OCTOBER TERM, 1999
Syllabus
MARTINEZ
v. COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 98-7809. Argued November 9, 1999-Decided January 12,2000
Accused of converting a client's money to his own use while
employed as a paralegal, petitioner Martinez was charged by
California with grand theft and the fraudulent appropriation of
another's property. He chose to represent himself at trial before a
jury, which acquitted him of theft but convicted him of
embezzlement. He then filed a timely notice of appeal, a motion to
represent himself, and a waiver of counsel. The California Court of
Appeal denied his motion to represent himself based on its prior
holding that there is no constitutional right to selfrepresentation
on direct appeal under
Faretta v.
California,
422 U. S. 806, in
which this Court held that a criminal defendant has a
constitutional right to conduct his own defense at trial when he
voluntarily and intelligently elects to proceed without counsel,
id., at 807, 836. The state court had explained that the
right to counsel on appeal stems from the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, not from the Sixth
Amendment on which
Faretta was based, and held that the
denial of self-representation at this level does not violate due
process or equal protection. The California Supreme Court denied
Martinez' application for a writ of mandate.
Held: Neither
Faretta's holding nor its reasoning
requires a State to recognize a constitutional right to
self-representation on direct appeal from a criminal conviction.
Although some of
Faretta's reasoning is applicable to
appellate proceedings as well as to trials, there are significant
distinctions. First, the historical evidence
Faretta relied
on as identifying a right of self-representation, 422 U. S., at
812-817, is not useful here because it pertained to times when
lawyers were scarce, often mistrusted, and not readily available to
the average person accused of crime, whereas it has since been
recognized that every indigent defendant in a criminal trial has a
constitutional right to the assistance of appointed counsel, see
Gideon v.
Wainwright, 372 U. S. 335. Moreover,
unlike the right recognized in
Faretta, the historical
evidence does not provide any support for an affirmative
constitutional right to appellate self-representation. Second,
Faretta's reliance on the Sixth Amendment's structure
interpreted in light of its English and colonial background, 422 U.
S., at 818-832, is not relevant here. Because the Amend-
153
ment deals strictly with trial rights and does not include any
right to appeal, see
Abney v.
United States, 431 U. S. 651, 656, it
necessarily follows that the Amendment itself does not provide any
basis for finding a right to appellate self-representation.
Faretta's inquiries into historical English practices, 422
U. S., at 821-824, do not provide a basis for extending that case
to the appellate process because there was no appeal from a
criminal conviction in England until 1907. Third, although
Faretta's conclusion that a knowing and intelligent waiver
of the right to trial counsel must be honored out of respect for
individual autonomy,
id., at 834, is also applicable in the
appellate context, this Court has recognized that the right is not
absolute, see
id., at 835. Given the Court's conclusion that
the Sixth Amendment does not apply to appellate proceedings, any
individual right to self-representation on appeal based on autonomy
principles must be grounded in the Due Process Clause. Under the
practices prevailing in the Nation today, the Court is entirely
unpersuaded that the risk of disloyalty by a court-appointed
attorney, or the suspicion of such disloyalty, that underlies the
constitutional right of self-representation at trial, see
id., at 834, is a sufficient concern to conclude that such a
right is a necessary component of a fair appellate proceeding. The
States are clearly within their discretion to conclude that the
government's interests in ensuring the integrity and efficiency of
the appellate process outweigh an invasion of the appellant's
interest in self-representation, although the Court's narrow
holding does not preclude the States from recognizing a
constitutional right to appellate self-representation under their
own constitutions. Pp. 156-164.
Affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG,
and BREYER, JJ., joined. KENNEDY, J.,
post, p. 164, and
BREYER, J.,
post, p. 164, filed concurring opinions. SCALIA,
J., filed an opinion concurring in the judgment,
post, p.
165.
Ronald D. Maines, by appointment of the Court, 526 U. S.
1110, argued the cause and filed briefs for petitioner.
Robert M. Foster, Supervising Deputy Attorney General of
California, argued the cause for respondent. With him on the brief
were
Bill Lockyer, Attorney General,
David P.
Druliner, Chief Assistant Attorney General,
Gary W
154
Schons, Senior Assistant Attorney General, and
Laura
Whitcomb Halgren, Supervising Deputy Attorney General. *
JUSTICE STEVENS delivered the opinion of the Court.
The Sixth and Fourteenth Amendments of our Constitution
guarantee that a person brought to trial in any state or federal
court must be afforded the right to the assistance of counsel
before he can be validly convicted and punished by imprisonmenU In
Faretta v.
California, 422 U. S. 806 (1975), we
decided that the defendant also "has a constitutional right to
proceed
without counsel when he voluntarily and
intelligently elects to do so."
Id., at 807. Although that
statement arguably embraces the entire judicial proceeding, we also
phrased the question as 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."
Ibid. Our conclusion in
Faretta extended
only to a defendant's "constitutional right to conduct his own
defense."
Id., at 836. Accordingly, our specific holding was
confined to the right to defend oneself at trial. We now address
the different question whether the reasoning in support of that
holding also applies when the defendant becomes an appellant and
assumes the burden of persuading a reviewing court that the
conviction should be reversed. We have concluded that it does
not.
I
Martinez describes himself as a self-taught paralegal with 25
years' experience at 12 different law firms. See App. 13.
* Kent S.
Scheidegger and
Charles L.
Hobson filed a brief for the Criminal Justice Legal Foundation
as
amicus curiae urging affirmance.
Barbara E. Bergman and
Ephraim Margolin filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae.
1 See, e. g., Powell v. Alabama,
287 U. S. 45 (1932);
Johnson v. Zerbst,
304 U. S. 458 (1938);
Gideon v. Wainwright,
372 U. S. 335 (1963);
Argersinger v. Hamlin,
407 U. S. 25 (1972).
155
While employed as an office assistant at a firm in Santa Ana,
California, Martinez was accused of converting $6,000 of a client's
money to his own use. He was charged in a twocount information with
grand theft and the fraudulent appropriation of the property of
another. He chose to represent himself at trial before a jury,
because he claimed "'there wasn't an attorney on earth who'd
believe me once he saw my past [criminal record].'"
Id., at
15. The jury acquitted him on Count 1, grand theft, but convicted
him on Count 2, embezzlement. The jury also found that he had three
prior convictions; accordingly, under California's "three strikes"
law, the court imposed a mandatory sentence of 25-years-tolife in
prison. See Cal. Penal Code Ann. §§ 667(d) and (e)(2) (West 1999).
Martinez filed a timely notice of appeal as well as a motion to
represent himself and a waiver of counsel. The California Court of
Appeal denied his motion, and the California Supreme Court denied
his application for a writ of mandate. While the California Supreme
Court did not issue an opinion in this case, the Court of Appeal
previously had explained:
"There is no constitutional right to self-representation on the
initial appeal as of right. The right to counsel on appeal stems
from the due process and equal protection clauses of the Fourteenth
Amendment, not from the Sixth Amendment, which is the foundation on
which Faretta is based. The denial of self-representation at
this level does not violate due process or equal protection
guarantees." People v. Scott, 64 Cal. App. 4th 550,
554, 75 Cal. Rptr. 2d 315, 318 (1998).
We granted certiorari because Martinez has raised a question on
which both state and federal courts have expressed conflicting
views.2 526 U. S. 1064 (1999). We now affirm.
2 Compare
Myers v.
Collins, 8 F.3d
249, 252
(CA5 1993) (finding right of
self-representation extends to appeals);
Campbell v.
Blodgett, 940 F. 2d
549 (CA9 1991) (same);
Chamberlain v.
Ericksen, 744 F.2d
628, 630
156
II
The
Faretta majority based its conclusion on three
interrelated arguments. First, it examined historical evidence
identifying a right of self-representation that had been protected
by federal and state law since the beginning of our Nation, 422 U.
S., at 812-817. Second, it interpreted the structure of the Sixth
Amendment, in the light of its English and colonial background,
id., at 818-832. Third, it concluded that even though it "is
undeniable that in most criminal prosecutions defendants could
better defend with counsel's guidance than by their own unskilled
efforts," a knowing and intelligent waiver "must be honored out of
'that respect for the individual which is the lifeblood of the
law.'
Illinois v.
Allen, 397 U. S. 337, 350-351
[(1970)]."
Id., at 834. Some of the Court's reasoning is
applicable to appellate proceedings as well as to trials. There
are, however, significant distinctions.
The historical evidence relied upon by
Faretta as
identifying a right of self-representation is not always useful
because it pertained to times when lawyers were scarce, often
mistrusted, and not readily available to the average person accused
of crime.3 For one who could not obtain a lawyer,
(CA8 1984) (same);
Commonwealth v.
Rogers,
537 Pa. 581, 583, 645 A. 2d 223, 224 (1994) (same);
State v.
Van Pelt, 305 Ark. 125, 127, 810 S. W. 2d 27,28 (1991)
(same);
Webb v.
State, 274 Ind. 540, 542, 412 N. E.
2d 790, 792 (1980) (same);
Webb v.
State, 533 S. W.
2d 780, 784 (Tex. Crim. App. 1976) (same), with
United
States v.
Gillis, 773 F.2d
549, 560
(CA4 1985) (finding no right of
self-representation on appeal);
Lumbert v.
Finley,
735 F.2d
239, 246
(CA7 1984) (same);
Hill v.
State,
656 So. 2d 1271, 1272 (Fla. 1995) (same);
State v.
Gillespie, 898 S. W. 2d 738 (Tenn. Crim. App. 1994)
(same).
3 "The colonists brought with them an appreciation of the
virtues of selfreliance and a traditional distrust of lawyers. When
the Colonies were first settled, 'the lawyer was synonymous with
the cringing AttorneysGeneral and Solicitors-General of the Crown
and the arbitrary Justices of the King's Court, all bent on the
conviction of those who opposed the King's prerogatives, and
twisting the law to secure convictions.' This prejudice gained
strength in the Colonies where 'distrust of lawyers became an
institution.' Several Colonies prohibited pleading for hire in
the
157
self-representation was the only feasible alternative to
asserting no defense at all. Thus, a government's recognition of an
indigent defendant's right to represent himself was comparable to
bestowing upon the homeless beggar a "right" to take shelter in the
sewers of Paris. Not surprisingly, early precedent demonstrates
that this "right" was not always used to the defendant's advantage
as a shield, but rather was often employed by the prosecution as a
sword. The principal case cited in
Faretta is illustrative.
In
Adams v.
United States ex rel. McCann, 317 U. S. 269 (1942), the
Court relied on the existence of the right of selfrepresentation as
the basis for finding that an unrepresented defendant had waived
his right to a trial by jury.4
17th century. The prejudice persisted into the 18th century as
'the lower classes came to identify lawyers with the upper class.'
The years of Revolution and Confederation saw an upsurge of
antilawyer sentiment, a 'sudden revival, after the War of the
Revolution, of the old dislike and distrust of lawyers as a class.'
"
Faretta, 422 U. S., at 826-827 (footnotes omitted).
4 Similarly, in the state cases cited by the Court in
Faretta, see 422 U. S., at 813, n. 9, the defendant's right
to represent himself was often the predicate for upholding the
waiver of an important right. See,
e. g.,
Mackreth v.
Wilson, 31 Ala. App. 191, 193, 15 So. 2d
112, 113 (1943) (failure of the defendant to request counsel
equaled an "election" to proceed
pro se); Lockard v.
State, 92 Idaho 813, 822, 451 P. 2d 1014, 1023 (1969) (court
relied on defendant's right of self-representation to uphold an
uncounseled guilty plea, despite claims that it was coerced);
People v.
Nelson, 47 Ill. 2d 570, 268 N. E. 2d 2, 3
(1971) (defendant's
pro se status is predicate for upholding
waiver of indictment and jury trial and also to uphold guilty
plea);
Allen v.
Commonwealth, 324 Mass. 558, 562-563,
87 N. E. 2d 192, 195 (1949) (life sentence upheld despite fact that
indigent defendant was unable to procure counsel);
Westberry
v.
State, 254 A. 2d 44, 46 (Me. 1969) (guilty plea upheld
because defendant failed to claim indigency or to request counsel);
State v.
Hollman, 232 S. C. 489, 499, 102 S. E. 2d
873, 878 (1958) (right of defendant to represent himself used as
basis for finding he had no right to appointed counsel). But see
State v.
Thomlinson, 78 S. D. 235, 237, 100 N. W. 2d
121, 122 (1960) (vacating conviction based on court's failure to
allow defendant to represent himself);
State v.
Penderville, 2 Utah 2d 281, 287, 272 P. 2d 195, 199 (1954)
(same);
Cappetta v.
State, 204 So. 2d 913, 918 (Fla.
App. 1967) (same), rev'd,
State v.
Cappetta, 216 So.
2d
158
It has since been recognized, however, that an indigent
defendant in a criminal trial has a constitutional right to the
assistance of appointed counsel, see
Gideon v.
Wainwright, 372 U. S. 335 (1963).
Thus, an individual's decision to represent himself is no longer
compelled by the necessity of choosing self-representation over
incompetent or nonexistent representation; rather, it more likely
reflects a genuine desire to " 'conduct his own cause in his own
words.'"
Faretta, 422 U. S., at 823 (footnote omitted).
Therefore, while
Faretta is correct in concluding that there
is abundant support for the proposition that a right to
self-representation has been recognized for centuries, the original
reasons for protecting that right do not have the same force when
the availability of competent counsel for every indigent defendant
has displaced the need-although not always the desire-for
self-representation.
The scant historical evidence pertaining to the issue of
self-representation on appeal is even less helpful. The Court in
Faretta relied upon the description of the right in § 35 of
the Judiciary Act of 1789, 1 Stat. 92, which states that "the
parties may plead and manage their own causes personally or by the
assistance of such counsel .... " 422 U. S., at 812. It is arguable
that this language encompasses appeals as well as trials. Assuming
it does apply to appellate proceedings, however, the statutory
right is expressly limited by the phrase "as by the rules of the
said courts." 1 Stat. 92. Appellate courts have maintained the
discretion to allow litigants to "manage their own causes"-and some
such litigants have done so effectively.5 That opportunity,
however, has been consistently subject to each court's own
rules.
749, 750 (Fla. 1968) (finding voluntary and intelligent waiver
of right to proceed
pro se).
5 See,
e. g., SEe v.
Sloan, 436 U. S. 103 (1978)
(pro se respondent argued, briefed, and prevailed in the
Court of Appeals for the Second Circuit and this Court).
159
We are not aware of any historical consensus establishing a
right of self-representation on appeal. We might, nonetheless,
paraphrase
Faretta and assert: No State or Colony ever
forced counsel upon a convicted appellant, and no spokesman ever
suggested that such a practice would be tolerable or advisable. 422
U. S., at 832. Such negative historical evidence was meaningful to
the
Faretta Court, because the fact that the "[dog] had not
barked" 6 arguably demonstrated that early lawmakers intended to
preserve the "long-respected right of self-representation" at
trial.
Ibid. Historical silence, however, has no probative
force in the appellate context because there simply was no
long-respected right of self-representation on appeal. In fact, the
right of appeal itself is of relatively recent origin.
Appeals as of right in federal courts were nonexistent for the
first century of our Nation, and appellate review of any sort was
"rarely allowed."
Abney v.
United States, 431 U. S. 651,656, n. 3
(1977). The States, also, did not generally recognize an appeal as
of right until Washington became the first to constitutionalize the
right explicitly in 1889.7 There was similarly no right to appeal
in criminal cases at common law, and appellate review of any sort
was "limited" and "rarely used." 8 Thus, unlike the inquiry in
Faretta, the historical evidence does not provide any
support for an affirmative constitutional right to appellate
self-representation.
The
Faretta majority's reliance on the structure of the
Sixth Amendment is also not relevant. The Sixth Amendment
identifies the basic rights that the accused shall enjoy
6 A. Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes
383, 400 (1938).
7 See Lobsenz, A Constitutional Right to An Appeal: Guarding
Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget
Sound L. Rev. 375, 376 (1985). Although Washington was the first
State to constitutionalize an appeal as of right, almost all of the
States historically had some form of discretionary appellate
review. See generally L. Orfield, Criminal Appeals in America
215-231 (1939).
81 J. Stephen, A History of the Criminal Law of England 308-310
(1883).
160
in "all criminal prosecutions." They are presented strictly as
rights that are available in preparation for trial and at the trial
itself. The Sixth Amendment does not include any right to appeal.
As we have recognized, "[t]he right of appeal, as we presently know
it in criminal cases, is purely a creature of statute."
Abney, 431 U. S., at 656. It necessarily follows that the
Amendment itself does not provide any basis for finding a right to
self-representation on appeal.
The
Faretta majority's nontextual interpretation of the
Sixth Amendment also included an examination of British criminal
jurisprudence and a reference to the opprobrious trial practices
before the Star Chamber. 422 U. S., at 821824. These inquiries into
historical English practices, however, again do not provide a basis
for extending
Faretta to the appellate process, because
there was no appeal from a criminal conviction in England until
1907. See
Griffin v.
Illinois, 351 U. S. 12, 21 (1956)
(Frankfurter, J., concurring in judgment); 7 Edw. VII, ch. 23
(1907). Indeed, none of our many cases safeguarding the rights of
an indigent appellant has placed any reliance on either the Sixth
Amendment or on
Faretta. See,
e. g., Douglas v.
California, 372 U. S. 353, 356-358
(1963);
Griffin, 351 U. S., at 12.
Finally, the
Faretta majority found that the right to
selfrepresentation at trial was grounded in part in a respect for
individual autonomy. See 422 U. S., at 834. This consideration is,
of course, also applicable to an appellant seeking to manage his
own case. As we explained in
Faretta, at the trial level
"[t]o force a lawyer on a defendant can only lead him to believe
that the law contrives against him."
Ibid. On appellate
review, there is surely a similar risk that the appellant will be
skeptical of whether a lawyer, who is employed by the same
government that is prosecuting him, will serve his cause with
undivided loyalty. Equally true on appeal is the related
observation that it is the appellant personally who will bear the
consequences of the appeal. See
ibid.
161
In light of our conclusion that the Sixth Amendment does not
apply to appellate proceedings, any individual right to
self-representation on appeal based on autonomy principles must be
grounded in the Due Process Clause. Under the practices that
prevail in the Nation today, however, we are entirely unpersuaded
that the risk of either disloyalty or suspicion of disloyalty is a
sufficient concern to conclude that a constitutional right of
self-representation is a necessary component of a fair appellate
proceeding. We have no doubt that instances of disloyal
representation are rare. In both trials and appeals there are,
without question, cases in which counsel's performance is
ineffective. Even in those cases, however, it is reasonable to
assume that counsel's performance is more effective than what the
unskilled appellant could have provided for himself.
No one, including Martinez and the
Faretta majority,
attempts to argue that as a rule
pro se representation is
wise, desirable, or efficient. 9 Although we found in
Faretta that the right to defend oneself at trial is
"fundamental" in nature,
id., at 817, it is clear that it is
representation by counsel that is the standard, not the exception.
See
Patterson v.
Illinois, 487 U. S. 285, 307 (1988)
(noting the "strong presumption against" waiver of right to
counsel). Our experience has taught us that "a pro se defense is
usually a bad defense, particularly when compared to a defense
provided by an experienced criminal defense attorney." 10
As the
Faretta opinion recognized, the right to
selfrepresentation is not absolute. The defendant must"
'voluntarily and intelligently''' elect to conduct his own
defense,
9 Some critics argue that the right to proceed
pro se at
trial in certain cases is akin to allowing the defendant to waive
his right to a fair trial. See,
e. g., United
States v.
Farhad, 190 F.3d
1097, 1106-1107
(CA9 1999) (Reinhardt, J., concurring
specially), cert. pending, No. 99-7127.
10 Decker, The Sixth Amendment Right to Shoot Oneself in the
Foot: An Assessment of the Guarantee of Self-Representation Twenty
Years after
Faretta, 6 Seton Hall Const. L. J. 483, 598
(1996).
162
422 U. S., at 835 (quoting
Johnson v.
Zerbst,
304 U. S. 458,
464-465 (1938)), and most courts require him to do so in a timely
manner.ll He must first be "made aware of the dangers and
disadvantages of self-representation." 422 U. S., at 835. A trial
judge may also terminate self-representation or appoint "standby
counsel"-even over the defendant's objection-if necessary.
Id., at 834, n. 46. We have further held that standby
counsel may participate in the trial proceedings, even without the
express consent of the defendant, as long as that participation
does not "seriously undermin[e]" the "appearance before the jury"
that the defendant is representing himself.
McKaskle v.
Wiggins, 465
U. S. 168, 187 (1984). Additionally, the trial judge is under
no duty to provide personal instruction on courtroom procedure or
to perform any legal "chores" for the defendant that counsel would
normally carry out.
Id., at 183-184. Even at the trial
level, therefore, the government's interest in ensuring the
integrity and efficiency of the trial at times outweighs the
defendant's interest in acting as his own lawyer.
In the appellate context, the balance between the two competing
interests surely tips in favor of the State. The status of the
accused defendant, who retains a presumption of innocence
throughout the trial process, changes dramatically when a jury
returns a guilty verdict. We have recognized this shifting focus
and noted:
"[T]here are significant differences between the trial and
appellate stages of a criminal proceeding. The purpose of the trial
stage from the State's point of view is to convert a criminal
defendant from a person presumed innocent to one found guilty
beyond a reasonable doubt ....
"By contrast, it is ordinarily the defendant, rather than the
State, who initiates the appellate process, seeking not to fend off
the efforts of the State's prosecutor
11 See
id., at 544-550 (collecting cases).
163
but rather to overturn a finding of guilt made by a judge or a
jury below." Ross v. Moffitt, 417 U. S. 600, 610
(1974).
In the words of the
Faretta majority, appellate
proceedings are simply not a case of "hal[ing] a person into its
criminal courts." 422 U. S., at 807.
The requirement of representation by trained counsel implies no
disrespect for the individual inasmuch as it tends to benefit the
appellant as well as the court. Courts, of course, may still
exercise their discretion to allow a lay person to proceed
pro
se. We already leave to the appellate courts' discretion,
keeping "the best interests of both the prisoner and the government
in mind," the decision whether to allow a
pro se appellant
to participate in, or even to be present at, oral argument.
Price v.
Johnston, 334 U. S. 266, 284
(1948). Considering the change in position from defendant to
appellant, the autonomy interests that survive a felony conviction
are less compelling than those motivating the decision in
Faretta. Yet the overriding state interest in the fair and
efficient administration of justice remains as strong as at the
trial level. Thus, the States are clearly within their discretion
to conclude that the government's interests outweigh an invasion of
the appellant's interest in self-representation.
III
For the foregoing reasons, we conclude that neither the holding
nor the reasoning in
Faretta requires California to
recognize a constitutional right to self-representation on direct
appeal from a criminal conviction. Our holding is, of course,
narrow. It does not preclude the States from recognizing such a
right under their own constitutions. Its impact on the law will be
minimal, because a lay appellant's rights to participate in
appellate proceedings have long been limited by the
well-established conclusions that he has no right to be present
during appellate proceedings,
Schwab v.
Berggren,
143 U. S. 442
(1892), or to present oral argument,
164
BREYER, J., concurring
Price, 334 U. S., at 285-286. Meanwhile the rules
governing appeals in California, and presumably those in other
States as well, seem to protect the ability of indigent litigants
to make
pro se filings. See,
e. g., People v.
Wende, 25 Cal. 3d 436,440, 600 P. 2d 1071, 1074 (1979); see
also
Anders v.
California, 386 U. S. 738 (1967). In
requiring Martinez, under these circumstances, to accept against
his will a stateappointed attorney, the California courts have not
deprived him of a constitutional right. Accordingly, the judgment
of the California Supreme Court is affirmed.
It is so ordered.
JUSTICE KENNEDY, concurring.
To resolve this case it is unnecessary to cast doubt upon the
rationale of
Faretta v.
California, 422 U. S. 806 (1975).
Faretta can be accepted as quite sound, yet it does not
follow that a convicted person has a similar right of
selfrepresentation on appeal. Different considerations apply in the
appellate system, and the Court explains why this is so. With these
observations, I join the opinion of the Court.
JUSTICE BREYER, concurring.
I agree with the Court and Jom its opmIOn. Because JUSTICE
SCALIA writes separately to underscore the continuing
constitutional validity of
Faretta v.
California,
422 U. S. 806
(1975), I note that judges closer to the firing line have sometimes
expressed dismay about the practical consequences of that holding.
See,
e. g., United States v.
Farhad, 190 F.3d
1097, 1107
(CA9 1999) (concurring opinion) (right of
self-representation "frequently, though not always, conflicts
squarely and inherently with the right to a fair trial"). I have
found no empirical research, however, that might help determine
whether, in general, the right to represent oneself furthers, or
inhibits, the Constitution's basic guarantee of fairness. And
without some strong factual basis for believing that
Faretta's holding has proved counterproductive in
165
practice, we are not in a position to reconsider the
constitutional assumptions that underlie that case.
JUSTICE SCALIA, concurring in the judgment.
I do not share the apparent skepticism of to day's opinion
concerning the judgment of the Court (often curiously described as
merely the judgment of "the majority") in
Faretta v.
California, 422 U. S. 806 (1975). I
have no doubt that the Framers of our Constitution, who were
suspicious enough of governmental power-including judicial
power-that they insisted upon a citizen's right to be judged by an
independent jury of private citizens, would not have found
acceptable the compulsory assignment of counsel
by the
government to plead a criminal defendant's case. While I might have
rested the decision upon the Due Process Clause rather than the
Sixth Amendment, I believe it was correct.
That asserting the right of self-representation may often, or
even usually, work to the defendant's disadvantage is no more
remarkable-and no more a basis for withdrawing the right-than is
the fact that proceeding without counsel in custodial
interrogation, or confessing to the crime, usually works to the
defendant's disadvantage. Our system of laws generally presumes
that the criminal defendant, after being fully informed, knows his
own best interests and does not need them dictated by the State.
Any other approach is unworthy of a free people. As Justice
Frankfurter eloquently put it for the Court in
Adams v.
United States ex rel. McCann, 317 U. S. 269 (1942), to
require the acceptance of counsel "is to imprison a man in his
privileges and call it the Constitution."
Id., at 280.
In any event,
Faretta is relevant to the question before
us only to the limited extent that we must decide whether its
holding applies to self-representation on appeal. It seems to me
that question is readily answered by the fact that there is no
constitutional right to appeal. See
McKane v.
Durston, 153
U. S. 684, 687-688 (1894). Since a State could, as
166
SCALIA, J., concurring in judgment
far as the Federal Constitution is concerned, subject its
trial-court determinations to no review whatever, it could
a
fortiori subject them to review which consists of a
nonadversarial reexamination of convictions by a panel of
government experts. Adversarial review with counsel appointed by
the State is even less questionable than that.
For these reasons, I concur in the judgment of the Court.
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