Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)

Chapter 7: St. John's, Newfoundland (continued)

7.5 Impact of self-representation on the accused

7.5.1 Overall impact

All interviewees suggested it would be preferable if Legal Aid could accept more cases.  In the words of one interviewee, "Lack of representation is an expensive option."  Later sections will document the costs to the court system occasioned by self-represented accused.  However, perhaps a more important general impact of the situation, said one interviewee, was that the community was left with the impression that there was one justice system for the rich and another for the poor.

A number of those interviewed indicated that self-represented accused often have not understood the court process generally, or what decisions were made in their own specific case.  For instance, interviewees felt self-represented accused often did not understand discovery, elections, voir dire, hearsay, procedure during trials, etc. Further, it was not a rare event for court staff to have to explain, just after conviction, the details of a sentence to the convicted person – or to retrieve records to explain the sentence to an accused who had been convicted some time before. The emotional impact of being without counsel caused the accused anxiety and, in some cases, "panic."

Further, many unrepresented accused did not understand the full consequences of conviction – with regard to getting a certificate of conduct, crossing the U.S. border, military service; and the impacts on getting or keeping certain types of job.  Unrepresented accused could wind up with bail or probation conditions they could not live with.  While, in some cases, a less harsh sentence might be received, normally unrepresented accused were "not well served on sentence," because of information and arguments not brought to the court's attention. 

This lack of understanding of the process and the implications of conviction brought into question the ability of the accused to make appropriate decisions about the conduct of their case.

Most interviewees were also of the view that unrepresented accused suffered significant negative impacts from the lack of representation. 

It was therefore not surprising to find that the procedures manual for one group of (non-legal) courtworkers who assist accused persons began with three points: 1) Ask the accused if he/she has a lawyer; if not, tell them to apply to legal aid; 2) Discourage accused persons from representing themselves; and 3) Encourage the accused to ask the judge for time to get counsel.

7.5.2 Specific strategic and tactical mistakes by the accused

Most interviewees agreed that the most important stages in the criminal process at which the accused requires counsel were the earlier ones – initially at arrest, after charging, pre-trial release, and plea.  Trials are, as in most courts, the exception, but a number of interviewees suggested that trials involving unrepresented accused presented so many problems – including appealable errors, and an unacceptably high appeal rate – that trials, too, were a high priority.  Sentencing was also cited by most interviewees as a stage requiring some expertise.

The following were among the most serious errors that interviewees suggested would be made by unrepresented accused at pre-trial stages:

  • Testing the tolerance levels of judges by seeking multiple postponements.
  • Not understanding the consequences of a guilty plea, conviction, conditional sentence or conditional discharge.
  • Pleading guilty without understanding the charges against them.
  • Pleading guilty "just to get it over with."
  • Not knowing the best time to plead guilty.
  • Pleading guilty while still feeling they had an "explanation."
  • Pleading guilty when they have a viable defence.
  • Not knowing the law of, e.g., assault – what constitutes an assault and what is an allowable defence to an assault charge.
  • Not being aware of their entitlement to disclosure.
  • Not being aware of victim impact statements and pre-sentence reports.
  • Not picking up their disclosure packet in advance of trial.

The following were among the most serious errors that interviewees suggested would be made by unrepresented accused at trial:

  • Not knowing what arguments to raise, including at sentencing.
  • Not knowing what approaches worked best with different judges.
  • Not understanding that the accused can only present evidence by testifying as a witness.
  • Presenting useless or unnecessary arguments.
  • "Mouthing off at the judge."
  • Assuming they were "supposed to" testify at their own trial, and consequently "hanging themselves," including in cases where the Crown had not made its case.
  • Not knowing how to subpoena a witness.
  • Not demanding a trial or a dismissal on trial days when the Crown witnesses have failed to show. 
  • Not realizing a Crown witness who has left for the mainland will likely not be brought back.
  • Allowing inadmissible evidence to go before the court.
  • Not knowing mandatory sentences for certain offences, or the "going rate" for others.
  • At sentencing, not knowing enough to say they have a job and ask for an intermittent sentence (some judges will inquire, but others will not).
  • Not asking for a conditional discharge or conditional sentence.
  • Not understanding the early release from jail provisions.

The court observations found that, overall, the average amount of time taken per appearance was seven and a half minutes.[66]  Of those observed, a quarter of the appearances took two minutes or less, and half took three minutes or less.  Within the context of this type of time pressure, it is not difficult to understand why many of those interviewed noted that an accused without a developed understanding of court procedures would make specific mistakes – and would be disoriented generally throughout the court process.

7.5.3 Type of plea entered by type of representation at last appearance

Most of the above discussion of impacts on the accused relies on perceptions of those interviewed.  The study also collected empirical evidence on what actually happened to unrepresented accused (i.e., from the Disposed Cases file and from the appearances directly observed in court.)

It is, however, important to make it clear that the information is not presented to draw causal inferences, but simply to describe the events at various stages in the process.  For instance, the evidence is not presented to suggest that the lack of representation caused, for example, a higher (or lower) likelihood that an unrepresented accused would be convicted.  Rather, it simply describes whether or not, and how frequently, significant decisions were made and certain outcomes occurred with or without the presence of counsel.

As noted earlier, a number of interviewees raised the issue of whether or not unrepresented accused were more likely to plead guilty – for instance, to "get it over with," or because they had neither the knowledge nor resources to contest the charges. Interviewees also identified a group of people who pled guilty because they felt morally wrong and ashamed and who pled guilty to avoid public shame.

Figure St.J-7 displays the plea entered by the type of representation at the last appearance (information on the appearance at which the plea may have been entered initially is not available).

  • Of all pleas, 82 percent of all pleas were guilty pleas.
  • Considerably more (91 percent) unrepresented accused pled guilty than did accused represented by legal aid staff lawyers (81 percent) or private counsel (74 percent).

Figure St.J-7. Distribution of Disposed Cases in Which a Plea was Entered : by Type of Plea Entered and by Type of Representation at Last Appearance, St. John's*
Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of all Cases
Self Legal Aid Private Counsel
Guilty 91 81 74 338 82
Not guilty 9 19 26 76 18
Total Cases 100% 100% 100% 414 100%

Source: Disposed cases file.
Note:
*  Excludes cases for which representation at plea was unspecified in the file.

7.5.4 Conviction or not by type of representation

Figure St.J-8 shows whether or not the accused was convicted by type of representation at final appearance.  When all disposed cases are considered, 84 percent of cases were convicted.

  • Rates of conviction for unrepresented accused and accused represented by legal aid staff lawyers were identical (86 percent).
  • Rates of conviction for accused represented by private counsel (other than appointed counsel) were again slightly lower (80 percent) than for those with no representation or representation by Legal Aid staff lawyers.

One should, however, note that, in comparing conviction rates for self-represented accused with those for represented accused, one should take into account the likely impact of post-charge and pre-court process "diversion" on these conviction statistics.  Accused who were diverted  were extremely likely to not have a lawyer. Given that successful completion of the diversion program would result in non-conviction, the existence of a diversion program would be expected to result in lower overall conviction rates for self- represented cases (with little if any impact on conviction rates for represented case).  Unfortunately, data were not available on which cases were diverted, or even the percentage of cases that were diverted, and therefore we cannot say what the conviction rate would be for unrepresented accused who were not diverted.  However, it is safe to say that the rate for non-diverted non-represented accused would be higher than the 87 percent shown in Figure St.J-8.

Figure St.J-8. Distribution of Disposed Cases: by Type of Disposition by Type of Representation at Final Appearance, St. John's
Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases
Self Legal Aid Private Counsel
Convicted * 87 85 80 391 84
Not Convicted** 13 15 20 76 16
Total Cases 100% 100% 100% 467 100%

Source:  Disposed Cases file.
Notes:

  • *  Includes guilty verdict and peace bond ordered.
  • **  Includes not guilty, withdrawn, dismissed, stayed, and discharges.

For three specific offence categories, the number of cases in the file was sufficient to permit individual analysis of conviction patterns across representation type.  This analysis shows that the overall pattern did not hold for individual offence groupings:  

  • For thefts and frauds, conviction rates for unrepresented accused were considerably higher (95 percent) than for accused who were represented by Legal Aid staff lawyers (87 percent) or private counsel (85 percent).
  • For impaired driving, accused who were represented by Legal Aid staff lawyers fared considerably better (73 percent conviction rate) than did unrepresented accused (83 percent) or accused represented by private counsel ((82 percent).
  • For assaults other than common assault, accused who were represented by Legal Aid staff lawyers had a slightly higher conviction rate (96 percent) than did unrepresented accused (92 percent), but a much higher rate than accused represented by private counsel (83 percent).

Earlier, we cautioned against using these data to imply a causal connection between type of representation and conviction rates.  However, given the impact of having a criminal record (on employment opportunities and the likelihood of being charged with further offences, etc.) the data can definitely be used to show that unrepresented accused are very likely to experience serious negative impacts as a result of the court process.  Whether or not that possibility alone is sufficient to call for greater availability of legal representation is a matter of public policy.

7.5.5 Custodial sentence and type of representation

Figure St.J-9 extends the analysis by showing the proportions of cases receiving a custodial sentence, according to the type of representation available to the accused at the final appearance. [67] 

  • Overall, 30 percent of cases received a custodial sentence.
  • Cases represented by Legal Aid staff lawyers were (as the seriousness criterion, as well as the prior record pattern seen in Figure St.J-6, would suggest) more likely to receive a custodial sentence (42 percent).
  • Cases represented by private counsel were less likely to receive a custodial sentence (31 percent).
  • Unrepresented accused were least likely to receive a custodial sentence (18 percent).
Figure St.J-9. Disposed Cases: by Whether or Not a Custodial Sentence was Given by Type of Representation at Last Appearance, St. John's
Sentence Represented by Number of Cases Proportion of Cases (%)
Self (%) Legal Aid (%) Private Counsel (%)
Custodial Sentence 18 42 31 138 30%
No Custodial Sentence 82 58 69 329 70%
Total Cases 100% 100% 100% 467 100%

Source:  Disposed Cases file.

We also conducted an analysis of custodial sentences by representation at final appearance, according to the three individual offence categories for which a sufficient number of cases were available to permit comparison. The analysis shows that this overall pattern (of cases represented by Legal Aid staff lawyers having the highest percentage receiving a custodial sentence) held across these offence groupings (thefts and frauds (32 percent), assaults excluding common assaults (52 percent), and impaired driving (53 percent).  Self-represented accused had the lowest percentage receiving a custodial sentence for assaults excluding common assaults (31 percent) and impaired driving (10 percent).  However, accused represented by private counsel had the lowest percentage (18 percent) for thefts and frauds. 

Again we caution against using these data to imply a causal connection between type of representation and likelihood of receiving a custodial sentence.  However, the results are directly relevant from another important perspective. Specifically, it is accepted that eligibility for legal aid should depend (in part) on the likelihood of a case receiving a custodial sentence.  Although one cannot expect to predict with total accuracy whether a case will result in a custodial sentence, it is relevant that custodial sentences were received by almost two in 10 self-represented accused.


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