Can I Represent Myself in a SC Criminal Case?

In most cases, you have the right to represent yourself in any court case including when you are charged with a crime. It’s called “pro-se” representation.

Should you?

If you try, the court will do everything they can to talk you out of it. It’s not a conspiracy against you and they are not trying to hurt you – they are trying to help you by making sure that the proceedings are fair to you.

Two recent SC appellate court decisions illustrate when you can represent yourself, what procedural safeguards the court must follow if you insist on representing yourself, and why you should not attempt to represent yourself in a criminal case.

Why Shouldn’t I Represent Myself in Criminal Court?

I’ve seen many people attempting to represent themselves in criminal court – in preliminary hearings, in pre-trial hearings, and even in criminal trials.

They all had one thing in common – it was a train wreck that was painful to watch.

If you think that you know more about criminal law and trial practice than a trained criminal defense lawyer, you are probably stubborn, headstrong, possibly suffering from mental illness, and there may be nothing I can do to talk you out of it.

That being said, why is it a bad idea to represent yourself?

  • Despite what you think, you don’t know criminal law – besides three years of law school, it takes years of practice and experience to begin getting familiar with SC’s criminal laws, penalties, and how to navigate them;
  • You are too emotionally involved to make the objective judgments that are necessary to make decisions at every stage of your case – it affects your decision making and it also affects how you interact with prosecutors, judges, police, and witnesses;
  • Despite what you think, you don’t know criminal procedure – the SC rules of criminal procedure can be unforgiving and there are specific rules that cover most situations in and out of court. Even if you have read the rules and are able to refer to them, there is an ever-growing body of caselaw that explains those rules and that you must be familiar with as well;
  • You probably do not know how to get the evidence that you are going to need in court, how to get that evidence admitted in court, how to collect the evidence in a way that ensures it will be admissible at your trial; when to hold on to that evidence and when to share it with the prosecutor or court prior to trial;
  • You have probably not been trained in effective communication skills – how do you connect with jurors during your trial? How do you tell the story of your case without offending those jurors or turning them off? How do you argue a motion to a decidedly un-friendly judge in a way that will persuade him or her to decide in your favor? How do you approach your prosecutor in a way that makes them more likely to cut you a break instead of digging in and insisting on a conviction?
  • Trials require a knowledge of trial procedure and trial practice – what happens before the trial? What is each stage of the trial and what are each sides obligations at each stage? What motions should you make, when should you make them, and what authority will persuade the judge to grant your motions? What should you object to? When should you not object? Who gets first and last opening statement or closing argument? How do you effectively prepare for a cross-examination of a witness? Different kinds of witnesses?
  • Judges, court clerks, and other court personnel are not going to cut you a break because you are pro-se. If you are representing yourself, you are going to be held to the same standard and you will be expected to know the same things that a trained, experienced attorney would know.

I could keep going. But, let’s look at some recent appellate opinions that turned on pro-se representation.

Post Conviction Relief (PCR) Denied on Appeal – Valid Waiver of Counsel

In Hilton v. State, the defendant pled guilty to kidnapping and assault with intent to commit criminal sexual conduct (CSC). He later filed a PCR action. An attorney was appointed to represent him, but he insisted that the court remove his appointed counsel and that he would represent himself.

He lost the PCR hearing and then filed an appeal arguing that the court should have given him an attorney and that his waiver of counsel was not knowing and voluntary (hindsight is 20-20). The SC Supreme Court held that he did waive his right to counsel, and pointed out that the requirements for a valid waiver of counsel in the PCR context are:

  1. The court must make sure that the defendant is aware of his right to counsel; and
  2. The court must make sure that the defendant understands the dangers and dis-advantages or self-representation.

Faretta Warnings Must be Given Before a Defendant May Represent Themselves in a Criminal Case

Faretta is a US Supreme Court case that says criminal defendants have a constitutional right to self-representation under the Sixth Amendment. To invoke this right, a criminal defendant must:

  1. Clearly and unequivocally invoke the right (“maybe I should represent myself” is not good enough); and
  2. The decision must be made knowingly, intelligently, and voluntarily.

The judge can only question the defendant to establish the requirements of Faretta, and the only proper basis for a court’s denial of a request to proceed pro-se is if the defendant is not making the decision knowingly, intelligently, and voluntarily.

In State v. Samuel, the SC Supreme Court reversed the defendant’s murder conviction because the trial court denied his request to proceed pro-se because the trial judge believed that the defendant had lied to her about whether he had received advice from an attorney about how to proceed in his case. Because he was not allowed to proceed without an attorney despite having made the decision to waive counsel knowingly, intelligently, and voluntarily, his murder conviction was reversed and he will get a new trial where he can now go forward with no attorney…

SC Criminal Defense Trial Lawyer in Myrtle Beach, Columbia, and Lexington

Criminal defense and DUI defense attorney Lacey Thompson accepts criminal defense cases in the Columbia, Lexington, Conway, and Myrtle Beach SC areas. Call at 843-444-6122 or fill out our online contact form if you have questions or to set up a free initial consultation.

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