While the Bill of Rights protects many of the rights granted to us by the Creator…
There are many rights which are not mentioned, or protected directly by the Constitution.
Rights such as the right to be heard, and the right to travel, have long been recognized by courts in the US.
One of those often overlooked rights, is the right to represent oneself in court. Without a lawyer.
Today lets look at the history of how this right is recognized by US law. And what that may mean for you.
Why the Right to Self-representation Matters
Like all of our rights, the right to act as ourselves in the court room is constantly under fire. And the biggest reason our rights are in peril is that we don’t exercise them regularly.
Here’s the deal, there simply aren’t any lobbying groups looking out for the interest of individuals to represent themselves in court. As a result, we need to be aware of our rights and when necessary use them.
While hiring a legal professional can certainly help you in court, the bottom line is. Lawyers are expensive. And the court system is slow. Often the only way to bring an issue to trial without a 3rd mortgage is to represent yourself in court.
While it may not be your first option, when working with a public defender is the only thing you can afford. It may be best to do-it-yourself. Besides financial reasons, many decide to present themselves in court without counsel, because they have a religious or ideological defense. This is simply something most lawyers won’t or can’t perform.
The American History of Self-representation
American courts have secured the right to represent oneself in court since the beginning of the nation.
The Judiciary Act of 1789 and U.S.C.
The Judiciary Act of 1789 recognized the right to personally present oneself in court without a lawyer. In 1948, this right was reaffirmed under U.S.C. § 1654 which reads:
“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”
Common Law On Self-Representation
Countless court decisions reaffirm this right in the common law. Here are just a few.
US Supreme Court Cases reaffirming the right to self-representation:
- Osborn v. Bank of the United States (1824)
- Haines v. Kerner (1972)
- Faretta v. California (1975)
1. Osborn v. Bank of the United States (1824)
While the case itself is not directly related to the rights of an individual to represent themselves in court. The language in the opinion delivered by the Supreme Court on the case, shows that the right to appear in court as oneself was a well known right.
“Natural persons may appear in Court, either by themselves, or by their attorney. But no man has a right to appear as the attorney of another, without the authority of that other. In ordinary cases, the authority must be produced, because there is, in the nature of things, no prima facie evidence that one man is in fact the attorney of another.”
-Chief Justice Marshall, Osborn v. Bank of the United States
2. Haines v. Kerner (1972)
In 1972, Kerner, a prisoner who was suffering from a health condition due to being in solitary confinement. Sued the state of Illinois to change his cell arrangements. Stating that his rights to due process were violated, and that the state had violated the 8th his amendment right which protects him from cruel and unusual punishment.
The State moved to dismiss Kerner’s case, because they claimed Kerner had failed to state a cause of action. The judge dismissed the case without allowing Kerner to submit any evidence, and provide evidence. The Supreme Court ruled that Kerner indeed had a right to present his evidence before the case could be dismissed.
3. Faretta v. California (1975)
Faretta v. California is one of the most cited cases in regards to pro se litigation.
I’ll keep it short, the state of California forced Faretta to retain a public Defender. The case went before the Us Supreme Court decided that Faretta indeed has the right to defend himself. Without a lawyer.
In which Justice Stewart delivered his lengthy opinion on how deeply embedded the right to self-representation is. Stating that the right is implied by the 6th amendment to the Bill of Rights.
“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.”
Although not stated in the Amendment in so many words, the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”
-Mr. Justice Stewart, US Supreme Court Justice
The Rules of Judicial Conduct Recognize this Right
Further, the Rules of Judicial Conduct published by the American Bar Association reaffirm this right as well.
Rule 2.6 Enduring the Right to Be Heard, reminds judges to uphold the right to be heard. Either by oneself or with a lawyer.
“(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.*
(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.
ABA Model Code of Judicial Conduct Rule 2.6 “A judge shall accord [all]… the right to be heard…””
The Right of Self-Representation is Under Attack
The right to appear in one’s own defense is under a constant assault. Think about it, lawyers go to school for 8 years or more to join he Bar and serve as attorneys. So many of them have disdain for individuals, with no formal training, come into a courtroom and do the same job they do.
In fact, in 2017 Judge Richard Posner retired early from his judicial career. The reason? He though the court “wasn’t treating the pro se litigant fairly” and generally wanted nothing to do with pro se litigants. And many judges and even attorneys have recognized this same issue.
However, this isn’t really a new issue. The issue is perhaps as old as the courtroom itself. One of the most famous “pro se litigants” was Yeshua Hamashiach himself.
During his trial Yeshua spoke these words:
“Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.”
– Yeshua Hamashiach , Luke 11:52
Your Right to Defend Yourself
The right to defend oneself goes beyond the right of self-defense from physical harm. The right to defend yourself applies to all actions against you by sword, or by word.
Defending yourself by pen and paper in court is an age old right granted to us through natural law. While the right will not be going anywhere, the practice of that right and the acknowledgment of it existence are at stake.
Whether you plan to represent yourself in court or not, it is important that we work to preserve this right for others, and future generations. As unconventional as it may seem to some, sometimes the only way to secure our liberty is through unconventional means.
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Sources:
- The Growing Challenge of Pro Se Litigation by: Stephan Landsman
- Osborn v. Bank of the United States (1824)
- Haines v. Kerner (1972)
- Faretta v. California (1975)
- The Rules of Judicial Conduct by the ABA
- Empirical Patterns of Pro se Litigation in Federal District Courts by Mitchell Levy