Introduction

Self-Representation at Trial

Introduction

The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right “to have the Assistance of Counsel for his defence.”¹ Most students first meet that text through a defendant who wants a lawyer and cannot get one. In Gideon v. Wainwright, a man charged with a felony in a Florida court appeared without funds and without a lawyer and asked the judge to appoint one, and the judge refused because Florida appointed counsel only in capital cases.² Gideon then tried the case himself, making an opening statement, cross-examining the State’s witnesses, calling witnesses of his own, and arguing his innocence, and the jury convicted him.³ He was a layman conducting his own defense only because the State had left him no alternative. The decision that followed first recognized an independent Sixth Amendment right to counsel in state prosecutions, and it fixed the usual picture of the right as a shield the government must supply to an accused who asks for it.⁴

The question flips when the defendant does not want the shield. A defendant who handles his own case is said to proceed pro se, meaning on his own behalf, and the practice is common enough: in the federal system as many as 8 to 10 percent of charged defendants may elect it, typically in less serious cases.⁵ The starting point is that the right to counsel, like most constitutional protections, can be waived, so an accused may give it up.⁶ In Johnson v. Zerbst the Court described a waiver as an intentional relinquishment or abandonment of a known right, directed courts to indulge every reasonable presumption against finding one, and made the answer depend on the facts of each case, including the accused’s background, experience, and conduct.⁷ That presumption makes waiver hard to establish but does not forbid it. In 1942, speaking of federal prosecutions, the Court said that the Constitution does not force a lawyer upon a defendant, who may waive counsel “if he knows what he is doing and his choice is made with eyes open.”⁸

The phrase the Court used to describe the federal rule, that counsel must be provided “unless the right is competently and intelligently waived,” is the bridge to everything that follows.⁹ It tells a court what to ask whenever a defendant turns down a lawyer: did the defendant knowingly, intelligently, and voluntarily waive counsel and choose to proceed pro se? A waiver rule of that kind describes what a defendant is permitted to give up, and it leaves open whether a State must honor the choice when it would rather protect the defendant from himself. That is the question put to the Court in Faretta v. California: 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.”¹⁰ The Court conceded that “[i]t is not an easy question” and then concluded that a State may not force counsel on such a defendant.¹¹ The next section tells the story of that case and its holding, and the rest of this chapter follows the right through its source, the conditions of a valid waiver, its limits, and its consequences.