Faretta Defense

8/7/2019 Faretta Defense

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Faretta Defense

The Right To Be Your Own Lawyer

US Constitution, parchment

The Sixth Amendment of the United States

Constitution guarantees certain rights forsomeone accused of a crime:

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a d v e r t i s e m e n t

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 ofFaretta

v. California, and eight years later therespective roles of the pro se defendant and

standby counsel were further defined inMcKaskle v. Wiggins. In Faretta v. California,

Anthony Faretta was charged with grand theftin Los Angeles. He was assigned a public

defender, but asked to be allowed to representhimself. The judge questioned him and

assessed his level of education. He stressedthat Faretta was "making a mistake" and would

get no special treatment. When Farettacontinued to insist, the judge allowed him to go

pro se, with the proviso that if he saw Farettastumble, he would reverse his ruling.
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At a preliminary hearing a few weeks later, the

judge asked Faretta several legal questionsand, based on Faretta's ignorance, concluded

that the defendant had not intelligently waivedhis right to counsel and could not act as co-

counsel. The judge declared that Faretta mustaccept 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 Statesby the Fourteenth Amendment guarantees that

a defendant in a state criminal trial has anindependent constitutional right of self-

representation and that he may proceed todefend 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 Billof Rights was based not only on rights provided

in English common law but also on severalapparently unjust events in England, one of

which was the 1603 trial of Sir Walter Raleigh,

which Henry Hallam documented in TheConstitutional 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 anywitnesses, including one key witness against him,

Lord Cobham, with whom he was accused of


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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 preservethe rights of anyone accused of a crime.

An odd and alarming event occurred during thelate 16th and early 17th centuries that caused adeviation 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, therebyforcing counsel on that person. In the event no

such document was forthcoming, the Chamberviewed its absence as tantamount to a

confession. By 1641, the Star Chamber hadlost favor, resulting in laws that guaranteed the

rights of the accused, with particular emphasison the right to self-representation.

This sentiment carried over to the Americancolonies where self-representation was the

norm, due to both common-law tradition andthe general distrust of lawyers.

Over time the value of counsel grew, while theright 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 theFaretta decision the Supreme Court made it

clear that "the Sixth Amendment does notmerely provide that a defense shall be made

for the accused; it grants to the accusedpersonally 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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Faretta Defense