Self-Representation at Trial

The Sixth Amendment provides that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.’’ This provision, which applies to the states through the Fourteenth Amendment, encompasses an independent right of self-representation at trial. That is, a criminal defendant has a constitutional right to proceed without counsel at trial, which precludes the government from forcing a lawyer on an accused when the accused insists on conducting his or her own defense, Faretta v. California.

To invoke the right of self-representation, a defendant must make a timely request and must knowingly and intelligently forgo the traditional benefits associated with the right to counsel. This latter requirement does not mean that the accused must have the skill and experience of a lawyer to choose selfrepresentation. The accused need not, for example, be familiar with the relevant rules of evidence and procedure. Rather, the accused merely must understand what he or she is doing and must make the choice with eyes open. Accordingly, an accused must be aware of the dangers and disadvantages of self-representation, Faretta v. California.

The right of self-representation encompasses certain specific rights. Defendants who choose selfrepresentation must be permitted to control the organization and content of their own defense, to make motions, to argue points of law, to participate in the selection of the jury, to examine witnesses, and to address the judge and jury at appropriate points in the trial, McKaskle v. Wiggins. Defendants must, however, comply with the relevant rules of evidence and procedure, and they cannot complain after trial that the quality of their own defense amounted to a denial of ‘‘effective assistance of counsel.’’ Moreover, if a defendant deliberately engages in disruptive behavior, the trial judge can terminate the defendant’s self-representation, Faretta v. California.

When a defendant elects self-representation, the trial judge may—even over the defendant’s objection— appoint ‘‘standby counsel’’ to aid the defendant if and when the defendant requests help and to be available to represent the defendant if the judge finds it necessary to terminate the defendant’s self-representation, Faretta v. California. Nevertheless, the right of self-representation imposes some limits on the extent to which standby counsel may participate in the proceedings without the defendant’s consent. First, the defendant must maintain actual control over the case he or she chooses to present. For example, the defendant must be free to make significant tactical decisions, control the questioning of witnesses, and speak on any matters of importance. Second, in a jury trial, the unwanted participation by standby counsel must not destroy the jury’s perception that the defendant is representing him or herself, McKaskle v. Wiggins.

Although the Sixth Amendment guarantees a defendant the right to counsel as well as the right to self-representation, a defendant does not have a constitutional right to ‘‘hybrid’’ representation under which the defendant and an attorney act, in effect, as co-counsel. A trial court may, however, permit hybrid representation, McKaskle v. Wiggins.

DAVID S. RUDSTEIN

References and Further Reading

  • LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul: Thompson-West, 2004, pp. 594–600, 995–996.

Cases and Statutes Cited

  • Faretta v. California, 422 U.S. 806 (1975)
  • McKaskle v. Wiggins, 465 U.S. 168 (1984)

See also Incorporation Doctrine; Ineffective Assistance of Counsel; Right to Counsel (VI)

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