Difficult people

Is the right to conduct one’s own defence without representation by counsel essential to the fairness of a trial?

No: the fairness of a trial may be undermined if self-representation gives rise to loss of dignity and improper conviction. This risk arose as a result of the defendant’s uncertain mental state in Indiana v Edwards [2008] USSC No 7-208 (19 June 2008):

“… a right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel … To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial. As Justice Brennan put it, “[t]he Constitution would protect none of us if it
prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.” Allen, 397 U. S., at 350 (concurring opinion). See Martinez, 528 U. S., at 162 (“Even at the trial level . . . the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer”). See also Sell v. United States, 539 U. S. 166, 180 (2003) (“[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one”).

“Further, proceedings must not only be fair, they must “appear fair to all who observe them.” Wheat v. United States, 486 U. S. 153, 160 (1988).”

In Edwards the trial judge, who had also presided over preliminary hearings, had found that the defendant was competent to stand trial but was not competent to defend himself. Counsel was appointed to act for him, and he appealed his conviction, arguing that he had the constitutional right to represent himself. The Supreme Court held that trial judges have the authority to deal appropriately with cases where mental competence and fairness are in issue, and that the Constitution does not prevent a state insisting that a defendant who can’t represent himself has counsel appointed.

The considerations relevant to the issues of fairness that may arise when a defendant seeks to represent himself were addressed by Lord Bingham (as CJ) in Milton Brown [1998] 2 Cr App R 364, at pp 369-372:

“The trial judge is … obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they say they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned.

“Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant’s evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant’s observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge’s instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonable apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.

“The exercise of these powers will always call for the exercise of a very careful judgment, since the judge must not only ensure that the defendant has a fair trial but also (which is not necessarily the same thing) that the jury feel he has had a fair trial.”

This was quoted by the New Zealand Court of Appeal in R v Cumming [2006] 2 NZLR 597, (2005) 22 CRNZ 171, which set out the following considerations:

“[50] Where, as happened in this case, an accused person with mental difficulties, who is assessed as fit to stand trial, wishes to dispense with counsel’s services and to represent himself, the questions which arise concerning compliance with the accused’s rights under ss 24 and 25 of the Bill of Rights and must be addressed in a different mental context. The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must be addressed on the basis of the accused’s capacity to do that adequately in person, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the Court. This test, however, must be applied in a reasonable and common sense way. The corollary of a finding that an accused person is fit to plead but unfit due to psychological condition or any other reason to exercise the right to represent himself or herself personally at the trial, is that the statutory right to self-representation must be denied because the fundamental right to a fair trial will not be upheld if the accused is permitted to proceed to trial without counsel. In overseas jurisdictions this has resulted in the imposition on a defendant of counsel to conduct the defence. Before reaching that extreme position the trial Court must look at available means of accommodating all rights. One way of doing so may be to follow the course of appointing as an amicus a counsel whose role is to be available at the trial to assist the accused. The effect of the appointment of [counsel] to such a role in this case is an important consideration in determining whether the appellant was tried without unfairness or injustice in this case.

“[51] The decision of an accused to conduct the defence personally can often have repercussions for the course of the trial. Situations can arise in which the trial Judge may be required to intervene in the trial to avoid its disruption and ensure overall fairness to each side. It may also be necessary to act in unorthodox ways to accommodate the legitimate interests of others participating in the trial process as well as those of the accused. In appropriate cases the interests of witnesses, including complainants, may be accommodated by departure from standard criminal procedures in a manner that is consistent with the right to a fair trial: Brown v Stott [2003] 1 AC 681; [2001] 2 WLR 817 (PC), p 708; pp 839-840 per Lord Steyn.”

The Court of Appeal’s perception that the trial had been conducted fairly in Cumming was not upheld in the Supreme Court (see blog 16 May 2008), because the Court of Appeal had been unaware – as had the trial Judge – that the defendant should not have been diagnosed as fit to stand trial. The diagnosis had been made under a now-repealed law which had used the rather difficult concept of being “under disability” which required a (defined) “mental disorder”; now the new concept is that of being “unfit to stand trial” which requires an (undefined) mental impairment. The absence of a definition of this central concept is designed, apparently, to increase the occasions on which a difficult defendant is not put through the trial process. Being unfit to stand trial (s 4 Criminal Procedure (Mentally Impaired Persons) Act 2003) “means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so …”.

I suppose it would be tempting to attribute difficult behaviour to mental impairment. Defendants who would pursue that as an avenue for avoiding criminal justice procedures will need to check the consequences of being found unfit to stand trial.

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