Self-Representation Right Considered by SCOTUS, with Help of Empirical Study

In a concurring opinion in a case about the right of criminal defendants to represent themselves on appeal, [Justice] Breyer noted the lack of data on the subject of pro se defendants.

The court had declared 25 years before, in Faretta v. California, 422 U.S. 806 (1975), that defendants had a right to represent themselves at trial. But Breyer noted in his concurrence in Martinez v. Court of Appeals, 528 U.S. 152 (2000), that some judges "closer to the firing line" had expressed some dismay about the practical consequences of allowing defendants to act as their own lawyers.

But Breyer added that the court wasn't in a position to reconsider its opinion -- yet. "I have found no empirical research ... that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution's basic guarantee of fairness."

Professor Answers Justice Breyer's Wish for Study on Pro Se, Fulton County Daily Report, April 7, 2008, law.com.

Now the Court is considering the issue again and has the benefit of Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. Car. L. Rev. 423 (2007), available at http://ssrn.com/abstract=901610. In the samples she studied, defendants who represented themselves were acquitted about as often as those represented by attorneys. (See my earlier post.)

This Term's case is Indiana v. Edwards, No. 07-208, argued March 26. The question presented is

May a criminal defendant who, despite being legally competent, is schizophrenic, delusional, and mentally decompensatory int he course of a simple conversation, be denied the right to represent himself at trial when the trial court reasonably concludes that permitting self-representation would deny the defendant a fair trial?