The Self-Represented Defendant’s Limits in Confronting Witnesses

This was an appeal out of Lackawanna County.  Patrick Tighe represented himself at trial against the the most serious of sex-offense charges.  Clearly, little more needs to be said of how the result came out.  (This brings to mind the adage: “He who represents himself has a fool for a client.”)

On appeal, Tighe apparently acquiesced to representation, and his counsel raised 11 issues for consideration on appeal.  (This, too, prompted the Superior Court to call to mind the oft-quoted statement of former Third Circuit judge, Ruggero J. Aldisert, who said the following: “With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors.  I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them . . . [and] it is [this] presumption . . . that reduces the effectiveness of appellate advocacy.”) 

Discussion of all of Tighe’s issues is not necessary, of course, but one did stand out and is worthy of discussion, and it was the likely reason for publication of the Superior Court’s opinion.  The issue was whether Tighe’s constitutional rights of self-representation and his right to confront the witnesses against him were violated when the trial court compelled Tighe to have his stand-by counsel, rather than him, ask questions of the alleged victim, which Tighe wrote out.  The Superior Court held that those rights were not violated, and it arrived at this conclusion by drawing on precedents from the United States Supreme Court and the U.S. Court of Appeals.

To start, the Superior Court noted three things. First, the Sixth Amendment right to counsel implicitly includes the right of self-representation.  Second, the purpose of self-representation is “to allow the defendant ‘to affirm [his] dignity and autonomy’ and to present what he believes is his ‘best possible defense.’” Third, the constitutional right to confrontation has limits, namely the U.S. Supreme Court has recognized that a “State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.”

Bearing these legal principles in mind, the Superior Court held that neither Tighe’s right to self-representation nor right to confrontation was violated when the trial court required that stand-by counsel question the alleged child victim with the questions Tighe prepared. The Superior Court arrived at this holding upon the following reasoning:

We are persuaded . . . that, if the constitutional right of confrontation can be limited on the basis of emotional trauma to the victim, then it follows that the same State interest serves to justify the restriction at issue.  Indeed, the fact that [the U.S. Supreme Court] permitted a limitation of actual face-to-face confrontation suggests that the lesser intrusion herein, where [the victim] was subjected to that face-to-face confrontation, is permissible.  Additionally, we find that this intrusion did not affect the jury’s perception that Appellant was representing himself, any more than the intrusion in [prior cases] did.  With the exception of this one witness, [Tighe] cross-examined all other witnesses, made opening and closing statements, and otherwise presented his own defense according to his wishes. 

In sum, accordingly, if a defendant desires to represent himself at trial, his right to self-representation is not violated if his stand-by counsel is designated to ask questions of a particular witness, so long as the questions that stand-by counsel asks are the clients and not counsel’s alone.