Pro se is Law Latin that means "for oneself." A litigant proceeds pro se when they choose to represent themselves in court, as opposed to litigating through a lawyer. See, e.g., Rivera v. Florida Department of Corrections, 526 U.S. 135 (1999).
The Sixth Amendment guarantees criminal defendants the right to representation by counsel. In 1975, the Supreme Court held that the structure of the Sixth Amendment, incorporated against the states through the Due Process Clause of the Fourteenth Amendment, implies that a defendant in a state criminal trial has a constitutional right to proceed without counsel (i.e., pro se) when they voluntarily and intelligently elect to do so. See Faretta v. California, 422 U.S. 806 (1975).
Any waiver of the right to counsel must be knowing, voluntary, and intelligent. The Faretta Court stated that "a defendant need not have the skill and experience of a lawyer, but should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing” and "the choice is made with eyes open." See Faretta.
In Iowa v. Tovar, 541 U.S. 77 (2004) the Court acknowledged that it had not created any formula for determining what information a defendant must know to make an "intelligent choice." According to the Court, determining whether a waiver of counsel is intelligent depends on "a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." See Tovar.
Because the constitutional right to litigate pro se is grounded in the Sixth Amendment, it only applies to criminal cases. Still, pro se litigants are commonplace in state civil proceedings across the country. One wrinkle appears in the context of involuntary civil commitment proceedings: Most states have statutes that provide a right to counsel in such proceedings, but some of those states, such as Montana, go so far as to expressly prohibit self-representation in that context.
In federal proceedings, the right to self-representation in both criminal and civil cases is codified at 28 U.S.C. § 1654 and subject to several limitations:
- Corporations and partnerships must be represented by a lawyer.
- A pro se litigant may not represent a class in a class action.
- A non-lawyer parent may not appear pro se on behalf of a child, except to appeal the denial of the child's social security benefits.
See: https://www.nysd.uscourts.gov/prose
[Last updated in March of 2024 by the Wex Definitions Team]