SERIES 100 PRETRIAL INSTRUCTIONS
F 107 PRO PER DEFENDANT
TABLE OF CONTENTS
F 107 Inst 1 (a-c) Self-Representation Instructions
F 107 NOTES
F 107 Note 1 Self-Representation: Waiver Must Be Obtained At Time Defendant Is Bound Over For Trial In Superior Court
F 107 Note 2 Self-Representation: Right To Advisory Counsel In Non-Capital Cases
F 107 Note 3 Self-Representation On Appeal: Denial Of Access To Law Library Not Sufficient Basis For Denial
F 107 Note 4 Self-Representation: Advising Accused As To Privilege Against Self-Incrimination
F 107 Note 5 Self-Representation: Failure To Allow Defendant To Proceed Pro Per As Reversible Error
F 107 Note 6 Self-Representation: Mental Competency Of Defendant
F 107 Note 7 Self-Representation: Waiver Must Be Knowing And Voluntary
F 107 Note 8 Self-Representation: Applicability To Penalty Phase Of Death Penalty Trial
F 107 Note 9 Self-Representation: Termination Or Revocation For Out-Of-Court Conduct
F 107 Note 10 Courtroom Security: Self-Representation—Exclusion Of Pro Se Defendant From Sidebar Conferences
F 107 Note 11 Forfeiture Of Right To Counsel By Misconduct: Due Process Requires Warning
F 107 Note 12 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Sentencing
F 107 Note 13 Self-Representation On Appeal
F 107 Note 14 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial
Return to Series 100 Table of Contents.
F 107 Inst 1 (a-c) Self-Representation Instructions
ALERT: CALCRIM HISTORY – As previously recommended by FORECITE, the CALCRIM Committee added a specific instruction on self-representation in its August 2009 revisions.
Alternative a [Self-Representation From Outset]:
Even though _________ <name of defendant> was at first represented by a lawyer he has decided to continue this trial representing himself and not use the services of a lawyer. He has a perfect right to do that. His decision has no bearing on whether he is guilty or not guilty, and it should have no effect on your consideration of the case.
[Source: Federal Judicial Center, Pattern Criminal Jury Instructions Inst. No. 6 [Discharge Of Defense Counsel During Trial] (1988).]
Alternative b [Self-Representation After Discharge Of Defense Counsel]:
Even though the defendant _________ <name of defendant> was at first represented by a lawyer, [he] [she] has decided to continue the trial representing [himself] [herself] and not to use the services of a lawyer. [He] [She] has a right to do that. [His] [Her] decision has no bearing on whether [he] [she] is guilty or not guilty, and it must have no effect on your consideration of the case.
[Source: 8th Circuit Model Jury Instructions—Criminal 2.22 [Discharge Of Defense Counsel During Trial] 2000).]
Alternative c:
A defendant in a criminal trial has a constitutional right to represent [himself] [herself]. You must not draw any inference from the fact that a defendant represented [himself] [herself] during any part of the trial. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
Points and Authorities
If the jury does not understand that the defendant properly and legally decided to represent himself, there may be a danger that the jury will speculate that the defendant was not given an attorney due to the defendant’s misconduct. Upon request, the defendant is entitled to have the jury instructed to draw no inference adverse to the defendant from the defendant’s exercise of the right of self-representation . (People v. Crandell (1988) 46 C3d 833, 876-77; see also Faretta v. California (1975) 422 US 806 [95 SCt 2525; 45 LEd2d 562].)
Identification Of Parties – See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.7 [Self-representation ]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
USE NOTES: Obviously a request for instruction on this matter will usually have to be made personally by the defendant since he/she will not be represented by counsel. However, in cases where counsel is discharged, there may be an opportunity for counsel to suggest to the defendant and/or court that instruction on this matter be considered.
This instruction may be appropriate when the defendant is acting as co-counsel as well as when the defendant is acting alone. However, when the defendant is acting alone, it may be appropriate for the judge to inquire as to whether the defendant wishes to request this instruction. This instruction must be requested because any advantage to the defendant in giving such an instruction is “debatable” because it may have the effect of highlighting the very fact that it is intended to minimize. (Crandell, 46 C3d at 877.)
APPELLATE PRACTICE NOTE: The United States Supreme Court has held that a defendant does not have the right under the federal constitution to self-representation on direct appeal from a judgment of conviction. (Martinez v. Court of Appeal of California (1999) 526 US 1064 [119 SCt 1453; 143 LEd2d 540 (Mem)].)
F 107 Note 1 Self-Representation: Waiver Must Be Obtained At Time Defendant Is Bound Over For Trial In Superior Court
(See People v. Crayton (2000) 28 C4th 346, 350 [failure to obtain timely waiver of right to counsel is subject to harmless error review]; see also U.S. v. Hayes (9th Cir. 2000) 231 F3d 1132, 1137-40 [when defendant waives his right to counsel, court is not required to impart technical legal knowledge, but must advise of inherent pitfalls of self-representation]; but see People v. Sohrab (1997) 59 CA4th 89, 99 [error is reversible per se].)
CALJIC NOTE: See FORECITE F 2.60 n8.
F 107 Note 2 Self-Representation: Right To Advisory Counsel In Non-Capital Cases
A trial court is not required to appoint advisory counsel to assist a non-capital defendant who is self-representing, even when that defendant is non-English speaking and/or unsophisticated and the charge is murder. (People v. Garcia (2000) 78 CA4th 1422, 1428 [declining to extend People v. Bigelow (1984) 37 C3d 731 to non-capital cases].)
CALJIC NOTE: See FORECITE F 2.60 n10.
F 107 Note 3 Self-Representation On Appeal: Denial Of Access To Law Library Not Sufficient Basis For Denial
“An incarcerated criminal defendant who chooses to represent himself has a constitutional right to access to ‘law books … or other tools’ to assist him in preparing a defense. [Citation.] If the state had unconstitutionally denied [the defendant] such access, that denial would have been an independent basis for relief… So long as the state did not restrict or deny access unconstitutionally, it would have been up to [the defendant] to decide whether, under the circumstances, he wished to represent himself.” (Bribiesca v. Galaza (9th Cir. 2000) 215 F3d 1015, 1020.)
CALJIC NOTE: See FORECITE F 2.60 n11.
F 107 Note 4 Self-Representation: Advising Accused As To Privilege Against Self-Incrimination
The Killpatrick–Kramer rule, which directs a trial court to warn a pro per defendant of the privilege against self-incrimination before he or she takes the witness stand, was disapproved in People v. Barnum (2003) 29 C4th 1210, 1214.) Under Barnum, the judge may, but is not required, to separately warn pro per defendants of their Fifth Amendment privilege not to testify even if they are called to testify by the prosecutor.
CALJIC NOTE: See FORECITE F 2.60 n12.
F 107 Note 5 Self-Representation: Failure To Allow Defendant To Proceed Pro Per As Reversible Error
(See People v. Carlisle (2001) 86 CA4th 1382 [when defendant unequivocally requests to represent himself, court’s failure to allow him to proceed pro per is reversible error]; see also People v. Dent (2003) 30 C4th 213 [trial court erroneously denied self-representation request made by defendant in death penalty case]; People v. Williams DEPUBLISHED (2001) 92 CA4th 239.)
(See also FORECITE F 100.3 Note 8.)
CALJIC NOTE: See FORECITE F 2.60 n13.
F 107 Note 6 Self-Representation: Mental Competency Of Defendant
A defendant who is not familiar with the law and legal procedures, but is mentally competent and is fully informed of the right to counsel, has right to self-representation. (People v. Silfa (2001) 88 CA4th 1311; see also Godinez v. Moran (1993) 509 US 389 [125 LEd2d 321; 113 SCt 2680] [test for competency to self-represent is same as competency to stand trial].)
To be competent to represent himself, a defendant must simply have a “rational understanding” of the proceedings. (See Godinez v. Moran (1993) 509 US 389, 397-98 [125 LEd2d 321; 113 SCt 2680].) Hence, it is error to find that a defendant is not competent to represent himself or herself simply because he or she will be unable to present his or her defense in an informed, reasonable, or intelligent manner. (Van Lynn v. Farmon (9th Cir. 2003) 347 F3d 735.)
CALJIC NOTE: See FORECITE F 2.60 n14.
F 107 Note 7 Self-Representation: Waiver Must Be Knowing And Voluntary
See People v. Lawley (2002) 27 C4th 102, 139 [115 CR2d 614] [as well as determining that a defendant who seeks to waive counsel is competent, the trial court, by making the defendant aware of the risks of self-representation, must satisfy itself that the waiver is knowing and voluntary]; see also Godinez v. Moran (1993) 509 US 389, 400 [125 LEd2d 321; 113 SCt 2680]; People v. Bloom (1989) 48 C3d 1194, 1224; but see Iowa v. Tovar (2004) 541 US 77 [124 SCt 1379; 158 LEd2d 209] [trial courts are not required to advise defendants representing themselves that waiving counsel entails a risk that a defense will be overlooked, or that they lose an independent opinion whether it is wise to plead guilty].
CALJIC NOTE: See FORECITE F 2.60 n15.
F 107 Note 8 Self-Representation: Applicability To Penalty Phase Of Death Penalty Trial
“[T]he state’s interest in insuring a reliable penalty determination may not be urged as a basis for denying a capital defendant his fundamental right to control his defense by representing himself at all stages of the trial.” [Citations and internal quotation marks omitted.] (People v. Koontz (2002) 27 C4th 1041, 1074; see also People v. Boyette (2002) 29 C4th 381.) Other jurisdictions considering the question have answered it similarly. (E.g., U.S. v. Davis (5th Cir. 2002) 285 F3d 378, 384 [defendant’s Farretta rights under the 6th Amendment trump any inherent judicial powers and cannot be impinged because society or a judge “may have a difference of opinion with the accused as to what type of evidence, if any, should be presented in a penalty trial” ]; People v. Coleman (IL 1995) 660 NE2d 919, 937-38; Bridges v. State (NV 2000) 6 P3d 1000, 1012; State v. Reed (SC 1998) 503 SE2d 747, 750.)
CALJIC NOTE: See FORECITE F 2.60 n16.
F 107 Note 9 Self-Representation: Termination Or Revocation For Out-Of-Court Conduct
ALERT: People v. Carson (2005) 35 C4th 1 held that the defendant’s out-of-court conduct provides good cause for termination of a self-representation order.
There is a dearth of law in the area of terminating a defendant’s right of self-representation for out-of-court conduct. Most of the law dealing with limitations on the right to self-representation has dealt with the initial granting of or denial of the right (see e.g., People v. Rudd (1998) 63 CA4th 620 and the cases discussed therein) or the termination of the right to self-representation because of conduct in the courtroom that was either disruptive (Vanisi v. State (Nev. Sup. Ct. 2001) 22 P3d 1164, 1171 [defendant interrupted others, repeated himself over and over and stood up and rocked back and forth and at times talked out loud to himself so that it was impossible to know if he was addressing the court or talking to himself]; United States v. Brown (7th Cir. 1986) 791 F2d 577 [defendant refused to proceed, was held in contempt and right to self-representation revoked]) or obstructive. (United States v. Brock (7th Cir. 1998) 159 F3d 1077 [defendant refused to proceed if he did not get his way]; State v. Whalen (1997) 192 Ariz. 103, 961 P2d 1051 [defendants refused to cross bar because court had a flag with gold fringe and crossing the bar would have been consenting to the court’s jurisdiction; additionally defendants insisted they had the right to leave the courtroom whenever they chose].)
In the federal courts there are few cases dealing with the termination of the defendant’s right of self-representation because of out-of-court activities. In United States v. Flewitt (9th Cir. 1989) 874 F2d 669, the trial court summarily terminated the defendants’ self-representation because, in the court’s opinion, the defendants would not prepare for trial and this was an indication they were incapable of representing themselves. In reversing the conviction the appellate court stated, “…[A] defendant’s Sixth Amendment right to self-representation—so vigorously upheld by the Supreme Court in Faretta—may [not] be extinguished, as it was in this case, due to the defendant’s lack of preparation prior to trial. [Faretta] expressly denies … that the right of self-representation is ‘a license not to comply with relevant rules of procedural and substantive law.’ (Faretta, 422 US at 834 fn. 46.) There is no indication that a failure to comply with such rules can result in a revocation of pro se status. Instead, [footnote 46] indicates the Court’s meaning to be that a defendant cannot claim ‘ineffective assistance of counsel’ flowing from his failure to follow the rules of procedure or from his misinterpretation of the substantive law. If he chooses to defend himself, he must be content with the quality of that defense.” (United States v. Flewitt, supra, at p. 674.)
In California, some cases have dealt with terminating a defendant’s right to self-representation for conduct which is “serious or obstructionist” as set forth in Faretta. (See e.g., People v. Clark (1992) 3 C4th 41, 115-116; People v. Davis (1987) 189 CA3d 1177, 1187.) However, the cases involving out-of-court conduct by the defendant have upheld the right to self-representation.
For example, in Ferrel v. Superior Court (1978) 20 C3d 888, the defendant was allowed to represent himself, but while the trial was pending, he abused several jail rules such as using his legal runner as a conduit to take defendant’s illegal gambling winnings out of the county jail and damaging a telephone. The trial judge rescinded the defendant’s right to self-representation, but the court of appeal reinstated it stating: “Since it is manifest that the right to present a defense must necessarily be exercised in court, we conclude that an accused should only be deprived of that right when he engages in disruptive in-court conduct which is inconsistent with its proper exercise.” (Ferrel, supra, 20 C3d at p. 891.)
In People v. Poplawski (1994) 25 CA4th 881, when the defendant, whose primary language was Polish, expressed dissatisfaction with appointed counsel, the court granted the defendant’s motion for self-representation. However, a second judge revoked the defendant’s right to self-representation and appointed counsel based upon: “(1) ‘the language problem it had experienced with defendant’; (2) defendant’s lack of familiarity with ‘legal language,’ as demonstrated by his ignorance of the meaning of the word ‘motion’; and (3) the court’s doubts as to whether defendant had a sufficient understanding of the proceedings.” (People v. Poplawski, supra, 25 CA4th at p. 891.) In reversing the convictions, the court of appeal stated that even if the factors were relevant, the record did not support judge’s findings.
CALJIC NOTE: See FORECITE F 2.60 n17.
F 107 Note 10 Courtroom Security: Self-Representation—Exclusion Of Pro Se Defendant From Sidebar Conferences
(See FORECITE F 1.04 n13.)
F 107 Note 11 Forfeiture Of Right To Counsel By Misconduct: Due Process Requires Warning
(See King v. Superior Court (2003) 107 CA4th 929 [Due process requires that the accused receive warning that continued misconduct may result in the termination of representation, unless the misconduct is of the most serious nature].)
CALJIC NOTE: See FORECITE F 2.60 n19.
F 107 Note 12 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Sentencing
(See Robinson v. Ignacio (9th Cir. 2004) 360 F3d 1044 [under clearly established federal law, state trial court’s denial of request for counsel at sentencing by defendant who had represented himself during trial violated Sixth Amendment].)
CALJIC NOTE: See FORECITE F 2.60 n20.
F 107 Note 13 Self-Representation On Appeal
“Neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self-representation on direct appeal from a criminal conviction.” (Martinez v. Court of Appeal (2000) 528 US 152 [145 LEd2d 597; 120 SCt 684].)
CALJIC NOTE: See FORECITE F 2.60 n5.
F 107 Note 14 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial
(See Bell v. Hill (9th Cir. 1999) 190 F3d 1089; see also Menefield v. Borg (9th Cir. 1989) 881 F2d 696, 701 [accused who represents himself at trial but asks for an attorney to represent him at a motion for a new trial is entitled to have one appointed].)
CALJIC NOTE: See FORECITE F 2.60 n6.