13 Reasons why representing yourself at trial is a terrible idea.

Unfortunately, and for many different reasons, it appears that unrepresented litigants are more common than ever in the Canadian criminal justice system.  From our firm’s perspective, we have noticed that a shockingly large amount of people are attempting to represent themselves on complicated matters with life-changing consequences.

We fully appreciate that a contributing factor to this is the drastic reduction of people eligible for Legal Aid.  Combine that with difficult economic times, it can be very difficult for people to hire lawyers.  However, there still appears to be a far too casual approach of many people who feel lawyers are a waste of money or unnecessary.  In short, such an assumption could not be further from the truth.  In reality, lawyers are often not as expensive as people think, and they are essential in ensuring that an accused person is not taken advantage of.

Yet lawyers are far too diplomatic in explaining to people the downfalls of representing oneself.  In providing honest, ethical advice we need to inform people that they have a right to represent themselves.  This is often understood to mean that they can (competently or effectively) represent themselves.   What lawyers really want to say is the same response a doctor might respond to someone who thinks they can remove their own appendix: “What!? …”

So, this is our firm’s “What!?” article.  Without being diplomatic, and not pulling  punches on why it is a categorically ridiculous idea to represent yourself, here are 13 things to think about before you go about potentially ruining or worsening your life unnecessarily:

1. If you’re not a criminal defence lawyer, you have no idea what you are doing.  No really, no idea.

Just because you are a smart person, or good at research, does not means you are good at making proper legal decisions in dynamic, nuanced, and complicated matters.  Ironically, the smarter people are, the less this needs to be explained.

Rather, it is the in-between clients who come to you with a plethora of irrelevant, dated, and voluminous case law printed off the internet.  This homemade pseudo-legal brief that resembles a Wikipedia print out of the search phrase string of “innocent wrongly charged Canadian rights Charter police” is then plopped on to our desk as if they have uncovered the categorical avenue to an immediate acquittal.  Some even expect the charges to be withdrawn and apology from the Crown.  Then the inevitable question: “Is this a defence you have considered?”

The diplomatic response to is “We will review what you provided.” but the real response every criminal lawyer wishes to is  in my head is “No.  Just as we have not considered releasing puppy dogs in the Courtroom as a defence: it is nonsensical approach that bears no consideration.”

I appreciate that this may seem arrogant, condescending, and rude; however, this is the point of this article.  There is no room for politeness in criminal law.  Sometimes the truth sounds arrogant, but it doesn’t mean it isn’t the truth.  This is not a research assignment.  This is real life where mistakes can put you in jail.  To the self-represented accused: you can be sure that when a judge is telling you that your hundreds of hours of research is wrong or irrelevant, they will not have the time or inclination to ensure your feelings are preserved and your hard work is not wasted.  Irrelevant arguments and issues are simply dismissed, and the trial will continue.  If that research and position is what you relied upon to be acquitted, then let’s hope your sentencing research is a little bit better.

Experienced criminal lawyers not only understand your legal predicament, but also understand how it does, or does not, fit as a proper defence in law.  Assuming you are sharp enough to be admitted, law school is 3 years in Canada.  Articling where you train intensely under the direct supervision of a senior lawyer is another year.  And this simply qualifies you to practice law.  Beyond that, it takes an immense amount of time and dedication to become competent as a criminal lawyer, and longer still if that lawyer is a specialist in the area of practice.  To become a Certified Specialist in a particular area of law in Ontario by the Law Society, it requires at least another 7 years of practice with extensive and rigours standards that you can read more about here.  I would suspect other jurisdictions in the US, Canada and the UK are very similar.

To think that you could just have the same understanding and appreciation of the effects upon your life and your case by Googling “what is a conditional discharge” or “defending a domestic assault case” is ridiculous.  Which is another way of saying, regardless of what televisions shows you have watched or what you have looked up on the internet, the fact remains: you have no idea what you are doing.  It’s as simple as that and there is no polite way of putting it.

Comparatively, an experienced criminal lawyer goes to Court day in and and day out, understands what legal issues are successful and what are not, knows what may be believed and what will not, and can advise you accordingly.  For a good criminal lawyer, it is an intense lifelong commitment that cannot remotely be replicated.  Without this professional guidance, you will be lost in a system unsympathetic to error or incompetence – unrepresented or not.  Which brings me to my next point.

 2. No one is “on your side” in the Justice system, except your lawyer.

There is a saying that the Justice System is like a three-legged stool.  Those legs are the Crown, the defence, and the Judge.  When all legs are strong, the system works well.  One one leg is weak, it topples (in the direction of the weak leg).

The defence argues fearlessly, assertively, and passionately as the law will allow.  The Prosecutor does the same thing in furtherance of proving guilt.  The judge (or jury) listens; unbiased and contemplative of all arguments and evidence presented.  From this legal trifecta a binary result is delivered: guilty, or not guilty.

When one leg is not as strong as the other, the system does not work as it should.  No participant can, or should, feel sympathetic for the other side.  It is an adversarial process.  By definition, if the Crown or Judge were to offer sympathy, or take sides, the system’s fundamental premise is not respected.  When a person appears unrepresented, they are expected in law to provide the same level of competence and skill as if the person was retained by counsel.  It’s like this:

Imagine your first day at work.  Now imagine you have no proper training for the job assigned.  Now imagine one very skilled co-worker is attempting to convince the boss that you should be fired.  Now imagine the boss expecting an equally powerful explanation why you should not.  This would be something like running a trial on your own.  Oh, I forgot, imagine all the customers/clients are complaining about you (the evidence) – there, something like that should give you a sense.

The Court is obligated to ensure you receive a “fair” trial.  Nothing more, nothing less.  Fairness does not mean that the Court must believe what you say, be persuaded by your arguments, accept your witnesses’ evidence, or even tolerate unnecessary wastefulness of Court time (see 1 above).   Fairness is simply offering you the ability to present a defence and considering it if it is relevant.  The Court may offer some very limited guidance on procedure and explain to you why certain things you attempted to present in your case are not admissible.  Beyond that, there is little they can assist with.  The Court is obligated to remain impartial and not offering any favours to one side or the other – whether you are represented by counsel or not does not change this fact.

The Prosecutor (or “Crown Attorney” in Canada) is obligated to present their position in a dispassionate, assertive, and skillful manner.  As noted, this is exactly how our justice system works.  It is adversarial in nature.  This does not mean the Crown will be aggressive, or mean – but in my view that worsens an unrepresented accusers’ predicament.  There are few things more persuasive than a skillful person offering a dispassionate, well reasoned, and civilized argument.  Similar to a surgeon making a skillful cut, an unrepresented accused will be dispassionately and effectively excised like an unhealthy organ.  The prosecutor will present every valid reason why the evidence should be accepted in favour of their side, and rejected on the other.  You have the opportunity to do the same.  In the end, one pizza will look better than the other: my money is on the person who makes pizza as a profession.

3. Google Will Not Make You a Lawyer.

Let me save you the time:  YouTube and Google can’t save you: 

The internet is wonderful for all sorts of things.  You can discover virtually any fact, know what any celebrity eats for breakfast in the morning, or instantly find a celebrity’s mugshot.  You may even discover how to properly brush your teeth.  However, the internet will not teach you how to (competently) drive a car, play soccer, or play golf.  Some things just need to be done, over and over and over again until you are good at it.

When a defence lawyer spends 10 hours preparing your case, that is 10 hours worth of things that you cannot do for yourself: anything you find online is background knowledge that takes your lawyer 1 second to remember. The work done is all above and beyond basic knowledge of the law.

Regardless of how many YouTube videos you watched on “how to skydive”, would you ever just pack your own chute and jump out of plane with no further guidance?  It’s the same thing with criminal law.  Not only can the effective skills of a lawyer not be obtained from the internet, criminal law is a dynamic and unpredictable process where you need to be able to react to situations that you did not research.

If a judge asked you whether or not you “complied with the filing requirements of section 276 of the Criminal Code” and you don’t know what that means, you are in big trouble and you may have just lost your case.  Some judges would grant you an adjournment to fix it; some won’t.  Sometimes the chute opens; sometimes it doesn’t.

Immediately accessing information is not the same as having the ability to apply knowledge and judgment.  The internet provides the latter; a criminal defence lawyer provides both.  However, if you think that the specific answers to your specific legal problems are on the internet, perhaps start by Googling “how do I appeal my conviction”.  This would be more apropos for things likely to come.

4. You have no true appreciation of the lifelong consequences of a conviction.

I can’t tell you how many times people have come to me after a conviction and said “If I had known X, I never would have plead guilty.”  The consequences of being involved in the criminal justice system extend far beyond the specific sanctions that may be offered to you as a resolution by the prosecutor.  Without being an experienced criminal defence lawyer, it is almost impossible to fully appreciate how far-reaching they are.  Here are some examples that may not be immediately apparent:

• Provincial and Federal Sex Offender Databases;
• Extensive reporting conditions on probation, drug testing, counselling, additional expenses associated with same;
• Driving prohibitions;
• Massive insurance rate increases or complete ineligibility to be insured;
• Property seizure;
• Weapons prohibitions;
• Mandatory victim fine surcharges;
• Terms of probation that may interfere with employment,
• Criminal record checks that reveal convictions or even details of the allegations.
• Immigration consequences;
• Children’s Aid or family law consequences.
• Etc.

I could go on, but I hope you get the point.  Having a quick screening of a file marked as “conditional discharge and 12 months probation” probably does not mean what you think it does unless you have a thorough understanding of how all of the above-mentioned factors may apply.

No one can advise you of that responsibly other than an experienced lawyer who has taken the time to go through these various issues and get a complete understanding of your lifestyle and how it may affect it.  Better still, the lawyer may simply tell you that there is no sense pleading guilty because you have a strong case and should be acquitted.  In short, the momentum of a criminal proceeding extends far beyond what happens in Court.

5. People think you are guilty:

The Charter of Rights and Freedom under Section 11(d) provides: 11. Any person charged with an offence has the right …(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.  Conversely, the Toronto Sun, provides “Keep Jail Doors Shut”.

Despite what the law may provide, if you think that society presumes you as innocent, you are sadly mistaken.  As one lawyer put it: forget it.

All too often potential clients come in and believe that because they are of good character or some friends or family will stand up for them and attest to their good character, that should end the charge.  This is very far from the truth. The presumption of innocence is a legal principle that applies in Court; it is not a perspective of every day life.  In my experience, it is the exact opposite. People presume that police charge the right people for the right things, therefore, you are guilty.

Many people like to believe that they are the exception to the system, that they are not “a criminal” and compare this to some standard of outlaw or gangster whom are very far and few between.  The vast majority of people who come before the Courts are not career criminals by any stretch.  Most are charged with domestic violence, impaired driving, theft, and smaller offences – many for the first time.  Don’t think that your exceptional (i.e., normal) character is going to change anything.  You are “presumed innocent” like the rest of them.  In general society, this means “you did it.” It’s up to you if you want to convince yourself you are the “exception” and not the rule and therefore do not need a lawyer.  Ironically, without a lawyer, you are much more likely to become a “criminal” by definition.

6. The truth will not save you, or set you free.

Understand that a criminal trial is an exercise in evidence, not truth.  Although the ultimate goal of the Court is to find truth, there is obviously dispute over where the “truth” may lie.  Do not for a moment think that once you tell your side of the story, the judge is obligated to accept it.

If that were true, I would end this article now and further my career in photography.  If the judge were required to accept what you say “I didn’t hit him” or “It was consensual” or “It was self defence” then we would never have trials.  We could all simply file affidavits and go on our way.

In most criminal trials, there are only one or two people who know the “truth” and in all instances, it is in dispute.  The Court must look to the admissible evidence and try to figure out what did or didn’t happen.  Evidence are pieces to the puzzle, and often times the evidence can suggest conclusions that did not actually happen.

For example, people have fallen out of the shower and killed themselves by blunt trauma in the past. However, even if that factually happens, imagine the evidence came out that the accused had:

• Taken out a valuable life insurance policy on the deceased’s life;
• Was overheard by neighbours arguing with the deceased and hearing a crash;
• A call from the deceased to a sister saying she feels “scared these days”

Then things are not looking good.  Even if all of this was a product of circumstance, it may not save a person from a jury making strong inferences that this was a homicide.

Again, truth may not save the day and you evidence need not be accepted. This is exemplary of the cold stark reality that this is a human process where mistakes can be made.  The truth, whatever that means, does not guarantee a particular result in a criminal trial.

7. You are not entitled to an appeal simply because you don’t agree with the decision.

It seems some people are of the view that if they lose, they can simply appeal the decision.  Yes, you may file the paperwork for an appeal but it does not in any way guarantee that your appeal will be successful.  Even if you win an appeal, it typically results in a new trial, not an acquittal as many people assume.  So, you simply start over again and have a trial where you may, or may not be found guilty.

Appeals also require a great deal of time to be heard.  This means that if you are found guilty and sent into custody, you could serve your entire sentence before the appeal is actually heard.  Trying to obtain bail pending appeal while you are in custody is exceptionally difficult for an unrepresented accused.

Further, appeals operate off the evidentiary record that was heard at trial.  This means that there is a very high degree of deference to the trial judge’s findings of “fact”  So, if a judge finds that one person provided credible evidence and the accused did not, this would be a very difficult burden for an appeal lawyer to overcome.

Unless there are very exceptional circumstances, one cannot file new evidence, ask that witnesses be called, or offer anything other than what was presented at trial – even if think now it should have been done differently.  For all intents and purposes, you really only get one good shot at proving your innocence.

Lastly, if you have moved to the point of appeals, things are going to get 10x more expensive than it would have originally cost you.  It’s like not changing the oil on a car.  If you do things right from the beginning, you don’t need to over compensate for your mistakes.  Going to an appeal lawyer is like going to a mechanic with your engine blown, wheels off, and windshield smashed.  You have been effectively “totalled” by the criminal justice system.

8.  Lawyers, prosecutors, police, and judges all hire lawyers when they are charged.

When have you ever heard of a lawyer, judge, police officer or prosecutor representing themselves at trial?  Let me help you: never.  That is because regardless of you level of knowledge of the criminal justice system, being unrepresented at trial places you at an enormous disadvantage on countless levels.

I would hazard a further guess that the more familiar one is with the criminal justice system, the more likely it is that person is to retain counsel.  People in the know, hire a lawyer.  Just as doctors or hairstylists do not work on themselves, experts in law hire experts when they need help.  It’s as simple as that.

9. Seemingly hopeless cases are won all the time: factual guilt does not mean actual guilt.

If you think to yourself “the case looks pretty bad against me, I think I had better just plead guilty and save the money”, that is like saying “I don’t like the look of this mole, it must be malignant, why bother going to a doctor”. When you get disclosure, your case will look bad because you don’t know what to look for. Thousands of trials are won every day for cases that were strong enough that the Crown laid the charge; that the police synopses described the essential elements of the offence.

If there wasn’t a case against you, you wouldn’t have been charged. If everyone who got charged was doomed, there would be ten times as many people in jail as today.

10. Lawyers work very hard for the fees that you are charged.

There is a reason law lawyers fees are what they are: it is an extremely complex and crucial role – a lawyer can defend you against your charges; you cannot do it yourself. This is why people pay lawyers. There is no conspiracy. Lawyers are not middle-people who take money to do what you could basically do yourself. That would mean there was a giant conspiracy wherein all lawyers gather together, drink champagne and laugh about what fools people are to hire lawyers when they don’t need to. This is not the case.

If anything, criminal lawyers do a large amount of work for free.  When a case is state-funded, there is a tariff on how many hours we may work.  This tariff always falls short of what is actually required to competently defend a case.  Since lawyers want to help, care about their clients, and treat their role as counsel seriously, we will work as much as is required.   This often means that many hours go without compensation.  In many instances, lawyers will take a very large financial personal hit just to represent their clients effectively.

If you think of an hourly rate, think of it as hiring the entire office of a lawyer and all the support that comes with it.  Can you imagine how much it would cost to rent a restaurant or hair salon with all its resources on a hourly basis? It’s the same for lawyers.  You may be speaking to us, but you are actually supported by a team and all the expenses that come with it.

11. You have no ability to negotiate