Self-representation in the international arena: removing a false right of spectacle.

Author:Cerruti, Eugene
 
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  1. INTRODUCTION

    The practice of self-representation in criminal proceedings began not as a right but as a punitive requirement of the early common law jury trial system. For centuries counsel was not permitted to represent the accused precisely because it was anticipated that counsel would make it less likely that the accused would be convicted. The practice gained limited normative status on behalf of the accused largely as a result of facetious rationalization by the common law courts in defense of the practice. There have been only several historical moments in both England and America where the practice has been genuinely regarded as a positive feature, allowing for popular resistance to politically inspired prosecutions. The contemporary recognition of a right of self-representation therefore has very limited historical grounding, which is at best limited to the unique circumstances of the common law jury system. It enjoys virtually no recognition as a right within the criminal justice systems of civil law countries. (1) It has even less of a foundation, either normative or systemic, in the contemporary "mixed," or "hybrid," (2) systems of international criminal justice, which present to the accused neither a political sovereign to resist nor a fellow-citizen jury to appeal to. This article therefore argues for withdrawing any recognition of the right (as opposed to the mere privilege) within the realm of international criminal justice and, particularly, within the rules governing legal practice before the much-heralded International Criminal Court (ICC).

    The proponents of a sui generis international criminal procedural law have gradually come to recognize that the adversarial criminal procedure of the common law system does not travel well to the international arena. The structural and normative differences between the national and international systems are formidable. But the procedural template for war crimes prosecutions established at Nuremberg did at least recognize at the outset that one of the pillars of the common law system, the lay jury, was untenable in the international setting. (3) This article aims principally to demonstrate that the practice of self-representation, which has scant legitimacy even in the common law system, is absolutely incompatible with the structural and normative groundings of the emerging international criminal justice system.

    A certain unreconstructed mystique has shielded the right of self-representation over the years. The iconic image it presents is one of a simple citizen, typically a social outcast or a proud political dissident, pleading for simple justice before a jury of his peers. It is a portrait of direct democracy at work, a self-represented individual throwing off the formal trappings of the state and its lawyers to present an unmediated narrative in the courtroom. It heralds the simple force of truth against the overly rationalized power of the state, the freedom to say "no" to both the power and the process of the prosecution. It champions a nostalgic sense of the simple liberties due the common man even in an age of highly regulated complexity. Unfortunately, this mystique presents an iconography that is not well grounded in either an historical or a normative truth. It is, as we shall see, a false construct that reverses and subverts the reality of the almost entirely negative historical experience with the practice of self-representation in the adversarial setting of the common law jury trial.

    This article argues that the current practice of self-representation is not simply a quaint or benign anachronism of the common law jury trial system. Rather it is, within the context of any mature and professionalized criminal justice system, a deeply cynical and irresponsible condescension to the accused. The best that can be said of the practice is that at the lower borders of any criminal justice system--where the cases typically bear no significant consequence--permitting pro se representation may not produce a harmful consequence. (4) But there are no genuinely redeeming consequences to the practice. More commonly, as will be described below, the practice makes a broad and profoundly negative contribution to the cause of justice--particularly with regard to the accused himself. (5)

    In more serious cases civil law systems generally forbid self-representation. This is a non-controversial position that is premised on the fairness and reliability of the civil law system itself. This article does not advocate such a complete prohibition within the international criminal justice system where the primary template is the common law adversarial (but non-jury) trial system. Rather, I argue in favor of reducing the status of the practice from a right to a privilege. The most obvious analog for this restructuring is the practice of trial by jury in the American criminal system. The American defendant has a near-absolute right to be tried by jury but he has no right to be tried without a jury. (6) American trial judges have broad discretion to deny the defendant the privilege of being tried by the court itself. The bitter morass of self-representation would be largely resolved if the trial courts had the same discretionary authority to deny the defendant the privilege of being tried without counsel, and to permit it only when, and under what circumstances, it would be appropriate.

    Recent scholarship on the history of the common law jury system has indirectly contributed a great deal to our understanding of the actual role of self-representation during that history, revealing not only more of the actual practice of self-representation but also of its very purpose. (7) In the earliest stages of the common law trial system the accused was not permitted to present much in the way of an actual forensic defense to the charges. When the accused did finally gain permission to present such a defense he was not permitted to be represented by counsel, to call witnesses or even to testify under oath in his own behalf. He was permitted only to appear personally at trial and to provide direct responses to the evidence offered against him. "In short, the defendant's position was one of standing alone without counsel, books, the means of procuring evidence or the right to offer evidence which he did possess." (8) The purpose of self-representation was to promote self-incrimination. (9) Self-representation began, in other words, as the default position that resulted from the denial of any other rights of fair trial or representation.

    As the accused slowly accumulated greater trial rights, most critically the right to be represented by counsel, self-representation continued as the default position only because most defendants could not afford counsel and there was no effective right to assigned counsel. The slow demise of self-representation began among the privileged classes who were not only the first to be afforded the right to counsel but also the first to be able to afford counsel. (10) Progress towards a fair trial for the accused in the common law system has therefore been measured primarily in terms of the slow but steady movement away from self-representation and towards the provision of professional counsel. Recent scholarship has demonstrated that the normative gloss of the common law courts that had long supported the default status of self-representation is therefore best understood as a post hoc rationalization for a practice that was always recognized (quite openly in the earliest era (11)) as one that severely compromised the accused's ability to defend himself.

    Ironically, the rather unlikely recognition of this practice as a fundamental right that inured to the interests of the accused did not fully arrive until 1975 in Faretta v. California. (12) This was a full decade after the Warren Court had finally completed the long march of the Twentieth Century to securing for all defendants in all criminal cases a guaranteed Sixth Amendment right to be represented by counsel. Prior to Faretta, no case had ever held that the Sixth Amendment also provided a guaranteed right to serf-representation. The text of the amendment does not refer to such a right. There was also, as of 1975, no real call--either in the lower courts, the academic literature or the public narrative--to recognize such a right. The sudden recognition of a Sixth Amendment right to self-representation therefore was an ipse dixit creation of the Supreme Court.

    Yet there was, to be sure, a good deal of apparent support for the opinion in Faretta. Since no state had adopted a guaranteed right to counsel for all defendants, the widespread practice of self-representation by default had continued until well into the middle of the last century. Although a battle raged over extending the right to counsel, a "right" to self-representation remained a non-issue. Therefore, the colonial-era statutes and constitutional provisions that referred to a right to represent oneself in person remained essentially dormant. This silence could be construed to portray a long-term positive commitment to the practice of self-representation rather than an enduring negative commitment to deny guaranteed counsel. However well intentioned, Faretta largely misread the common law history it relied upon and constructed a false ideal for a practice that was utterly at odds with the new constitutionally driven system of defaults being developed for the American practice of criminal jury trial. The result of this self-generated conflict between a guaranteed right both to counsel and to self-representation has been recurrent spectacles of self-represented defendants in serious trials who are either mentally ill, sadistic opportunists, pathetic voyeurs, nihilistic martyrs or just plain fools. This development has created a dismal state of affairs throughout the criminal justice system that is almost exclusively supported and...

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