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PRO SE DEFENDANT - MN Bench Book - Trial Procedures & Practices for Judges
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PRO SE DEFENDANT

From MN Bench Book - Trial Procedures & Practices for Judges

       This section is based on materials prepared by Judge Mark Wernick, Minnesota State Court District Court Judge

1. A DEFENDANT HAS A CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL[1]
2. WHEN A CRIMINAL DEFENDANT ASKS TO REPRESENT HIMSELF, THE COURT MUST DETERMINE:
A. WHETHER THE REQUEST IS CLEAR, UNEQUIVOCAL, AND TIMELY
i. The requirement that a request for self representation be clear and unambiguous is designed to prevent a defendant from taking advantage of the mutual exclusivity of the right to counsel and the right to self representation,
ii. A request for self representation “is not equivocal merely because it is an alternative position, advanced as a fall-back to a primary request for different counsel.”  Thus, a defendant’s statement such as, “If you won’t give me a different lawyer, I’ll represent myself,” constitutes a clear and unequivocal request for self representation when the defendant knows that the trial court will not appoint a different lawyer.[2]
AND
B. WHETHER THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVES HIS RIGHT TO COUNSEL.[3]

 

3. THE RIGHT TO SELF REPRESENTATION IS “UNQUALIFIED” IF THE REQUEST IS MADE BEFORE TRIAL.
A. For purposes of this rule, “the trial begins at the commencement of jury voir dire.”[4]
B. An otherwise timely motion for self representation may be denied if granting the motion will necessitate a significant continuance of the trial date and the defendant offers no explanation for delaying his motion.[5]
4. REQUEST FOR SELF REPRESENTATION MADE AFTER TRIAL BEGINS
A. If the request is made after the trial begins, the trial court must balance “the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.”[6]
5. THE DEFENDANT MUST KNOWING AND VOLUNTARY WAIVE THE RIGHT TO COUNSEL
A. The SUFFICIENCY OF THE WAIVER regarding to the right to counsel at trial is higher than the sufficiency of the waiver standard regarding the right to counsel at a guilty plea.[7]
B. The STANDARD OF COMPETENCY TO STAND TRIAL WITHOUT A LAWYER is the same as the standard to stand trial with the assistance of a lawyer.[8] The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.[9]
C. THE TRIAL COURT CANNOT DENY A REQUEST FOR SELF REPRESENTATION ON THE GROUNDS THAT THE DEFENDANT LACKS SUFFICIENT SKILLS TO CONDUCT HIS OWN DEFENSE WHEN THERE IS A KNOWING WAIVER OF THE RIGHT TO COUNSEL.[10]
D. MINN. R. CRIM. P 5.04 SUBD. 1, (3) AND (4) COVERS THE WAIVER OF COUNSEL IN MISDEMEANOR AND GROSS MISDEMEANORS AND FELONY CASES.
E. THE COURT MAY APPOINT THE PUBLIC DEFENDER TO ADVISE THE DEFENDANT WAIVING COUNSEL TO ADVISE THE DEFENDANT ABOUT THE WAIVER.[11]
F. THE COURT MUST ADVISE THE DEFENDANT ON THE RECORD
i. The nature of the charges,
ii. The lesser included offenses,
iii. The potential punishment,
iv. That there may be defenses,
v. That mitigating circumstances may exist, and
vi. All other facts essential to the defendant understanding the consequences of the waiver, including the advantages and disadvantages of waiving the right to counsel.[12]
G. IN ADDITION TO ADVISING THE DEFENDANT  THE COURT SHOULD ALSO COMPREHENSIVELY EXAMINE AND QUESTION  THE DEFENDANT regarding the defendant's comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant's understanding of the consequences of the waiver.”[13]
H. Before making the inquiry, prepare waiver questions based on facts and legal issues which may arise at trial.
I. The following is an EXCELLENT AND THOROUGH ADVISORY, EXAMINATION AND DIALOGUE BETWEEN THE TRIAL JUDGE AND A DEFENDANT SEEKING TO REPRESENT HIMSELF;
  • (1) The medications appellant was taking and the effects of those medications;
  • (2) His educational background;
  • (3) His right to have an attorney represent him;
  • (4) The charges against him;
  • (5) The possible punishment if he was found guilty of any or all of the charges;
  • (6) That he would be held to the same standards as an attorney;
  • (7) That he would be required to conduct voir dire, respond to the state's legal arguments, and subpoena witnesses to testify on his behalf;
  • (8) That it would be his decision whether to testify;
  • (9) That he would be required to make evidentiary objections;
  • (10) That he would be required to propose jury instructions and challenge the state's proposed jury instructions;
  • (11) That he would be his own lawyer in this case;
  • (12) That the judge presiding over the case is not his attorney;
  • (13) That his learning disability and the effects of the disability may make it more difficult for him to represent himself;
  • (14) the reason for appellant's request to represent himself; and
  • (15) Whether the decision to proceed pro se was his own and that he was not coerced or threatened.[14]
6. THE COURT CAN DENY SELF REPRESENTATION TO A MENTALLY ILL DEFENDANT, IF
A. The defendant is mentally competent to stand trial, and
B. The defendant understands the advantages and disadvantages of self representation, and
C. The trial court finds that the defendant is not competent, because of mental illness, to conduct a trial without a lawyer’s assistance.[15]
7. OTHER WAIVERS OF THE RIGHT TO COUNSEL
A. WAIVER BY CONDUCT
i. Waiver by conduct typically involve defendants who refuse or are ineligible for public defender services but then fail to retain private counsel.[16] 
ii. Waiver by conduct occurs if a defendant engages in dilatory tactics after he has been warned that he will lose his right to counsel.”[17]
iii. A trial court has the duty to ensure that a waiver by conduct is knowing and intelligent.[18]
B. FORFEITURE BY CONDUCT
i. Forfeiture occurs when a defendant engages in extremely dilatory conduct.  
ii.   Delaying a case for one year without hiring a lawyer may be forfeiture.[19]
iii. Forfeiture does not require a trial court to inquire about a knowing and intelligent waiver[20]
C. FORFEITURE OF RIGHT OF SELF-REPRESENTATION DURING TRIAL
i. When a pro se defendant “deliberately engages in serious and obstructionist misconduct,” a trial court may terminate the defendant's right to self-representation.[21]
ii. The court should inform the defendant that if his conduct does not cease he could lose the right to continue pro se.[22]
8 STAND BY/ADVISORY COUNSEL
A. TRIAL COURT, IN THE EXERCISE OF ITS DISCRETION, MAY APPOINT STAND BY COUNSEL[23]
i. The trial court can appoint stand by counsel to (1) assist the defendant in following courtroom procedures, and (2) to be available to take over representation of the defendant if termination of the right to self representation becomes necessary.
ii. Stand by counsel may be appointed to assist the defendant with courtroom procedures even over the defendant’s objection.[24]
B. Unwanted participation in the trial by stand by counsel does not violate the defendant’s right to self representation so long as stand by counsel does not interfere with the defendant’s right to control the presentation of the defense and does not undermine the jury’s perception that the defendant is in control.[25]
C. If the defendant wishes standby counsel to be involved, to render impromptu advice, or even to appear before the court, the defendant must authorize the standby counsel to do so.[26] If the defendant wishes the standby counsel not to participate, then they must simply attend the trial.[27] It is reversible error for standby counsel to leave the courtroom while trial in progress.[28]
D. The Strickland standard of ineffective assistance of counsel does not apply to stand by counsel whose role is limited to assisting the defendant with courtroom procedures.[29]
E.  Stand by counsel may be appointed to take over representation of the defendant if, by disruptive behavior, the defendant relinquishes his right to self representation.[30] 
F.  After a trial has begun, the defendant does not have an absolute right to relinquish self representation to stand by counsel.  A trial court should balance a defendant’s request to relinquish self representation against the readiness of stand by counsel to take over and the possible disruption to the trial.[31]
G. A trial court should make an initial determination of whether stand by counsel should be prepared to assume representation of the defendant.[32]
H. If the court is concerned that the defendant will disrupt or delay a trial, the court must advise the defendant and stand by counsel that stand by counsel may be ordered during the trial to assume representation of the defendant.[33]
I. Stand by counsel is not required to perform services for a defendant beyond being present during the trial to assist the defendant in exercising his right to self representation.
J. Stand by counsel is not required to provide law clerks, investigators, or clerical assistance or office supplies.[34] The defendant must seek funds for services or items pursuant to Minn. Stat. § 611.21.
K. The right to self representation does not include the right to “hybrid” representation, but the trial court may permit it.[35]
9. REGULATION OF TRIAL INVOLVING PRO SE DEFENDANT
A. A PRO SE DEFENDANT IS HELD TO THE SAME STANDARDS AS AN ATTORNEY; THIS INCLUDES THE FOLLOWING ACTIVITIES.
i. Conduct voir dire,
ii. Give an Opening Statement
iii. Respond to the state's legal arguments,
iv. Make evidentiary objections
v. Decide on his own to testify of not testify
vi. Subpoena witnesses to testify on his behalf;
vii. That he would be required to propose jury instructions and challenge the state's proposed jury instructions
viii. Give a final argument[36]
B. TRIAL COURT CAN REGULATE TRIAL AND ASSIST PRO SE DEFENDANT
i. When a litigant undertakes to represent himself or herself, the court should take whatever measures may be reasonable and necessary to ensure a fair trial.[37]
ii. “Where a litigant represents himself, the court in the interest of fair determination of the merits should ask such questions and suggest the production of such evidence as may be necessary to supplement or clarify the litigant’s presentation of the case.[38]
iii. In providing assistance to the Pro Se defendant during trial the trial judge should be careful not to ask questions of prosecution or defense witnesses or cross examine the defendant’s witnesses in a manner that could be construed as aiding the Prosecution. [39]
iv. The right of self representation is not a license not to comply with relevant rules of procedural and substantive law.[40] 
v. A trial court may rebuke and admonish a pro se defendant during trial if the defendant fails to follow court rules.[41]
C. HANDLING OF EXHIBITS IN PRO SE CRIMINAL TRIALS
i. In Pro Se cases neither the Pro Se defendant nor the prosecutor should handle exhibits.
ii. The exhibits should be handled and moved around the courtroom and shown to witnesses and the jury (if publication allow after admission and before deliberation) by a court clerk or bailiff. This preserves the sense of fairness and eliminates the concerns and problems of a Pro Se defendant handling dangerous evidentiary objects.
D. BENCH CONFERENCES IN PRO SE CRIMINAL TRIALS
i. A pro se defendant does not have an absolute right to attend and participate in bench conferences.[42]
ii.   Defendant's additional presence at the conferences would not contribute to the fairness of the procedure.[43]
iii.  Defendant's right to be present at all stages of the trial is not so absolute as to require jeopardizing the safety of those present in the courtroom.[44]
iv. A pro se defendant can authorize stand by counsel to attend bench conferences and argue motions and matters raised there.[45]


References:

  1. Faretta v. California, 422 U.S. 806 (1975); State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).
  2. State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990).
  3. Id.
  4. State v. Christian, 657 N.W.2d 186 (Minn. 2003).
  5. State v. VanZee, 547 N.W.2d 387 (Minn. Ct. App. 1996).
  6. Christian, 657 N.W.2d at 191.
  7. Iowa v. Tovar, 541 U.S. 77 (2004).
  8. State v. Camacho, 561 N.W.2d 160, (Minn. 1997).
  9. Godinez v. Moran, 509 U.S. 389 (1993).
  10. Richards, 456 N.W.2d at 265.
  11. Minn. R. Crim. P. 5.04, Subd. (3) & (4).
  12. Minn. R. Crim. P. 5.04, Subd. (4).
  13. State v. Worthy, 582 N.W.2d 270, 276 (Minn. 1998).
  14. State v. Kellogg, 2004 WL 422703 (Minn. Ct. App. Mar. 9, 2004).
  15. Indiana v. Edwards, 554 U.S. 164 (2008), State v. Bauer, 245 N.W.2d 848 (1976).
  16. State v. Hawanchak, 669 N.W.2d 912 (Minn.App. 2003).
  17. State v.  Jones, 772 N.W.2d 496 (Minn. 2009).
  18. Id.
  19. Id.
  20. Id.
  21. State v. Holland, 421 N.W.2d 382, 387 (Minn. App. 1988).
  22. State v. Worthy, 569 N.W.2d 537 (Minn. Ct. App. 1997).
  23. Minn. R. Crim. P. 5.04 Subd 2.
  24. McKasle v. Wiggins, 465 U.S. 168, 184 (1984); State v. Richards, 456 N.W. 2d 260, 266 (Minn. 1990).
  25. Holt v. State, 772 N.W.2d 470, 478-79 (Minn. 2009).
  26. State v. Richards, 552 N.W.2d 197, 207 (Minn. 1996).
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Id.
  32. Minn. R. Crim. P. 5.04 Subd 2.
  33. Minn. R. Crim. P. 5.04 Subd 2.
  34. Richards, 552 N.W.2d at 202
  35. McKaskle v. Wiggins, 465 U.S. 169 (1984).
  36. State v. Kellogg, 2004 WL 422703 (Minn. Ct. App. Mar. 9, 2004).
  37. ABA Standards for Criminal Justice § 6-3.6(b) (1986).
  38. ABA Standards Relating to Trial Courts as Amended § 2.23 (1987)
  39. McKaskle v. Wiggins, 465 U.S. 168, 184 (1984).
  40. State v. Richards, 495 N.W.2d 187, 197 (Minn. 1992).
  41. Id.
  42. Id.
  43. Id.
  44. Id.
  45. Id.