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

Annotate this Case

U.S. Supreme Court

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

Faretta v. California

No. 73-5772

Argued November 19, 1974

Decided June 30, 1975

422 U.S. 806

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

SECOND APPELLATE DISTRICT

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. 422 U. S. 812-836.

Vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 422 U. S. 836. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 422 U. S. 846.

Page 422 U. S. 807

MR. JUSTICE STEWART delivered the opinion of the Court.

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. [Footnote 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.

I

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

Page 422 U. S. 808

responded that he believed Faretta was "making a mistake," and emphasized that, in further proceedings, Faretta would receive no special favors. [Footnote 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.

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. [Footnote 3] After consideration

Page 422 U. S. 809

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

Page 422 U. S. 810

of counsel, and also ruled that Faretta had no constitutional right to conduct his own defense. [Footnote 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. [Footnote 5] Throughout

Page 422 U. S. 811

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.

The California Court of Appeal, relying upon a then-recent California Supreme Court decision that had expressly decided the issue, [Footnote 6] affirmed the trial judge's ruling that Faretta had no federal or state constitutional right

Page 422 U. S. 812

to represent himself. [Footnote 7] Accordingly, the appellate court affirmed Faretta's conviction. A petition for rehearing was denied without opinion, and the California Supreme Court denied review. [Footnote 8] We granted certiorari. 415 U.S. 975.

II

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

Page 422 U. S. 813

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 . . . counsel. . . ."

The right is currently codified in 28 U.S.C. § 1654.

With few exceptions, each of the several States also accords a defendant the right to represent himself in any criminal case. [Footnote 9] The Constitutions of 36 States explicitly confer that right. [Footnote 10] Moreover, many state courts have

Page 422 U. S. 814

expressed the view that the right is also supported by the Constitution of the United States. [Footnote 11]

This Court has more than once indicated the same view. In Adams v. United States ex rel. McCann,317 U. S. 269, 317 U. S. 279, 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 the 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 317 U. S. 275.

The Adams case does not, of course, necessarily resolve the issue before us. It held only that "the Constitution

Page 422 U. S. 815

does not force a lawyer upon a defendant." Id. at 317 U. S. 279. [Footnote 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:

"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. . . ."

. . . 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.

". . . When the administration of the criminal law . . . is hedged about, 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 these safeguards . . . is to imprison a man in his privileges, and call it the Constitution."

Id. at 317 U. S. 279-280 (emphasis added). In other settings as well, the Court has indicated that

Page 422 U. S. 816

a defendant has a constitutionally protected right to represent himself in a criminal trial. For example, in Snyder v. Massachusetts,291 U. S. 97, 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 291 U. S. 106 (emphasis added). And in Price v. Johnston,334 U. S. 266, 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 334 U. S. 285.

The United States Courts of Appeals have repeatedly held that the right of self-representation 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 self-representation;

Page 422 U. S. 817

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).

This Court's past recognition of the right of self-representation, the federal court 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." [Footnote 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.

Page 422 U. S. 818

III

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

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

"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."

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. [Footnote 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, 399 U. S. 176 (Harlan, J., concurring).

Page 422 U. S. 819

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. [Footnote 15] The right to defend

Page 422 U. S. 820

is given directly to the accused; for it is he who suffers the consequences if the defense fails.

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, [Footnote 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, 379 U. S. 451; Brookhart v. Janis,384 U. S. 1, 384 U. S. 7; Fay v. Noia,372 U. S. 391, 372 U. S. 439. This allocation can only be justified, however, by the defendant's consent, at the

Page 422 U. S. 821

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

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

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" offenses, the Star Chamber has, for centuries, symbolized disregard of basic individual rights. [Footnote 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

Page 422 U. S. 822

considered to have confessed. [Footnote 18] Stephen commented on this procedure:

"There is something specially repugnant to justice in using rules of practice in such a manner as

Page 422 U. S. 823

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.

By the common law of that time, it was not representation by counsel, but self-representation, 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." [Footnote 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. [Footnote 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

Page 422 U. S. 824

counsel for the Crown." [Footnote 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. [Footnote 22]"

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." [Footnote 23] It also provided for court appointment of counsel, but only if the accused so desired. [Footnote 24]

Page 422 U. S. 825

Thus, as new rights developed, the accused retained his established right "to make what statements he liked." [Footnote 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, [Footnote 26] was finally eliminated by statute in 1836. [Footnote 27] In more recent years, Parliament has provided for court appointment of counsel in serious criminal cases, but only at the accused's request. [Footnote 28] At no point in this process of reform in England was counsel ever forced upon the

Page 422 U. S. 826

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." [Footnote 29] See 3 Halsbury's Laws of England

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