Faretta Defense

The Right To Be Your Own Lawyer

US Constitution, parchment

The Sixth Amendment of the United States

Constitution guarantees certain rights for
someone accused of a crime:

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• 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.
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.

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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