Counsel: Right to Counsel

In Faretta v. California, the Supreme Court held that the Sixth Amendment also guarantees the defendant in a criminal trial "a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Faretta was based on three interrelated arguments. First, historical evidence showed that a right of self-representation had existed since the founding. Second, the Court interpreted the structure of the Sixth Amendment, in the light of its English and colonial background, to embody a right of self-representation. The Sixth Amendment protected a defendant's personal right to make his defense and spoke of the "assistance" of counsel, and to require a defendant to accept counsel he did not want would undermine the amendment's structure. Finally, Faretta concluded that even though as an objective matter most defendants would receive a better defense if they accepted a lawyer's representation, a knowing and intelligent waiver "must be honored out of that respect for the individual which is the lifeblood of the law."

The reasons why a defendant might choose to represent himself vary. With respect to the roughly one-in-five defendants who do not qualify for appointed counsel, self-representation might reflect an inability to find a lawyer to take the case for an amount the client is willing to spend. Other times, a defendant may insist on representing himself because he is dissatisfied with the quality of appointed counsel and is unable to persuade the court to appoint a different lawyer. In these cases, the choice to represent oneself might realistically be viewed as not really a choice at all—in the Court's trenchant phrase in Martinez v. Court of Appeal, 528 U.S. 152 (2000), "comparable to bestowing upon the homeless beggar a 'right' to take shelter in the sewers of Paris." But in other cases, the defendant may have political or personal reasons for insisting on representing himself that are affirmatively served by presenting his own case rather than proceeding through a lawyer.

The right to self-representation is not absolute. First, a defendant must "'voluntarily and intelligently"' elect to conduct his own defense, and must assert his right in a timely manner. Unlike most rights, where waiver requires a knowing and intelligent relinquishment, a defendant need not be informed of his right to self-representation, and a court must warn him against asserting it. Second, a trial judge may terminate self-representation or appoint "standby counsel"—even over a defendant's objection. (On the other hand, a defendant has no constitutional right to the appointment of standby counsel; see McKaskle v. Wiggins, 465 U.S. 168 (1984)). Finally, in Martinez v. Court of Appeal, the Court held that a defendant has no right to represent himself on appeal.