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When a criminal defendant elects to proceed pro se and embarks on the investigation of both the facts and law pertinent to the prosecution's case against him or her, is all of the pro se defendant's work, such as legal and factual research as well as strategy memos, protected by the work product privilege from the prosecutor's attempts to obtain disclosure? Is the pro se criminal defendant entitled to assert the work product privilege before trial, during trial, and after trial to preclude the adversary's intrusion into the litigant's trial preparation?
The work product doctrine's "role in assuring the proper functioning of the criminal justice system is even more vital" than in civil cases. (United States v. Nobles, 422 U.S. 225,238 (1975).) "The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case." (Id.) These essential principles would appear to apply equally whether a criminal defendant is represented by counsel or is proceeding pro se.
"The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." (Faretta v. California, 422 U.S. 806, 819 (1975).) In this constitutional context it is difficult, if not impossible, to contend that a pro se defendant may not assert the work product privilege that, if represented, the accused's counsel could raise to preclude certain disclosures. "The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." (Id. at 819-20.) Once a criminal defendant chooses selfrepresentation, an accused is the actual adversary of the prosecution in the litigation, supplanting the role defense counsel would have played in the case.
The attorney-client privilege does not come into play when the accused proceeds pro se as the client and the client's legal representative are one and the same. Similarly, ethical confidentiality would not be applicable to a criminal defendant who elects self-representation. Only the work product privilege and the Fifth Amendment right to be free from self-incrimination remain to protect the pro se defendant's factual and legal research...