Further, the judge would need to be particularly careful to maintain his neutrality as he asserts control over the proceedings and asks witnesses questions. A judge need not abandon his neutrality when he affirmatively participates in a criminal trial. Indeed, "[j]udges in inquisitorial systems engage in a mandated active role without a loss of impartiality." 280 But judges do need to ensure that their participation in the trial does not convey a bias for either side. In order to do this, judges should ask questions designed to elicit relevant information, without conveying opinions on witness credibility or the weight of the evidence. Perhaps the best way to ensure this neutrality without inhibiting a judge from asking questions is to allow a judge to ask preliminary questions of each witness, designed to elicit relevant testimony. This questioning can be followed by questioning from the prosecution and defense. But in this way, the judge will help the finder of fact by ensuring that it has all the relevant information before it, without commenting on the reliability of the evidence or betraying a bias for either side. Thus, with careful oversight and consistent use, recommendations advocating the use of inquisitorial practices by criminal trial courts would better ensure that pro se criminal proceedings lead to fair and accurate verdicts. Without the adoption of such recommendations, the current practices of courts will lead to unfair and inconsistent results. Because the adversary system is a contest between two sides, if a competent defendant chooses to put forth his own defense, even one that has little hope in succeeding on the merits, that is his choice as an autonomous participant in the process. The Supreme Court has held that as long as defendants abide by the rules of court and remain within the bounds of the law, they have the right to present their own defense. Indeed, in some rare cases a defendant is in the best position to defend himself at trial. However, while self-representation is a fundamental right in the American adversarial system, trials involving pro se defendants can lead to inefficiency and injustice. 280. Paris R. Baldacci, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se Litigant, 27 J. NAT'L ASS'N ADMIN. L. JUDICIARY 447, 492-93 (2007).
Catholic University Law Review Perhaps the best option in such cases is to look to the inquisitorial system of justice for a model of how to proceed. A judge who assumes a more proactive role in the trial of a pro se defendant would be better able to keep the proceedings moving forward and avoid unnecessary delays. A defendant would still be able to speak his mind in statements made to the court and in response to questioning by the judge, but the defendant would not be directing the timing or manner of the proceedings, like lawyers are able to do in typical adversarial proceedings.
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- Fall '19
- Supreme Court of the United States, United States Supreme Court, The Court