# Can Someone Who Represents Himself Defend Co-Defendents? **URL:** \ **Category:** Factual Questions\ **Created:** [July 29, 2012, 1:34am UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723 "2012-07-29T01:34:01Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 2, 2012, 3:58am UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/21 "2012-08-02T03:58:40Z")
Have you ever tried a case with multiple defendants in which there were _no_ facts specific to certain defendants? :dubious: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 4:01am UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/22 "2012-08-02T04:01:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 2, 2012, 6:24am UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/23 "2012-08-02T06:24:53Z")
> [@Bricker](#): > > 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 2:57pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/24 "2012-08-02T14:57:40Z")
> [@Elendil\_s\_Heir](#): > > 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 2, 2012, 3:08pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/25 "2012-08-02T15:08:01Z")
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? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 2, 2012, 3:52pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/26 "2012-08-02T15:52:39Z")
> [@md2000](#): > > 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](#): > > 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? > [@Elendil\_s\_Heir](#): > > 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 5:58pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/27 "2012-08-02T17:58:54Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [August 2, 2012, 6:12pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/28 "2012-08-02T18:12:29Z")
[QUOTE=md2000] Plus, it’s not obvious until the case gets going if there is defendant-specific details in the testimony [/QUOTE] 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [August 2, 2012, 6:16pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/29 "2012-08-02T18:16:32Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 6:36pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/30 "2012-08-02T18:36:42Z")
> [@md2000](#): > > 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: > [@Faretta at n. 46](#): > > 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 6:38pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/31 "2012-08-02T18:38:05Z")
> [@AK84](#): > > 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 6:39pm UTC](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723/32 "2012-08-02T18:39:54Z")
> [@AK84](#): > > 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. [Previous page](https://boards.straightdope.com/t/can-someone-who-represents-himself-defend-co-defendents/629723.md?page=1)