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Pro Se Paternalism: The Contractual, Practical, and Behavioral Cases for Automatic Reversal

Johnnie Cochran, Robert Shapiro, and F. Lee Bailey all became famous as criminal defense attorneys. Television dramas depicting the high-stakes world of criminal trials, focusing on charismatic lawyers winning difficult cases, continue to captivate audiences around the country. Outside of the bright lights of Hollywood, however, the protagonists of these courtroom dramas often play little role at trial. Instead, when faced with the complexities and uncertainty of criminal trials, an increasingly large number of defendants choose to forgo the assistance of a lawyer. While defendants’ reasons for representing themselves are as varied as the charges levied against them, doing so consistently creates headaches for all parties involved. And where a pro se defendant’s behavior at trial raises questions about his competence, these headaches can quickly become more serious.

This Comment examines the situation in which a pro se defendant’s behavior raises questions about his own competence during trial. Is this defendant, otherwise proceeding pro se, required to have the assistance of counsel at his own competency hearing? Every federal court of appeals to consider this question has answered in the affirmative and has held that failing to provide such assistance is constitutional error. However, the courts of appeals are split in deciding the proper remedy for this error. This Comment argues that by examining the different remedies courts have used from contractual, practical, and behavioral perspectives, granting an automatic reversal emerges as the best option available. When the lights go out and the television cameras are gone, a bit of pro se paternalism may preserve the liberty and save the lives of defendants facing trial on their own.

In Part I, this Comment explains the origin of the right to counsel under the Sixth Amendment. After tracing the right’s history and rationale, the concept of a “critical stage”—a stage of a criminal proceeding in which the guarantees of the Sixth Amendment are implicated—is examined more closely. In Part II, this Comment discusses whether a defendant’s competency hearing should be characterized as a “critical stage.” After explaining that every court of appeals to consider the question has answered it in the affirmative, the Comment turns to the issue of the appropriate remedy for the deprivation of counsel at a competency hearing. Part III examines the current circuit split over the proper remedy for a competency-stage deprivation and uses two courts of appeals cases to demonstrate the different remedy decisions courts have made. Part IV provides affirmative justifications for choosing automatic reversal to remedy competency-stage deprivations. Finally, Part V acknowledges and responds to potential criticisms of automatic reversals in the competency hearing context.