§ 28.05 THE RIGHT OF SELF-REPRESENTATION

• Jurisdiction: United States

§ 28.05. The Right of Self-Representation⁹⁸

[A] The Defense: Who is In Charge?⁹⁹

The Supreme Court has stated that, even though represented by counsel, an "accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal."¹⁰⁰ In addition, for those decisions regarding "basic trial rights," counsel "must both consult with the defendant and obtain consent to the recommended course of action."¹⁰¹

Yet the Court has also stated that "the lawyer has . . . full authority to manage the conduct of the trial"¹⁰² and "has authority to manage most aspects of the defense without obtaining his client's approval."¹⁰³ Thus, although the defendant must be "consult[ed]" regarding "important decisions" and issues of "overarching defense strategy," control of much of the defense lies with counsel. Indeed, as one scholar has summarized, "courts hold that counsel controls all but a few decisions," including "all tactical decisions" and "all but a few decisions at trial."¹⁰⁴

As a result, the only way for a defendant to ensure control of his own defense is to act as his own attorney. As discussed in the next subsection, the Court has held that the Sixth Amendment does give him that right.

[B] Faretta v. California

[1] Recognition of the Right

In Faretta v. California,¹⁰⁵ the Supreme Court, per Justice Potter Stewart, held that a defendant has a constitutional right voluntarily and knowingly to waive his right to the assistance of counsel and to represent himself at trial. In essence, the Sixth Amendment right-to-counsel provision includes two rights: expressly, the right of a criminal defendant to the assistance of counsel; and, by implication, an independent right of self-representation that follows from waiver of the first right.

In Faretta, F, charged with theft, requested permission to represent himself at trial. The judge originally agreed to the request, but later changed his mind when F failed adequately to answer various questions intended to determine his knowledge of applicable procedural and evidentiary law. Represented at his trial by a public defender, F was convicted.

The Supreme Court reversed the conviction. It concluded that F had a constitutional right to represent himself. According to Justice Stewart, 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." According to Faretta, the personal nature of the right is evident from the fact that it is the defendant—not counsel—who must be informed of the nature of the charges, who has the right to confront accusers, and who must be accorded compulsory process for obtaining witnesses. According to the Court, "[t]he right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails."

The Court also found support for the right of self-representation in the language and historical roots of the Sixth Amendment. Textually, the amendment provides that a defendant is entitled to the "assistance" of counsel. The lawyer is the assistant; the defendant is the master. Historically, the English common rule provided that no criminal defendant "can have counsel forced upon him against his will."¹⁰⁶ And, according to the majority, "[i]n the American colonies the insistence upon a right of self-representation was, if anything, more fervent than in England."

Justice Blackmun, joined by Chief Justice Burger and Justice Rehnquist, dissented. They argued that the fact that Sixth Amendment rights are personal does not "guarantee[] any particular procedural method of asserting those rights." The dissent also questioned the Court's historical analysis. In view of the fact that the framers "expressly constitutionalized the right to assistance of counsel but remained conspicuously silent on any right of self-representation," the dissenters believed that "it is at least equally plausible to conclude that the Amendment's silence . . . indicates that the Framers simply did not have the subject in mind when they drafted the language."

The dissenters were also troubled with the majority's holding as a policy matter. In the dissent's view, the Sixth Amendment does not require "the States to subordinate the solemn business of conducting a criminal prosecution to the whimsical —albeit voluntary — caprice of every accused who wishes to use his trial as a vehicle for personal or political self-gratification." The dissenters worried that allowing defendants the right to proceed without counsel "will cause procedural confusion without advancing any significant strategic interest of the defendant."

[2] Reflections on Faretta¹⁰⁷

Justice Stewart conceded in Faretta that "[t]here can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court's [prior right-to-counsel] decisions." Indeed, ironically, the justices forming the majority in Faretta — an opinion that says, in essence, that defendants have the right to forego the "necessities, not luxuries"¹⁰⁸ of the assistance of counsel—are those who argued most strenuously for the expansion of the right to counsel. Meanwhile, it was the dissenters — members of the Court not generally sympathetic to such extensions—who were called on to point out that "representation by counsel is essential to ensure a fair trial."

The essence of Faretta is that a defendant has a protectible right of autonomy. As it is the defendant, not the lawyer, who will suffer the consequences of a conviction, it is the accused's personal right to decide whether counsel is a benefit or a detriment. As Justice Stewart explained, "whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice." Even if the defendant's freely-willed decision is "ultimately to his own detriment, [the] choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' "¹⁰⁹

In dissent, Justice Blackmun quoted the proverb that "one who is his own lawyer has a fool for a client." He needled the majority by stating that the Court "now bestows a constitutional right on one to make a fool of himself." Justice Stewart's answer to the dissenters was that "[p]ersonal liberties are not rooted in the law of averages." As he pointed out, "it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense."

Justice Stewart's last observation is correct, of course. Indeed, a recent empirical study found, in a limited sample, that "pro se felony defendants in state courts are convicted at rates equivalent to or lower than the conviction rates of represented felony defendants," though this may be as much an indictment of the quality of appointed counsel as an endorsement of the quality of pro se representation.¹¹⁰ However, it is also true, as Justice Stewart conceded, that "in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." And, as important as the right of autonomy may be, it is not the only value at stake in criminal trials. The majority opinion runs counter to "the established principle that the interest of the State in a criminal prosecution 'is not that it shall win a case, but that justice shall be done.' Moreover, "courts have an independent interest in ensuring that . . . legal proceedings appear fair to all who observe them."¹¹² Faretta quite arguably threatens these interests.

One other point has been made in favor of Faretta: Forcing counsel on a defendant not only impinges on the defendant's autonomy, but also, in the case of indigent defendants, means that the defendant is being represented by someone chosen and paid for by the government. In other words, the person who is supposed to protect the accused is, on some level, the employee of the accuser. With this fact in mind, Justice Scalia wrote in defense of Faretta, "I have no doubt that the Framers of our Constitution . . . would not have found acceptable the compulsory assignment of counsel by the Government to plead a criminal defendant's case."¹¹³

[3] Current Status of Faretta

There can be little doubt that the F...