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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.

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