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View Full Version : Can Someone Who Represents Himself Defend Co-Defendents?


Qin Shi Huangdi
07-28-2012, 09:34 PM
Can someone who is on trial with others and decides to defend himself also be able to defend others with him-suppose for example of the accused is a lawyer and thus decides to defend everybody?

Oakminster
07-28-2012, 09:41 PM
A non-lawyer may not represent anyone other than himself in most court proceedings. A lawyer who also happens to be a defendant is likely to have conflicts of interest that would prevent him from representing co-defendants in the same trial. For that matter, he's probably not going to represent himself, either. There's an old saying that a lawyer who represents himself has a fool for a client.

janeslogin
07-29-2012, 06:11 PM
... There's an old saying that a lawyer who represents himself has a fool for a client.

Don't many lawyers, perhaps the vast majority have fools for clients. Except for the occasional plaintiff is some civil cases and an occasional falsely accused criminal defendant aren't many of them fools.

[When I needed a lawyer I foolishly volunteered that I was a witness to an incident.]

Really Not All That Bright
07-29-2012, 06:26 PM
Don't many lawyers, perhaps the vast majority have fools for clients. Except for the occasional plaintiff is some civil cases and an occasional falsely accused criminal defendant aren't many of them fools.
Many, perhaps, but certainly not a majority. The vast majority of lawyers work on civil cases or transactional matters. Even in criminal cases, half the lawyers are representing the state.

Bricker
07-31-2012, 03:50 PM
Even in criminal cases, half the lawyers are representing the state.

Except in the very case we're discussing here -- multiple defendants may each have a lawyer, but the state is still represented by one lawyer.

Bricker
07-31-2012, 03:56 PM
Can someone who is on trial with others and decides to defend himself also be able to defend others with him-suppose for example of the accused is a lawyer and thus decides to defend everybody?

A non-lawyer may not represent anyone other than himself in most court proceedings. A lawyer who also happens to be a defendant is likely to have conflicts of interest that would prevent him from representing co-defendants in the same trial. For that matter, he's probably not going to represent himself, either. There's an old saying that a lawyer who represents himself has a fool for a client.

I suppose -- and I cannot begin to explain what an unwise idea this is -- a set of co-defendants who all wished to have one of their number represent them all could each decide to go pro se. That is, each would represent himself, as they each have an absolute right to do, and all would rely on one of their number to be the "lead" counsel, acting technically for himself but in circumstances where none of their interests are adverse. That is, if he impeaches the prosecution's witnesses, that inures to the benefit of each co-defendant.

BottledBlondJeanie
08-01-2012, 12:50 PM
Oddly enough, a non-lawyer may not even represent a corporation, even if it's a corporation that's essentially Defendant's Name, Inc.

md2000
08-01-2012, 01:23 PM
I suppose -- and I cannot begin to explain what an unwise idea this is -- a set of co-defendants who all wished to have one of their number represent them all could each decide to go pro se. That is, each would represent himself, as they each have an absolute right to do, and all would rely on one of their number to be the "lead" counsel, acting technically for himself but in circumstances where none of their interests are adverse. That is, if he impeaches the prosecution's witnesses, that inures to the benefit of each co-defendant.

When multiple defendants ar tried together it's not unusual for them to have separate lawyers -especially if the case could degenerate to A blames B, B blames A. (A common Law and Order tactic, IIRC) Even if they don't take the stand, the direction of questioning of other witnesses, and closing statements, may put them in a conflict.

I'm guessing in a case like that, the judge would prohibit any such action from the beginning - since the last ting the system wants is an appeal and retrial based on a claim that the legal defence was inadequate.

Bricker
08-01-2012, 08:39 PM
When multiple defendants ar tried together it's not unusual for them to have separate lawyers -especially if the case could degenerate to A blames B, B blames A. (A common Law and Order tactic, IIRC) Even if they don't take the stand, the direction of questioning of other witnesses, and closing statements, may put them in a conflict.

I'm guessing in a case like that, the judge would prohibit any such action from the beginning - since the last ting the system wants is an appeal and retrial based on a claim that the legal defence was inadequate.

The judge can't.

A defendant has an absolute right to represent himself. (Unless he is not competent).

Really Not All That Bright
08-01-2012, 08:54 PM
Except in the very case we're discussing here -- multiple defendants may each have a lawyer, but the state is still represented by one lawyer.
True, but it's not as though the state attorney is the only one working on the case.

Bricker
08-01-2012, 08:56 PM
True, but it's not as though the state attorney is the only one working on the case.

It's entirely possible. Different prosecutors' offices handle things differently, but for other than major felony cases -- yeah, one attorney for the state at trial.

Really Not All That Bright
08-01-2012, 09:27 PM
Fair enough. The point remains that the number of lawyers representing criminal defendants and stupid civil plaintiffs is vastly outweighed by the number of lawyers who aren't.

Elendil's Heir
08-01-2012, 09:53 PM
You, as a nonlawyer, may represent yourself in any case of any kind, all the way up to and including before the U.S. Supreme Court. You'd be foolish to do so in the vast majority of cases, but you could. Nonlawyers may not represent anyone other than themselves, including codefendants. I suppose the situation Bricker outlines is possible, but I doubt many judges would permit it. The risks of conflicts of interest and the unauthorized practice of law are just too great.

You will sometimes find multiple prosecutors appearing in very serious, complex or high-profile cases, BTW. In the prosecutor's office where I used to work (in a populous, urban Ohio county), the lead prosecutor would be called "first chair" and the other "second chair." First chair was invariably an older, more experienced prosecutor; second chair was often younger or less experienced.

Bricker
08-01-2012, 10:41 PM
You, as a nonlawyer, may represent yourself in any case of any kind, all the way up to and including before the U.S. Supreme Court. You'd be foolish to do so in the vast majority of cases, but you could. Nonlawyers may not represent anyone other than themselves, including codefendants. I suppose the situation Bricker outlines is possible, but I doubt many judges would permit it. The risks of conflicts of interest and the unauthorized practice of law are just too great.


Apart from requiring the same colloquy that would be used before any pro se defendant could proceed, I don't see a way for the judge to refuse to permit it. He could sever the trials, I guess, but failing that, each individual co-defendant has the same absolute right to represent himself. The judge could require standby counsel for each, but that's it.

How are you picturing the judge could refuse to permit it?

Really Not All That Bright
08-01-2012, 10:44 PM
They have the absolute right to represent themselves, and to counsel of their choosing. You are talking about a non-lawyer representing them.

Bricker
08-01-2012, 10:53 PM
They have the absolute right to represent themselves, and to counsel of their choosing. You are talking about a non-lawyer representing them.



And I postulated:

I suppose -- and I cannot begin to explain what an unwise idea this is -- a set of co-defendants who all wished to have one of their number represent them all could each decide to go pro se. That is, each would represent himself, as they each have an absolute right to do, and all would rely on one of their number to be the "lead" counsel, acting technically for himself but in circumstances where none of their interests are adverse. That is, if he impeaches the prosecution's witnesses, that inures to the benefit of each co-defendant.

Do I need to spell out how this would work? Let's imagine three co-defendants. Each goes pro se. Adam, Burt, Charlie. Adam gives an opening statement. Burt and Charlie don't. Adam cross-examines prosecution witnesses. Burt and Charlie don't.

In fact, Burt can testify by narrative and Adam can cross him.

Technically Adam represents only himself. But if their interests are truly not adverse, then his attack on the prosecution's case helps Burt and Charlie too.

See?

Really Not All That Bright
08-01-2012, 10:57 PM
What happens when Adam starts asking questions that don't relate to the charges against him?

Bricker
08-01-2012, 11:05 PM
What happens when Adam starts asking questions that don't relate to the charges against him?

What I was picturing in this hypothetical was a set of co-defendants whose interests were not adverse -- that is, there's no theory of the case that pits one against the other. As a corollary, I was picturing a identical set of charges against each co-defendant, arising from the same set of alleged facts.

I suppose we could imagine joinder, where one defendant was charged with offenses that others weren't but whose interests could still be described as not adverse to each other... but that's not what I was describing.

Really Not All That Bright
08-01-2012, 11:14 PM
Even if their interests are not adverse, there is bound to be some evidence relevant to one or two and not one or all of the others. Let's say there are four; all are innocent, but all four have different alibis. When Defendant One (acting as the "lead" defendant) calls the wife of Defendant Four, and elicits testimony that D4 was giving her the business on the night of the robbery...

Bricker
08-01-2012, 11:35 PM
Even if their interests are not adverse, there is bound to be some evidence relevant to one or two and not one or all of the others. Let's say there are four; all are innocent, but all four have different alibis. When Defendant One (acting as the "lead" defendant) calls the wife of Defendant Four, and elicits testimony that D4 was giving her the business on the night of the robbery...

Why is that bound to be so?

Sure, it could be, and if it is, then what I pictured wouldn't work as well. But then I would not have said, "That is, if he impeaches the prosecution's witnesses, that inures to the benefit of each co-defendant." By that I meant to imply a common defense strategy and common theory of the case applicable to each defendant.

If that doesn't exist, then what I described would be less effective.

Really Not All That Bright
08-01-2012, 11:58 PM
Have you ever tried a case with multiple defendants in which there were no facts specific to certain defendants? :dubious:

Bricker
08-02-2012, 12:01 AM
Have you ever tried a case with multiple defendants in which there were no facts specific to certain defendants? :dubious:

Yes.

I had one of three guys arrested in a car, accused of having stopped the car a few blocks over and leaped out to administer a beating to a person on the street.

Basically, they either all did it, or they all didn't.

Elendil's Heir
08-02-2012, 02:24 AM
Apart from requiring the same colloquy that would be used before any pro se defendant could proceed, I don't see a way for the judge to refuse to permit it. He could sever the trials, I guess, but failing that, each individual co-defendant has the same absolute right to represent himself. The judge could require standby counsel for each, but that's it.

How are you picturing the judge could refuse to permit it?

Severance would indeed very likely be ordered. And not to repeat any of the earlier valid criticisms... but it would be clear to any half-bright judge what was really going on. Adam would sooner or later be asking questions and making objections which would be unnecessary for his own pro se defense. It would be obvious that he was doing so for the benefit of his codefendants. If he didn't knock it off upon being ordered to do so, he could be held in contempt, or face additional charges of unauthorized practice of law.

Bricker
08-02-2012, 10:57 AM
Severance would indeed very likely be ordered. And not to repeat any of the earlier valid criticisms... but it would be clear to any half-bright judge what was really going on. Adam would sooner or later be asking questions and making objections which would be unnecessary for his own pro se defense. It would be obvious that he was doing so for the benefit of his codefendants. If he didn't knock it off upon being ordered to do so, he could be held in contempt, or face additional charges of unauthorized practice of law.

Obviously this is highly dependent on the facts of the case, but I don't think it's unlikely to far-fetched to imagine an instance where there really isn't any daylight between co-defendants' defense theories.

As I hinted above, I once defended the driver of a car who was arrested, along with his two passengers, in their car several blocks from where a... er... rival of theirs had been assaulted. He claimed that the three had passed him, were affronted he was in their neighborhood, alighted from the car and attacked him, then jumped in the car and taken off. They were arrested less than ten minutes later a few blocks away from the scene. Their defense was what we used to call SODDI: Some Other Dudes Did It.

In that circumstance, if the three had elected to go the pro se route, any one of them could have defended himself in a way that also worked to defend the other two without crossing into UPL.

Really Not All That Bright
08-02-2012, 11:08 AM
I'm not sure that would work even there. when Guy 1 asks the arresting officer if he saw any bruising or lacerations on his knuckles, all is well. What happens when he asks if the officer saw any on Guy 2's knuckles?

md2000
08-02-2012, 11:52 AM
When multiple defendants ar tried together it's not unusual for them to have separate lawyers -especially if the case could degenerate to A blames B, B blames A. (A common Law and Order tactic, IIRC) Even if they don't take the stand, the direction of questioning of other witnesses, and closing statements, may put them in a conflict.

I'm guessing in a case like that, the judge would prohibit any such action from the beginning - since the last ting the system wants is an appeal and retrial based on a claim that the legal defence was inadequate.

The judge can't.

A defendant has an absolute right to represent himself. (Unless he is not competent).

But - what I meant was a defendant has no right to defend someone else. If in the end A ends up screwing up the case, and B claimed to be pro se but sat there doing nothing, then the appeal (for B, I assume) would be based on "I was too stupid to understand that this was messing up my defence; I didn't know he couldn't be my lawyer too and nobody told me to stop him".

IIRC in cases where a denfendant plays dumb (as in, refuses to speak) the judge in the case has appointed a defender. I'm sure he could do it for this case too.

I suppose too, it depends on the seriousness of the charges. If it's shoplifting a candy bar, who cares? If it's 20 to life, I bet the judge will be very concerned that the "inadequaet defense" not be a valid appeal.

Would the judge allow B to ask a question, then go back to A and say "now what do I ask him?" over and over? Sounds disruptive, also sounds like B does not know what he is doing - another reason to disallow pro se.

Can a judge disallow pro se on the basis that the defendant seems incapable of running an adequate defence? After a few days of royal screwups?

Severance would indeed very likely be ordered. And not to repeat any of the earlier valid criticisms... but it would be clear to any half-bright judge what was really going on. Adam would sooner or later be asking questions and making objections which would be unnecessary for his own pro se defense. It would be obvious that he was doing so for the benefit of his codefendants. If he didn't knock it off upon being ordered to do so, he could be held in contempt, or face additional charges of unauthorized practice of law.

Plus, it's not obvious until the case gets going if there is defendant-specific details in the testimony.

What is the legal criteria for an appeal based on inadequate defence? I have heard of cases where the argument was the defence lawyer was incompetent. What else is a valid argument? presumably a pro se defendant is given ample warnings and opportunities and the court avoids "gotcha cuz you aint a lawyer didn't know" moments by giving as much guidance as allowed. They don't get a do-over based on having a fool for a lawyer in that situation?

Bricker
08-02-2012, 01:58 PM
I'm not sure that would work even there. when Guy 1 asks the arresting officer if he saw any bruising or lacerations on his knuckles, all is well. What happens when he asks if the officer saw any on Guy 2's knuckles?

He's buttressing the credibility of his story.

AK84
08-02-2012, 02:12 PM
Plus, it's not obvious until the case gets going if there is defendant-specific details in the testimony
In almost all common law jurisdictions, for the more serious trials at least, there are witness statements given sometimes many months in advance and all the parties have a good idea if they are going to be such details long before the guy enters the box.


On Brickers's hypothetical, I really cannot see any judge allowing it, especially for the more serious crimes. Maybe if the three are accused of spraying illegal graffiti at bumfuck magistrates Court. Not for a major murder or rape or bodily harm trial. The Appellate Court would have a fit when they found out for one.

AK84
08-02-2012, 02:16 PM
Per the OP, while your question has been answered, I will just say this, that rights of audience especially before superior courts are something not just everyone can get and its very unlikely that such a hypothetical defendant will have the ability in any case to properly conduct preoceedings. It takes years of study and experience for a reason.

Bricker
08-02-2012, 02:36 PM
But - what I meant was a defendant has no right to defend someone else. If in the end A ends up screwing up the case, and B claimed to be pro se but sat there doing nothing, then the appeal (for B, I assume) would be based on "I was too stupid to understand that this was messing up my defence; I didn't know he couldn't be my lawyer too and nobody told me to stop him".


The way the judge guards against that is by a colloquy -- before permitting him to represent himself, the judge goes through a series of questions and answers, on the record.... "You understand that you have the right to be represented by a licensed attorney?" ... "You understand that the state will pay for such an attorney for you?" ... "You understand that trials are complex, follow rules of procedure and evidence that are not easy to understand, and that a licensed attorney is able to help you avoid problems with these?"... etc etc. Essentially, the judge must ensure that the waiver of the right to counsel is unequivocal, knowing, voluntary, and made after the defendant is informed in detail of the dangers of self-representation. In this case, presumably, the colloquy would include the fact that Defendant Abe represents only his own interests, not Defendant Burt's.

I suppose too, it depends on the seriousness of the charges. If it's shoplifting a candy bar, who cares? If it's 20 to life, I bet the judge will be very concerned that the "inadequaet defense" not be a valid appeal.


Absolutely. But, again, as long as the accused unequivocally, knowingly, voluntarily, and intelligently waives his right to counsel and demands to represent himself, a judge who refuses to allow him to do so will ALSO be overturned on appeal. Faretta v. California, 422 U.S.
806 (1975):

The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. This clear constitutional rule has emerged from a series of cases decided here over the last 50 years. The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so.


Would the judge allow B to ask a question, then go back to A and say "now what do I ask him?" over and over? Sounds disruptive, also sounds like B does not know what he is doing - another reason to disallow pro se.


No -- because THAT would clearly be the practice of law. But Faretta contemplates the appointment of "standby" counsel:

Of course, a State may—even over objection by the accused—appoint a "standby counsel" to aid the accused if and when the accused requests help...

And in that capacity, the role played by standby counsel includes "... to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals." Quoting McKaskle v. Wiggins, 465 US 168 (1984).


Can a judge disallow pro se on the basis that the defendant seems incapable of running an adequate defence? After a few days of royal screwups?


There can come a point where defendant's absolute ineptitude is deemed to have waived his Faretta rights.

What is the legal criteria for an appeal based on inadequate defence? I have heard of cases where the argument was the defence lawyer was incompetent. What else is a valid argument? presumably a pro se defendant is given ample warnings and opportunities and the court avoids "gotcha cuz you aint a lawyer didn't know" moments by giving as much guidance as allowed. They don't get a do-over based on having a fool for a lawyer in that situation?

No, as long as they got to the point of not having a lawyer by unequivocally, knowingly, voluntarily, and intelligently waiving his right to counsel.

An appeal for inadequate assistance of counsel must show two things: that the defendant received a standard of legal representation that fell below an objective measurement of adequacy, and that he suffered a specific prejudice thereby, such that the outcome of the trail is not trustworthy.

Bricker
08-02-2012, 02:38 PM
In almost all common law jurisdictions, for the more serious trials at least, there are witness statements given sometimes many months in advance and all the parties have a good idea if they are going to be such details long before the guy enters the box.


On Brickers's hypothetical, I really cannot see any judge allowing it, especially for the more serious crimes. Maybe if the three are accused of spraying illegal graffiti at bumfuck magistrates Court. Not for a major murder or rape or bodily harm trial. The Appellate Court would have a fit when they found out for one.

Then the only remedy i see is severance. Because each defendant has an absolute right to represent himself, and if the judge refuses to permit it, that's a reversal on appeal.

Bricker
08-02-2012, 02:39 PM
Per the OP, while your question has been answered, I will just say this, that rights of audience especially before superior courts are something not just everyone can get and its very unlikely that such a hypothetical defendant will have the ability in any case to properly conduct preoceedings. It takes years of study and experience for a reason.

Yes.

Pro se defendants almost always lack the ability to represent themselves themselves well.

But the judge still has to let them.