Source and Rationale

Source and Rationale

The Sixth Amendment promises the accused the assistance of counsel, and its words say nothing about an accused who would rather go without. A right to refuse a lawyer therefore cannot be read off the surface of the text, which is why the Faretta decision needed an explanation of where the right comes from. The Court found it implicit in the structure of the Sixth Amendment as applied to the States through the Fourteenth.¹ That answer matters beyond the case itself. A student who knows only that the right exists cannot say how far it reaches when a request comes in late, or from a defendant who is disruptive, or from one who is mentally impaired. A student who knows why it exists can reason from that purpose to the new situation.

Two arguments support the right, and they answer different questions. The argument from text and structure answers whether the Constitution contains the right at all, by looking at what the Amendment's other guarantees reveal about whose defense a criminal trial is. The argument from autonomy answers why the right deserves protection even though a trained lawyer will usually conduct a defense better than the accused can. Because the defendant alone bears the consequences of the verdict, the choice of how to defend belongs to him, and the Court honored it out of respect for the individual.² The dissenting opinions pressed the competing concern, that allowing an untrained defendant to run his own trial threatens the fairness of the proceeding and the integrity of the system that conducts it.³ That tension between personal choice and a reliable trial runs through the rest of this chapter, because the conditions on waiver and the limits on the right are the points at which the law mediates between them. The next subsection takes the argument from text and history first.

Text and History

The inference in Faretta v. California starts from the one sentence of the Sixth Amendment that lists what the accused may demand, because the Court drew the right from what that list contains. The Amendment provides that in all criminal prosecutions "the accused shall enjoy the right . . . 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."⁴ Self-representation appears nowhere in that sentence. The right is therefore implied, and an answer that attributes it to express constitutional language misstates the holding, which the Court rested on the structure of the Amendment and on historical evidence.⁵

The structural argument begins by asking who holds each right on the list. The Amendment's own wording supplies the answer: the accused must be informed of the charge, the accused is to be confronted with the witnesses, and the accused is to be given compulsory process for witnesses in his favor.⁶ Each is a personal entitlement exercised in the defense the accused makes, and a provision that hands these powers to the defendant directly cannot sensibly be read to require that someone else exercise them for him against his will. The Court therefore concluded that the Amendment grants the accused personally the right to make his defense, and it gave the reason in one clause: the right to defend is given directly to the accused because he is the one who suffers the consequences if the defense fails.⁷ That is the structure of the Sixth Amendment argument, and it runs in three steps. The listed rights belong to the accused, a right to make one's own defense follows from that ownership, and the text therefore implies what it does not say. Justice Black, who read the Amendment as a set of firm commands, described its provisions in his separate opinion in Coleman v. Alabama as "clear, emphatic guarantees" that list counsel together with a speedy trial, trial by jury, and confrontation.⁸ Counsel sits on that list as one defense tool among several, and the Court's treatment of the word "assistance" builds on that placement.

The counsel clause supplies the second textual step. The Amendment guarantees the "Assistance of Counsel," and the Court relied on that word where the drafters could have written a right to representation by counsel.⁹ Assistance is help given to someone who is already conducting a defense, so the clause supplements the design of the other rights, and counsel, like the other defense tools the Amendment guarantees, is "an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally."¹⁰ On this reading the right to counsel is the defendant's to implement either on his own or with a lawyer's help.¹¹ A State that appoints a lawyer over a clear objection turns the aid into a compulsion, and nothing in the wording of the clause authorizes that.

History supports the structural reading from several directions. In the federal courts, the Judiciary Act of 1789 allowed parties to "plead and manage their own causes personally or by the assistance of such counsel" as the courts' rules permitted, and Congress has kept that provision in substance to the present day in 28 U.S.C. § 1654.¹² The statute treats personal management of a case and the assistance of counsel as two ways of proceeding, which fits the reading of "assistance" just described. With few exceptions the States likewise let a defendant represent himself in any criminal case.¹³ Colonial practice departed from the English common law by permitting counsel in felony cases, yet counsel was always at the defendant's choice, and state constitutional and statutory provisions creating a right to counsel specifically noted the right to self-representation.¹⁴ In the Court's words, the Founders appreciated the value of state-appointed counsel, yet "the notion of compulsory counsel was utterly foreign to them."¹⁵ History matters because the Amendment was written against that background. Reading it to permit compulsion would credit its drafters with introducing something the existing practice had never known.

The right also had to reach a defendant in a state court, since Faretta was prosecuted in California. The Court reached it by observing that the rights in the Amendment's compact statement are basic to the adversary system of criminal justice, so they form part of the due process of law that the Fourteenth Amendment guarantees to defendants in state criminal courts.¹⁶ That step is why a state judge who forces counsel on an unwilling defendant violates the Sixth and Fourteenth Amendments together.

The holding sits uneasily beside the cases that treat a lawyer as indispensable. Powell v. Alabama said that a layman charged with crime "requires the guiding hand of counsel at every step in the proceedings against him."¹⁷ The Faretta majority conceded that a right to proceed pro se "seems to cut against the grain" of decisions like Powell and Gideon v. Wainwright, which rest on the premise that "the help of a lawyer is essential to assure a fair trial."¹⁸ Even Powell's account of the historical right to a hearing described it as including the aid of counsel "when desired and provided by the party asserting the right," wording that reads naturally as presupposing a party who wants a lawyer.¹⁹ The Court was divided, however, and the dissenters contended that the State's interest in a fair trial permitted it to insist on counsel, a contention the majority rejected.²⁰ The historical case is therefore best presented as the majority's reading of the record, and a student should not describe it as common ground among the Justices.

The structural premise, that the Amendment gives the accused personal control of his defense, carries to other rights at trial but stops where the Sixth Amendment stops. In Rock v. Arkansas the Court recalled that the Amendment grants the accused personally the right to make his defense, and it treated the accused's right to tell his own version of events in his own words as even more fundamental to a personal defense than self-representation, which it described as necessarily implied by the structure of the Amendment.²¹ On appeal the argument loses its footing. In Martinez v. Court of Appeal of California the Court held that there is no constitutional right to self-representation on appeal, reasoning that Faretta rested on the structure and history of the Sixth Amendment while the governing provision at the appellate stage was simply due process, so the autonomy interest was less compelling.²² A later section develops that limit.

The same reasoning disposes of the usual objection on an exam. When a state court denies a clear, timely request to proceed alone on the ground that the Sixth Amendment mentions only the "Assistance of Counsel," the objection fails, because textual silence does not defeat a right the Amendment's structure and history imply. The Faretta Court held that the California courts' contrary conclusion was inconsistent with the language of the Amendment, with the historical evidence, and with the Court's own decisions.²³ A defendant in that position wins by pointing to the personal character of the listed rights, the word "assistance," the long federal and state practice, and incorporation through the Fourteenth Amendment.

Autonomy and Its Critics

The structural argument explains where the right comes from, and it leaves a harder question open: why should the Constitution honor a choice that will usually leave the defendant worse off? The Court did not pretend otherwise. In Faretta v. California the majority conceded that in most criminal prosecutions a defendant could defend better with a lawyer's guidance than through unskilled efforts of his own.²⁵ The practical picture confirms the concession. A defendant with no legal training is less likely to investigate the case properly, probably less skilled at negotiating a plea, more likely to miss issues that call for a pretrial motion, and apt to do a poor job challenging the government's witnesses, while pro se defendants (those who represent themselves) often want to press political or personal grievances that make a trial awkward and inefficient.²⁶ The autonomy rationale is the Court's reason for protecting the choice anyway.

The reasoning proceeds in links. The first concerns what a lawyer's skill is worth to a defendant who does not want it. Where the defendant will not voluntarily accept counsel, the advantage of a lawyer's training and experience can be realized, if at all, only imperfectly, and forcing a lawyer on the defendant can only lead the defendant to believe that the law contrives against him.²⁷ An appointed lawyer who is distrusted therefore delivers less than the full benefit that justified the appointment, and the compulsion adds a grievance of its own. The second link answers the argument from averages. It is not inconceivable that in some rare instance a defendant will present the case more effectively alone, and, as the Court put it, personal liberties do not rest on the law of averages.²⁸ A rule that let the judge override the choice whenever a lawyer would probably do better would strip the right from the exceptional defendant along with everyone else, and no judge can know in advance which defendant that is.

The third link locates the decision. The right to defend is personal, and because the defendant, rather than the lawyer or the State, bears the personal consequences of a conviction, the defendant must be free to decide whether counsel is to his advantage in his own case.²⁹ The person who pays for the decision receives the authority to make it, and neither the lawyer nor the State loses any liberty if the choice turns out badly. The last link fixes the consequence: although the defendant may conduct the defense to his own detriment, the choice must be honored out of "that respect for the individual which is the lifeblood of the law."³⁰ The framers of the Sixth Amendment, the Court added, knew the value of counsel in producing a fair trial and still placed free choice on a higher plane.³¹

Faretta's own record shows the rule operating. The trial judge warned him that it was a mistake to forgo counsel and that he would have to follow all the ground rules of trial procedure, and the Court still held that his informed choice had to be honored.³² A judge may give the warning, and the judge's disagreement with the choice does not entitle the court to override it.

Students lose this issue when they treat a forecast of failure as a reason to refuse a valid waiver. The forecast is exactly what the autonomy rationale concedes, and the defendant's right to decide survives it.

The dissent saw the same facts and gave a different answer to the question of who should decide. Chief Justice Burger, joined by Justices Blackmun and Rehnquist, rejected the idea that the quality of the defense concerns only the accused, because the prosecution is more than an ordinary litigant and the trial judge is no automaton who merely enforces technical rules, so that both share the duty of seeing that justice, in the broadest sense, is achieved in every criminal trial.³³ When an easy conviction follows an ill-advised waiver, the dissent reasoned, the integrity of the system and public confidence in it suffer, and the system of criminal justice "should not be available as an instrument of self-destruction."³⁴ Since the trial judge is best placed to decide whether the accused can conduct a defense, the dissent would have let the court reject any attempted waiver.³⁵ Justice Blackmun gave the worry a sharper form: if there is truth in the old proverb that one who is his own lawyer has a fool for a client, the Court had conferred a constitutional right to make a fool of oneself.³⁶ Both sides therefore accept that a lawyer will usually do better, and they divide over who decides whether the lawyer's advantage is worth taking. The majority gave that decision to the defendant, who bears the consequences, and the dissent gave it to the trial judge, who answers for the integrity of the trial.³⁷

The dissent's premise has deep roots in the Court's own right-to-counsel cases, which is why the majority acknowledged that a right to proceed pro se cuts against the grain of decisions resting on the idea that a lawyer's help is essential to a fair trial.³⁸ Powell v. Alabama observed that even an educated layman has small skill in the science of law and requires the guiding hand of counsel at every step in the proceedings against him.³⁹ Yet Powell decided who must supply a lawyer, and it did so narrowly: in a capital case, when the defendant cannot employ counsel and is incapable of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, the trial court must assign counsel whether requested or not.⁴⁰ That holding protects the defendant who needs help and says nothing about the defendant who validly refuses it. The Faretta majority drew exactly this line, reasoning that it is one thing to hold that every defendant has the right to a lawyer and quite another to say that a State may compel a defendant to accept one he does not want.⁴¹ The concern with the incapable defendant that runs through Powell returns in the competence limits taught below.

Decisions in other settings repeat the premise that counsel matters. Coleman v. Alabama repeated that the accused requires the guiding hand of counsel at every step, and United States v. Wade recalled the colonial view that a defendant forced to stand alone against the state had a case that was foredoomed.⁴² Estelle v. Smith added, in the Fifth Amendment setting, that a layman may not know the nuances of his rights, and In re Gault said that an accused needs a lawyer to cope with problems of law, to inquire skillfully into the facts, and to insist on regularity in the proceedings.⁴³ Strickland v. Washington tied the guarantee of effective assistance to the same idea, that access to counsel's skill and knowledge is necessary to give defendants the ample opportunity to meet the prosecution's case to which they are entitled.⁴⁴ These decisions explain what counsel contributes, and each supplies a reason the dissent could invoke for distrusting an uncounseled defense. None of them asks whether a State may compel a lawyer on a defendant who validly declines one, and that was the question the Faretta majority answered in the defendant's favor.

The majority did not discard the dissent's concern; it relocated it. A State may not override a valid waiver merely because a lawyer would do better or because a conviction after a waiver looks unseemly, yet the right carries a condition: the defendant must knowingly and intelligently give up counsel's benefits, so that the record shows the choice was made with eyes open.⁴⁵ The later sections show where the system-integrity interest still operates, in the requirement of a careful judicial inquiry into the waiver and in the recognized limits for untimely requests, obstructionist conduct, and incapacity. The weight given to autonomy also explains why the right has edges elsewhere: on appeal, where the governing provision is simply due process, the Court found the autonomy interest less compelling and recognized no right of self-representation.⁴⁶