Competency to Waive Counsel (Proceed Pro Se)

In the United States, it is permissible, with the approval of the judge, for a criminal defendant to act as his or her own attorney when the case goes to court. Legal and clinical issues related to the defendant's being competent to waive the right to legal representation are discussed in this entry.

In the United States, defendants accused of criminal charges are entitled to rights and protections by the Constitution. One important right articulated in the Sixth Amendment is that every accused person is entitled to representation by a legal counsel. Like other constitutional rights, the right to counsel is guaranteed—that is, no one, including even the judge, can deprive the defendant of this right. However, a defendant may request a waiver of the Sixth Amendment right to legal representation and permission of the court to represent himself or herself—in legal parlance, to proceed pro se.

Waiving some constitutional rights is a common occurrence. The overwhelming majority of criminal cases (more than 90%) are resolved through a plea agreement between the defendant and the state, and to enter a guilty plea, a defendant must waive the constitutional rights to a trial and to confront the evidence. When it is required that the defendant provide a factual basis or justification for the plea, he or she may further have to waive the Fifth Amendment right against self-incrimination.

In the context of entering a guilty plea, defendants' waiver requests typically occur after consultation with, and with the advice and consent of, their attorneys. Furthermore, by their nature, plea agreements are about disposition of the case; thus, defendants are commonly well-informed about the personal consequences of these waivers. In contrast, the request to waive the right to counsel more often marks a rift between the client and the attorney, and the potential impact on case outcome is usually not known. However, it is almost universally agreed that the likely impact is not good, as reflected in the adage that a defendant who proceeds pro se “has a fool for a client and an idiot for a lawyer.” But in the most exceptional cases, criminal defendants likely disadvantage themselves because they might lack the litigation skills needed to present their cases most effectively. Nevertheless, the judge may approve a request if he or she determines that the defendant is competent to waive counsel.

Case law has articulated the qualities that must be present with respect to competent waivers of constitutional rights. Although there are minor variations in language across cases, generally, the judge must determine that the waiver is made knowingly, intelligently, and voluntarily. One court stated that the judge must determine whether the waiver was “made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” The courts have not further articulated the specific functional abilities (i.e., behavioral indicators) that are required for a defendant to demonstrate that his or her request meets these qualitative criteria. However, the case law is clear as to what is not required: It is not required that the judge deem the defendant's decision to be a prudent one, nor does the competence determination hinge in any way on a demonstration that the defendant has litigation skills.

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