Appearance Without Counsel: Self-Representation in the Criminal Courts of the United States and Canada

Abstract

The development and implementation of systems for providing legal representation in the criminal courts of the United States and Canada have been premised on the arguments that 1) defendants who appear in court without legal representation receive less than full and equal treatment before the law, and 2) the appearance of defendants without legal counsel disrupts the criminal court process. Despite these arguments and the existence of schemes for legal representation, large numbers of defendants in both countries appear in court initially and/or at the final dispositional stages without counsel. A review of the case law in the U.S. and Canada indicates that the courts recognize the right of defendants to appear without counsel while at the same time making provisions for representation under certain circumstances. Examination of the empirical evidence in the U.S. and Canada provides no evidence that defendants who appear without counsel are treated less equally than their represented counterparts. Neither does the research support the argument that defendants who appear without counsel are disruptive to the criminal court process. The conceptual and methodological limitations of those studies which have included a consideration of the self-represented defendant make it impossible to support or refute the arguments raised about appearance without counsel. The need for research focused specifically on the self-represented defendant is discussed. “Where is your attorney?” “What attorney, Sir?” “You are required to produce an attorney.” “I am well versed in the laws, Sir, and quite capable of conducting my own case. Lawyers serve the gentry: What use are they to me?” “It is the law that you produce an attorney.” “A law evidently made by attorneys.” (Abridged account of the proceedings of appearance of Gerald Winstanley in Kingston Court of Record to answer a writ of trespass, June, 1649. Winstanley never did produce a lawyer and, after three appearances in court, was recorded as technically absent and judged in default.)