Pro Se Criminal Trials and the Merging of Inquisitorial and Adversarial Systems of Justice
56 Pages Posted: 23 Apr 2011
Date Written: April 21, 2009
The United States Supreme Court has recently reaffirmed the constitutional basis for the highly criticized right of a criminal defendant to represent himself. The Court, however, has yet to address a critical gap in its self-representation jurisprudence. While the Court has provided guidance on how to determine whether a defendant is capable of exercising the right to represent himself, it has been silent on how a trial should be conducted when a defendant chooses to do so. The narrow focus on competency is misplaced. Indeed, in focusing only on competence, the Court seems to assume that trials with pro se defendants will be conducted in the same manner as trials where defendants are represented by counsel. This assumption, however, is not always correct.
Pro se criminal trials have evolved into a distinct type of trial with distinct procedures to ensure the fairness of the proceedings. Interestingly, in some pro se criminal proceedings, courts have adopted characteristics resembling those utilized in inquisitorial systems of justice that feature prominently in international law. Thus, in order to ensure the fairness and accuracy of the verdict in pro se criminal cases, courts have taken a more active role in the proceedings and have relaxed strict procedural rules, mimicking procedures utilized in civil law countries. This article argues that this evolution of the pro se adversarial criminal trial should be taken one step further. Specifically, procedures should be consistently adopted that encourage the use of these inquisitorial practices to ensure the fairness of pro se criminal proceedings. As criminal law becomes increasingly international in nature, it is fitting that problems presented by pro se criminal defendants in an adversarial system may be best resolved by adopting procedures resembling those utilized in inquisitorial trials.
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