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Pro Se Criminal Trials and the Merging of Inquisitorial and Adversarial Systems of Justice

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Pro Se Criminal Trials and the Merging of Inquisitorial and Adversarial Systems of Justice Catholic University Law Review Volume 58 Issue 2 Winter 2009 Article 5 2009 Pro Se Criminal Trials and the Merging of Inquisitorial and Adversarial Systems of Justice Sharon Finegan Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Sharon Finegan, Pro Se Criminal Trials and the Merging of Inquisitorial and Adversarial Systems of Justice, 58 Cath. U. L. Rev. 445 (2009). Available at: https://scholarship.law.edu/lawreview/vol58/iss2/5 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. PRO SE CRIMINAL TRIALS AND THE MERGING OF INQUISITORIAL AND ADVERSARIAL SYSTEMS OF JUSTICE Sharon Finegan+ The United States Supreme Court recently reaffirmed the constitutional basis for the highly criticized right of a criminal defendant to represent himself I The Court, however, has yet to address a critical gap in its self- representationjurisprudence. Although the Court has provided guidance on how to determine whether a defendant is capable of exercising the right to represent himself it has been silent on how a trial should be conducted when a defendant chooses to do so.2 The narrowfocus on competency is misplaced. Indeed, in focusing only on competence, the Court seems to assume that trials with pro se defendants will be conducted in the same manner as trials where defendants are represented by counsel. This assumption, however, is not always correct. Pro se criminal trials have evolved into a distinct type of trial with distinct procedures to ensure the fairness of the proceedings. Interestingly, in some pro se criminal proceedings, courts have adopted characteristicsresembling those utilized in inquisitorial systems of justice that feature prominently in internationallaw. Thus, in order to ensure the fairness and accuracy of the verdict in pro se criminal cases, courts have taken a more active role in the + Assistant Professor of Law, South Texas College of Law. I wish to thank Ronald Wright, who provided helpful guidance on an early draft of this Article. I also wish to thank John Blevins, Maxine Goodman, Adam Gershowitz, Kim Chanbonpin, and Mark Niles for their comments and support. Finally, I wish to thank the organizers of and participants in the SEALS New Scholars Workshop, where this Article was presented in July 2008. 1. Indiana v. Edwards, 128 S. Ct. 2379, 2388 (2008). For criticism of the right to self- representation, see, for example, United States v. Egwaoje, 335 F.3d 579 (7th Cir. 2003), petition for cert.filed, 2003 WL 22697568 (U.S. Nov. 6, 2003) (No. 03-691) (seeking reversal of Faretta v. California, 422 U.S. 806 (1975)), cert. denied, 541 U.S. 958 (2004); United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhardt, J., concurring specially); Robert E. Toone, The Incoherence of Defendant Autonomy, 83 N.C. L. REV. 621, 628 (2005). Many have urged the Supreme Court to recognize the fundamental practical problems presented by this right and overrule Faretta v. California. John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 SETON HALL CONST. L.J. 483, 498 (1996). Throughout this Article, I refer to a defendant's right to represent "himself." This language is not intended to identify only male defendants, but reflects a desire for consistency and the reality that the majority of criminal defendants are male. See HEATHER C. WEST & WILLIAM J. SABOL, U.S. DEP'T OF JUSTICE, BULLETIN: PRISONERS IN 2007 1 tbl. 1 (2008). 2. See Decker, supra note 1, at 488-89. Catholic University Law Review [Vol. 58:445 proceedings and have relaxed strict proceduralrules, mimicking procedures in civil law countries. This Article argues that this evolution of the pro se adversarialcriminal trial should be taken one step further. Specifically, procedures should be consistently adopted to encourage the use of these inquisitorialpractices to ensure the fairness of pro se criminal proceedings. As criminal law becomes increasingly internationalin nature, it is fitting that problems presented by pro se criminal defendants in an adversarial system may be best resolved by adoptingprocedures resembling those utilized in inquisitorialtrials. 1. THE RIGHT TO SELF-REPRESENTATION IN THE UNITED STATES ................. 448 A. History of the Right to Counsel in the United States ............................ 449 B. Evolution of the Right to Self-Representation in the United States .............................................................................................. 452 1I. DISTINCTIONS BETWEEN INQUISITORIAL AND ADVERSARIAL SYSTEMS OF CRIM INAL JUSTICE ..................................................................... 462 A. HistoricalEmergence of the InquisitorialSystem ................................ 463 B. Current Distinctions Between Inquisitorialand Adversarial System s of Justice....................................................................................... 464 1. The Judge's Control of the Proceedings .......................................... 466 2. Significance and Use of Evidentiary Rules ....................................... 467 3. The Role of the Defendant at Trial................................................... 468 4. The Defendant's Right to Represent Himself at Trial ...................... 469 III. PROBLEMS INHERENT IN A PRO SE CRIMINAL TRIAL AND THE MERGING OF INQUISITORIAL AND ADVERSARIAL SYSTEMS OF JUSTICE ........ 470 A. Control of the Proceedings................................................................... 472 B. Significance and Use of ProceduralRules ........................................... 478 C. The Defendant's Role at Trial.............................................................. 485 IV. ADDITIONAL INTERNATIONAL IMPLICATIONS OF THE RIGHT TO SELF-R EPRESENTATION .................................................................................. 488 V. ENSURING THE FAIRNESS OF TRIALS IN WHICH A DEFENDANT R EPRESENTS H IM SELF .................................................................................... 493 V I. C ON CLU SION ............................................................................................ 498 Under the Sixth Amendment of the United States Constitution, defendants have the right to be represented by counsel in criminal actions and will be appointed counsel in criminal felony prosecutions.3 The right to counsel comports with American concerns regarding procedural fairness in criminal trials and the expertise required to ensure that a criminal trial properly adheres to constitutional procedural requirements. However, in Farettav. California, the U.S. Supreme Court held that the Sixth Amendment to the Constitution also contains a corollary right: that of a criminal defendant to represent himself 3. U.S. CONST. amend. VI. 2009] Procedures to EnsureFairness in Pro Se Criminal Trials at trial.4 While the Supreme Court has noted that the right to self- representation is a qualified right, the elevation of this proposition to constitutional status represents a manifestation of the American ideal of autonomy-that a criminal5 defendant should be able to conduct his own defense in a court of law. In practice, the right of a criminal defendant to represent himself in court in many ways conflicts with the uniquely American focus on procedural fairness and, indeed, the adversarial process generally. Although the right to self- representation is not a right universally guaranteed in countries outside of the United States, in practice 6the right is tied in various ways to international norms and global concerns. While the right to self-representation is a unique characteristic of the adversarial system, the ability of a defendant to represent himself has created numerous problems relating to the fundamental fairness of adversarial trials. Thus, it is fitting that, in addressing these problems, some courts have adopted procedures and practices that are not typical of an adversarial system.7 In order to ensure the fairness of the trial and the accuracy of the verdict, some courts have asserted greater control over the proceedings and relaxed strict procedural and evidentiary requirements. 8 In this way, pro se criminal trials in the United States can begin to look more like inquisitorial proceedings. As criminal law becomes increasingly internationalized, with criminal tribunals created to address criminal activity on an international scale and 4. Faretta v. California, 422 U.S. 806, 807 (1975). 5. The United States is one of many countries in the world that has laws or a constitution allowing for self-representation. In other countries, however, the right to represent oneself "complements the right to counsel and is not meant as a substitute thereof. This right assures the accused of the right to participate in his or her defense, including directing the defense, rejecting appointed counsel, and conducting his or her own defense under certain circumstances." M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifjying International ProceduralProtections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT'L L. 235, 283 (1993). Bassiouni further notes that [t]he right to self-representation is guaranteed by the ICCPR, the Fundamental Freedoms, the AMCHR, and possibly
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