holding that because the Sixth Amendment to the United States Constitution implies the right to self-representation, if a defendant makes a pre-trial, unequivocal assertion of the right to self-representation, the request must be followed by a hearing to ensure the defendant knowingly and intelligently waives the “traditional benefits associated with the right to counsel” and understands the “disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open” (punctuation omitted)
How later courts described this case
- holding that because the Sixth Amendment to the United States Constitution implies the right to self-representation, if a defendant makes a pre-trial, unequivocal assertion of the right to self-representation, the request must be followed by a hearing to ensure the defendant knowingly and intelligently waives the “traditional benefits associated with the right to counsel” and understands the “disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open” (punctuation omitted)
- holding criminal defendants have * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. Case: 09-30196 Document: 00511328350 Page: 2 Date Filed: 12/21/2010 No. 09-30196 constitutional right to self-representation, and when accused manages own defense such that he invokes that right, he must knowingly and intelligently forgo his right to counsel and be made aware of dangers of self-representation
- stating “in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits.” Thus, “although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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 his choice is made with eyes open.” (internal citations omitted)
- holding 4 A magistrate judge appointed Mr. Estrada’s counsel on November 18, 1999. Mr. Estrada’s trial began January 19, 2000. The jury convicted Mr. Estrada January 21, 2000. Nevertheless, Mr. Estrada did not request self-representation until June 22, 2000. -9- the Sixth Amendment to the United States Constitution “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”
Written by the judges who cited it.
Later courts went against this
Questioned by Commonwealth v. Ayers, 2013 Ky. LEXIS 584 (2013)
In arriving at this conclusion, the wisdom of Faretta was called into question.
Disagreed with by United States v. Mix, 32 M.J. 974 (1991)
We disagree with appellant’s position that Faretta makes the Von Moltke standards mandatory.
Distinguished
Distinguished by State v. Bell, 2010 La. LEXIS 2618 (2010)
Second, Appel v. Horn, 250 F.3d 203 (3d Cir.2001), which the defendant characterizes as supporting his claim that he was denied assistance of counsel at the Faretta hearing until the moment his motion was granted, is readily distinguishable.
Distinguished by People v. Allen, 50 Cal. Rptr. 3d 913 (2006)
Since SPV proceedings are not criminal, Faretta is inapplicable and there is no Sixth Amendment right to self-representation.
Distinguished by Owen v. Crosby, 854 So. 2d 182 (2003)
Next, this Court held that the principles underlying Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were inapplicable to the instant case.
Distinguished by Weems v. State, 645 So. 2d 1098 (1994)
We note that in this case, Appellant was not seeking to represent himself; therefore, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is inapposite.
The opinion
Mr. Justice Blackmun,
with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.
Today the Court holds that the Sixth Amendment guarantees to every defendant in a state criminal trial the right to proceed without counsel whenever he elects to do so. I find no textual support for this conclusion in the language of the Sixth Amendment. I find the historical evidence relied upon by the Court to be unpersuasive, especially in light of the recent history of criminal procedure. Finally, I fear that the right to self-representation constitutionalized today frequently will cause procedural confusion without advancing any significant strategic interest of the defendant. I therefore dissent.
I
The starting point, of course, is the language of the Sixth Amendment:
“In all criminal prosecutions, the accused shall en *847 joy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
It is self-evident that the Amendment makes no direct reference to self-representation. Indeed, the Court concedes that the right to self-representation is “not stated in the Amendment in so many words.” Ante, at 819.
It could be argued that the right to assistance of counsel necessarily carries with it the right to waive assistance of counsel. The Court recognizes, however, ante, at 819-820, n. 15, that it has squarely rejected any mechanical interpretation of the Bill of Rights. Mr. Chief Justice Warren, speaking for a unanimous Court in Singer v. United States, 380 U. S. 24 , 34 — 35 (1965), stated: “The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.”
Where then in the Sixth Amendment does one find this right to self-representation? According to the Court, it is “necessarily implied by the structure of the Amendment.” Ante, at 819. The Court’s chain of inferences is delicate and deserves scrutiny. The Court starts with the proposition that the Sixth Amendment is “a compact statement of the rights necessary to a full defense.” Ante, at 818. From this proposition the Court concludes that the Sixth Amendment “constitutionalizes the right in an adversary criminal trial to make a defense as we know it.” Ibid. Up to this point, at least as a general proposition, the Court’s reasoning is unexception *848 able. The Court, however, then concludes that because the specific rights in the Sixth Amendment are personal to the accused, the accused must have a right to exercise those rights personally. Stated somewhat more succinctly, the Court reasons that because the accused has a personal right to “a defense as we know it,” he necessarily has a right to make that defense personally. I disagree. Although I believe the specific guarantees of the Sixth Amendment are personal to the accused, I do not agree that the Sixth Amendment guarantees any particular procedural method of asserting those rights. If an accused has enjoyed a speedy trial by an impartial jury in which he was informed of the nature of the accusation, confronted with the witnesses against him, afforded the power of compulsory process, and represented effectively by competent counsel, I do not see that the Sixth Amendment requires more.
The Court suggests that thrusting counsel upon the accused against his considered wish violates the logic of the Sixth Amendment because counsel is to be an assistant, not a master. The Court seeks to support its conclusion by historical analogy to the notorious procedures of the Star Chamber. The potential for exaggerated analogy, however, is markedly diminished when one recalls that petitioner is seeking an absolute right to self-representation. This is not a case where defense counsel, against the wishes of the defendant or with inadequate consultation, has adopted a trial strategy that significantly affects one of the accused’s constitutional rights. For such overbearing conduct by counsel, there is a remedy. Brookhart v. Janis, 384 U. S. 1 (1966) ; Fay v. Noia, 372 U. S. 391, 439 (1963). Nor is this a case where distrust, animosity, or other personal differences between the accused and his would-be counsel have rendered effective representation unlikely or impossible. *849 See Brown v. Craven, 424 F. 2d 1166, 1169-1170 (CA9 1970). See also Anders v. California, 386 U. S. 738 (1967). Nor is this even a case where a defendant has been forced, against his wishes to expend his personal resources to pay for counsel for his defense. See generally Fuller v. Oregon, 417 U. S. 40 (1974); James v. Strange, 407 U. S. 128 (1972). Instead, the Court holds that any defendant in any criminal proceeding may insist on representing himself regardless of how complex the trial is likely to be and regardless of how frivolous the defendant’s motivations may be. I cannot agree that there is anything in the Due Process Clause or the Sixth Amendment that requires 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 Court seems to suggest that so long as the accused is willing to pay the consequences of his folly, there is no reason for not allowing a defendant the right to self-representation. Ante, at 834. See also United States ex rel. Maldonado v. Denno, 348 F. 2d 12, 15 (CA2 1965) (“[E]ven in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires . . .”). That view ignores 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.” Berger v. United States, 295 U. S. 78, 88 (1935). See also Singer v. United States, 380 U. S., at 37 . For my part, I do not believe that any amount of pro se pleading can cure the injury to society of an unjust result, but I do believe that a just result should prove to be an effective balm for almost any frustrated pro se defendant.
*850 II
The Court argues that its conclusion is supported by the historical evidence on self-representation. It is true that self-representation was common, if not required, in 18th century English and American prosecutions. The Court points with special emphasis to the guarantees of self-representation in colonial charters, early state constitutions, and § 35 of the first Judiciary Act as evidence contemporaneous with the Bill of Rights of widespread recognition of a right to self-representation.
I do not participate in the Court’s reliance on the historical evidence. To begin with, the historical evidence seems to me to be inconclusive in revealing the original understanding of the language of the Sixth Amendment. At the time the Amendment was first proposed, both the right to self-representation and the right to assistance of counsel in federal prosecutions were guaranteed by statute. The Sixth Amendment expressly constitutionalized the right to assistance of counsel but remained conspicuously silent on any right of self-representation. The Court believes that this silence of the Sixth Amendment as to the latter right is evidence of the Framers’ belief that the right was so obvious and fundamental that it did not need to be included “in so many words” in order to be protected by the Amendment. I believe it is at least equally plausible to conclude that the Amendment’s silence as to the right of self-representation indicates that the Framers simply did not have the subject in mind when they drafted the language.
The paucity of historical support for the Court’s position becomes far more profound when one examines it against the background of two developments in the more recent history of criminal procedure. First, until the middle of the 19th century, the defendant in a criminal proceeding in this country was almost always disqualified *851 from testifying as a witness because of his “interest” in the outcome. See generally Ferguson v. Georgia, 365 U. S. 570 (1961). Thus, the ability to defend “in person” was frequently the defendant’s only chance to present his side of the case to the judge or jury. See, e. g., Wilson v. State, 50 Tenn. 232 (1871). Such Draconian rules of evidence, of course, are now a relic of the past because virtually every State has passed a statute abrogating the common-law rule of disqualification. See Ferguson v. Georgia, 365 U. S., at 575-577, 596 . With the abolition of the common-law disqualification, the right to appear “in person” as well as by counsel lost most, if not all, of its original importance. See Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 Minn. L. Rev. 1175 , 1192-1194 (1970).
The second historical development is this Court’s elaboration of the right to counsel. The road the Court has traveled from Powell v. Alabama, 287 U. S. 45 (1932), to Argersinger v. Hamlin, 407 U. S. 25 (1972), need not be recounted here. For our purposes, it is sufficient to recall that from start to finish the development of the right to counsel has been based on the premise that representation by counsel is essential to ensure a fair trial. The Court concedes this and acknowledges that “a strong argument can surely be made that the whole thrust of those decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.” Ante, at 833. Nevertheless, the Court concludes that self-representation must be allowed despite the obvious dangers of unjust convictions in order to protect the individual defendant’s right of free choice. As I have already indicated, I cannot agree to such a drastic curtailment of the interest of the State in seeing that justice is done in a real and objective sense.
*852 Ill
In conclusion, I note briefly the procedural problems that, I suspect, today's decision will visit upon trial courts in the future. Although the Court indicates that a pro se defendant necessarily waives any claim he might otherwise make of ineffective assistance of counsel, ante, at 834 — 835, n. 46, the opinion leaves open a host of other procedural questions. Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Must the trial court treat the pro se defendant differently than it would professional counsel? I assume that many of these questions will be answered with finality in due course. Many of them, however, such as the standards of waiver and the treatment of the pro se defendant, will haunt the trial of every defendant who elects to exercise his right to self-representation. The procedural problems spawned by an absolute right to self-representation will far outweigh whatever tactical advantage the defendant may feel he has gained by electing to represent himself.
If there is any truth to the old proverb that “one who is his own lawyer has a fool for a client,'' the Court by its opinion today now bestows a constitutional right, on one to make a fool of himself.