Natty Shafer Law

Utah lawyer for criminal and immigration cases

Representing Yourself Against a Criminal Charge: Part I, Pretrial

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Rimmer: If only I’d hired a smarter lawyer, instead of the brain-dead, pompous, stupid-haired git I ended up with.
Lister: You defended yourself!
Rimmer: Yes, and I don’t need reminding of that, thank you very much.

Red Dwarf

In the United States, you are allowed to represent yourself in a criminal trial, but it is almost always a bad idea. To help illustrate what it might look like when a person tries this in Utah’s courts, I am going to take readers through a hypothetical Utah case. Assume Jane Doe has been accused of Theft of Services under Utah Code 76-6-409. Jane is an intelligent businesswomen, but she has never dealt with the criminal justice system before.

Jane’s Side of the Story
Jane had lunch with two of her friends at a local Utah cafe. Normally, each one of Jane’s friends pays for their own food. Jane needed to return to work earlier than her friends. She went to the cashier and paid for her portion with her credit card and returned the remainder of the bill to her friends. A couple days later, a police officer tracked her down via her credit card address. The officer informed Jane Doe that she is being charged with Theft of Services for not paying the whole bill. After talking with her friends, she determined that friend #1 paid in cash, and friend #2 thought friend #1 paid for both of them. Somehow $17 from the lunch did not get paid, and the restaurant called the police. The police officer contacted the only person in the group the restaurant could identify.

Jane’s First Day in Court
The police officer told Jane Doe that she will have to go to court. Jane shows up for what turns out to be her arraignment. She asked for the morning off of work, but she hopes she can put this scary episode behind her once she explains to the judge what happened. After waiting through a couple hours of miscellaneous court proceedings, the judge finally calls Jane’s case. The judge wants Jane to enter a plea and to set the next court date. Jane has been waiting all morning and has no intention of simply saying “not guilty.” She thinks that if she explains what happened, the judge will simply dismiss the case.

Unfortunately, the judge cannot dismiss the case at this point. Even if the judge believes Jane, it is still the prosecutor’s decision about whether or not to dismiss the charges. The judge tries to find a polite way to tell Jane, “I don’t care.” (Judges want to avoid giving that impression. Everyone accused is entitled to their day in court.) Jane’s judge knows that regardless of what Jane says, he cannot yet dismiss the charges. After interrupting Jane’s story, the judge manages to help Jane to understand that she will have to come to court again.

Pretrial Conference
A month later, Jane once again asks for time off work and comes to court. Surely now the justice system will understand her point-of-view! Maybe. The prosecutor talks to Jane, and the prosecutor does have the power to drop charges. However, most prosecutors have heavy case loads and have to make snap judgments. At best, the prosecutor read the police files that morning and knows what the police officer wrote. At worst, the prosecutor merely looked at the charges. Regardless, most prosecutors generally do not dismiss the charges without something in return.

For our hypothetical, the prosecutor offers to reduce the charge from a Class B misdemeanor to a Class C misdemeanor, and promises to recommend to the judge that Jane serve no jail time. At this point, Jane is completely mystified as to why she should plead to anything. Although it was her friend’s meal, Jane would gladly pay the restaurant $17 to make the charges go away, but the prosecutor refuses to drop the charges. Jane considers accepting the plea to avoid further hassle, but she decides she does not want to have a theft charge on her record. She is confused and angry that no one is listening to her.

Jane waits another hour to speak to the judge. She implores the judge to listen to her story, but the judge still does not have the power to dismiss the charges. The judge tells Jane that she can set her case for a trial and that will be her opportunity to tell her side of the story. Jane says that is what she wants. The judge asks her if she wants a jury trial or a bench trial. Jane does not know which she would prefer. She tentatively asks for a jury trial.

The judge sets a trial date . The judge tells Jane there will be a final pretrial conference one week before the trial. Jane does not know what that means. The judge tells her that it is customary in Utah for both parties to meet about a week before the trial to meet. It is an opportunity to discuss jury instructions and make sure everyone is ready.

The judge gives Jane Doe an outline of how the trial will proceed. He asks Jane if she will want anyone to testify at her trial. Jane says she thinks she wants her two friends to testify. The judge tells Jane that she has the power to subpoena witnesses if she wants. He advises her it is not too late to hire an attorney and then excuses Jane. Jane spends the next 45 minutes talking to the court clerk trying to figure out how to subpoena her friends.

Final Pretrial Conference
Jane once again must take time off work for her court date. She arrives for the final pretrial conference, and the prosecutor tells Jane that she talked to the restaurant manager. The restaurant is very “active” in pursuing criminal charges, according to the prosecutor. The restaurant is adamant about discouraging someone else from trying to “dine-and-dash.” Jane says she paid for her meal and would gladly reimburse the restaurant for her friend’s meal if they will drop the charges. The prosecutor shrugs her shoulders and says that her hands are tied.

The prosecutor asks Jane if she looked over the proposed jury instructions. Jane says she thinks they look fine. They then speak to the judge, who asks if everyone is ready to go forward with the trial. The prosecutor says she is ready. Jane says she is not sure; she has never seen a real trial before. The judge again explains the procedure of how the trial will go, but gives very little in the way of trial advice.

Jane has missed parts of three days from work and is frazzled. She is no closer to winning her case.

Up next in Part II: the Trial.

Author: Natty Shafer

Attorney practicing immigration and criminal law

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