Faretta v. California, 422 U.S. 806 (1975)

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Filed: 1975-06-30Precedential Status: PrecedentialCitations: 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562, 1975 U.S. LEXIS 83Docket: 73-5772Supreme Court Database id: 1974-148

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422 U.S. 806
95 S.Ct. 2525.
45 L.Ed.2d 562

Anthony Pasquall FARETTA, Petitioner,
v.
State of CALIFORNIA.
No. 73—5772.
Argued Nov. 19, 1974.
Decided June 30, 1975.

Syllabus
The Sixth Amendment as made applicable to the States by the Fourteenth
guarantees that a defendant in a state criminal trial has an independent
constitutional right of self-representation and that he may proceed to
defend himself without counsel when he voluntarily and intelligently
elects to do so; and in this case the state courts erred in forcing petitioner
against his will to accept a state-appointed public defender and in denying
his request to conduct his own defense. Pp. 812-836.
Vacated and remanded.
Jerome B. Falk, Jr., San Francisco, Cal., for petitioner.
Howard J. Schwab, Los Angeles, Cal., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

1

The Sixth and Fourteenth Amendments of our Constitution guarantee that a
person brought to trial in any state or federal court must be afforded the right to
the assistance of counsel before he can be validly convicted and punished by
imprisonment. This clear constitutional rule has emerged from a series of cases
decided here over the last 50 years.1 The question before us now is whether a
defendant in a state criminal trial has a constitutional right to proceed without
counsel when he voluntarily and intelligently elects to do so. Stated another
way, the question is whether a State may constitutionally hale a person into its
criminal courts and there force a lawyer upon him, even when he insists that he
wants to conduct his own defense. It is not an easy question, but we have
concluded that a State may not constitutionally do so.

2

* Anthony Faretta was charged with grand theft in an information filed in the
Superior Court of Los Angeles County, Cal. At the arraignment, the Superior
Court Judge assigned to preside at the trial appointed the public defender to
represent Faretta. Well before the date of trial, however, Faretta requested that
he be permitted to represent himself. Questioning by the judge revealed that
Faretta had once represented himself in a criminal prosecution, that he had a
high school education, and that he did not want to be represented by the public
defender because he believed that that office was 'very loaded down with . . . a
heavy case load.' The judge responded that he believed Faretta was 'making a
mistake' and emphasized that in further proceedings Faretta would receive no
special favors.2 Nevertheless, after establishing that Faretta wanted to represent
himself and did not want a lawyer, the judge, in a 'preliminary ruling,' accepted
Faretta's waiver of the assistance of counsel. The judge indicated, however, that
he might reverse this ruling if it later appeared that Faretta was unable
adequately to represent himself.

3

Several weeks thereafter, but still prior to trial, the judge sua sponte held a
hearing to inquire into Faretta's ability to conduct his own defense, and
questioned him specifically about both the hearsay rule and the state law
governing the challenge of potential jurors.3 After consideration of Faretta's
answers, and observation of his demeanor, the judge ruled that Faretta had not
made an intelligent and knowing waiver of his right to the assistance of
counsel, and also ruled that Faretta had no constitutional right to conduct his
own defense.4 The judge, accordingly, reversed his earlier ruling permitting
self-representation and again appointed the public defender to represent Faretta.
Faretta's subsequent request for leave to act as co-counsel was rejected, as were
his efforts to make certain motions on his own behalf.5 Throughout the
subsequent trial, the judge required that Faretta's defense be conducted only
through the appointed lawyer from the public defender's office. At the
conclusion of the trial, the jury found Faretta guilty as charged, and the judge
sentenced him to prison.

4

The California Court of Appeal, relying upon a then-recent California Supreme
Court decision that had expressly decided the issue,6 affirmed the trial judge's
ruling that Faretta had no federal or state constitutional right to represent
himself.7 Accordingly, the appellate court affirmed Faretta's conviction. A
petition for rehearing was denied without opinion, and the California Supreme
Court denied review.8 We granted certiorari. 415 U.S. 975, 94 S.Ct. 1559, 39
L.Ed.2d 870.
II

5

In the federal courts, the right of self-representation has been protected by
statute since the beginnings of our Nation. Section 35 of the Judiciary Act of
1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President
Washington one day before the Sixth Amendment was proposed, provided that
'in all the courts of the United States, the parties may plead and manage their
own causes personally or by the assistance of such counsel . . ..' The right is
currently codified in 28 U.S.C. § 1654.

6

With few exceptions, each of the several States also accords a defendant the
right to represent himself in any criminal case.9 The constitutions of 36 States
explicitly confer that right.10 Moreover, many state courts have expressed the
view that the right is also supported by the Constitution of the United States.11

7

This Court has more than once indicated the same view. In Adams v. United
States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268, the
Court recognized that the Sixth Amendment right to the assistance of counsel
implicitly embodies a 'correlative right to dispense with a lawyer's help.' The
defendant in that case, indicted for federal mail fraud violations, insisted on
conducting his own defense without benefit of counsel. He also requested a
bench trial and signed a waiver of his right to trial by jury. The prosecution
consented to the waiver of a jury, and the waiver was accepted by the court.
The defendant was convicted, but the Court of Appeals reversed and conviction
on the ground that a person accused of a felony could not competently waive
his right to trial by jury except upon the advice of a lawyer. This Court reversed
and reinstated the conviction, holding that 'an accused, in the exercise of a free
and intelligent choice, and with the considered approval of the court, may
waive trial by jury, and so likewise may he competently and intelligently waive
his Constitutional right to assistance of counsel.' Id., at 275, 63 S.Ct., at 240.

8

The Adams case does not, of course, necessarily resolve the issue before us. It
held only that 'the Constitution does not force a lawyer upon a defendant.' Id., at
279, 63 S.Ct., at 242. 12 Whether the Constitution forbids a State from forcing a
lawyer upon a defendant is a different question. But the Court in Adams did
recognize, albeit in dictum, an affirmative right of self-representation:

9

'The right to assistance of counsel and the correlative right to dispense with a
lawyer's help are not legal formalisms. They rest on considerations that go to
the substance of an accused's position before the law. . . .

10

'. . . What were contrived as protections for the accused should not be turned
into fetters. . . . To deny an accused a choice of procedure in circumstances in
which he, though a layman, is as capable as any lawyer of making an intelligent
choice, is to impair the worth of great Constitutional safeguards by treating
them as empty verbalisms.

11

'. . . When the administration of the criminal law . . . is hedged bout as it is by
the Constitutional safeguards for the protection of an accused, to deny him in
the exercise of his free choice the right to dispense with some of thse
safeguards . . . is to imprison a man in his privileges and call it the
Constitution.' Id., at 279—280, 63 S.Ct., at 241 242. (emphasis added).

12

In other settings as well, the Court has indicated that a defendant has a
constitutionally protected right to represent himself in a criminal trial. For
example, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674,
the Court held that the Confrontation Clause of the Sixth Amendment gives the
accused a right to be present at all stages of the proceedings where fundamental
fairness might be thwarted by his absence. This right to 'presence' was based
upon the premise that the 'defense may be made easier if the accused is
permitted to be present at the examination of jurors or the summing up of
counsel, for it will be in his power, if present, to give advice or suggestion or
even to supersede his lawyers altogether and conduct the trial himself.' Id., at
106, 54 S.Ct., at 332 (emphasis added). And in Price v. Johnston, 334 U.S. 266,
68 S.Ct. 1049, 92 L.Ed. 1356, the Court, in holding that a convicted person had
no absolute right to argue his own appeal, said this holding was in 'sharp
contrast' to his 'recognized privilege of conducting his own defense at the trial.'
Id., at 285, 68 S.Ct., at 1060.

13

The United States Court of Appeals have repeatedly held that the right of selfrepresentation is protected by the Bill of Rights. In United States v. Plattner,
330 F.2d 271, the Court of Appeals for the Second Circuit emphasized that the
Sixth Amendment grants the accused the rights of confrontation, of compulsory
process for witnesses in his favor, and of assistance of counsel as minimum
procedural requirements in federal criminal prosecutions. The right to the
assistance of counsel, the court concluded, was intended to supplement the
other rights of the defendant, and not to impair 'the absolute and primary right
to conduct one's own defense in propria persona.' Id., at 274. The court found
support for its decision in the language of the 1789 federal statute; in the
statutes and rules governing criminal procedure, see 28 U.S.C. § 1654, and
Fed.Rule Crim.Proc. 44; in the many state constitutions that expressly
guarantee selfrepresentations and in this Court's recognition of the right in
Adams and Price. On these grounds, the Court of Appeals held that implicit in
the Fifth Amendment's guarantee of due process of law, and implicit also in the
Sixth Amendment's guarantee of a right to the assistance of counsel, is 'the right
of the accused personally to manage and conduct his own defense in a criminal
case.' 330 F.2d, at 274. See also United States ex rel. Maldonado v. Denno, 348
F.2d 12, 15 (CA2); MacKenna v. Ellis, 263 F.2d 35, 41 (CA5); United States v.
Sternman, 415 F.2d 1165, 1169—1170 (CA6); Lowe v. United States, 418 F.2d
100, 103 (CA7); United States v. Warner, 428 F.2d 730, 733 (CA8); Haslam v.
United States, 431 F.2d 362, 365 (CA9); compare United States v. Dougherty,
154 U.S.App.D.C. 76, 86, 473 F.2d 1113, 1123 (intimating right is
constitutional but finding it unnecessary to reach issue) with Brown v. United
States, 105 U.S.App.D.C. 77, 79—80, 264 F.2d 363, 365—366 (plurality
opinion stating right is no more than statutory in nature).

14

This Court's past recognition of the right of self-representation, the federalcourt authority holding the right to be of constitutional dimension, and the state
constitutions pointing to the right's fundamental nature form a consensus not
easily ignored. '(T)he mere fact that a path is a beaten one,' Mr. Justice Jackson
once observed, 'is a persuasive reason for following it.'13 We confront here 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.
III

15

This consensus is soundly premised. The right of self-representation finds
support in the structure of the Sixth Amendment, as well as in the English and
colonial jurisprudence from which the Amendment emerged.
A.

16

The Sixth Amendment includes a compact statement of the rights necessary to a
full defense:

17

'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.'

18

Because these rights are basic to our adversary system of criminal justice, they
are part of the 'due process of law' that is guaranteed by the Fourteenth
Amendment to defendants in the criminal courts of the States.14 The rights to
notice, confrontation, and compulsory process, when taken together, guarantee
that a criminal charge may be answered in a manner now considered
fundamental to the fair administration of American justice—through the calling
and interrogation of favorable witnesses, the cross-examination of adverse
witnesses, and the orderly introduction of evidence. In short, the Amendment
constitutionalizes the right in an adversary criminal trial to make a defense as
we know it. See California v. Green, 399 U.S. 149, 176, 90 S.Ct. 1930, 1944,
26 L.Ed.2d 489 (Harlan, J., concurring).

19

The Sixth Amendment does not provide merely that a defense shall be made for
the accused; it grants to the accused personally the right to make his defense. It
is the accused, not counsel, who must be 'informed of the nature and cause of
the accusation,' who must be 'confronted with the witnesses against him,' and
who must be accorded 'compulsory process for obtaining witnesses in his
favor.' Although not stated in the Amendment in so many words, the right to
self-representation—to make one's own defense personally is thus necessarily
implied by the structure of the Amendment.15 The right to defend is given
directly to the accused; for it is he who suffers the consequences if the defense
fails.

20

The counsel provision supplements this design. It speaks of the 'assistance' of
counsel, and an assistant, however expert, is still an assistant. The language and
spirit of the Sixth Amendment contemplate that counsel, like the other defense
tools guaranteed by the Amendment, shall be an aid to a willing defendant—not
an organ of the State interposed between an unwilling defendant and his right to
defend himself personally. To thrust counsel upon the accused, against his
considered wish, thus violates the logic of the Amendment. In such a case,
counsel is not an assistant, but a master;16 and the right to make a defense is
stripped of the personal character upon which the Amendment insists. It is true
that when a defendant chooses to have a lawyer manage and present his case,
law and tradition may allocate to the counsel the power to make binding
decisions of trial strategy in many areas. Cf. Henry v. Mississippi, 379 U.S.
443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408; Brookhart v. Janis, 384 U.S. 1, 7
—8, 86 S.Ct. 1245, 1248—1249, 16 L.Ed.2d 314; Fay v. Noia, 372 U.S. 391,
439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837. This allocation can only be justified,
however, by the defendant's consent, at the outset, to accept counsel as his
representative. An unwanted counsel 'represents' the defendant only through a
tenuous and unacceptable legal fiction. Unless the accused has acquiesced in
such representation, the defense presented is not the defense guaranteed him by
the Constitution, for, in a very real sense, it is not his defense.
B

21

The Sixth Amendment, when naturally read, thus implies a right of selfrepresentation. This reading is reinforced by the Amendment's roots in English
legal history.

22

In 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. That curious
institution, which flourished in the late 16th and early 17th centuries, was of
mixed executive and judicial character, and characteristically departed from
common-law traditions. For those reasons, and because it specialized in trying
'political' defenses, the Star Chamber has for centuries symbolized disregard of
basic individual rights.17 The Star Chamber not merely allowed but required
defendants to have counsel. The defendant's answer to an indictment was not
accepted unless it was signed by counsel. When counsel refused to sign the
answer, for whatever reason, the defendant was considered to have confessed.18
Stephen commented on this procedure: 'There is something specially repugnant
to justice in using rules of practice in such a manner as to debar a prisoner from
defending himself, especially when the professed object of the rules so used is
to provide for his defence.' 1 J. Stephen, A History of the Criminal Law of
England 341—342 (1883). The Star Chamber was swept away in 1641 by the
revolutionary fervor of the Long Parliament. The notion of obligatory counsel
disappeared with it.

23

By the common law of that time, it was not representation by counsel but selfrepresentation that was the practice in prosecutions for serious crime. At one
time, every litigant was required to 'appear before the court in his own person
and conduct his own cause in his own words.'19 While a right to counsel
developed early in civil cases and in cases of misdemeanor, a prohibition
against the assistance of counsel continued for centuries in prosecutions for
felony or treason.20 Thus, in the 16th and 17th centuries the accused felon or
traitor stood alone, with neither counsel nor the benefit of other rights—to
notice, confrontation, and compulsory process—that we now associate with a
genuinely fair adversary proceeding. The trial was merely a 'long argument
between the prisoner and the counsel for the Crown.'21 As harsh as this now
seems, at least 'the prisoner was allowed to make what statements he liked. . . .
Obviously this public oral trial presented many more opportunities to a prisoner
than the secret enquiry based on written depositions, which, on the continent,
had taken the place of a trial. . . .'22

24

With the Treason Act of 1695, there began a long and important era of reform
in English criminal procedure. The 1695 statute granted to the accused traitor
the rights to a copy of the indictment, to have his witnesses testify under oath,
and 'to make . . . full Defence, by Counsel learned in the Law.'23 It also
provided for court appointment of counsel, but only if the accused so desired.24
Thus, as new rights developed, the accused retained his established right 'to
make what statements he liked.'25 The right to counsel was viewed as
guaranteeing a choice between representation by counsel and the traditional
practice of self-representation. The ban on counsel in felony cases, which had
been substantially eroded in the courts,26 was finally eliminated by statute in
1836.27 In more recent years, Parliament has provided for court appointment of
counsel in serious criminal cases, but only at the accused's request.28 At no
point in this process of reform in England was counsel ever forced upon the
defendant. The common-law rule, succinctly stated in R. v. Woodward, (1944)
K.B. 118, 119, (1944) 1 All E.R. 159, 160, has evidently always been that 'no
person charged with a criminal offence can have counsel forced upon him
against his will.'29 See 3 Halsbury's Laws of England 1141, pp. 624—625 (4th
ed. 1973); R. v. Maybury, 11 L.T.R.(n.s.) 566 (Q.B.1865).
C

25

In the American Colonies the insistence upon a right of self-representation was,
if anything, more fervent than in England.

26

The colonists brought with them an appreciation of the virtues of self-reliance
and a traditional distrust of law-years. When the Colonies were first settled, 'the
lawyer was synonymous with the cringing Attorneys-General and SolicitorsGeneral of the Crown and the arbitrary Justices of the King's Court, all bent on
the conviction of those who opposed the King's prerogatives, and twisting the
law to secure convictions.'30 This prejudice gained strength in the Colonies
where 'distrust of lawyers became an institution.'31 Several Colonies prohibited
pleading for hire in the 17th century.32 The prejudice persisted into the 18th
century as 'the lower classes came to identify lawyers with the upper class.'33
The years of Revolution and Confederation saw an upsurge of antilawyer
sentiment, a 'sudden revival, after the War of th Revolution, of the old dislike
and distrust of lawyers as a class.'34 In the heat of these sentiments the
Constitution was forged.

27

This is not to say that the Colonies were slow to recognize the value of counsel
in criminal cases. Colonial judges soon departed from ancient English practice
and allowed accused felons the aid of counsel for their defense.35 At the same
time, however, the basic right of self-representation was never questioned. We
have found no instance where a colonial court required a defendant in a
criminal case to accept as his representative an unwanted lawyer. Indeed, even
where counsel was permitted, the general practice continued to be selfrepresentation.36

28

The right of self-representation was guaranteed in many colonial charters and
declarations of rights. These early documents establish that the 'right to counsel'
meant to the colonists a right to choose between pleading through a lawyer and
representing oneself.37 After the Declaration of Independence, the right of selfrepresentation, along with other rights basic to the making of a defense, entered
the new state constitutions in wholesale fashion.38 The right to counsel was
clearly thought to supplement the primary right of the accused to defend
himself,39 utilizing his personal rights to notice, confrontation, and compulsory
process. And when the Colonies or newly independent States provided by
statute rather than by constitution for court appointment of counsel in criminal
cases, they also meticulously preserved the right of the accused to defend
himself personally.40

29

The recognition of the right of self-representation was not limited to the state
lawmakers. As we have noted, § 35 of the Judiciary Act of 1789, signed one
day before the Sixth Amendment was proposed, guaranteed in the federal
courts the right of all parties to 'plead and manage their own causes personally
or by the assistance of . . . counsel.' 1 Stat. 92. See 28 U.S.C. § 1654. At the
time James Madison drafted the Sixth Amendment, some state constitutions
guaranteed an accused the right to be heard 'by himself' and by counsel; others
provided that an accused was to be 'allowed' counsel.41 The various state
proposals for the Bill of Rights had similar variations in terminology.42 In each
case, however, the counsel provision was embedded in a package of defense
rights granted personally to the accused. There is no indication that the
differences in phrasing about 'counsel' reflected any differences of principle
about self-representation. No State or Colony had ever forced counsel upon an
accused; no spokesman had ever suggested that such a practice would be
tolerable, much less advisable. If anyone had thought that the Sixth
Amendment, as drafted, failed to protect the long-respected right of selfrepresentation, there would undoubtedly have been some debate or comment on
the issue. But there was none.

30

In sum, there is no evidence that the colonists and the Framers ever doubted the
right of self-representation, or imagined that this right might be considered
inferior to the right of assistance of counsel. To the contrary, the colonists and
the Framers, as well as their English ancestors, always conceived of the right to
counsel as an 'assistance' for the accused, to be used at his option, in defending
himself. The Framers selected in the Sixth Amendment a form of words that
necessarily implies the right of self-representation. That conclusion is supported
by centuries of consistent history.
IV

31

There can be no blinking the fact that the right of an accused to conduct his
own defense seems to cut against the grain of this Court's decisions holding
that the Constitution requires that no accused can be convicted and imprisoned
unless he has been accorded the right to the assistance of counsel. See Powell v.
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S.
458, 58 S.Ct. 1019, 82 L.Ed. 1461; Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006,
32 L.Ed.2d 530. For it is surely true that the basic thesis of those decisions is
that the help of a lawyer is essential to assure the defendant a fair trial.43 And a
strong argument can surely be made that the whole thrust of those decisions
most inevitably lead to the conclusion that a State may constitutionally impose
a lawyer upon even an unwilling defendant.

32

But it is one thing to hold that every defendant, rich or poor, has the right to the
assistance of counsel, and quite another to say that a State may compel a
defendant to accept a lawyer he does not want. The value of state-appointed
counsel was not unappreciated by the Founders,44 yet the notion of compulsory
counsel was utterly foreign to them. And 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.45

33

It is undeniable that in most criminal prosecutions defendants could better
defend with counsel's guidance than by their own unskilled efforts. But where
the defendant will not voluntarily accept representation by counsel, the
potential advantage of a lawyer's training and experience can be realized, if at
all, only imperfectly. To force a lawyer on a defendant can only lead him to
believe that the law contrives against him. Moreover, it is not inconceivable
that in some rare instances, the defendant might in fact present his case more
effectively by conducting his own defense. Personal liberties are not rooted in
the law of averages. The right to defend is personal. The defendant, and not his
lawyer or the State, will bear the personal consequences of a conviction. It is
the defendant, therefore, who must be free personally to decide whether in his
particular case counsel is to his advantage. And although he may conduct his
own defense ultimately to his own detriment, his choice must be honored out of
'that respect for the individual which is the lifeblood of the law.' Illinois v.
Allen, 397 U.S. 337, 350—351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan,
J., concurring).46
V

34

When an accused manages his own defense, he relinquishes, as a purely factual
matter, many of the traditional benefits associated with the right to counsel. For
this reason, in order to represent himself, the accused must 'knowingly and
intelligently' forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at
464—465, 58 S.Ct., at 1023. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723—
724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). 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.' Adams v. United States ex rel. McCann, 317 U.S., at 279, 63
S.Ct., at 242.

35

Here, weeks before trial, Faretta clearly and unequivocally declared to the trial
judge that he wanted to represent himself and did not want counsel. The record
affirmatively shows that Faretta was literate, competent, and understanding, and
that he was voluntarily exercising his informed free will. The trial judge had
warned Faretta that he thought it was a mistake not to accept the assistance of
counsel, and that Faretta would be required to follow all the 'ground rules' of
trial procedure.47 We need make no assessment of how well or poorly Faretta
had mastered the intricacies of the hearsay rule and the California code
provisions that govern challenges of potential jurors on voir dire.48 For his
technical legal knowledge, as such, was not relevant to an assessment of his
knowing exercise of the right to defend himself.

36

In forcing Faretta, under these circumstances, to accept against his will a stateappointed oublic defender, the California courts deprived him of his
constitutional right to conduct his own defense. Accordingly, the judgment
before us is vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.

37

It is so ordered.

38

Judgment vacated and case remanded.

39

Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr.
Justice REHNQUIST join, dissenting.

40

This case, like Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d
593, announced today, is another example of the judicial tendency to
constitutionalize what is thought 'good.' That effort fails on its own terms here,
because there is nothing desirable or useful in permitting every accused person,
even the most uneducated and inexperienced, to insist upon conducting his own
defense to criminal charges.1 Moreover, there is no constitutional basis for the
Court's holding, and it can only add to the problems of an already
malfunctioning criminal justice system. I therefore dissent.

41

* The most striking feature of the Court's opinion is that it devotes so little
discussion to the matter which it concedes is the core of the decision, that is,
discerning an independent basis in the Constitution for the supposed right to
represent oneself in a criminal trial.2 See ante, at 818-821, and n. 15. Its
ultimate assertion that such a right is tucked between the lines of the Sixth
Amendment is contradicted by the Amendment's language and its consistent
judicial interpretation.

42

As the Court seems to recognize, ante, at 820, the conclusion that the right
guaranteed by the Sixth Amendment are 'personal' to an accused reflects
nothing more than the obvious fact that it is he who is on trial and therefore has
need of a defense.3 But neither that nearly trivial proposition nor the language
of the Amendment, which speaks in uniformly mandatory terms, leads to the
further conclusion that the right to counsel is merely supplementary and may be
dispensed with at the whim of the accused. Rather, this Court's decisions have
consistently included the right to counsel as an integral part of the bundle
making up the larger 'right to a defense as we know it.' For example, in In re
Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), the Court reversed a
summary contempt conviction at the hands of a 'one-man grand jury,' and had
this to say:

43

'We . . . hold that failure to afford the petitioner a reasonable opportunity to
defend himself against the charge of false and evasive swearing was a denial of
due process of law. A person's right to reasonable notice of a charge against
him, and an opportunity to be heard in his defense—a right to his day in court
—are basic in our system of jurisprudence; and these rights include, as a
minimum, a right to examine the witnesses against him, to offer testimony, and
to be represented by counsel.' Id., at 273, 68 S.Ct., at 507.

44

See also Argersinger v. Hamlin, 407 U.S. 25, 27—33, 92 S.Ct. 2006, 2007—
2011, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 344, 83
S.Ct. 792, 796—797, 9 L.Ed.2d 799 (1963).

45

The reason for this hardly requires explanation. The fact of the matter is that in
all but an extraordinarily small number of cases an accused will lose whatever
defense he may have if he undertakes to conduct the trial himself. The Court's
opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932),
puts the point eloquently:

46

'Even the intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is unfamiliar
with the rules of evidence. Left without the aid of counsel he may be put on
trial without a proper charge, and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, how much more true is it of the ignorant
and illiterate, or those of feeble intellect.' Id., at 69, 53 S.Ct., at 64.

47

Obviously, these considerations do not vary depending upon whether the
accused actively desires to be represented by counsel or wishes to proceed pro
se. Nor is it accurate to suggest, as the Court seems to later in its opinion, that
the quality of his representation at trial is a matter with which only the accused
is legitimately concerned. See ante, at 834. Although we have adopted an
adversary system of criminal justice, see Gideon v. Wainwright, supra, the
prosecution is more than an ordinary litigant, and the trial judge is not simply
an automaton who insures that technical rules are adhered to. Both are charged
with the duty of insuring that justice, in the broadest sense of that term, is
achieved in every criminal trial. See Brady v. Maryland, 373 U.S. 83, 87, and n.
2, 83 S.Ct. 1194, 1196—1197, 10 L.Ed.2d 215 (1963); Berger v. United States,
295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). That goal is illserved, and the integrity of and public confidence in the system are
undermined, when an easy conviction is obtained due to the defendant's illadvised decision to waive counsel. The damage thus inflicted is not mitigated
by the lame explanation that the defendant simply availed himself of the
'freedom' 'to go to jail under his own banner . . ..' United States ex rel.
Maldonado v. Denno, 348 F.2d 12, 15 (CA2 1965). The system of criminal
justice should not be available as an instrument of self-destruction.

48

In short, both the 'spirit and the logic' of the Sixth Amendment are that every
person accused of crime shall receive the fullest possible defense; in the vast
majority of cases this command can be honored only by means of the expressly
guaranteed right to counsel, and the trial judge is in the best position to
determine whether the accused is capable of conducting his defense. True
freedom of choice and society's interest in seeing that justice is achieved can be
vindicated to reject any attempted waiver of counsel and insist that the accused
be tried according to the Constitution. This discretion is as critical an element of
basic fairness as a trial judge's discretion to decline to accept a plea of guilty.
See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498—499, 30
L.Ed.2d 427 (1971).
II

49

The Court's attempt to support its result by collecting dicta from prior decisions
is no more persuasive than its analysis of the Sixth Amendment. Considered in
context, the cases upon which the Court relies to 'beat its path' either lead it
nowhere or point in precisely the opposite direction.

50

In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87
L.Ed. 268 (1942), and Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed.
172 (1946), the defendants had competently waived counsel but later sought to
renounce actions taken by them while proceeding pro se. In both cases this
Court upheld the convictions, holding that neither an uncounseled waiver of
jury trial nor an uncounseled guilty plea is inherently defective under the
Constitution. The language which the Court so carefully excises from those
opinions relates, not to an affirmative right of self-representation, but to the
consequences of waiver.4 In Adams, for example, Mr. Justice Frankfurter was
careful to point out that his reference to a defendant's 'correlative right to
dispense with a lawyer's help' meant only that '(h)e may waive his
Constitutional right to assistance of counsel . . .,' 317 U.S., at 279, 63 S.Ct., at
242. See United States v. Warner, 428 F.2d 730, 733 (CA8 1970). But, as the
Court recognizes, the power to waive a constitutional right does not carry with
it the right to insist upon its opposite. Singer v. United States, 380 U.S. 24, 34
—35, 85 S.Ct. 783, 789 790, 13 L.Ed.2d 630 (1965).

51

Similarly, in Carter the Court's opinion observed that the Constitution 'does not
require that under all circumstances counsel be forced upon a defendant,' citing
Adams. 329 U.S., at 174—175, 67 S.Ct., at 218 (emphasis added). I, for one,
find this statement impossible to square with the Court's present holding that an
accused is absolutely entitled to dispense with a lawyer's help under all
conditions. Thus, although Adams and Carter support the Court's conclusion
that a defendant who represents himself may not thereafter disaffirm his
deliberate trial decisions, see ante, at 834-835, n. 46, they provide it no comfort
regarding the primary issue in this case.5

52

Far more nearly in point is Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92
L.Ed. 1356 (1948), where this Court held that, although the courts of appeals
possess the power to command that a prisoner be produced to argue his own
appeal, the exercise of that power is a matter of sound judicial discretion. An
examination of the whole of the Court's reasoning on this point is instructive:

53

'The discretionary nature of the power in question grows out of the fact that a
prisoner has no absolute right to argue his own appeal or even to be present at
the proceedings in an appellate court. The absence of that right is in sharp
contrast to his constitutional prerogative of being present in person at each
significant stage of a felony prosecution, and to his recognized privilege of
conducting his own defense at the trial. Lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system. Among those so
limited is the otherwise unqualified right given by § 272 of the Judicial Code,
28 U.S.C. § 394 (now § 1654), to parties in all the courts of the United States to
'plead and manage their own causes personally." Id., at 285—286, 68 S.Ct., at
1060 (citations omitted).

54

It barely requires emphasis that this passage contrasts the 'constitutional
prerogative' to be present at trial with the 'recognized privilege' of selfrepresentation, and strongly implies that the latter arises only from the federal
statute. It is difficult to imagine a position less consistent with Price v. Johnston
than that taken by the Court today.

55

The Court of Appeals cases relied upon by the Court are likewise dubious
authority for its views. Only one of those cases, United States v. Plattner, 330
F.2d 271 (CA2 1964), even attempted a reasoned analysis of the issue, and the
decision in that case was largely based upon the misreading of Adams and Price
which the Court perpetuates in its opinion today. See 330 F.2d, at 275. In every
other case cited ante, at 817, the Courts of Appeals assumed that the right of
self-representation was constitutionally based but found that the right had not
been violated and affirmed the conviction under review. It is highly
questionable whether such holdings would even establish the law of the
Circuits from which they came.

56

In short, what the Court represents as a well-traveled road is in reality a
constitutional trail which it is blazing for the first time today, one that has not
even been hinted at in our previous decisions. Far from an interpretation of the
Sixth Amendment, it is a perversion of the provision to which we gave full
meaning in Gideon v. Wainwright and Argersinger v. Hamlin.
III

57

Like Mr. Justice BLACKMUN, I hesitate to participate in the Court's attempt to
use history to take it where legal analysis cannot. Piecing together shreds of
English legal history and early state constitutional and statutory provisions,
without a full elaboration of the context in which they occurred or any evidence
that they were relied upon by the drafters of our Federal Constitution, creates
more questions than it answers and hardly provides the firm foundation upon
which the creation of new constitutional rights should rest. We are well
reminded that this Court once employed an exhaustive analysis of English and
colonial practices regarding the right to counsel to justify the conclusion that it
was fundamental to a fair trial and, less than 10 years later, used essentially the
same material to conclude that it was not. Compare Powell v. Alabama, 287
U.S., at 60—65, 53 S.Ct., at 60—63, with Betts v. Brady, 316 U.S. 455, 465—
471, 62 S.Ct. 1252, 1257—1261, 86 L.Ed. 1595 (1942).

58

As if to illustrate this point, the single historical fact cited by the Court which
would appear truly relevant to ascertaining the meaning of the Sixth
Amendment proves too much. As the Court points out, ante, at 2539, § 35 of
the Judiciary Act of 1789 provided a statutory right to self-representation in
federal criminal trials. The text of the Sixth Amendment, which expressly
provides only for a right to counsel, was proposed the day after the Judiciary
Act was signed. It can hardly be suggested that the Members of the Congress of
1789, then few in number, were unfamiliar with the Amendment's carefully
structured language, which had been under discussion since the 1787
Constitutional Convention. And it would be most remarkable to suggest, had
the right to conduct one's own defense been considered so critical as to require
constitutional protection, that it would have been left to implication. Rather,
under traditional canons of construction, inclusion of the right in the Judiciary
Act and its omission from the constitutional amendment drafted at the same
time by many of the same men, supports the conclusion that the omission was
intentional.

59

There is no way to reconcile the idea that the Sixth Amendment impliedly
guaranteed the right of an accused to conduct his own defense with the
contemporaneous action of the Congress in passing a statute explicitly giving
that right. If the Sixth Amendment created a right to self-representation it was
unnecessary for Congress to enact any statute on the subject at all. In this case,
therefore, history ought to lead judges to conclude that the Constitution leaves
to the judgment of legislatures, and the flexible process of statutory
amendment, the question whether criminal defendants should be permitted to
conduct their trials pro se. See Betts v. Brady, supra. And the fact that we have
not hinted at a contrary view for 185 years in surely entitled to some weight in
the scales.6 Cf. Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67
L.Ed. 107 (1922).

IV
60

Society has the right to expect that, when courts find new rights implied in the
Constitution, their potential effect upon the resources of our criminal justice
system will be considered. However, such considerations are conspicuously
absent from the Court's opinion in this case.

61

It hardly needs repeating that courts at all levels are already handicapped by the
unsupplied demand for competent advocates, with the result that it often takes
far longer to complete a given case than experienced counsel would require. If
we were to assume that there will be widespread exercise of the newly
discovered constitutional right to self-representation, it would almost certainly
follow that there will be added congestion in the courts and that the quality of
justice will suffer. Moreover, the Court blandly assumes that once an accused
has elected to defend himself he will be bound by his choice and not be heard to
complain of it later. Ante, at 834-835, n. 46. This assumption ignores the role of
appellate review, for the reported cases are replete with instances of a convicted
defendant being relieved of a deliberate decision even when made with the
advice of counsel. See Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8
L.Ed.2d 798 (1962). It is totally unrealistic, therefore, to suggest that an
accused will always be held to the consequences of a decision to conduct his
own defense. Unless, as may be the case, most persons accused of crime have
more wit than to insist upon the dubious benefit that the Court confers today,
we can expect that many expensive and good-faith prosecutions will be
nullified on appeal for reasons that trial courts are now deprived of the power
to prevent.7

62

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice
REHNQUIST join, dissenting.

63

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.

64

* The starting point, of course, is the language of the Sixth Amendment:

65

'In all criminal prosecutions, the accused shall enjoy 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.'

66

It is self-evident that the Amendment makes no direct reference to selfrepresentation. Indeed, the Court concedes that the right to self-representation
is 'not stated in the Amendment in so many words.' Ante, at 819.

67

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, 85 S.Ct. 783, 790, 13 L.Ed.2d
630 (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.'

68

Where then in the Sixth Amendment does one find this right to selfrepresentation? 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.' Ante, at 818. Up to this point, at least as a general
proposition, the Court's reasoning is unexceptionable. 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.

69

The Court suggests that thrusting counsel upon the accused against his
considered with 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, 86 S.Ct. 1245, 16
L.Ed.2d 314 (1966); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9
L.Ed.2d 837 (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. See Brown v. Craven,
424 F.2d 1166, 1169—1170 (CA9 1970). See also Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); James v. Strange, 407 U.S.
128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (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.

70

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, 55 S.Ct.
629, 633, 79 L.Ed. 1314 (1935). See also Singer v. United States, 380 U.S., at
37, 85 S.Ct. at 791. 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.
II

71

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.

72

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.

73

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 from testifying as a witness because of his 'interest' in the
outcome. See generally Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5
L.Ed.2d 783 (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, 81 S.Ct. at 759. 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).

74

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,
53 S.Ct. 55, 77 L.Ed. 158 (1932), to Argersinger v. Hamlin, 407 U.S. 25, 92
S.Ct. 2006, 32 L.Ed.2d 530 (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.
III

75

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 selfrepresentation. The procedural problems spawned by an absolute right to selfrepresentation will far outweigh whatever tactical advantage the defendant may
feel he has gained by electing to represent himself.

76

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.

1

2

See, e.g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158;
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Betts v.
Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v.
Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.
The judge informed Faretta:
'You are going to follow the procedure. You are going to have to ask the
questions right. If there is an objection to the form of the question and it is
properly taken, it is going to be sustained. We are going to treat you like a
gentleman. We are going to respect you. We are going to give you every
chance, but you are going to play with the same ground rules that anybody
plays. And you don't know those ground rules. You wouldn't know those
ground rules any more than any other lawyer will know those ground rules
until he gets out and tries a lot of cases. And you haven't done it.'

3

The colloquy was as follows:
'THE COURT: In the Faretta matter, I brought you back down here to do
some reconsideration as to whether or not you should continue to represent
yourself.
'How have you been getting along on your research?
'THE DEFENDANT: Not bad, your Honor.
'Last night I put in the mail a 995 motion and it should be with the Clerk
within the next day or two.
'THE COURT: Have you been preparing yourself for the intricacies of the
trial of the matter?
'THE DEFENDANT: Well, your Honor, I was hoping that the case could
possibly be disposed of on the 995.
'Mrs. Ayers informed me yesterday that it was the Court's policy to hear
the pretrial motions at the time of trial. If possible, your
Honor, I would like a date set as soon as the Court deems adequate after
they receive the motion, sometime before trial.
'THE COURT: Let's see how you have been doing on your research.
'How many exceptions are there to the hearsay rule?
'THE DEFENDANT: Well, the hearsay rule would, I guess, be called the
best evidence rule, your Honor. And there are several exceptions in case
law, but in actual statutory law, I don't feel there is none.
'THE COURT: What are the challenges to the jury for cause?

'THE DEFENDANT: Well, there is twelve peremptory challenges.
'THE COURT: And how many for cause?
'THE DEFENDANT: Well, as many as the Court deems valid.
'THE COURT: And what are they? What are the grounds for challenging
a juror for cause?
'THE DEFENDANT: Well, numerous grounds to challenge a witness I
mean, a juror, your Honor, one being the juror is perhaps suffered, was a
victim of the same type of offense, might be prejudiced toward the
defendant. Any substantial ground that might make the juror prejudice(d)
toward the defendant.
'THE COURT: Anything else?
'THE DEFENDANT: Well, a relative perhaps of the victim.
'THE COURT: Have you taken a look at that code section to see what it
is?
'THE DEFENDANT: Challenge a juror?
'THE COURT: Yes.
'THE DEFENDANT: Yes, your Honor. I have done—
'THE COURT: What is the code section?
'THE DEFENDANT: On voir diring a jury, your Honor?
'THE COURT: Yes.
'THE DEFENDANT: I am not aware of the section right offhand.
'THE COURT: What code is it in?
'THE DEFENDANT: Well, the research I have done on challenging would
be in Witkins Jurisprudence.
'THE COURT: Have you looked at any of the codes to see where these
various things are taken up?
'THE DEFENDANT: No, your Honor, I haven't.
'THE COURT: Have you looked in any of the California Codes with
reference to trial procedure?
'THE DEFENDANT: Yes, your Honor.
'THE COURT: What codes?

'THE DEFENDANT: I have done extensive research in the Penal Code,
your Honor, and the Civil Code.
'THE COURT: If you have done extensive research into it, then tell me
about it.
'THE DEFENDANT: On empaneling a jury, your Honor?
'THE COURT: Yes.
'THE DEFENDANT: Well, the District Attorney and the defendant,
defense counsel, has both the right to 12 peremptory challenges of a jury.
These 12 challenges are undisputable. Any reason that the defense or
prosecution should feel that a juror would be inadequate to try the case or
to rule on a case, they may then discharge that juror.
'But if there is a valid challenge due to grounds of prejudice or some other
grounds, that these aren't considered in the 12 peremptory challenges.
There are numerous and the defendant, the defense and the prosecution
both have the right to make any inquiry to the jury as to their feelings
toward the case.'
4

The judge concluded:
'(T)aking into consideration the recent case of People versus Sharp, where
the defendant apparently does not have a constitutional right to represent
himself, the Court finds that the ends of justice and requirements of due
process require that the prior order permitting the defendant to represent
himself in pro per should be and is hereby revoked. That privilege is
terminated.'

5

Faretta also urged without success that he was entitled to counsel of his
choice, and three times moved for the appointment of a lawyer other than
the public defender. These motions, too, were denied.

6

People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489.
When Sharp was tried the California Constitution expressly provided that
the accused in a criminal prosecution had the right 'to appear and defend,
in person and with counsel.' Cal.Const., Art. 1, § 13. In an earlier decision
the California Supreme Court had held that this language meant that the
accused had the right to appear by himself or with counsel. People v.
Mattson, 51 Cal.2d 777, 336 P.2d 937. This view was rejected in Sharp,
the California Supreme Court there holding that the defendant in a
criminal prosecution has no right under the State or the Federal
Constitution to represent himself at trial. See generally Y. Kamisar, W.
LaFave & J. Israel, Modern Criminal Procedure 57—60 (4th ed. 1974);
Note, 10 Calif.Western L.Rev. 196 (1973); Note, 24 Hastings L.J. 431
(1973); Comment, 64 J.Crim.L. 240 (1973).
Although immaterial to the court's decision, shortly before Sharp was
decided on appeal the California Constitution had been amended to delete
the right of self-representation from Art. 1, § 13, and to empower the
legislature expressly 'to require the defendant in a felony case to have the
assistance of counsel.' The new statutes on their face require counsel only
in capital cases. See Cal.Penal Code §§ 686(2), 686.1, 859, 987 (1970 and
Supp.1975). In other than capital cases the accused retains by statutory
terms a right 'to appear and defend in person and with counsel.' § 686(2).
However, this language tracks the old language of Art. 1, § 13, of the
California Constitution; and in construing the constitutional language in
Sharp to exclude any right of self-representation under former Art. 1, § 13,
of the State Constitution, the California Supreme Court also stated that §
686(2) does not provide any right of self-representation.

7

The Court of Appeal also held that the trial court had not 'abused its
discretion in concluding that Faretta had not made a knowing and
intelligent waiver of his right to be represented by counsel,' since 'Faretta
did not appear aware of the possible consequences of waiving the
opportunity for skilled and experienced representation at trial.'

8

9

The California courts' conclusion that Faretta had no constitutional right to
represent himself was made in the context of the following not unusual
rules of California criminal procedure: An indigent criminal defendant has
no right to appointed counsel of his choice. See Drumgo v. Superior Court,
8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007; People v. Miller, 7 Cal.3d
562, 574, 102 Cal.Rptr. 841, 849, 498 P.2d 1089, 1097; People v. Massie,
66 Cal.2d 899, 910, 59 Cal.Rptr. 733, 740—741, 428 P.2d 869, 876—877;
People v. Taylor, 259 Cal.App.2d 448, 450 451, 66 Cal.Rptr. 514, 515—
517. The appointed counsel manages the lawsuit and has the final say in
all but a few matters of trial strategy. See, e.g., People v. Williams, 2
Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008, 1015; People v. Foster,
67 Cal.2d 604, 606—607, 63 Cal.Rptr. 288, 289—290, 432 P.2d 976, 977
—978; People v. Monk, 56 Cal.2d 288, 299, 14 Cal.Rptr. 633, 638—639,
363 P.2d 865, 870—871; see generally Rhay v. Browder, 342 F.2d 345,
349 (CA9). A California conviction will not be reversed on grounds of
ineffective assistance of counsel except in the extreme case where the
quality of representation was so poor as to render the trial a 'farce or a
sham.' People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487;
see People v. Miller, supra, 7 Cal.3d, at 573, 102 Cal.Rptr., at 848—849,
498 P.2d, at 1096—1097; People v. Floyd, 1 Cal.3d 694, 709, 83 Cal.Rptr.
608, 617, 464 P.2d 64, 73; People v. Hill, 70 Cal.2d 678, 689, 76 Cal.Rptr.
225, 230, 452 P.2d 329, 334; People v. Reeves, 64 Cal.2d 766, 774, 51
Cal.Rptr. 691, 695, 415 P.2d 35, 39.
See, e.g., Mackreth v. Wilson, 31 Ala.App. 191, 15 So.2d 112; Cappetta v.
State, 204 So.2d 913 (Fla.Dist.Ct.App.); Lockard v. State, 92 Idaho 813,
451 P.2d 1014; People v. Nelson, 47 Ill.2d 570, 268 N.E.2d 2; Blanton v.
State, 229 Ind. 701, 98 N.E.2d 186; Westberry v. State, 254 A.2d 44
(Me.); Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; People v.
Haddad, 306 Mich. 556, 11 N.W.2d 240; State v. McGhee, 184 Neb. 352,
167 N.W.2d 765; Zasada v. State, 19 N.J.Super. 589, 89 A.2d 45; People
v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356; State v. Pritchard, 227 N.C.
168, 41 S.E.2d 287; State v. Hollman, 232 S.C. 489, 102 S.E.2d 873; State
v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121; State v. Penderville, 2 Utah
2d 281, 272 P.2d 195; State v. Woodall, 5 Wash.App. 901, 491 P.2d 680.
See generally Annot., 77 A.L.R.2d 1233 (1961); 5 R. Anderson, Wharton's
Criminal Law and Procedure § 2016 (1957).

10

Some States grant the accused the right to be heard, or to defend, in person
and by counsel: Ariz.Const., Art. 2, § 24; Ark.Const., Art. 2, § 10;
Colo.Const., Art. 2, § 16; Conn.Const., Art. 1, § 8; Del.Const., Art. 1, § 7;
Idaho Const., Art. 1, § 13; Ill.Const., Art. 1, § 8; Ind.Const., Art. 1, § 13;
Ky.Const. Bill of Rights, § 11; Mo.Const., Art. 1, § 18(a); Mont.Const.,
Art. 3, § 16; Nev.Const., Art. 1, § 8; N.H.Const., pt. 1, Art. 15;
N.M.Const., Art. 2, § 14; N.Y.Const., Art. 1, § 6; N.D.Const., Art. 1, § 13;
Ohio Const., Art. 1, § 10; Okla.Const., Art. 2, § 20; Ore.Const., Art. 1, §
11, Pa.Const., Art. 1, § 9; S.D.Const., Art. 6, § 7; Tenn.Const., Art. 1, § 9;
Utah Const., Art. 1, § 12; Vt.Const., c. 1, Art. 10; Wis.Const., Art. 1, § 7;
see La.Const., Art. 1, § 9.
Others grant the right to defend in person or by counsel: Kan.Const. Bill of
Rights, § 10; Mass.Const., pt. 1, Art. 12; Neb.Const., Art. 1, § 11;
Wash.Const., Art. 1, § 22.
Still others provide the accused the right to defend either by himself, by
counsel, or both: Ala.Const., Art. 1, § 6; Fla.Const., Art. 1, § 16;
Me.Const., Art. 1, § 6; Miss.Const., Art. 3, § 26; S.C.Const., Art. 1, § 14;
Tex.Const., Art. 1, § 10.

11

12

See, e.g., Lockard v. State, supra; People v. Nelson, supra; Blanton v.
State, supra; Zasada v. State, supra; People v. McLaughlin, supra; State v.
Mems, 281 N.C. 658, 190 S.E.2d 164; State v. Verna, 9 Or.App. 620, 498
P.2d 793.
The holding of Adams was reaffirmed in a different context in Carter v.
Illinois, 329 U.S. 173, 174—175, 67 S.Ct. 216, 218, 91 L.Ed. 172, where
the Court again adverted to the right of self-representation:
'Neither the historic conception of Due Process nor the vitality it derives
from progressive standards of justice denies a person the right to defend
himself or to confess guilt. Under appropriate circumstances the
Constitution requires that counsel be tendered; it does not require that
under all circumstances counsel be forced upon a defendant.' (Emphasis
added.) See also Moore v. Michigan, 355 U.S. 155, 161, 78 S.Ct. 191,
195, 2 L.Ed.2d 167.

13
14

Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution,
45 Col.L.Rev. 1, 26 (1945).
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (right
to counsel); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923
(right of confrontation); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920,
18 L.Ed.2d 1019 (right to compulsory process). See also In re Oliver, 333
U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682.

15

This Court has often recognized the constitutional stature of rights that,
though not literally expressed in the document, are essential to due process
of law in a fair adversary process. It is now accepted, for example, that an
accused has a right to be present at all stages of the trial where his absence
might frustrate the fairness of the proceedings, Snyder v. Massachusetts,
291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; to testify on his own behalf, see
Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1;
Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d
358; cf. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783,
and to be convicted only if his guilt is proved beyond a reasonable doubt,
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Mullaney v.
Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
The inference of rights is not, of course, a mechanical exercise. In Singer
v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, the Court
held that an accused has no right to a bench trial, despite his capacity to
waive his right to a jury trial. In so holding, the Court stated that '(t)he
ability to waive a constitutional right does not ordinarily carry with it the
right to insist upon the opposite of that right.' Id., at 34—35, 85 S.Ct., at
790. But that statement was made only after the Court had concluded that
the Constitution does not affirmatively protect any right to be tried by a
judge. Recognizing that an implied right must arise independently from
the design and history of the constitutional text, the Court searched for, but
could not find, any 'indication that the colonists considered the ability to
waive a jury trial to be of equal importance to the right to demand one.' Id.,
at 26, 85 S.Ct., at 785. Instead, the Court could locate only 'isolated
instances' of a right to trial by judge, and concluded that these were 'clear
departures from the common law.' Ibid.
We follow the approach of Singer here. Our concern is with an
independent right of self-representation. We do not suggest that this right
arises mechanically from a defendant's power to waive the right to the
assistance of counsel. See supra, at 814-815. On the contrary, the right
must be independently found in the structure and history of the
constitutional text.

16

Such a result would sever the concept of counsel from its historic roots.
The first lawyers were personal friends of the litigant, brought into court
by him so that he might 'take 'counsel' with them' before pleading. 1 F.
Pollock & F. Maitland, The History of English Law 211 (2d ed. 1909).
Similarly, the first 'attorneys' were personal agents, often lacking any
professional training, who were appointed by those litigants who had
secured royal permission to carry on their affairs through a representative,
rather than personally. Id., at 212—213.

17

18

'The court of star chamber was an efficient, somewhat arbitrary arm of
royal power. It was at the height of its career in the days of the Tudor and
Stuart kings. Star chamber stood for swiftness and power; it was not a
competitor of the common law so much as a limitation on it—a reminder
that high state policy could not safely be entrusted to a system so chancy as
English law. . . .' L. Friedman, A History of American Law 23 (1973). See
generally 5 W. Holdsworth, A History of English Law 155—214 (1927).
'The proceedings before the Star Chamber began by a Bill 'engrossed in
parchment and filed with the clerk of the court.' It must, like the other
pleadings, be signed by counsel . . .. However, counsel were obliged to be
careful what they signed. If they put their hands to merely frivolous pleas,
or otherwise misbehaved themselves in the conduct of their cases, they
were liable to rebuke, suspension, a fine, or imprisonment.' Holdsworth,
supra, n. 17, at 178—179. Counsel, therefore, had to be cautious that any
pleadings they signed would not unduly offend the Crown. See 1 J.
Stephen, A History of the Criminal Law of England 340—341 (1883).
This presented not merely a hypothetical risk for the accused. Stephen
gives the following account of a criminal libel trial in the Star Chamber:
'In 1632 William Prynne was informed against for his book called Histrio
Mastix. Prynne's answer was, amongst other things, that his book had been
licensed, and one of the counsel, Mr. Holbourn, apologised, not without
good cause, for his style. . . . His trial was, like the other Star Chamber
proceedings, perfectly decent and quiet, but the sentence can be described
only as monstrous. He was sentenced to be disbarred and deprived of his
university degrees; to stand twice in the pillory, and to have one ear cut off
each time; to be fined 5,000; and to be perpetually imprisoned, without
books, pen, ink, or paper. . . .
'Five years after this, in 1637, Prynne, Bastwick, and Burton, were tried for
libel, and were all sentenced to the same punishment as Prynne had
received in 1632, Prynne being branded on the cheeks instead of losing his
ears.

'The procedure in this case appears to me to have been as harsh as the
sentence was severe, though I do not think it has been so much noticed. . . .
Star Chamber defendants were not only allowed counsel, but were
required to get their answers signed by counsel. The effect of this rule, and
probably its object was, that no defence could be put before the Court
which counsel would not take the responsibility of signing—a
responsibility which, at that time, was extremely serious. If counsel would
not sign the defendant's answer he was taken to have confessed the
information. Prynne's answer was of such a character that one of the
counsel assigned to him refused to sign it at all, and the other did not sign
it till after the proper time. Bastwick could get no one to sign his answer.
Burton's answer was signed by counsel, but was set aside as impertinent.
Upon the whole, the case was taken to be admitted by all the three, and
judgment was passed on them accordingly. . . .' Stephen, supra, 340—341.
That Prynne's defense was foreclosed by the refusal of assigned counsel to
endorse his answer is all the more shocking when it is realized that Prynne
was himself a lawyer I. Brant, The Bill of Rights 106 (1965). On the
operation of the Star Chamber generally, see Barnes, Star Chamber
Mythology, 5 Am.J.Legal Hist. 1—11 (1961), and Barnes, Due Process
and Slow Process in the Late Elizabethan-Early Stuart Star Chamber, 6
Am.J.Legal Hist. 221—249, 315—346 (1962).
19
20
21

Pollock & Maitland, supra, n. 16, at 211.
Ibid. See also Stephen, supra, n. 18, at 341.
Id., at 326.
The trial would begin with accusations by counsel for the Crown. The
prisoner usually asked, and was granted, the privilege of answering
separately each matter alleged against him:
'(T)he trial became a series of excited altercations between the prisoner
and the different counsel opposed to him. Every statement of counsel
operated as a question to the prisoner, . . . the prisoner either admitting or
denying or explaining what was alleged against him. The result was that . .
. the examination of the prisoner . . . was the very essence of the trial, and
his answers regulated the production of the evidence . . .. As the argument
proceeded the counsel (for the Crown) would frequently allege matters
which the prisoner denied and called upon them to prove. The proof was
usually given by reading depositions, confessions of accomplices, letters,
and the like . . .. When the matter had been fully inquired into . . . the
presiding judge 'repeated' or summed up to the jury the matters alleged
against the prisoner, and the answers given by him; and the jury gave their
verdict.' Id., at 325—326.
Holdsworth, supra, n. 17, at 195—196.

22
23
24

25
26

27

28

7 Will. 3, c. 3, § 1. The right to call witnesses under oath was extended to
felony cases by statute in 1701. 1 Anne, Stat. 2, c. 9, & 3.
The statute provided, in pertinent part, that the accused 'shall be received
and admitted to make his and their full Defence, by Counsel learned in the
Law, and to make any Proof that he or they can produce by lawful Witness
or Witnesses, who shall then be upon Oath, for his and their just Defence
in that Behalf; and in case any Person or Persons so accused or indicted
shall desire Counsel, the Court before whom such Person or Persons shall
be tried, or some Judge of that Court, shall and is hereby authorized and
required immediately, upon his or their Request, to assign to such Person
and Persons such and so many Counsel, not exceeding Two, as the Person
or Persons shall desire, to whom such Counsel shall have free Access at all
seasonable Hours; any Law or Usage to the contrary notwithstanding.'
Holdsworth, supra, n. 17, at 195.
In Mary Blandy's 1752 murder trial, for example, the court declared that
counsel for the defendant could not only speak on points of law raised by
the defense, but could also examine defense witnesses and cross-examine
those of the Crown. 18 How.St.Tr. 1117. Later in that century judges often
allowed counsel for the accused 'to instruct him what questions to ask, or
even to ask questions for him, with respect to matters of fact . . . (or) law.'
4 W. Blackstone, Commentaries *355—356.
6 & 7 Will. 4, c. 114, § 1. The statute provided in pertinent part that the
accused 'shall be admitted, after the Close of the Case for the Prosecution,
to make full Answer and Defence thereto by Counsel learned in the Law,
or by Attorney in Courts where Attornies practise as Counsel.'
See, e.g., Poor Prisoners' Defence Act, 1903, 3 Edw. 7, c, 38, § 1; Poor
Prisoners' Defence Act, 1930, 20 & 21 Goe. 5, c. 32; Legal Aid and
Advice Act, 1949, 12 & 13 Geo. 6, c. 51.

29

30
31
32

Counsel had been appointed for the defendant Woodward but withdrew
shortly before trial. When the trial court appointed a substitute counsel, the
defendant objected: 'I would rather not have legal aid. I would rather
conduct the case myself.' The trial court insisted, however, that the
defendant proceed to trial with counsel, and a conviction resulted. On
appeal, the Crown did not even attempt to deny a basic right of selfrepresentation, but argued only that the right had been waived when the
accused accepted the first counsel. The Court of Appeal rejected this
argument: 'The prisoner right at the beginning (of the trial) said that he
wished to defend himself . . . and he was refused what we think was his
right to make his own case to the jury instead of having it made for him by
counsel.' This, the court held, was an 'injustice to the prisoner,' and
'although there was a good deal of evidence against the prisoner,' the court
quashed the conviction.
C. Warren, A History of the American Bar 7 (1911).
D. Boorstin, The Americans; The Colonial Experience 197 (1958).
For example, the Massachusetts Body of Liberties (1641) in Art. 26
provided:
'Every man that findeth himselfe unfit to plead his owne cause in any
Court shall have Libertie to imploy any man against whom the Court doth
not except, to helpe him, provided he give him noe fee or reward for his
paines. . . .'
Pleading for hire was also prohibited in 17th Century Virginia,
Connecticut, and the Carolinas. Friedman, supra, n. 17, at 81.

33
34

Id., at 82.
Warren, supra, n. 30, at 212.

35

For example, Zephaniah Swift, in one of the first American colonial
treatises on law, made clear that a right to counsel was recognized in
Connecticut. He wrote:
'We have never admitted that cruel and illiberal principle of the common
law of England, that when a man is on trial for his life, he shall be refused
counsel, and denied those means of defence, which are allowed, when the
most trifling pittance of property is in question. The flimsy pretence, that
the court are to be counsel for the prisoner will only heighten our
indignation at the practice: for it is apparent to the least consideration, that
a court can never furnish a person accused of a crime with the advice, and
assistance necessary to make his defence. . . .
'Our ancestors, when they first enacted their laws respecting crimes,
influenced by the illiberal principles which they had imbibed in their
native country, denied counsel to prisoners to plead for them to any thing
but points of law. It is manifest that there is as much necessity for counsel
to investigate matters of fact, as points of law, if truth is to be discovered.'
2 Z. Swift, A System of the Laws of the State of Connecticut 398—399
(1796).
Similarly, colonial Virginia at first based its court proceedings on English
judicial customs, but '(b)y the middle of the eighteenth century the
defendant was permitted advice of counsel if he could afford such
services.' H. Rankin, Criminal Trial Proceedings in the General Court of
Colonial Virginia 67, 89 (1965).

36

See, e.g., id., at 89—90.

37

See e.g., the Massachusetts Body of Liberties, Art. 26 (1941), supra, n. 32.
Similarly, the Concessions and Agreements of West New Jersey, in 1677,
provided, for all cases, civil and criminal, 'that no person or persons shall
be compelled to fee any attorney or counciller to plead his cause, but that
all persons have free liberty to plead his own cause, if he please.'
The Pennsylvania Frame of Government of 1682, perhaps 'the most
influential of the Colonial documents protecting individual rights,' 1 B.
Schwartz, The Bill of Rights: A Documentary History 130 (1971)
(hereinafter Schwartz), provided:
'That, in all courts all persons of all persuasions may freely appear in their
own way, and according to their own manner, and there personally plead
their own cause themselves; or, if unable, by their friends . . ..'
That provision was no doubt inspired by William Penn's belief that an
accused should go free if he could personally persuade a jury that it would
be unjust to convict him. In England, 12 years earlier, Penn, after
preaching a sermon in the street, had been indicted and tried for disturbing
the peace. Penn conceded that he was 'unacquainted with the formality of
the law,' but requested that he be given a fair hearing and the 'liberty of
making my defence.' The request was granted, Penn represented himself,
and although the judges jailed him for contempt, the jury acquitted him of
the charge. 'The People's Ancient and Just Liberties Asserted, in the Trial
of William Penn and William Mead, 1670,' reproduced in 1 Schwartz 144,
147. See The Trial of William Penn, 6 How.St.Tr. 951 (1670), cited in
Illinois v. Allen, 397 U.S. 337, 353, 90 S.Ct. 1057, 1065, 25 L.Ed.2d 353
(opinion of Douglas, J.).

38

39

Article IX of the Pennsylvania Declaration of Rights in 1776 guaranteed
'(t)hat in all prosecutions for criminal offences, a man hath a right to be
heard by himself and his council . . ..' The Vermont Declaration of Rights
(Art. X) in 1777 protected the right of self-representation with virtually
identical language. The Georgia Constitution (Art. LVIII) in 1777
declared that its provisions barring the unauthorized practice of law were
'not intended to exclude any person from that inherent privilege of every
freeman, the liberty to plead his own cause.' In 1780 the Massachusetts
Declaration of Rights, Art. XII, provided that the accused had a right to be
heard 'by himself, or his counsel, at his election.' The New Hampshire Bill
of Rights (Art. XV) in 1783 affirmed the right of the accused 'to be fully
heard in his defence by himself, and counsel.' In 1792 the Delaware
Constitution (Art. I, § 7) preserved the right in language modeled after Art.
IX of the Pennsylvania Declaration of Rights. Similarly, in 1798 Georgia
included in its Constitution (Art. III, § 8) a provision that protected the
right of the accused to defend 'by himself or counsel, or both.' Other state
constitutions did not express in literal terms a right of self-representation,
but those documents granted all defense rights to the accused personally
and phrased the right of counsel in such fashion as to imply the existence
of the antecedent liberty. See Del. Declaration of Rights, § 14 (1776)
(right 'to be allowed counsel'); Md. Declaration of Rights. Art. XIX (1776)
(right 'to be allowed counsel'); N.J.Const., Art. XVI (1776) (criminals to
have 'same privileges of . . . counsel, as their prosecutors'); N.Y.Const.,
Art. XXXIV (1777) ('shall be allowed counsel').
The Founders believed that self-representation was a basic right of a free
people. Underlying this belief was not only the antilawyer sentiment of the
populace, but also the 'natural law' thinking that characterized the
Revolution's spokesmen. See P. Kauper, The Higher Law and the Rights
of Man in a Revolutionary Society, a lecture in the American Enterprise
Institute for Public Policy Research series on the American Revolution,
Nov. 7, 1973, extracted in 18 U. of Mich. Law School Law Quadrangle
Notes, No. 2, p. 9 (1974). For example, Thomas Paine, arguing in support
of the 1776 Pennsylvania Declaration of Rights, said:
'either party . . . has a natural right to plead his own case; this right is
consistent with safety, therefore it is retained; but the parties may not be
able, . . . therefore the civil right of pleading by proxy, that is, by a
council, is an appendage to the natural right (of self-representation) . . ..'
Thomas Paine on a Bill of Rights, 1777, reprinted in 1 Schwartz 316.

40

41
42

Statutes providing for appointment of counsel on request of the accused
were enacted by Delaware in 1719, 1 Laws of State of Delaware, 1700—
1797, p. 66 (Adams 1797); by Pennsylvania in 1718, 3 Stats. at Large of
Pennsylvania 199 (Busch 1896); and by South Carolina in 1731, Laws of
the Province of South Carolina 518 519 (Trott 1736). Appointment was
also the practice in Connecticut in the latter part of the 18th century;
appointment apparently was sometimes made even when the accused
failed to request counsel, if he appeared in need of a lawyer, but there is no
indication appointment was ever made over the objection of the accused.
See Swift, supra, n. 35, at 392. Free-choice appointment remained the rule
as the new Republic emerged. See the 1791 statute of New Hampshire,
Laws of New Hampshire 247 (Melcher 1792), and the 1795 statute of New
Jersey, § 2, Acts of the Nineteenth General Assembly of the State of New
Jersey 1012.
See counsel provisions in n. 38, supra.
In ratifying the Constitution, three States urged that a right-to-counsel
provision be added by way of amendment. Virginia and North Carolina
proposed virtually identical packages of a defendant's rights, each
including the provision that an accused be 'allowed' counsel. 2 Schwartz
841, 967. The package proposed by New York provided that the accused
'ought to . . . have . . . the assistance of Counsel for his defense.' Id., at
913. The idea of proposing amendments upon ratification had begun with
the Pennsylvania dissenters from ratification, whose proposed package of
a defendant's rights provided for the accused's 'right . . . to be heard by
himself and his counsel.' Id., at 664—665. It can be seen that Madison's
precise formulation—'the right . . . to have the Assistance of Counsel for
his defence'—varied in phrasing from each of the proposals. 'The available
debates on the various proposals throw no light on the significance or the
interpretation which Congress attributed to the right to counsel.' W.
Beaney, The Right to Counsel in American Courts 23 (1955).

43

As stated by Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45, 53
S.Ct. 55, 77 L.Ed. 158:
'Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge adequately
to prepare his defense, even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence. If that be true of
men of intelligence, how much more true is it of the ignorant and illiterate,
or those of feeble intellect. If in any case, civil or criminal, a state or
federal court were arbitrarily to refuse to hear a party by counsel,
employed by and appearing for him, it reasonably may not be doubted that
such a refusal would be a denial of a hearing, and, therefore, of due
process in the constitutional sense.' Id., at 69, 53 S.Ct., at 64.

44

45

See n. 38, supra, for colonial appointment statutes that predate the Sixth
Amendment. Federal law provided for appointment of counsel in capital
cases at the request of the accused as early as 1790, 1 Stat. 118.
See, e.g., U.S.Const. Amdt. 1. Freedom of choice is not a stranger to the
constitutional design of procedural protections for a defendant in a
criminal proceeding. For example, '(e)very criminal defendant is
privileged to testify in his own defense, or to refuse to do so.' Harris v.
New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1. See
Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d
358; Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. Cf.
Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589.

46

We are told that many criminal defendants representing themselves may
use the courtroom for deliberate disruption of their trials. But the right of
self-representation has been recognized from our beginnings by federal
law and by most of the States, and no such result has thereby occurred.
Moreover, the trial judge may terminate self-representation by a defendant
who deliberately engages in serious and obstructionist misconduct. See
Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. Of course,
a State may—even over objection by the accused—appoint a 'standby
counsel' to aid the accused if and when the accused requests help, and to
be available to represent the accused in the event that termination of the
defendant's self-representation is necessary. See United States v.
Dougherty, 154 U.S.App.D.C. 76, 87 89, 473 F.2d 1113, 1124—1126.
The right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not to comply with relevant rules of
procedural and substantive law. Thus, whatever else may or may not be
open to him on appeal, a defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to a
denial of 'effective assistance of counsel.'

47
48
1

2

See n. 2, supra.
See n. 3, supra.
Absent a statute giving a right to self-representation, I believe that trial
courts should have discretion under the Constitution to insist upon
representation by counsel if the interests of justice so require. However, I
would note that the record does not support the Court's characterization of
this case as one in which that occurred. Although he requested, and
initially was granted permission to proceed pro se, petitioner has expressed
no dissatisfaction with the lawyer who represented him and has not alleged
that his defense was impaired or that his lawyer refused to honor his
suggestions regarding how the trial should be conducted. In other words,
to use the Court's phrase, petitioner has never contended that 'his defense'
was not fully presented. Instances of overbearing or ineffective counsel can
be dealt with without contriving broad constitutonal rules of dubious
validity.
The Court deliberately, and in my view properly, declines to characterize
this case as one in which the defendant was denied a fair trial. See Herring
v. New York, 425 U.S., at 871, 96 S.Ct., at 2560 (Rehnquist, J.,
dissenting).

3

4

5

6

7

The Court's attempt to derive support for its position from the fact that the
Sixth Amendment speaks in terms of the 'Assistance of Counsel' requires
little comment. It is most curious to suggest that an accused who exercises
his right to 'assistance' has thereby impliedly consented to subject himself
to a 'master.' Ante, at 820. And counsel's responsibility to his client and
role in the litigation do not vary depending upon whether the accused
would have preferred to represent himself.
Indeed, the portion of the Court's quotation which warns against turning
constitutional protections into 'fetters' refers to the right to trial by jury, not
the right to counsel. See Adams v. United States ex rel. McCann, 317 U.S.
269, 279, 63 S.Ct. 236, 241—242, 87 L.Ed. 268 (1942). This Court has, of
course, squarely held that there is no constitutional right to dispense with a
jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630
(1965).
No more relevant is Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330,
78 L.Ed. 674 (1934). The reference in that case to an accused's 'power . . .
to supersede his lawyers' simply helped explain why his defense might 'be
made easier' if he were 'permitted to be present at the examination of
jurors or the summing up of counsel . . ..' Id., at 106, 54 S.Ct., at 332. Mr.
Justice Cardozo's opinion for the Court made plain that this right was
rooted in considerations of fundamental fairness, and was to be
distinguished from those conferred by the Confrontation Clause. See id., at
107, 54 S.Ct. at 333. The Court's present reliance on the Snyder dicta is
therefore misplaced. See n. 2, supra.
The fact that Congress has retained a statutory right to self- representation
suggests that it has also assumed that the Sixth Amendment does not
guarantee such a right. See 28 U.S.C. § 1654.
Some of the damage we can anticipate from a defendant's ill-advised
insistence on conducting his own defense may be mitigated by appointing
a qualified lawyer to sit in the case as the traditional 'friend of the court.'
The Court does not foreclose this option. See ante, at 834-835, n. 46.

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