Crime Library: Criminal Minds and Methods

Defending Oneself in Court

The Right To Be Your Own Lawyer

The Sixth Amendment of the United States Constitution guarantees certain rights for someone accused of a crime:

  • a speedy and public trial
  • a trial by jury
  • complete notice of the accusation
  • confrontation of witnesses
  • calling witnesses on one's behalf
  • assistance of counsel 
  • self-representation

In 1975, the court affirmed the right of self-representation in the landmark case of Faretta v. California, and eight years later the respective roles of the pro se defendant and standby counsel were further defined in McKaskle v. Wiggins. In Faretta v. California, Anthony Faretta was charged with grand theft in Los Angeles. He was assigned a public defender, but asked to be allowed to represent himself. The judge questioned him and assessed his level of education. He stressed that Faretta was "making a mistake" and would get no special treatment. When Faretta continued to insist, the judge allowed him to go pro se, with the proviso that if he saw Faretta stumble, he would reverse his ruling.

US Constitution, parchment
US Constitution, parchment

At a preliminary hearing a few weeks later, the judge asked Faretta several legal questions and, based on Faretta's ignorance, concluded that the defendant had not intelligently waived his right to counsel and could not act as co-counsel. The judge declared that Faretta must accept a legal representative. The California Court of Appeals later upheld the decision, because California did not accept the constitutional right to defend oneself in court. But a federal ruling declared that "the Sixth Amendment as made applicable to the States by the Fourteenth Amendment 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."

The court reached this conclusion after an in-depth analysis of the history of self-representation in America and England. The Bill of Rights was based not only on rights provided in English common law but also on several apparently unjust events in England, one of which was the 1603 trial of Sir Walter Raleigh, which Henry Hallam documented in The Constitutional History of England.

On trial for treason against King James, Raleigh received no advance knowledge of the charges, which were read to him on the morning of his trial. He was not allowed to question any witnesses, including one key witness against him, Lord Cobham, with whom he was accused of planning to overthrow the king. The authors of the U.S. Constitution noted all of this with deep concern and carefully outlined a way to preserve the rights of anyone accused of a crime.

An odd and alarming event occurred during the late 16th and early 17th centuries that caused a deviation from the practice of allowing people in court to speak for themselves, the formation of a political tribunal called the Star Chamber. This legal body would not accept a defendant's answer to an indictment unless an authoritative counselor had signed it, thereby forcing counsel on that person. In the event no such document was forthcoming, the Chamber viewed its absence as tantamount to a confession. By 1641, the Star Chamber had lost favor, resulting in laws that guaranteed the rights of the accused, with particular emphasis on the right to self-representation.

This sentiment carried over to the American colonies where self-representation was the norm, due to both common-law tradition and the general distrust of lawyers.

Over time the value of counsel grew, while the right to self-representation remained an option. This right went through several legal rulings to determine whether the Constitution outweighed the states on this issue, and in the Faretta decision the Supreme Court made it clear that "the Sixth Amendment does not merely provide that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."

The assistance of counsel cannot be forced. Yet, in such decisions, the issue of competency remains.


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