may be open on appeal to other rules.¹⁴

One fact separates the two defendants: whether the person who conducted the cross-examination was a lawyer or the defendant. The quality of the cross-examination and the harm it did are the same on both sides. The ineffective-assistance standard measures a lawyer's work, so it applies to the second defendant, and whether she wins is a separate question that standard governs. The usual trap is to let sympathy for a badly run defense turn into an ineffective-assistance claim against the defendant's own performance, which the pro se election forecloses.¹⁵

Wrongful Denial

The second consequence falls on the court rather than the defendant, and it follows from the way Faretta v. California itself came out. The trial judge there first granted Faretta's request to defend himself, then reversed that ruling and required him to accept a public defender.¹⁷ The Supreme Court held that forcing appointed counsel on him against his will deprived him of his constitutional right to conduct his own defense, and it vacated the judgment and remanded the case.¹⁸ The rule that grows out of that result is that a wrongful denial of a request to proceed pro se is not subject to harmless-error analysis, which means the defendant is entitled to automatic reversal.¹⁹ That rule departs from the usual treatment of constitutional mistakes at trial, so it needs a reason, and the reason lies in a distinction between two kinds of error.

Most constitutional errors are trial errors: mistakes that occur while the case is put to the jury and whose effect can be weighed against the rest of the evidence, so that a reviewing court can ask whether the error was harmless beyond a reasonable doubt.²⁰ Harmless-error analysis is that exercise. The court sets the mistake aside and asks whether the verdict would have come out the same without it. A smaller class of errors are structural defects, which "defy analysis by 'harmless-error' standards" because they affect the framework within which the whole trial proceeds rather than a single step in it.²¹ The total denial of counsel at trial is the familiar member of that class, since the absence of a lawyer affects the conduct of the trial from beginning to end.²² The idea is older than the labels: in Chapman v. California, where harmless-error analysis for constitutional errors was adopted, a footnote recalled that the Court's earlier cases had treated the right to counsel as so basic to a fair trial that its denial can never be harmless.²³

Self-representation belongs on the structural side of that line, and the Court has said so by listing the denial of the right of self-representation, citing McKaskle v. Wiggins, beside the denial of counsel.²⁴ The reason becomes clear once you ask what a harmlessness inquiry would measure. It compares the trial that happened with the trial that would have happened without the error, and in a wrongful-denial case the trial that happened was run by a lawyer the defendant did not want. The State would almost always answer that the lawyer did at least as well as the defendant could have done. The rule forecloses that answer, because the right of representation usually makes an unfavorable outcome more likely, so its denial cannot be tested by asking whether the outcome suffered.²⁵ That follows from what Faretta said the right protects: the right to defend is personal, the defendant and not the lawyer or the State bears the consequences of a conviction, and the choice must be honored even when it works to the defendant's detriment.²⁶ What a wrongful denial takes away is control over one's own defense, and a comparison of verdicts cannot measure that loss.

The rule also removes an incentive. If harmless-error review applied, the State would win nearly every appeal, because a lawyer usually does better than an unskilled defendant, and a trial judge who overrode a valid request would almost never be reversed. A right that is almost never enforced on appeal stops constraining the judges who decide at trial whether to honor it. Automatic reversal restores that constraint by attaching a cost to every wrongful refusal. The same logic runs through the assumed-risk rule above, because both rules detach the right from the quality of the result: the defendant who gets the right cannot disown its results, and the court that withholds it cannot defend itself by pointing to results.

The automatic-reversal rule has a trigger that the defendant must first establish, which is that the denial was wrong. A court may properly refuse to let a defendant proceed without counsel when the request is so disruptive of the orderly schedule of proceedings that rejection is justified, when the defendant engages in serious and obstructionist misconduct, or when the defendant cannot reach the level of appreciation needed for a knowing and intelligent waiver.²⁷ A State may likewise insist on counsel for a defendant whose severe mental illness leaves the defendant unable to conduct trial proceedings alone.²⁸ A denial on any of those grounds is no error at all, so there is nothing to reverse, automatically or otherwise.

The only variable is the reason for the denial. Each defendant made the same valid request, and each case ended with appointed counsel at the defense table. The first refusal rests on the judge's belief that a lawyer would serve the defendant better, which is not among the recognized grounds, so it is error and reversal follows without any inquiry into harm. The second rests on serious and obstructionist misconduct, which is a recognized ground. Students lose this issue when they conclude that automatic reversal follows any denial of a pro se request. The rule operates only after the denial has been found wrongful, so the real contest on appeal is whether the request was valid and timely and whether any recognized ground justified the refusal.²⁹