A Defendant’s Best Friend – Right to Counsel and to Self-Representation

December 21, 2016

By Keffer Hirschauer LLP

According to the Sixth Amendment to the Constitution of the United States, in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. However, that right is not as straightforward as it appears. The Sixth Amendment’s right to counsel was applicable only to federal prosecutions until March 18, 1963, when the United States Supreme Court decided that the right must also be applicable to individual states in Gideon v. Wainwright requiring. However, even now, the Sixth Amendment does not require counsel in all misdemeanor prosecutions at the state level.

Luckily for Hoosiers, Indiana’s Constitution and Supreme Court have been more proactive with protecting defendants’ rights. Article 1, Section 13 of the Indiana Constitution allows for the accused to be heard, “by himself and by counsel.” On April 19, 1951, more than a decade before Gideon, the Indiana Supreme Court recognized that, “[m]any misdemeanors provide substantial punishment by way of fine and imprisonment…” and that defendants in Indiana are entitled to counsel in both felony and misdemeanor matters.

Both the Indiana Supreme Court and the Supreme Court of the United States have conceded that it is undeniable that in most criminal prosecutions, defendants could defend their case better with the assistance of counsel rather than by their own unskilled efforts. However, in Indiana defendants do have the ability to waive their right to counsel in most circumstances. A defendant seeking to proceed on their own or “pro se,” can do so if their waiver is done knowingly, voluntarily, and intelligently. While there are no required talking points or specific advisements, Courts are required to ask enough questions or give enough advisements to ensure that a defendant’s waiver of counsel is valid and acceptable. Courts generally try to dissuade individuals from waiving their right to counsel for many reasons, including the likelihood that an individual will do more harm than good in their own defense. However, courts are not required to list in detail each and every reason why proceeding pro se may be detrimental.

The biggest factor for individuals to consider before making a determination to proceed pro se is that courts typically cannot make special allowances for unrepresented individuals. As such, pro se defendants are held to the same standards as the attorneys representing the State of Indiana. Pro se defendants are required to investigate the State’s assertions, subpoena their own witnesses, tender and respond to any pre-trial discovery, comply with the Indiana Rules of Evidence and rules of procedure, properly preserve issues for appeal, elicit testimony from witnesses and potentially themselves at trial, understand the charges against them, understand the current state of the law, participate in voir dire, and to spot factual and legal deficiencies within the State’s case. Additionally, pro se defendants also necessarily waive their ability to assert “ineffective assistance of counsel” in any future appeal.

If you do not want to take a chance in potentially harming your own case, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160.