Has anybody ever tried a felony against a pro se defendant?
A defendant on a 2nd degree felony theft case fired their attorney. At docket call the judge went out of his way to specially set the case for the upcoming jury selection and instructed the defendant to be prepared to select a jury.
I'm a little leery of trying anything other than a traffic ticket against a pro se defendant. Has anybody had a similar experience before? Any suggestions or anything to be careful/concerned about?
I tried a misd. poaching case against a hog hunter once, who represented himself. He was acquitted, as I recall.
When I prosecuted in Zimbabwe, almost all of my defendants represented themselves, and most didn't even speak English. If they are innocent, most people don't need a lawyer.
In voir dire I'd tell the jury that the defendant has a right to be represented by a lawyer, and if he can't afford an attorney the court will appoint one to represent him, but a def. also has a right to represent himself. I'd ask the panel: who believes a def. who represents himself should be given more slack than otherwise; who would raise the bar for the state out of a sense of "fairness," etc.
During the trial I would avoid making objections to technical evidence rule violations--let him make his case. I would not, however, allow him to go off on some irrelevant tangent, which laymen are inclined to do. (Come to think of it, that's what defense attorneys are inclined to do as well.)
I have only tried 2 jury trial (both misdemeanors) with pro se defendants. I agree re: avoid technical objections, but would add that when making objections, I tried to use more "plain English" than I usually would (e.g. - instead of "under rule 404..." I'd just say that I objected and state that the evidence was not admissable). I generally used the approach that if an attorney would be able to get the evidence in properly, then I'd let a pro se defendant get it in even if the procedure was not perfect. I'd also sometimes follow an objection with "perhaps the question could be asked differently" to more or less suggest a remedy to the objection. Essentially, I focused on making it clear to the jury that I did not want to take advantage of the defendant's lack of skills or knowledge of the system, but wanted a fair outcome - even to the point of suggesting that an exhibit be admitted when the defendant failed to offer it after showing to me and the witness and (more or less) establishing a proper predicate.
Far more important to relate to the jury than in a typical trial. My 2 cents...
Fair share of trials against pro se defendants in Class Bs and As, but no felonies. I agree with the above advice of staying away from unnecessary objections. The less you come off like a lawyer using that knowledge against the defendant, the better for the jury.
Voir dire is key. I spend far more time talking about holding people accountable regardless of who is asking the questions of witnesses than I do actually talking about elements of offenses and like.
Lucky me--I've had the honor of conducting two felony trials against pro se defendants.
The first case--against a defendant that constantly referred to himself in the third person--contained charges of kidnapping and burglary of a habitation.
The second case--against a Republic of Texas person was a possession of cocaine case.
Both turned out badly for the respective defendant.
I think the keys are: (1) making sure that you have the court give exhaustive admonishments to the Defendant (both on the record and in writing) and have them signed in open court; (2) voir dire extensively about the rights given to individuals to make their own decisions-even when those decisions may not be in the best interest of the defendant; (3) voir dire about different areas of the law in which a non-lawyer may not be proficient or at a disadvantage; and (4) as stated previously--don't become overly technical on making sure the perfect predicate is laid for piece of evidence just because you can.
I would add that during voir dire: distinguish between voir dire, opening statements, questioning of witnesses, and closing arguments by the defendant AND testimony by the defendant.
First felony trial was against a pro se defendant. Make sure you have good Faretta warnings. Luke v. State, 2003 WL 21981940.
Good luck. It's a trip.
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