The Baltimore Sun recently had an article on a new empirical study about decisions by counseled criminal defendants to proceed pro se. From the Sun:
Self-representation is a legal strategy many lawyers decry, saying that the old adage – a man who is his own lawyer has a fool for a client – got it right. But some legal observers take a different view, suggesting defendants might have legitimate reasons for acting as their own lawyers and that such a defense sometimes leads to favorable outcomes.
Erica Hashimoto, a professor at the University of Georgia School of Law, recently set out to determine whether empirical data supported the assumption most lawyers make: that pro se defendants, as they are technically called, are “either mentally ill or stupid.”
In the study, which is scheduled to be published in the North Carolina Law Review, Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses – misdemeanors rather than felonies, according to Hashimoto’s review of data, a sample from the National Archive of Criminal Justice Data that covers the country’s 75 largest counties in the even years between 1990 and 1998.
Erica’s very interesting article has now been posted on SSRN. You can download a draft here: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant.
Pingback: Meta and Meta
Pingback: ACSBlog: The Blog of the American Constitution Society
Apropos of which, this Washington Post article about John Muhammed’s self-representation in his Maryland murder trial is utterly fascinating. Apparently he’s a reasonably decent lawyer.
I would be interested to see how pro se representation impacts FOIA/State open records law proceedings. Has any research been done into this area of the law where self representation is a necessity (except for large news networks)?
One interesting part of the study points to the poor quality of representation provided by court appointed council that is overworked, underpaid and structurally encouraged to pled out.
This also helps explain why Hashimoto’s study shows that represented state defendants receive poorer results than represented federal defendants. I am told by friends currently clerking for federal judges that the only organization which consistently produces the highest quality briefs is the Federal Public Defender. Better than AUSAs. Better than megafirms. I doubt many state judges would say the same thing about indigent defenders at their level.
My feeling is that a pro se defendant receives, in essence, heightened due process.
A judge will often feel a greater responsibility to make certain a defendant who does not have the benefit of an attorney receives a fair trial. He/she will bend over backwards to give the defendant the benefit of the doubt on close rulings, and is less likely to allow the prosecutor to indulge in the minor misconduct that is routine in criminal trials. (As a PD, I can say that this is most definitely not the norm.) Additionally, because there are so many more areas ripe for appeal in a trial with a pro se defendant, the trial judge will naturally be that much more aware of protecting the defendant’s rights.
As a former pro se law clerk in the SDNY, I can say that many, if not most, pro se litigants devote more resources to their litigation than any attorney in their right mind would. And those litigants are viewed by most federal judges as pests, clogging up the docket with frivolous litigation.
Ian’s right… and I’m sure sure that Prof. Hashimoto’s former clients would agree. I saw her argue back in her days as a federal public defender, and she was on top of her game. Glad to see that she’s still performing notably in academia.
Although I believe Faretta was rightly decided, I am disinclined to accept the author’s conclusions based on the statistics she cites.
If I am reading the paper correctly, I understand that defendants who self-represent are often accused of financial crimes and other, unusual crimes.
Comparing results should be on a crime-by-crime basis. I’m not sure there’s enough data to do that, but I believe the conclusion doesn’t stand up with the data presented. (It might well stand up in the end; I’m simply saying I’m unconvinced by this presentation.)
–JRM
This won’t be the last we hear on this topic. There is at least one other law prof working on this subject: Tracey Meares at the Univ. of Chicago has a work in progress on “Is the Right to Self-Representation Inconsistent with the Right to a Fair Trial? An Empirical Response to Justice Breyers Concurrence in Martinez v. Court of Appeals of California.”