There’s an old saying, “A man who is his own lawyer has a fool for a client.” I agree, and point out that the same goes for lawyers who try to represent themselves. I am not saying you should never represent yourself, as there are rare circumstances where what is at stake does not justify the cost. Those circumstances, however, are the exception that proves the rule.
In the interests of full disclosure, I must remind you that I am, of course, a criminal defence lawyer. Despite that obvious conflict of interest, I’ll offer you four reasons for my opinion and let you judge for yourself.
1. You won’t have the benefit of legal advice.
Unfortunately, criminal law and criminal proceedings can be complicated, not just for non-lawyers but also for lawyers who aren’t familiar with criminal law. If you decide to represent yourself, you forego the benefit of expert legal advice, and that advice is more valuable than you may realize. Are you familiar with the details of criminal procedure, rules of court, laws of evidence, and courtroom practice? Are you acquainted with the judges you may appear in front of? Do you know what the Crown has to prove to convict you? Do you know whether the Crown can convict you with the evidence it has? Do you know what technical and other defences might be available to you? Do you know if your rights under the Charter of Rights and Freedoms were violated, and if so, what you can do about it? Do you appreciate everything that is at stake for you?
If you are not a lawyer but have diligently searched the internet for information about criminal law and the specific charges you are facing, do you still think it is a good idea to be your own lawyer? Put aside your charges for a moment and consider a different context. What if you needed a filling in one of your teeth and researched the dental procedure online? Assuming you had the tools, would you be your own dentist? Do you think that your knowledge and experience would be comparable to a dentist’s after a few hours of research and study?
If the answer to one or more of these questions is no, you may wish to reconsider the cost of going it alone.
2. It is practically impossible to be objective about your own case.
Let’s assume for the moment you have all the necessary legal knowledge to defend yourself. In fact, let’s assume you’re an excellent criminal defence lawyer yourself. Does that mean you should represent yourself in your own criminal case? In my opinion, the answer is still no. If for no other reason, representing yourself is not prudent because it is difficult, if not impossible, to be objective about your own case. Amid the stress and angst of being an accused person in the criminal justice system, it is alot to expect that you can suppress the strong emotions that you are naturally experiencing about the process and the parties involved.
For example, having been accused of assaulting your spouse, can you be objective about the quality of her evidence and the impression her evidence will make on the judge? More importantly, can you weigh the Crown’s case objectively against your defence, especially if you are likely to testify in your own defence?
I can tell you from my experience as a defence lawyer that some clients find it difficult to be objective about their case even having had the benefit of legal advice. Some clients are convinced that certain strategies and tactics are in their best interests despite the fact it is obvious to any competent criminal lawyer that the clients are committing legal suicide.
Why risk undermining your own cause by depriving yourself of objective and professional representation?
3. You are unlikely to be as effective an advocate for yourself as a skilled criminal lawyer.
In the eyes of others, in particular prosecutors and judges, what you say in and out of the courtroom about yourself and your own case is not as credible as what a criminal defence lawyer says. The words that are spoken might be the same, but the weight attached to them will be different. Lawyers are licensed and well-trained professionals, not to mention officers of the court. They are bound by express professional standards and must conduct themselves in accordance with well-established ethical principles. Both judges and prosecutors know that when a lawyer speaks for you, he or she does so bearing in mind their professional obligations. A lawyer cannot knowingly misstate the facts or the law, and a lawyer has a professional reputation to protect. Your case is unlikely to be the lawyer’s last. Therefore, when your lawyer speaks for you, others are more likely to listen not only because the lawyer might be more eloquent or knowledgeable, but also because the lawyer has to be careful about what he or she says. What he or she says therefore ends up carrying more weight.
4. The criminal justice system is not designed for you to represent yourself.
Whether we like it or not, the Canadian criminal justice system and British Columbia criminal courts are not designed to accommodate accused persons who represent themselves. Everyone from judges to prosecutors is accustomed to interacting with accused persons through their lawyers. When the accused person does not have a lawyer, the processing of that person’s case becomes more difficult for everyone involved, including the accused.
There are a few reasons for this. Let’s start with prosecutors. No prosecutor wishes to have direct contact with an accused if contact can be avoided. Any time a prosecutor interacts with an accused person, there is a risk that the accused will say something incriminating that will require the prosecutor to testify in court about the statement made by the accused. There is also a risk that the accused will misconstrue something the prosecutor says as legal advice, which a prosecutor cannot provide to any accused person, or that the accused will misconstrue something the prosecutor says as a plea offer or concession on behalf of the Crown. If any of these things happens, court time is required to sort things out, and the accused may suffer consequences he did not anticipate. The involvement of defence lawyers expedites and smooths the process, as prosecutors and defence lawyers rely on professional conventions in their dealings with each other and can speak to the important issues with comfort and ease. They may not agree on things, but they can certainly discuss them freely and either agree on parameters for a trial or work out a plea bargain for a guilty plea. The self-represented person does not have this luxury in his dealings with prosecutors.
A self-represented accused also poses challenges for judges. Contrary to the public perception of judges as all-knowing legal experts, judges actually rely on lawyers to confirm the state of the law as it applies to the accused’s case, and to protect the interests of the accused. In the absence of a criminal defence lawyer, the court process is lopsided. The voice of the accused is weak compared to the voice of the Crown, which is represented by professional prosecutors. While judges and even prosecutors try to maintain balance, they cannot assume the role of defence counsel, and at best can direct the accused’s attention to matters that should be considered and strategic decisions that should be made. That still leaves the accused without any assistance in considering the matters or making decisions, assuming guidance was provided by the judge or prosecutor in the first place.
At the end of the day, you have to make your own decision about your representation. My advice to you, whatever you decide, is think twice before representing yourself, and think about what you will lose in the process if you do not have a lawyer.