Site Content 5
Stand-By Counsel

“Our experience has taught us that a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.” Martinez v. Court of Appeal, Cal. Fourth Appellate Dist., 528 U.S. 152, 161 (2000) (internal quotation omitted).

What is your role as standby counsel?

The role of standby counsel is not clearly defined in the case law or otherwise; counsel’s role can vary from case to case. 

• Standby counsel's role is to do what the defendant requests and the court permits, without interfering with the defendant's right to self-representation.

STANDBY COUNSEL TAKES OVER THE DEFENSE

Part of the job of standby counsel is to be ready to take over the defense of the case if the defendant withdraws a request to proceed pro se, or if the court terminates the defendant’s right to proceed pro se.


CLARIFY YOUR ROLE ON THE RECORD

For the defendant’s benefit, and your benefit, it is helpful to clarify your role on the record at the time you are appointed as standby counsel. 

If you have been representing the defendant, discuss the possible standby roles and encourage the defendant to ask questions of the court.

NO CONSTITUTIONAL RIGHT TO STANDBY COUNSEL

A defendant does not have a constitutional right to the assistance of standby counsel. See Faretta v. California, 422 U.S. 806, 835 (1975); United States v. Lawrence, 161 F.3d 250, 253 (4th Cir. 1998).

The district court has discretion, however, to appoint standby counsel. See McKaskle v. Wiggins, 465 U.S. 165, 176 (1984).

WHY DO COURTS APPOINT STANDBY COUNSEL? 

The defendant seeks to proceed pro se and asks for assistance from standby counsel. - Or – 
The court decides to appoint standby counsel, sometimes over the defendant's objection.

FAIR TRIAL OR EFFICIENT TRIAL

Standby counsel’s role is difficult because the role is not well defined, and because there is tension between the interests being served: – Fair trial – Efficient trial

BASIC RULES FOR STANDBY COUNSEL

Two rules restrain the role of standby counsel. – “First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. . . . If standby counsel’s participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.” – “Second, participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.” McKaskle v. Wiggins, 465 U.S. 165, 178 (1984).

INVESTIGATIVE ROLE

The court expects that standby counsel will play an investigative role, assisting the defendant with tasks an incarcerated defendant cannot easily accomplish. See, e.g., United States v. Moussaoui, 591 F.3d 263, 269 (4th Cir. 2010) (district court advised defendant that standby counsel “was available to help him locate witnesses and evidence”); id. at 270 (standby counsel could “help [defendant] obtain experts, locate witnesses, and even provide the paper supplies he needs to mount his defense”). 

RESEARCH AND WRITING

Depending on the case, standby counsel may play an active role in research and writing. – E.g., United States v. Moussaoui, 382 F.3d 453, 458, 459 (4th Cir. 2004) (standby counsel filed motions, and at court's direction court briefed question of appropriate sanction for Government's failure to comply with court’s order).
Back
Share by: