Indiana v. Edwards

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

INDIANA v. EDWARDS

CERTIORARI TO THE SUPREME COURT OF INDIANA

No. 07–208. Argued March 26, 2008—Decided June 19, 2008

After Indiana charged respondent Edwards with attempted murder

and other crimes for a shooting during his attempt to steal a pair of

shoes, his mental condition became the subject of three competency

proceedings and two self-representation requests, mostly before the

same trial judge. Referring to the lengthy record of psychiatric re-

ports, the trial court noted that Edwards suffered from schizophrenia

and concluded that, although it appeared he was competent to stand

trial, he was not competent to defend himself at trial. The court

therefore denied Edwards’ self-representation request. He was rep-

resented by appointed counsel at trial and convicted on two counts.

Indiana’s intermediate appellate court ordered a new trial, agreeing

with Edwards that the trial court’s refusal to permit him to represent

himself deprived him of his constitutional right of self-representation

under the Sixth Amendment and Faretta v. California, 422 U. S. 806.

Although finding that the record provided substantial support for the

trial court’s ruling, the Indiana Supreme Court nonetheless affirmed

the intermediate appellate court on the ground that Faretta and

Godinez v. Moran, 509 U. S. 389, required the State to allow Edwards

to represent himself.

Held: The Constitution does not forbid States from insisting upon rep-

resentation by counsel for those competent enough to stand trial but

who suffer from severe mental illness to the point where they are not

competent to conduct trial proceedings by themselves. Pp. 4–13.

(a) This Court’s precedents frame the question presented, but they

do not answer it. Dusky v. United States, 362 U. S. 402, and Drope v.

Missouri, 420 U. S. 162, 171, set forth the Constitution’s “mental

competence” standard forbidding the trial of an individual lacking a

rational and factual understanding of the proceedings and sufficient

ability to consult with his lawyer with a reasonable degree of rational

2 INDIANA v. EDWARDS

Syllabus

understanding. But those cases did not consider the issue presented

here, namely, the relation of that “mental competence” standard to

the self-representation right. Similarly the Court’s foundational

“self-representation” case, Faretta, supra—which held that the Sixth

and Fourteenth Amendments include a “constitutional right to pro-

ceed without counsel when” a criminal defendant “voluntarily and in-

telligently elects to do so,” 422 U. S., at 807—does not answer the

question as to the scope of the self-representation right. Finally, al-

though Godinez, supra, presents a question closer to the one at issue

in that it focused upon a borderline-competent defendant who had

asked a state trial court to permit him to represent himself and to

change his pleas from not guilty to guilty, Godinez provides no an-

swer here because that defendant’s ability to conduct a defense at

trial was expressly not at issue in that case, see 509 U. S., at 399–

400, and because the case’s constitutional holding that a State may

permit a gray-area defendant to represent himself does not tell a

State whether it may deny such a defendant the right to represent

himself at his trial. Pp. 4–8.

(b) Several considerations taken together lead the Court to con-

clude that the Constitution permits a State to limit a defendant’s

self-representation right by insisting upon trial counsel when the de-

fendant lacks the mental competency to conduct his trial defense

unless represented. First, the Court’s precedent, while not answering

the question, points slightly in that direction. By setting forth a

standard that focuses directly upon a defendant’s ability to consult

with his lawyer, Dusky and Drope assume representation by counsel

and emphasize counsel’s importance, thus suggesting (though not

holding) that choosing to forgo trial counsel presents a very different

set of circumstances than the mental competency determination for a

defendant to stand trial. Also, Faretta rested its self-representation

conclusion in part on pre-existing state cases that are consistent

with, and at least two of which expressly adopt, a competency limita-

tion on the self-representation right. See 422 U. S., at 813, and n. 9.

Second, the nature of mental illness—which is not a unitary concept,

but varies in degree, can vary over time, and interferes with an indi-

vidual’s functioning at different times in different ways—cautions

against using a single competency standard to decide both whether a

defendant who is represented can proceed to trial and whether a de-

fendant who goes to trial must be permitted to represent himself.

Third, a self-representation right at trial will not “affirm the dignity”

of a defendant who lacks the mental capacity to conduct his defense

without the assistance of counsel, see McKaskle v. Wiggins, 465 U. S.

168, 176–177, and may undercut the most basic of the Constitution’s

criminal law objectives, providing a fair trial. The trial judge—

Cite as: 554 U. S. ____ (2008) 3

Syllabus

particularly one such as the judge in this case, who presided over one

of Edwards’ competency hearings and his two trials—will often prove

best able to make more fine-tuned mental capacity decisions, tailored

to the particular defendant’s individualized circumstances. Pp. 8–12.

(c) Indiana’s proposed standard, which would deny a criminal de-

fendant the right to represent himself at trial if he cannot communi-

cate coherently with the court or a jury, is rejected because this Court

is uncertain as to how that standard would work in practice. The

Court also declines Indiana’s request to overrule Faretta because to-

day’s opinion may well remedy the unfair trial concerns previously

leveled against the case. Pp. 12–13.

866 N. E. 2d 252, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and ALITO, JJ.,

joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,

joined.

Cite as: 554 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–208

_________________

INDIANA, PETITIONER v. AHMAD EDWARDS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

INDIANA

[June 19, 2008]

JUSTICE BREYER delivered the opinion of the Court.

This case focuses upon a criminal defendant whom a

state court found mentally competent to stand trial if

represented by counsel but not mentally competent to

conduct that trial himself. We must decide whether in

these circumstances the Constitution forbids a State from

insisting that the defendant proceed to trial with counsel,

the State thereby denying the defendant the right to

represent himself. See U. S. Const., Amdt. 6; Faretta v.

California, 422 U. S. 806 (1975). We conclude that the

Constitution does not forbid a State so to insist.

I

In July 1999 Ahmad Edwards, the respondent, tried to

steal a pair of shoes from an Indiana department store.

After he was discovered, he drew a gun, fired at a store

security officer, and wounded a bystander. He was caught

and then charged with attempted murder, battery with a

deadly weapon, criminal recklessness, and theft. His

mental condition subsequently became the subject of three

competency proceedings and two self-representation re-

quests, mostly before the same trial judge:

1. First Competency Hearing: August 2000. Five

2 INDIANA v. EDWARDS

Opinion of the Court

months after Edwards’ arrest, his court-appointed counsel

asked for a psychiatric evaluation. After hearing psychia-

trist and neuropsychologist witnesses (in February 2000

and again in August 2000), the court found Edwards

incompetent to stand trial, App. 365a, and committed him

to Logansport State Hospital for evaluation and treat-

ment, see id., at 48a–53a.

2. Second Competency Hearing: March 2002. Seven

months after his commitment, doctors found that Ed-

wards’ condition had improved to the point where he could

stand trial. Id., at 63a–64a. Several months later, how-

ever, but still before trial, Edwards’ counsel asked for

another psychiatric evaluation. In March 2002, the judge

held a competency hearing, considered additional psychi-

atric evidence, and (in April) found that Edwards, while

“suffer[ing] from mental illness,” was “competent to assist

his attorneys in his defense and stand trial for the charged

crimes.” Id., at 114a.

3. Third Competency Hearing: April 2003. Seven

months later but still before trial, Edwards’ counsel

sought yet another psychiatric evaluation of his client.

And, in April 2003, the court held yet another competency

hearing. Edwards’ counsel presented further psychiatric

and neuropsychological evidence showing that Edwards

was suffering from serious thinking difficulties and delu-

sions. A testifying psychiatrist reported that Edwards

could understand the charges against him, but he was

“unable to cooperate with his attorney in his defense

because of his schizophrenic illness”; “[h]is delusions and

his marked difficulties in thinking make it impossible for

him to cooperate with his attorney.” Id., at 164a. In

November 2003, the court concluded that Edwards was

not then competent to stand trial and ordered his recom-

mitment to the state hospital. Id., at 206a–211a.

4. First Self-Representation Request and First Trial:

June 2005. About eight months after his commitment, the

Cite as: 554 U. S. ____ (2008) 3

Opinion of the Court

hospital reported that Edwards’ condition had again im-

proved to the point that he had again become competent to

stand trial. Id., at 228a–236a. And almost one year after

that Edwards’ trial began. Just before trial, Edwards

asked to represent himself. Id., at 509a, 520a. He also

asked for a continuance, which, he said, he needed in

order to proceed pro se. Id., at 519a–520a. The court

refused the continuance. Id., at 520a. Edwards then

proceeded to trial represented by counsel. The jury con-

victed him of criminal recklessness and theft but failed to

reach a verdict on the charges of attempted murder and

battery.

5. Second Self-Representation Request and Second

Trial: December 2005. The State decided to retry Edwards

on the attempted murder and battery charges. Just before

the retrial, Edwards again asked the court to permit him

to represent himself. Id., at 279a–282a. Referring to the

lengthy record of psychiatric reports, the trial court noted

that Edwards still suffered from schizophrenia and con-

cluded that “[w]ith these findings, he’s competent to stand

trial but I’m not going to find he’s competent to defend

himself.” Id., at 527a. The court denied Edwards’ self-

representation request. Edwards was represented by

appointed counsel at his retrial. The jury convicted Ed-

wards on both of the remaining counts.

Edwards subsequently appealed to Indiana’s intermedi-

ate appellate court. He argued that the trial court’s re-

fusal to permit him to represent himself at his retrial

deprived him of his constitutional right of self-

representation. U. S. Const., Amdt. 6; Faretta, supra. The

court agreed and ordered a new trial. The matter then

went to the Indiana Supreme Court. That court found

that “[t]he record in this case presents a substantial basis

to agree with the trial court,” 866 N. E. 2d 252, 260 (2007),

but it nonetheless affirmed the intermediate appellate

court on the belief that this Court’s precedents, namely,

4 INDIANA v. EDWARDS

Opinion of the Court

Faretta, 422 U. S. 806, and Godinez v. Moran, 509 U. S.

389 (1993), required the State to allow Edwards to repre-

sent himself. At Indiana’s request, we agreed to consider

whether the Constitution required the trial court to allow

Edwards to represent himself at trial.

II

Our examination of this Court’s precedents convinces us

that those precedents frame the question presented, but

they do not answer it. The two cases that set forth the

Constitution’s “mental competence” standard, Dusky v.

United States, 362 U. S. 402 (1960) (per curiam), and

Drope v. Missouri, 420 U. S. 162 (1975), specify that the

Constitution does not permit trial of an individual who

lacks “mental competency.” Dusky defines the competency

standard as including both (1) “whether” the defendant

has “a rational as well as factual understanding of the

proceedings against him” and (2) whether the defendant

“has sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding.” 362

U. S., at 402 (emphasis added; internal quotation marks

omitted). Drope repeats that standard, stating that it “has

long been accepted that a person whose mental condition

is such that he lacks the capacity to understand the na-

ture and object of the proceedings against him, to consult

with counsel, and to assist in preparing his defense may

not be subjected to a trial.” 420 U. S., at 171 (emphasis

added). Neither case considered the mental competency

issue presented here, namely, the relation of the mental

competence standard to the right of self-representation.

The Court’s foundational “self-representation” case,

Faretta, held that the Sixth and Fourteenth Amendments

include a “constitutional right to proceed without counsel

when” a criminal defendant “voluntarily and intelligently

elects to do so.” 422 U. S., at 807 (emphasis in original).

The Court implied that right from: (1) a “nearly universal

Cite as: 554 U. S. ____ (2008) 5

Opinion of the Court

conviction,” made manifest in state law, that “forcing a

lawyer upon an unwilling defendant is contrary to his

basic right to defend himself if he truly wants to do so,”

id., at 817–818; (2) Sixth Amendment language granting

rights to the “accused;” (3) Sixth Amendment structure

indicating that the rights it sets forth, related to the “fair

administration of American justice,” are “persona[l]” to the

accused, id., at 818–821; (4) the absence of historical

examples of forced representation, id., at 821–832; and (5)

“ ‘respect for the individual,’ ” id., at 834 (quoting Illinois v.

Allen, 397 U. S. 337, 350–351 (1970) (Brennan, J., concur-

ring) (a knowing and intelligent waiver of counsel “must

be honored out of ‘that respect for the individual which is

the lifeblood of the law’ ”)).

Faretta does not answer the question before us both

because it did not consider the problem of mental compe-

tency (cf. 422 U. S., at 835 (Faretta was “literate, compe-

tent, and understanding”)), and because Faretta itself and

later cases have made clear that the right of self-

representation is not absolute. See Martinez v. Court of

Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 163

(2000) (no right of self-representation on direct appeal in a

criminal case); McKaskle v. Wiggins, 465 U. S. 168, 178–

179 (1984) (appointment of standby counsel over self-

represented defendant’s objection is permissible); Faretta,

422 U. S., at 835, n. 46 (no right “to abuse the dignity of

the courtroom”); ibid. (no right to avoid compliance with

“relevant rules of procedural and substantive law”); id., at

834, n. 46 (no right to “engag[e] in serious and obstruction-

ist misconduct,” referring to Illinois v. Allen, supra). The

question here concerns a mental-illness-related limitation

on the scope of the self-representation right.

The sole case in which this Court considered mental

competence and self-representation together, Godinez,

supra, presents a question closer to that at issue here.

The case focused upon a borderline-competent criminal

6 INDIANA v. EDWARDS

Opinion of the Court

defendant who had asked a state trial court to permit him

to represent himself and to change his pleas from not

guilty to guilty. The state trial court had found that the

defendant met Dusky’s mental competence standard, that

he “knowingly and intelligently” waived his right to assis-

tance of counsel, and that he “freely and voluntarily” chose

to plead guilty. 509 U. S., at 393 (internal quotation

marks omitted). And the state trial court had conse-

quently granted the defendant’s self-representation and

change-of-plea requests. See id., at 392–393. A federal

appeals court, however, had vacated the defendant’s guilty

pleas on the ground that the Constitution required the

trial court to ask a further question, namely, whether the

defendant was competent to waive his constitutional right

to counsel. See id., at 393–394. Competence to make that

latter decision, the appeals court said, required the defen-

dant to satisfy a higher mental competency standard than

the standard set forth in Dusky. See 509 U. S., at 393–

394. Dusky’s more general standard sought only to deter-

mine whether a defendant represented by counsel was

competent to stand trial, not whether he was competent to

waive his right to counsel. 509 U. S., at 394–395.

This Court, reversing the Court of Appeals, “reject[ed]

the notion that competence to plead guilty or to waive the

right to counsel must be measured by a standard that is

higher than (or even different from) the Dusky standard.”

Id., at 398. The decision to plead guilty, we said, “is no

more complicated than the sum total of decisions that a

[represented] defendant may be called upon to make

during the course of a trial.” Ibid. Hence “there is no

reason to believe that the decision to waive counsel re-

quires an appreciably higher level of mental functioning

than the decision to waive other constitutional rights.”

Id., at 399. And even assuming that self-representation

might pose special trial-related difficulties, “the compe-

tence that is required of a defendant seeking to waive his

Cite as: 554 U. S. ____ (2008) 7

Opinion of the Court

right to counsel is the competence to waive the right, not

the competence to represent himself.” Ibid. (emphasis in

original). For this reason, we concluded, “the defendant’s

‘technical legal knowledge’ is ‘not relevant’ to the determi-

nation.” Id., at 400 (quoting Faretta, supra, at 836).

We concede that Godinez bears certain similarities with

the present case. Both involve mental competence and

self-representation. Both involve a defendant who wants

to represent himself. Both involve a mental condition that

falls in a gray area between Dusky’s minimal constitu-

tional requirement that measures a defendant’s ability to

stand trial and a somewhat higher standard that meas-

ures mental fitness for another legal purpose.

We nonetheless conclude that Godinez does not answer

the question before us now. In part that is because the

Court of Appeals higher standard at issue in Godinez

differs in a critical way from the higher standard at issue

here. In Godinez, the higher standard sought to measure

the defendant’s ability to proceed on his own to enter a

guilty plea; here the higher standard seeks to measure the

defendant’s ability to conduct trial proceedings. To put

the matter more specifically, the Godinez defendant

sought only to change his pleas to guilty, he did not seek

to conduct trial proceedings, and his ability to conduct a

defense at trial was expressly not at issue. Thus we em-

phasized in Godinez that we needed to consider only the

defendant’s “competence to waive the right.” 509 U. S., at

399 (emphasis in original). And we further emphasized

that we need not consider the defendant’s “technical legal

knowledge” about how to proceed at trial. Id., at 400

(internal quotation marks omitted). We found our holding

consistent with this Court’s earlier statement in Massey v.

Moore, 348 U. S. 105, 108 (1954), that “[o]ne might not be

insane in the sense of being incapable of standing trial and

yet lack the capacity to stand trial without benefit of

counsel.” See Godinez, supra, at 399–400, n. 10 (quoting

8 INDIANA v. EDWARDS

Opinion of the Court

Massey and noting that it dealt with “a question that is

quite different from the question presented” in Godinez).

In this case, the very matters that we did not consider in

Godinez are directly before us.

For another thing, Godinez involved a State that sought

to permit a gray-area defendant to represent himself.

Godinez’s constitutional holding is that a State may do so.

But that holding simply does not tell a State whether it

may deny a gray-area defendant the right to represent

himself—the matter at issue here. One might argue that

Godinez’s grant (to a State) of permission to allow a gray-

area defendant self-representation must implicitly include

permission to deny self-representation. Cf. 509 U. S., at

402 (“States are free to adopt competency standards that

are more elaborate than the Dusky formulation”). Yet one

could more forcefully argue that Godinez simply did not

consider whether the Constitution requires self-

representation by gray-area defendants even in circum-

stances where the State seeks to disallow it (the question

here). The upshot is that, in our view, the question before

us is an open one.

III

We now turn to the question presented. We assume

that a criminal defendant has sufficient mental compe-

tence to stand trial (i.e., the defendant meets Dusky’s

standard) and that the defendant insists on representing

himself during that trial. We ask whether the Constitu-

tion permits a State to limit that defendant’s self-

representation right by insisting upon representation by

counsel at trial—on the ground that the defendant lacks

the mental capacity to conduct his trial defense unless

represented.

Several considerations taken together lead us to con-

clude that the answer to this question is yes. First, the

Court’s precedent, while not answering the question,

Cite as: 554 U. S. ____ (2008) 9

Opinion of the Court

points slightly in the direction of our affirmative answer.

Godinez, as we have just said, simply leaves the question

open. But the Court’s “mental competency” cases set forth

a standard that focuses directly upon a defendant’s “pre-

sent ability to consult with his lawyer,” Dusky, 362 U. S.,

at 402 (internal quotation marks omitted); a “capacity . . .

to consult with counsel,” and an ability “to assist [counsel]

in preparing his defense,” Drope, 420 U. S., at 171. See

ibid. (“It has long been accepted that a person whose

mental condition is such that he lacks the capacity to

understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in pre-

paring his defense may not be subjected to a trial” (em-

phasis added)). These standards assume representation

by counsel and emphasize the importance of counsel.

They thus suggest (though do not hold) that an instance in

which a defendant who would choose to forgo counsel at

trial presents a very different set of circumstances, which

in our view, calls for a different standard.

At the same time Faretta, the foundational self-

representation case, rested its conclusion in part upon pre-

existing state law set forth in cases all of which are consis-

tent with, and at least two of which expressly adopt, a

competency limitation on the self-representation right.

See 422 U. S., at 813, and n. 9 (citing 16 state-court deci-

sions and two secondary sources). See, e.g., Cappetta v.

State, 204 So. 2d 913, 917–918 (Fla. App. 1967), rev’d on

other grounds, 216 So. 2d 749 (Fla. 1968), cited in Faretta,

supra, at 813, n. 9 (assuring a “mentally competent” de-

fendant the right “to conduct his own defense” provided

that “no unusual circumstances exist” such as, e.g., “men-

tal derangement” that “would . . . depriv[e]” the defendant

“of a fair trial if allowed to conduct his own defense,” 204

So. 2d, at 917–918); id., at 918 (noting that “whether

unusual circumstances are evident is a matter resting in

the sound discretion granted to the trial judge”); Allen v.

10 INDIANA v. EDWARDS

Opinion of the Court

Commonwealth, 324 Mass. 558, 562–563, 87 N. E. 2d 192,

195 (1949) (noting “the assignment of counsel” was “neces-

sary” where there was some “special circumstance” such

as when the criminal defendant was “mentally defective”).

Second, the nature of the problem before us cautions

against the use of a single mental competency standard for

deciding both (1) whether a defendant who is represented

by counsel can proceed to trial and (2) whether a defen-

dant who goes to trial must be permitted to represent

himself. Mental illness itself is not a unitary concept. It

varies in degree. It can vary over time. It interferes with

an individual’s functioning at different times in different

ways. The history of this case (set forth in Part I, supra)

illustrates the complexity of the problem. In certain in-

stances an individual may well be able to satisfy Dusky’s

mental competence standard, for he will be able to work

with counsel at trial, yet at the same time he may be

unable to carry out the basic tasks needed to present his

own defense without the help of counsel. See, e.g., N.

Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge,

Adjudicative Competence: The MacArthur Studies 103

(2002) (“Within each domain of adjudicative competence

(competence to assist counsel; decisional competence) the

data indicate that understanding, reasoning, and appre-

ciation [of the charges against a defendant] are separable

and somewhat independent aspects of functional legal

ability”). See also McKaskle, 465 U. S., at 174 (describing

trial tasks as including organization of defense, making

motions, arguing points of law, participating in voir dire,

questioning witnesses, and addressing the court and jury).

The American Psychiatric Association (APA) tells us

(without dispute) in its amicus brief filed in support of

neither party that “[d]isorganized thinking, deficits in

sustaining attention and concentration, impaired expres-

sive abilities, anxiety, and other common symptoms of

severe mental illnesses can impair the defendant’s ability

Cite as: 554 U. S. ____ (2008) 11

Opinion of the Court

to play the significantly expanded role required for self-

representation even if he can play the lesser role of repre-

sented defendant.” Brief for APA et al. as Amici Curiae 26.

Motions and other documents that the defendant prepared

in this case (one of which we include in the Appendix,

infra) suggest to a layperson the common sense of this

general conclusion.

Third, in our view, a right of self-representation at trial

will not “affirm the dignity” of a defendant who lacks the

mental capacity to conduct his defense without the assis-

tance of counsel. McKaskle, supra, at 176–177 (“Dignity”

and “autonomy” of individual underlie self-representation

right). To the contrary, given that defendant’s uncertain

mental state, the spectacle that could well result from his

self-representation at trial is at least as likely to prove

humiliating as ennobling. Moreover, insofar as a defen-

dant’s lack of capacity threatens an improper conviction or

sentence, self-representation in that exceptional context

undercuts the most basic of the Constitution’s criminal

law objectives, providing a fair trial. As Justice Brennan

put it, “[t]he Constitution would protect none of us if it

prevented the courts from acting to preserve the very

processes that the Constitution itself prescribes.” Allen,

397 U. S., at 350 (concurring opinion). See Martinez, 528

U. S., at 162 (“Even at the trial level . . . the government’s

interest in ensuring the integrity and efficiency of the trial

at times outweighs the defendant’s interest in acting as

his own lawyer”). See also Sell v. United States, 539 U. S.

166, 180 (2003) (“[T]he Government has a concomitant,

constitutionally essential interest in assuring that the

defendant’s trial is a fair one”).

Further, proceedings must not only be fair, they must

“appear fair to all who observe them.” Wheat v. United

States, 486 U. S. 153, 160 (1988). An amicus brief reports

one psychiatrist’s reaction to having observed a patient (a

patient who had satisfied Dusky) try to conduct his own

12 INDIANA v. EDWARDS

Opinion of the Court

defense: “[H]ow in the world can our legal system allow an

insane man to defend himself?” Brief for Ohio et al. as

Amici Curiae 24 (internal quotation marks omitted). See

Massey, 348 U. S., at 108 (“No trial can be fair that leaves

the defense to a man who is insane, unaided by counsel,

and who by reason of his mental condition stands helpless

and alone before the court”). The application of Dusky’s

basic mental competence standard can help in part to

avoid this result. But given the different capacities

needed to proceed to trial without counsel, there is little

reason to believe that Dusky alone is sufficient. At the

same time, the trial judge, particularly one such as the

trial judge in this case, who presided over one of Edwards’

competency hearings and his two trials, will often prove

best able to make more fine-tuned mental capacity deci-

sions, tailored to the individualized circumstances of a

particular defendant.

We consequently conclude that the Constitution permits

judges to take realistic account of the particular defen-

dant’s mental capacities by asking whether a defendant

who seeks to conduct his own defense at trial is mentally

competent to do so. That is to say, the Constitution per-

mits States to insist upon representation by counsel for

those competent enough to stand trial under Dusky but

who still suffer from severe mental illness to the point

where they are not competent to conduct trial proceedings

by themselves.

IV

Indiana has also asked us to adopt, as a measure of a

defendant’s ability to conduct a trial, a more specific stan-

dard that would “deny a criminal defendant the right to

represent himself at trial where the defendant cannot

communicate coherently with the court or a jury.” Brief

for Petitioner 20 (emphasis deleted). We are sufficiently

uncertain, however, as to how that particular standard

Cite as: 554 U. S. ____ (2008) 13

Opinion of the Court

would work in practice to refrain from endorsing it as a

federal constitutional standard here. We need not now,

and we do not, adopt it.

Indiana has also asked us to overrule Faretta. We

decline to do so. We recognize that judges have sometimes

expressed concern that Faretta, contrary to its intent, has

led to trials that are unfair. See Martinez, supra, at 164

(BREYER, J., concurring) (noting practical concerns of trial

judges). But recent empirical research suggests that such

instances are not common. See, e.g., Hashimoto, Defend-

ing the Right of Self-Representation: An Empirical Look at

the Pro Se Felony Defendant, 85 N. C. L. Rev. 423, 427,

447, 428 (2007) (noting that of the small number of defen-

dants who chose to proceed pro se—“roughly 0.3% to 0.5%”

of the total, state felony defendants in particular “appear

to have achieved higher felony acquittal rates than their

represented counterparts in that they were less likely to

have been convicted of felonies”). At the same time, in-

stances in which the trial’s fairness is in doubt may well

be concentrated in the 20 percent or so of self-

representation cases where the mental competence of the

defendant is also at issue. See id., at 428 (about 20 per-

cent of federal pro se felony defendants ordered to undergo

competency evaluations). If so, today’s opinion, assuring

trial judges the authority to deal appropriately with cases

in the latter category, may well alleviate those fair trial

concerns.

For these reasons, the judgment of the Supreme Court

of Indiana is vacated, and the case is remanded for further

proceedings not inconsistent with this opinion.

So ordered.

14 INDIANA v. EDWARDS

Opinion of the Court

Appendix to opinion of the Court

APPENDIX

Excerpt from respondent’s filing entitled “ ‘Defendant’s

Version of the Instant Offense,’ ” which he had attached to

his presentence investigation report:

“ ‘The appointed motion of permissive intervention

filed therein the court superior on, 6–26–01 caused a

stay of action and apon it’s expiration or thereafter

three years the plan to establish a youth program to

and for the coordination of aspects of law enforcement

to prevent and reduce crime amoung young people in

Indiana became a diplomatic act as under the Safe

Streets Act of 1967, “A omnibuc considerate agent: I

membered clients within the public and others that

at/production of the courts actions showcased causes.

The costs of the stay (Trial Rule 60) has a derivative

property that is: my knowledged events as not unex-

pended to contract the membered clients is the com-

mission of finding a facilitie for this plan or project to

become organization of administrative recommenda-

tions conditioned by governors.’ ” 866 N. E. 2d, at 258,

n. 4 (alterations omitted).

Cite as: 554 U. S. ____ (2008) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–208

_________________

INDIANA, PETITIONER v. AHMAD EDWARDS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

INDIANA

[June 19, 2008]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

dissenting.

The Constitution guarantees a defendant who know-

ingly and voluntarily waives the right to counsel the right

to proceed pro se at his trial. Faretta v. California, 422

U. S. 806 (1975). A mentally ill defendant who knowingly

and voluntarily elects to proceed pro se instead of through

counsel receives a fair trial that comports with the Four-

teenth Amendment. Godinez v. Moran, 509 U. S. 389

(1993). The Court today concludes that a State may none-

theless strip a mentally ill defendant of the right to repre-

sent himself when that would be fairer. In my view the

Constitution does not permit a State to substitute its own

perception of fairness for the defendant’s right to make his

own case before the jury—a specific right long understood

as essential to a fair trial.

I

Ahmad Edwards suffers from schizophrenia, an illness

that has manifested itself in different ways over time,

depending on how and whether Edwards was treated as

well as on other factors that appear harder to identify. In

the years between 2000 and 2003—years in which Ed-

wards was apparently not treated with the antipsychotic

medications and other drugs that are commonly pre-

scribed for his illness—Edwards was repeatedly declared

2 INDIANA v. EDWARDS

SCALIA, J., dissenting

incompetent to stand trial. Even during this period, how-

ever, his mental state seems to have fluctuated. For

instance, one psychiatrist in March 2001 described Ed-

wards in a competency report as “free of psychosis, depres-

sion, mania, and confusion,” “alert, oriented, [and] appro-

priate,” apparently “able to think clearly” and apparently

“psychiatrically normal.” App. 61a.

Edwards seems to have been treated with antipsychotic

medication for the first time in 2004. He was found com-

petent to stand trial the same year. The psychiatrist

making the recommendation described Edwards’ thought

processes as “coherent” and wrote that he “communi-

cate[d] very well,” that his speech was “easy to under-

stand,” that he displayed “good communications skills,

cooperative attitude, average intelligence, and good cogni-

tive functioning,” that he could “appraise the roles of the

participants in the courtroom proceedings,” and that he

had the capacity to challenge prosecution witnesses realis-

tically and to testify relevantly. Id., at 232a–235a (report

of Dr. Robert Sena).

Over the course of what became two separate criminal

trials, Edwards sought to act as his own lawyer. He filed a

number of incoherent written pleadings with the judge on

which the Court places emphasis, but he also filed several

intelligible pleadings, such as a motion to dismiss counsel,

a motion to dismiss charges under the Indiana speedy trial

provision, and a motion seeking a trial transcript.

Edwards made arguments in the courtroom that were

more coherent than his written pleadings. In seeking to

represent himself at his first trial, Edwards complained in

detail that the attorney representing him had not spent

adequate time preparing and was not sharing legal mate-

rials for use in his defense. The trial judge concluded that

Edwards had knowingly and voluntarily waived his right

to counsel and proceeded to quiz Edwards about matters of

state law. Edwards correctly answered questions about

Cite as: 554 U. S. ____ (2008) 3

SCALIA, J., dissenting

the meaning of voir dire and how it operated, and de-

scribed the basic framework for admitting videotape evi-

dence to trial, though he was unable to answer other

questions, including questions about the topics covered by

state evidentiary rules that the judge identified only by

number. He persisted in his request to represent himself,

but the judge denied the request because Edwards ac-

knowledged he would need a continuance. Represented by

counsel, he was convicted of criminal recklessness and

theft, but the jury deadlocked on charges of attempted

murder and battery.

At his second trial, Edwards again asked the judge to be

allowed to proceed pro se. He explained that he and his

attorney disagreed about which defense to present to the

attempted murder charge. Edwards’ counsel favored lack

of intent to kill; Edwards, self-defense. As the defendant

put it: “My objection is me and my attorney actually had

discussed a defense, I think prosecution had mentioned

that, and we are in disagreement with it. He has a de-

fense and I have a defense that I would like to represent

or present to the Judge.” Id., at 523a.

The court again rejected Edwards’ request to proceed

pro se, and this time it did not have the justification that

Edwards had sought a continuance. The court did not

dispute that Edwards knowingly and intelligently waived

his right to counsel, but stated it was “going to carve out a

third exception” to the right of self-representation, and—

without explaining precisely what abilities Edwards

lacked—stated Edwards was “competent to stand trial but

I’m not going to find he’s competent to defend himself.”

Id., at 527a. Edwards sought—by a request through

counsel and by raising an objection in open court—to

address the judge on the matter, but the judge refused,

stating that the issue had already been decided. Edwards’

court-appointed attorney pursued the defense the attorney

judged best—lack of intent, not self-defense—and Ed-

4 INDIANA v. EDWARDS

SCALIA, J., dissenting

wards was convicted of both attempted murder and bat-

tery. The Supreme Court of Indiana held that he was

entitled to a new trial because he had been denied the

right to represent himself. The State of Indiana sought

certiorari, which we granted. 552 U. S. ___ (2007).

II

A

The Constitution guarantees to every criminal defen-

dant the “right to proceed without counsel when he volun-

tarily and intelligently elects to do so.” Faretta, 422 U. S.,

at 807. The right reflects “a nearly universal conviction,

on the part of our people as well as our courts, that forcing

a lawyer upon an unwilling defendant is contrary to his

basic right to defend himself if he truly wants to do so.”

Id., at 817. Faretta’s discussion of the history of the right,

id., at 821–833, includes the observation that “[i]n the long

history of British criminal jurisprudence, there was only

one tribunal that ever adopted a practice of forcing counsel

upon an unwilling defendant in a criminal proceeding.

The tribunal was the Star Chamber,” id., at 821. Faretta

described the right to proceed pro se as a premise of the

Sixth Amendment, which confers the tools for a defense on

the “accused,” and describes the role of the attorney as one

of “assistance.” The right of self-representation could also

be seen as a part of the traditional meaning of the Due

Process Clause. See Martinez v. Court of Appeal of Cal.,

Fourth Appellate Dist., 528 U. S. 152, 165 (2000) (SCALIA,

J., concurring in judgment). Whichever provision provides

its source, it means that a State simply may not force a

lawyer upon a criminal defendant who wishes to conduct

his own defense. Faretta, 422 U. S., at 807.

Exercising the right of self-representation requires

waiving the right to counsel. A defendant may represent

himself only when he “ ‘knowingly and intelligently’ ”

waives the lawyer’s assistance that is guaranteed by the

Cite as: 554 U. S. ____ (2008) 5

SCALIA, J., dissenting

Sixth Amendment. Id., at 835. He must “be made aware

of the dangers and disadvantages of self-representation,”

and the record must “establish that ‘he knows what he is

doing and his choice is made with eyes open.’ ” Ibid. (quot-

ing Adams v. United States ex rel. McCann, 317 U. S. 269,

279 (1942)). This limitation may be relevant to many

mentally ill defendants, but there is no dispute that Ed-

wards was not one of them. Edwards was warned exten-

sively of the risks of proceeding pro se. The trial judge

found that Edwards had “knowingly and voluntarily”

waived his right to counsel at his first trial, App. 512a,

and at his second trial the judge denied him the right to

represent himself only by “carv[ing] out” a new “exception”

to the right beyond the standard of knowing and voluntary

waiver, id., at 527a.

When a defendant appreciates the risks of forgoing

counsel and chooses to do so voluntarily, the Constitution

protects his ability to present his own defense even when

that harms his case. In fact waiving counsel “usually”

does so. McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8

(1984); see also Faretta, 422 U. S., at 834. We have none-

theless said that the defendant’s “choice must be honored

out of ‘that respect for the individual which is the lifeblood

of the law.’ ” Ibid. What the Constitution requires is not

that a State’s case be subject to the most rigorous adver-

sarial testing possible—after all, it permits a defendant to

eliminate all adversarial testing by pleading guilty. What

the Constitution requires is that a defendant be given the

right to challenge the State’s case against him using the

arguments he sees fit.

In Godinez, 509 U. S. 389, we held that the Due Process

Clause posed no barrier to permitting a defendant who

suffered from mental illness both to waive his right to

counsel and to plead guilty, so long as he was competent to

stand trial and knowingly and voluntarily waived trial

and the counsel right. Id., at 391, 400. It was “never the

6 INDIANA v. EDWARDS

SCALIA, J., dissenting

rule at common law” that a defendant could be competent

to stand trial and yet incompetent to either exercise or

give up some of the rights provided for his defense. Id., at

404 (KENNEDY, J., concurring in part and concurring in

judgment). We rejected the invitation to craft a higher

competency standard for waiving counsel than for stand-

ing trial. That proposal, we said, was built on the “flawed

premise” that a defendant’s “competence to represent

himself” was the relevant measure: “[T]he competence

that is required of a defendant seeking to waive his right

to counsel is the competence to waive the right, not the

competence to represent himself.” Id., at 399. We

grounded this on Faretta’s candid acknowledgment that

the Sixth Amendment protected the defendant’s right to

conduct a defense to his disadvantage. 509 U. S. at 399–

400.

B

The Court is correct that this case presents a variation

on Godinez: It presents the question not whether another

constitutional requirement (in Godinez, the proposed

higher degree of competence required for a waiver) limits

a defendant’s constitutional right to elect self-

representation, but whether a State’s view of fairness (or

of other values) permits it to strip the defendant of this

right. But that makes the question before us an easier

one. While one constitutional requirement must yield to

another in case of conflict, nothing permits a State, be-

cause of its view of what is fair, to deny a constitutional

protection. Although “the purpose of the rights set forth in

[the Sixth] Amendment is to ensure a fair trial,” it “does

not follow that the rights can be disregarded so long as the

trial is, on the whole, fair.” United States v. Gonzalez-

Lopez, 548 U. S. 140, 145 (2006). Thus, although the

Confrontation Clause aims to produce fairness by ensuring

the reliability of testimony, States may not provide for

Cite as: 554 U. S. ____ (2008) 7

SCALIA, J., dissenting

unconfronted testimony to be used at trial so long as it is

reliable. Crawford v. Washington, 541 U. S. 36, 61 (2004).

We have rejected an approach to individual liberties that

“ ‘abstracts from the right to its purposes, and then elimi-

nates the right.’ ” Gonzalez-Lopez, supra, at 145 (quoting

Maryland v. Craig, 497 U. S. 836, 862 (1990) (SCALIA, J.,

dissenting)).

Until today, the right of self-representation has been

accorded the same respect as other constitutional guaran-

tees. The only circumstance in which we have permitted

the State to deprive a defendant of this trial right is the

one under which we have allowed the State to deny other

such rights: when it is necessary to enable the trial to

proceed in an orderly fashion. That overriding necessity,

we have said, justifies forfeiture of even the Sixth

Amendment right to be present at trial—if, after being

threatened with removal, a defendant “insists on conduct-

ing himself in a manner so disorderly, disruptive, and

disrespectful of the court that his trial cannot be carried

on with him in the courtroom.” Illinois v. Allen, 397 U. S.

337, 343 (1970). A pro se defendant may not “abuse the

dignity of the courtroom,” nor may he fail to “comply with

relevant rules of procedural and substantive law,” and a

court may “terminate” the self-representation of a defen-

dant who “deliberately engages in serious and obstruction-

ist misconduct.” Faretta, supra, at 834–835, n. 46. This

ground for terminating self-representation is unavailable

here, however, because Edwards was not even allowed to

begin to represent himself, and because he was respectful

and compliant and did not provide a basis to conclude a

trial could not have gone forward had he been allowed to

press his own claims.

Beyond this circumstance, we have never constrained

the ability of a defendant to retain “actual control over the

case he chooses to present to the jury”—what we have

termed “the core of the Faretta right.” Wiggins, supra, at

8 INDIANA v. EDWARDS

SCALIA, J., dissenting

178. Thus, while Faretta recognized that the right of self-

representation does not bar the court from appointing

standby counsel, we explained in Wiggins that “[t]he pro se

defendant must be allowed to control the organization and

content of his own defense, to make motions, to argue

points of law, to participate in voir dire, to question wit-

nesses, and to address the court and the jury at appropri-

ate points in the trial.” 465 U. S., at 174. Furthermore,

because “multiple voices ‘for the defense’ ” could “confuse

the message the defendant wishes to convey,” id., at 177, a

standby attorney’s participation would be barred when it

would “destroy the jury’s perception that the defendant is

representing himself,” id., at 178.

As I have explained, I would not adopt an approach to

the right of self-representation that we have squarely

rejected for other rights—allowing courts to disregard the

right when doing so serves the purposes for which the

right was intended. But if I were to adopt such an ap-

proach, I would remain in dissent, because I believe the

Court’s assessment of the purposes of the right of self-

representation is inaccurate to boot. While there is little

doubt that preserving individual “ ‘dignity’ ” (to which the

Court refers), ante, at 11, is paramount among those

purposes, there is equally little doubt that the loss of

“dignity” the right is designed to prevent is not the defen-

dant’s making a fool of himself by presenting an amateur-

ish or even incoherent defense. Rather, the dignity at

issue is the supreme human dignity of being master of

one’s fate rather than a ward of the State—the dignity of

individual choice. Faretta explained that the Sixth

Amendment’s counsel clause should not be invoked to

impair “ ‘the exercise of [the defendant’s] free choice’ ” to

dispense with the right, 422 U. S., at 815 (quoting Adams,

317 U. S., at 280); for “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,”

Cite as: 554 U. S. ____ (2008) 9

SCALIA, J., dissenting

422 U. S., at 833–834. Nine years later, when we wrote in

Wiggins that the self-representation right served the

“dignity and autonomy of the accused,” 465 U. S., at 177,

we explained in no uncertain terms that this meant ac-

cording every defendant the right to his say in court. In

particular, we said that individual dignity and autonomy

barred standby counsel from participating in a manner

that would “destroy the jury’s perception that the de-

fendant is representing himself,” and meant that “the pro

se defendant is entitled to preserve actual control over the

case he chooses to present to the jury.” Id., at 178. In

sum, if the Court is to honor the particular conception of

“dignity” that underlies the self-representation right, it

should respect the autonomy of the individual by honoring

his choices knowingly and voluntarily made.

A further purpose that the Court finds is advanced by

denial of the right of self-representation is the purpose of

assuring that trials “appear fair to all who observe them.”

Ante, at 11. To my knowledge we have never denied a

defendant a right simply on the ground that it would make

his trial appear less “fair” to outside observers, and I

would not inaugurate that principle here. But were I to do

so, I would not apply it to deny a defendant the right to

represent himself when he knowingly and voluntarily

waives counsel. When Edwards stood to say that “I have a

defense that I would like to represent or present to the

Judge,” App. 523a, it seems to me the epitome of both

actual and apparent unfairness for the judge to say, I have

heard “your desire to proceed by yourself and I’ve denied

your request, so your attorney will speak for you from now

on,” id., at 530a.

III

It may be that the Court permits a State to deprive

mentally ill defendants of a historic component of a fair

trial because it is suspicious of the constitutional footing of

10 INDIANA v. EDWARDS

SCALIA, J., dissenting

the right of self-representation itself. The right is not

explicitly set forth in the text of the Sixth Amendment,

and some Members of this Court have expressed skepti-

cism about Faretta’s holding. See Martinez, supra, at 156–

158 (questioning relevance of historical evidence underly-

ing Faretta’s holding); 528 U. S., at 164 (BREYER, J., con-

curring) (noting “judges closer to the firing line have some-

times expressed dismay about the practical consequences”

of the right of self-representation).

While the Sixth Amendment makes no mention of the

right to forgo counsel, it provides the defendant, and not

his lawyer, the right to call witnesses in his defense and to

confront witnesses against him, and counsel is permitted

to assist in “his defence” (emphasis added). Our trial

system, however, allows the attorney representing a de-

fendant “full authority to manage the conduct of the

trial”—an authority without which “[t]he adversary proc-

ess could not function effectively.” Taylor v. Illinois, 484

U. S. 400, 418 (1988); see also Florida v. Nixon, 543 U. S.

175, 187 (2004). We have held that “the client must accept

the consequences of the lawyer’s decision to forgo cross-

examination, to decide not to put certain witnesses on the

stand, or to decide not to disclose the identity of certain

witnesses in advance of trial.” Taylor, supra, at 418.

Thus, in order for the defendant’s right to call his own

witnesses, to cross-examine witnesses, and to put on a

defense to be anything more than “a tenuous and unac-

ceptable legal fiction,” a defendant must have consented to

the representation of counsel. Faretta, supra, at 821.

Otherwise, “the defense presented is not the defense guar-

anteed him by the Constitution, for in a very real sense, it

is not his defense.” Ibid.

The facts of this case illustrate this point with the ut-

most clarity. Edwards wished to take a self-defense case

to the jury. His counsel preferred a defense that focused

on lack of intent. Having been denied the right to conduct

Cite as: 554 U. S. ____ (2008) 11

SCALIA, J., dissenting

his own defense, Edwards was convicted without having

had the opportunity to present to the jury the grounds he

believed supported his innocence. I do not doubt that he

likely would have been convicted anyway. But to hold that

a defendant may be deprived of the right to make legal

arguments for acquittal simply because a state-selected

agent has made different arguments on his behalf is, as

Justice Frankfurter wrote in Adams, supra, at 280, to

“imprison a man in his privileges and call it the Constitu-

tion.” In singling out mentally ill defendants for this

treatment, the Court’s opinion does not even have the

questionable virtue of being politically correct. At a time

when all society is trying to mainstream the mentally

impaired, the Court permits them to be deprived of a basic

constitutional right—for their own good.

Today’s holding is extraordinarily vague. The Court

does not accept Indiana’s position that self-representation

can be denied “ ‘where the defendant cannot communicate

coherently with the court or a jury,’ ” ante, at 12. It does

not even hold that Edwards was properly denied his right

to represent himself. It holds only that lack of mental

competence can under some circumstances form a basis for

denying the right to proceed pro se, ante, at 1. We will

presumably give some meaning to this holding in the

future, but the indeterminacy makes a bad holding worse.

Once the right of self-representation for the mentally ill is

a sometime thing, trial judges will have every incentive to

make their lives easier—to avoid the painful necessity of

deciphering occasional pleadings of the sort contained in

the Appendix to today’s opinion—by appointing knowl-

edgeable and literate counsel.

Because I think a defendant who is competent to stand

trial, and who is capable of knowing and voluntary waiver

of assistance of counsel, has a constitutional right to con-

duct his own defense, I respectfully dissent.