A criminal defendant has a right to represent himself or herself during criminal proceedings. Self-representation is a right afforded in both state and federal criminal proceedings. The right is implied within the purview of the Sixth Amendment to the United States Constitution. Self-representation is also referred to as pro se defense.

Timely Invocation of the Right of Self-Representation

Before trial has commenced the defendant has an unqualified right to proceed pro se. If the trial court fails to honor the defendant’s request to proceed pro se, an automatic reversal of the defendant’s conviction will result. If the defendant desires to represent himself or herself, he or she must make a timely and unequivocal election to do so. It is within the trial judge’s discretion to grant or deny the motion. Further, even if the trial judge grants the motion permitting self-representation, the trial judge retains the power to revoke the defendant’s right to self-representation for cause.

Wavier of the Defendant’s Right to Counsel

In order for the defendant to exercise his or her right to proceed pro se, the trial judge must obtain a knowing and intelligent waiver of counsel. Whether the defendant’s waiver of counsel is valid is dependent upon a number of circumstances including:

• Defendant’s educational and employment background
• Defendant’s experience
• Defendant’s conduct and actions

Each jurisdiction has different requirements before a waiver of counsel may be granted. Generally, the trial judge is required to explain the ramifications of the defendant’s choice to waive counsel. The trial judge must explain both the advantages and disadvantages of waiving counsel and self-representation. There should be a sufficient and significant exchange between the trial judge and the defendant prior to the trial judge’s decision on whether to grant the defendant’s request to waive counsel. The trial judge must be convinced that:

• The defendant’s waiver is rational;
• The defendant has the proper mental capacity to exercise the waiver; and
• The defendant understands and appreciates the ramifications of relinquishing her constitutional right to the assistance of counsel.

In rare instances, the trial court may just accept the defendant’s waiver of counsel without formal questioning. The trial court may do this if the defendant is an attorney.

Defendant’s Competency to Waive Counsel

The issue of the defendant’s competency to waive counsel poses several issues for the trial court. The trial court may not assume that the defendant’s waiver of counsel is knowing and intelligent if the defendant’s competency is undetermined. Typically, the trial court appoints counsel until the issue of the defendant’s competency may be determined. The standard for competency to waive counsel is the same standard for entering a guilty plea — that the defendant understands the right that he or she is waiving and the ramifications of the decision. Even if the defendant seeks to waive the right to counsel, appointed counsel will serve on the defendant’s behalf until the issue of competency is resolved.

Pro Se Appeals

The right to self-representation only exists on the trial court level. The reason for this is that the right to appeal is not derived from the Sixth Amendment of the United States Constitution, which affords the defendant the right to counsel during trial court proceedings and other adversarial proceedings. It is within the appellate court’s discretion whether to permit the defendant to appear pro se.

The defense of insanity is an affirmative defense to a criminal offense if at the time of the offense a defendant was suffering from a severe mental disease or defect, which disease or defect rendered the defendant incapable of knowing that his or her conduct was wrong. The purpose of the defense is to determine whether the defendant should be held responsible for the offense. It only excuses the defendant’s conduct. It does not mean that the defendant did not commit the offense.

Although the definition of insanity means that a defendant was suffering from a severe mental disease or defect, the defendant’s insanity is not just a medical issue. It is a legal and a moral issue as well. Although a defendant may be insane from a medical viewpoint, the defendant may not necessarily be insane from a legal viewpoint. If the defendant’s mental disease or defect has not reached the point where the defendant did not know that his or her conduct was wrong, the defendant is considered to be sane from a legal viewpoint.

A defendant is presumed to have been sane at the time he or she committed an offense. The defense of insanity is an affirmative defense. This means that the defendant has the burden to prove that he or she was insane by a preponderance of the evidence. However, if the defendant has previously been adjudicated insane, the prosecution has the burden of proving that the defendant was sane beyond a reasonable doubt. Also, the defendant’s burden of proof with regard to his or her insanity does not override the prosecution’s burden of proving that the defendant committed the offense beyond a reasonable doubt.

If a defendant plans to offer evidence of his or her insanity at trial, most states require the defendant to file a notice with the trial court and with the prosecution. The notice is usually required to be filed 10 days prior to the trial date or 10 days prior to a pretrial hearing. If the defendant’s notice is not timely filed, evidence regarding the defendant’s insanity is usually not admissible, unless good cause existed for the delay.

If a defendant files a notice of an insanity defense, a trial court may appoint a qualified mental health expert to examine the defendant. If the defendant refuses to be examined by the expert, the trial court may order the defendant into custody for purposes of the examination. The defendant may choose to be examined by his or her own mental health expert. The court-appointed expert is required to file a written report with the trial court within a certain number of days after his or her examination of the defendant. Copies of the report are provided to the defendant and to the prosecution. The defendant does not have a right to counsel during his or her examination by the court-appointed expert.

A defense of insanity may only be submitted to a jury at a defendant’s trial if it is supported by competent evidence. Neither the prosecutor, the defendant, nor the trial judge may inform the jury of the effect of a finding of not guilty by reason of insanity. The defendant’s state of mind before and after the offense may be offered as evidence of the defendant’s sanity. All relevant evidence is generally admissible. Evidence regarding the defendant’s sanity is normally introduced by expert testimony. An expert witness may testify about the medical issues regarding the defendant’s sanity. However, the expert witness cannot make a final determination of the defendant’s sanity. That issue is a question of fact for the jury.

If a defendant is found by a jury to be not guilty by reason of insanity, the defendant is acquitted of the offense with which he or she was charged. A trial court must then make a determination as to whether the defendant should be released, should be confined to a prison mental health unit, or should be referred for civil commitment proceedings. If the trial court finds that the defendant did not commit any act of serious bodily injury to another person but finds that the defendant is mentally ill or is mentally retarded, the trial court may transfer the defendant to an appropriate court for civil commitment proceedings, may release the defendant in the care of another person, or may discharge the defendant. If the trial court finds that the defendant committed an act of serious bodily injury to another person, the trial court retains jurisdiction over the defendant and must order the defendant to be committed to a maximum security unit of a prison facility until he or she is eligible for release. However, the defendant cannot be committed involuntarily to the prison facility for a period of time that exceeds the maximum sentence for the offense for which the defendant was tried unless civil commitment proceedings have been brought against the defendant.

A person commits the criminal offense of assault when he or she intentionally, knowingly, or recklessly causes bodily injury to another person, threatens the other person with bodily injury, or causes physical contact with the other person, which he or she knows is offensive to the other person. Bodily injury is defined as physical pain, illness, or an impairment of a physical condition. The fact that the other person is the person’s spouse is not relevant. A spouse can be charged with an assault of his or her spouse.

When a person threatens another person with bodily injury, the person does not have to intend to do harm to the other person. The person only has to cause the other person to have a reasonable fear of bodily injury. The fear of bodily injury must be imminent. It cannot be remote. The threats may be communicated by conduct as well as by words.

Where an indictment or an information charges a defendant with assault, the indictment or the information must allege the elements of the offense and should allege the manner in which the assault was committed. Although the manner in which the assault was committed is not an essential allegation, the indictment or the information could be dismissed for lack of certainty or definiteness if the allegation is not made.

An assault is normally classified as a misdemeanor. However, if the assault is committed against a member of a person’s family or household or if the person has previously been convicted of assault against his or her family or household, the assault may be classified as a felony. An assault may also be a felony if it is committed against a public official while the official is exercising his or her duties.

A person commits the criminal offense of aggravated assault when he or she commits an assault, which causes serious bodily injury to another person, or if he or she uses a deadly weapon during the assault. These factors raise the classification of the offense from a misdemeanor to a felony. If the person commits an aggravated assault on a public servant, the offense is usually a more serious felony. A public servant may be a government officer, a juror or a grand juror, an arbitrator or a referee, an attorney or a notary public, or a political candidate.

An indictment or an information for aggravated assault does not need to specify the manner of the underlying assault or the aggravated assault and does not need to describe the deadly weapon.

In order to be convicted of aggravated assault, the prosecution may show that a defendant inflicted serious bodily injury on the other person. Serious bodily injury is an injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or permanent loss or impairment of an organ or a body member. Only the nature of the injury is relevant. The fact that the injury was improved as a result of medical treatment is not relevant.

In order to be convicted of aggravated assault, the prosecution may show that a defendant used a deadly weapon during an underlying assault. A firearm is a deadly weapon. Any other object that is designed or made for the purpose of inflicting death or serious bodily injury is a deadly weapon. A knife is a deadly weapon if it is capable of inflicting death or causing serious bodily injury. The defendant need not wound the other person with the weapon in order for it to be considered a deadly weapon. It is sufficient for the prosecution to show that the defendant used the deadly weapon in such a manner as to make it capable of inflicting death or causing serious bodily injury.

Consent is a defense to assault or to aggravated assault. In order for the defense to be successful, a defendant must prove that a victim consented to the assault or that the defendant reasonably believed that the victim consented to the assault. This defense is often used for injuries involving occupational risks, medical treatment, and scientific experiments.

Controlled substances are drugs, which are used for the diagnosis, cure, treatment, or prevention of disease in humans and animals and which must be obtained under a valid prescription from a licensed practitioner. Possession of controlled substances without a valid prescription is a criminal offense.

Controlled substances are categorized according to schedules and penalty groups. The schedules list a controlled substance according to its history for abuse, its potential for abuse, its pharmacological effect, its risk to the public health, and its potential to produce physical or psychological dependence. The penalty groups set forth the punishment for offenses that involve the scheduled substances.

Possession is defined as the care, custody, control, or management of a controlled substance. In order for a defendant to be convicted of the unlawful possession of a controlled substance, the prosecution must prove that the defendant knew that the substance was a controlled substance and that the defendant knowingly exercised care, custody, control, or management over the substance. The length of time that the controlled substance was under the defendant’s control is not relevant. The defendant has the burden of proving that the substance was lawful or that he or she lawfully obtained the substance. A valid prescription is a defense to the crime of possession.

An indictment or an information charging a defendant with possession of a controlled substance must set forth the elements of the offense of possession and the name of the controlled substance. If the substance is not specifically listed under schedules or penalty groups, the indictment or the information must describe the substance and must state whether the substance is an adulterant or a dilutant of a controlled substance. An adulterant or a dilutant is any material that is used to increase the bulk or quantity of the controlled substance.

An indictment or an information charging a defendant with possession of marihuana must also state the amount of marihuana that is alleged to be possessed or a range with regard to the amount. The reason for this allegation is that most states have misdemeanor offenses for possession of smaller amounts of marihuana and the indictment or information must show whether the offense is a misdemeanor or a felony.

A defendant’s ingestion of a controlled substance may be used to prove possession of the controlled substance. The defendant’s sole access to the controlled substance may also be used to prove possession. The prosecution may also show joint possession of the controlled substance. However, the prosecution must prove that there was a link between the defendant and the controlled substance and not just that the defendant was present at a location where the controlled substance was found. Factors for the link include whether the controlled substance was visible, whether it was in an enclosed area, whether it was accessible to the defendant, and whether the defendant’s actions indicated possession on the part of the defendant.

When a controlled substance is found in a vehicle, a defendant’s possession of the controlled substance may be proved when the defendant admits ownership of the vehicle and when the defendant exercised control over the vehicle. When the defendant is not the owner of the vehicle, possession by the defendant depends upon whether the defendant was the driver or the passenger, the length of time that the defendant was in the vehicle, and where the controlled substance was found.

The prosecution must also prove in a case involving possession of a controlled substance that the substance was a dangerous drug or a controlled substance. Only expert witnesses are generally permitted to testify in this regard. However, in cases involving marihuana, a police officer may testify as to whether the substance was marihuana.

In marihuana cases, the prosecution must prove that the amount that was possessed was a usable quantity. In all other cases, the prosecution does not need to prove that the amount that was possessed was a usable quantity. Possession of only a trace of the controlled substance can result in a conviction.

The punishment for possession of a controlled substance depends upon the amount of the controlled substance and the penalty group in which the controlled substance is found. The amount of the controlled substance includes any adulterants or dilutants that are added to the controlled substance.

Although the Fourth Amendment to the United States Constitution guarantees the right to be secure against unreasonable searches and seizures and requires a search warrant in order to search a person or a place, there are exceptions to this requirement. One of the exceptions is a search that occurs at the time of a valid arrest. This is referred to as a search incident to a valid arrest.

An arresting officer is entitled to search a person at the time of his or her arrest as long as the arrest is valid and as long as it is done contemporaneously with the arrest. There must actually be an arrest. The person’s freedom of movement must be restrained or restricted by the use of physical force or by a show of authority. If the person is free to leave, there is no arrest. Also, mere questioning by the police does not constitute an arrest. The search cannot precede the arrest or serve as a justification for the arrest.

Safety Issue

The main reason for this exception to a search warrant is the safety of the arresting officer. The arresting officer has a right to search the person in order to determine whether the person has weapons or other dangerous instrumentalities. The search may include a search of the person’s clothes and effects and the surface of his or her body. The search generally may not include an invasion of the person’s body, such as body cavity searches, blood samples, and surgical procedures, unless there is an emergency, a life-threatening accident, or implied consent. Implied consent refers to state laws which provide that a person is deemed to have consented to drug and alcohol testing as a condition for obtaining a license or for operating a motor vehicle on highways and waterways.

The search does not have to occur at the place of the arrest. It may occur later, such as when the arrested person is booked. However, the delay cannot be unreasonable because the search would not then be considered as incident to the arrest. The longer the delay, the more likely that there would have been time for the arresting officer to have obtained a search warrant.

Scope of Search

In addition to the person’s clothes and effects, the arresting officer may search the immediate area around the person. The immediate area is the area within the person’s reach and control. The reason for the search of the immediate area is the same as the search of the arrested person’s clothing and effects, that is, the safety of the arresting officer. Although the immediate area might include a closet or a drawer near the person, it does not include a closet or a drawer in another room because the closet or the drawer in the other room is not within the person’s immediate reach or control. However, the officer may conduct a “protective sweep” of the entire premises if it is limited to a quick and cursory check of the premises in order to secure the safety of the officer. The officer is allowed to look for other persons on the premises who might be a danger to the officer. The purpose of the “protective sweep” is not to obtain evidence against the arrested person. Its purpose is to protect the safety of the arresting officer.

When a person is arrested outside a residence, the arresting officer is generally not permitted to search inside the arrested person’s residence. There are exceptions, however, if the residence is near the person, if the arresting officer suspects that dangerous persons might be in the residence, or if arresting officer’s safety is at stake.

If a person is arrested in or near an automobile, the search of the immediate area includes a search of the passenger compartment of the arrested person’s automobile. However, the search of the automobile does not extend to a search of the trunk of the automobile.

In summary, the ability of the arresting officer to conduct a search incident to a lawful arrest is based upon the necessity for the officer’s safety. If a search is conducted, which is not necessary for the safety of the officer, the warrantless search may be deemed to be invalid and evidence discovered from the search may be excluded at trial.