Better than the Sixth Amendment: Your Right to Assistance of Counsel in Indiana

September 07, 2016

By Keffer Hirschauer LLP

The Sixth Amendment to the United States Constitution is one of the most multifaceted amendments in the Bill of Rights and provides some of the most important protections available to criminal defendants today. The Sixth Amendment provides for a defendant’s rights to a speedy trial, assistance of counsel, and compulsory process, among other rights (Read the full amendment: While you are afforded rights by the Constitution, you also have the ability to waive those rights in certain circumstances. Before you are allowed to waive your constitutional right to an attorney and proceed “pro se,” meaning for oneself or without counsel, courts are required to give advisements to make sure your waiver is valid.

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, the Indiana Supreme Court has allowed for more protections for your right to counsel than the Supreme Court of the United States requires. Specifically, before allowing defendants to proceed without counsel, Indiana courts are required to acquaint the defendant with the advantages to attorney representation, and the disadvantages and danger of self-representation. There is not a specific set of “talking points” courts must use, but courts must gather enough information to be able to determine that the waiver of counsel is make knowingly, voluntarily, and intelligently. Courts generally try to dissuade individuals from waiving their right to assistance of 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 tell you each and every reason why proceeding on your own may be detrimental to your case.

The biggest factor for individuals to consider before making a determination to proceed without counsel is that courts typically cannot make special allowances in the rules for unrepresented individuals. As such, you will be held to the same standards as the attorneys representing the State of Indiana against you. That means that you are required to investigate the State’s assertions on your own, subpoena your own witnesses, tender and respond to any pre-trial discovery exchanged, comply with the Indiana Rules of Evidence and the Indiana Rules of Trial Procedure, properly preserve issues for appeal, elicit testimony from witnesses and potentially yourself at trial, understand the charges against you, understand the current state of the law with respect to the charges against you and any defenses in your favor, select your own jury, and being able to spot factual and legal deficiencies within the State’s case against you all against typically well-practiced and informed attorneys for the State. Also, in proceeding without counsel, you are necessarily waiving your ability to assert “ineffective assistance of counsel” related to your representation of yourself in any appeal moving forward.

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.