U.S. Supreme Court

Faretta v. California,422U.S. 806 (1975)Faretta v. California

No. 73-5772

Argued November 19,1974

Decided June 30, 1975

422U.S. 806

CERTIORARI TO THE COURT OF APPEALOF CALIFORNIA,

SECOND APPELLATEDISTRICT

Syllabus

The Sixth Amendment as made applicable to the States by theFourteenth guarantees that a defendant in a state criminal trialhas an independent constitutional right of self-representation andthat he may proceed to defend himself without counsel when hevoluntarily and intelligently elects to do so, and, in this case,the state courts erred in forcing petitioner against his will toaccept a state-appointed public defender and in denying his requestto conduct his own defense. Pp.422 U. S.812-836.

Vacated and remanded.

STEWART, J., delivered the opinion of the Court, in whichDOUGLAS, BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER,C.J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST,JJ., joined,post, p.422 U. S. 836.BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J.,and REHNQUIST, J., joined,post, p.422 U. S.846.

Page 422 U. S. 807

MR. JUSTICE STEWART delivered the opinion of the Court.

The Sixth and Fourteenth Amendments of our Constitutionguarantee that a person brought to trial in any state or federalcourt must be afforded the right to the assistance of counselbefore he can be validly convicted and punished by imprisonment.This clear constitutional rule has emerged from a series of casesdecided here over the last 50 years. [Footnote 1] The question before us now is whether adefendant in a state criminal trial has a constitutional right toproceedwithout counsel when he voluntarily andintelligently elects to do so. Stated another way, the question iswhether a State may constitutionally hale a person into itscriminal courts and there force a lawyer upon him, even when heinsists that he wants to conduct his own defense. It is not an easyquestion, but we have concluded that a State may notconstitutionally do so.

IAnthony Faretta was charged with grand theft in an informationfiled in the Superior Court of Los Angeles County, Cal. At thearraignment, the Superior Court Judge assigned to preside at thetrial appointed the public defender to represent Faretta. Wellbefore the date of trial, however, Faretta requested that he bepermitted to represent himself. Questioning by the judge revealedthat Faretta had once represented himself in a criminalprosecution, that he had a high school education, and that he didnot want to be represented by the public defender because hebelieved that that office was "very loaded down with . . . a heavycase load." The judge

Page 422 U. S. 808

responded that he believed Faretta was "making a mistake," andemphasized that, in further proceedings, Faretta would receive nospecial favors. [Footnote 2]Nevertheless, after establishing that Faretta wanted to representhimself and did not want a lawyer, the judge, in a "preliminaryruling," accepted Faretta's waiver of the assistance of counsel.The judge indicated, however, that he might reverse this ruling ifit later appeared that Faretta was unable adequately to representhimself.

Several weeks thereafter, but still prior to trial, the judgesua sponte held a hearing to inquire into Faretta'sability to conduct his own defense, and questioned him specificallyabout both the hearsay rule and the state law governing thechallenge of potential jurors. [Footnote 3] After consideration

Page 422 U. S. 809

of Faretta's answers and observation of his demeanor, the judgeruled that Faretta had not made an intelligent and knowing waiverof his right to the assistance

Page 422 U. S. 810

of counsel, and also ruled that Faretta had no constitutionalright to conduct his own defense. [Footnote 4] The judge, accordingly, reversed his earlierruling permitting self-representation, and again appointed thepublic defender to represent Faretta. Faretta's subsequent requestfor leave to act as co-counsel was rejected, as were his efforts tomake certain motions on his own behalf. [Footnote 5] Throughout

Page 422 U. S. 811

the subsequent trial, the judge required that Faretta's defensebe conducted only through the appointed lawyer from the publicdefender's office. At the conclusion of the trial, the Jury foundFaretta guilty as charged, and the judge sentenced him toprison.

The California Court of Appeal, relying upon a then-recentCalifornia Supreme Court decision that had expressly decided theissue, [Footnote 6] affirmedthe trial judge's ruling that Faretta had no federal or stateconstitutional right

Page 422 U. S. 812

to represent himself. [Footnote7] Accordingly, the appellate court affirmed Faretta'sconviction. A petition for rehearing was denied without opinion,and the California Supreme Court denied review. [Footnote 8] We granted certiorari. 415 U.S.975.

IIIn the federal courts, the right of self-representation has beenprotected by statute since the beginnings of our Nation. Section 35of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the FirstCongress and signed by President Washington one day before theSixth Amendment

Page 422 U. S. 813

was proposed, provided that,

"in all the courts of the United States, the parties may pleadand manage their own causes personally or by the assistance of . .. counsel. . . ."

The right is currently codified in 28 U.S.C. § 1654.

With few exceptions, each of the several States also accords adefendant the right to represent himself in any criminal case.[Footnote 9] The Constitutionsof 36 States explicitly confer that right. [Footnote 10] Moreover, many state courtshave

Page 422 U. S. 814

expressed the view that the right is also supported by theConstitution of the United States. [Footnote 11]

This Court has more than once indicated the same view. InAdams v. United States ex rel. McCann,317 U.S. 269,317 U. S. 279,the Court recognized that the Sixth Amendment right to theassistance of counsel implicitly embodies a "correlative right todispense with a lawyer's help." The defendant in that case,indicted for federal mail fraud violations, insisted on conductinghis own defense without benefit of counsel. He also requested abench trial and signed a waiver of his right to trial by jury. Theprosecution consented to the waiver of a jury, and the waiver wasaccepted by the court. The defendant was convicted, but the Courtof Appeals reversed the conviction on the ground that a personaccused of a felony could not competently waive his right to trialby jury except upon the advice of a lawyer. This Court reversed,and reinstated the conviction, holding that

"an accused, in the exercise of a free and intelligent choice,and with the considered approval of the court, may waive trial byjury, and so likewise may he competently and intelligently waivehis Constitutional right to assistance of counsel."

Id. at317 U. S.275.

TheAdams case does not, of course, necessarily resolvethe issue before us. It held only that "the Constitution

Page 422 U. S. 815

does not force a lawyer upon a defendant."Id. at317 U. S. 279.[Footnote 12] Whether theConstitution forbids a State from forcing a lawyer upon a defendantis a different question. But the Court inAdams didrecognize, albeit in dictum, an affirmative right ofself-representation:

"The right to assistance of counsel and thecorrelativeright to dispense with a lawyer's help are not legalformalisms. They rest on considerations that go to the substance ofan accused's position before the law. . . ."

. . . What were contrived as protections for the accused shouldnot be turned into fetters. . . . To deny an accused a choice ofprocedure in circumstances in which he, though a layman, is ascapable as any lawyer of making an intelligent choice, is to impairthe worth of great Constitutional safeguards by treating them asempty verbalisms.

". . . When the administration of the criminal law . . . ishedged about, as it is, by the Constitutional safeguards for theprotection of an accused, to deny him in the exercise of his freechoice the right to dispense with some of these safeguards . . . isto imprison a man in his privileges, and call it theConstitution."

Id. at317 U. S.279-280 (emphasis added). In other settings as well, theCourt has indicated that

Page 422 U. S. 816

a defendant has a constitutionally protected right to representhimself in a criminal trial. For example, inSnyder v.Massachusetts,291 U. S. 97, theCourt held that the Confrontation Clause of the Sixth Amendmentgives the accused a right to be present at all stages of theproceedings where fundamental fairness might be thwarted by hisabsence. This right to "presence" was based upon the premise thatthe

"defense may be made easier if the accused is permitted to bepresent at the examination of jurors or the summing up of counsel,for it will be in his power, if present, to give advice orsuggestion oreven to supersede his lawyers altogether andconduct the trial himself."

Id. at291 U. S. 106(emphasis added). And inPrice v. Johnston,334 U.S. 266, the Court, in holding that a convicted personhad no absolute right to argue his own appeal, said this holdingwas in "sharp contrast" to his "recognized privilege of conductinghis own defense at the trial."Id. at334 U. S.285.

The United States Courts of Appeals have repeatedly held thatthe right of self-representation is protected by the Bill ofRights. InUnited States v. Plattner, 330 F.2d 271, theCourt of Appeals for the Second Circuit emphasized that the SixthAmendment grants the accused the rights of confrontation ofcompulsory process for witnesses in his favor, and of assistance ofcounsel as minimum procedural requirements in federal criminalprosecutions. The right to the assistance of counsel, the courtconcluded, was intended to supplement the other rights of thedefendant, and not to impair "the absolute and primary right toconduct one's own defense inpropria persona."Id. at 274. The court found support for its decision inthe language of the 1789 federal statute; in the statutes and rulesgoverning criminal procedure,see 28 U.S.C. § 1654, andFed.Rule Crim.Proc. 44; in the many state constitutions thatexpressly guarantee self-representation;

Page 422 U. S. 817

and in this Court's recognition of the right inAdamsandPrice. On these grounds, the Court of Appeals heldthat implicit in the Fifth Amendment's guarantee of due process oflaw, and implicit also in the Sixth Amendment's guarantee of aright to the assistance of counsel, is "the right of the accusedpersonally to manage and conduct his own defense in a criminalcase." 330 F.2d at 274.See also United States ex rel.Maldonado v. Denno, 348 F.2d 12, 15 (CA2);MacKenna v.Ellis, 263 F.2d 35, 41 (CA5);United States v.Sternman, 415 F.2d 1165, 1169-1170 (CA6);Lowe v. UnitedStates, 418 F.2d 100, 103 (CA7);United States v.Warner, 428 F.2d 730, 733 (CA8);Haslam v. UnitedStates, 431 F.2d 362, 365 (CA9);compare United States v.Dougherty, 154 U.S.App.D.C. 76, 86, 473 F.2d 1113, 1123(intimating right is constitutional but finding it unnecessary toreach issue)with Brown v. United States, 105 U.S.App.D.C.77, 79-80, 264 F.2d 363, 365-366 (plurality opinion stating rightis no more than statutory in nature).

This Court's past recognition of the right ofself-representation, the federal court authority holding the rightto be of constitutional dimension, and the state constitutionspointing to the right's fundamental nature form a consensus noteasily ignored. "[T]he mere fact that a path is a beaten one," Mr.Justice Jackson once observed, "is a persuasive reason forfollowing it." [Footnote 13]We confront here a nearly universal conviction, on the part of ourpeople, as well as our courts, that forcing a lawyer upon anunwilling defendant is contrary to his basic right to defendhimself if he truly wants to do so.

Page 422 U. S. 818

IIIThis consensus is soundly premised. The right ofself-representation finds support in the structure of the SixthAmendment, as well as in the English and colonial jurisprudencefrom which the Amendment emerged.

A

The Sixth Amendment includes a compact statement of the rightsnecessary to a full defense:

"In all criminal prosecutions, the accused shall enjoy the right. . . to be informed of the nature and cause of the accusation; tobe confronted with the witnesses against him; to have compulsoryprocess for obtaining witnesses in his favor, and to have theAssistance of Counsel for his defence."

Because these rights are basic to our adversary system ofcriminal justice, they are part of the "due process of law" that isguaranteed by the Fourteenth Amendment to defendants in thecriminal courts of the States. [Footnote 14] The rights to notice, confrontation, andcompulsory process, when taken together, guarantee that a criminalcharge may be answered in a manner now considered fundamental tothe fair administration of American justice -- through the callingand interrogation of favorable witnesses, the cross-examination ofadverse witnesses, and the orderly introduction of evidence. Inshort, the Amendment constitutionalizes the right in an adversarycriminal trial to make a defense as we know it.See Californiav. Green,399 U. S. 149,399 U. S. 176(Harlan, J., concurring).

Page 422 U. S. 819

The Sixth Amendment does not provide merely that a defense shallbe made for the accused; it grants to the accused personally theright to make his defense. It is the accused, not counsel, who mustbe "informed of the nature and cause of the accusation," who mustbe "confronted with the witnesses against him," and who must beaccorded "compulsory process for obtaining witnesses in his favor."Although not stated in the Amendment in so many words, the right toself-representation -- to make one's own defense personally -- isthus necessarily implied by the structure of the Amendment.[Footnote 15] The right todefend

Page 422 U. S. 820

is given directly to the accused; for it is he who suffers theconsequences if the defense fails.

The counsel provision supplements this design. It speaks of the"assistance" of counsel, and an assistant, however expert, is stillan assistant. The language and spirit of the Sixth Amendmentcontemplate that counsel, like the other defense tools guaranteedby the Amendment, shall be an aid to a willing defendant -- not anorgan of the State interposed between an unwilling defendant andhis right to defend himself personally. To thrust counsel upon theaccused, against his considered wish, thus violates the logic ofthe Amendment. In such a case, counsel is not an assistant, but amaster, [Footnote 16] andthe right to make a defense is stripped of the personal characterupon which the Amendment insists. It is true that, when a defendantchooses to have a lawyer manage and present his case, law andtradition may allocate to the counsel the power to make bindingdecisions of trial strategy in many areas.Cf. Henry v.Mississippi,379 U. S. 443,379 U. S. 451;Brookhart v. Janis,384 U. S. 1,384 U. S. 7;Fay v. Noia,372 U. S. 391,372 U. S. 439.This allocation can only be justified, however, by the defendant'sconsent, at the

Page 422 U. S. 821

outset, to accept counsel as his representative. An unwantedcounsel "represents" the defendant only through a tenuous andunacceptable legal fiction. Unless the accused has acquiesced insuch representation, the defense presented is not the defenseguaranteed him by the Constitution, for, in a very real sense, itis nothis defense.

B

The Sixth Amendment, when naturally read, thus implies a rightof self-representation. This reading is reinforced by theAmendment's roots in English legal history.

In the long history of British criminal jurisprudence, there wasonly one tribunal that ever adopted a practice of forcing counselupon an unwilling defendant in a criminal proceeding. The tribunalwas the Star Chamber. That curious institution, which flourished inthe late 16th and early 17th centuries, was of mixed executive andJudicial character, and characteristically departed from common lawtraditions. For those reasons, and because it specialized in trying"political" offenses, the Star Chamber has, for centuries,symbolized disregard of basic individual rights. [Footnote 17] The Star Chamber not merelyallowed, but required, defendants to have counsel. The defendant'sanswer to an indictment was not accepted unless it was signed bycounsel. When counsel refused to sign the answer, for whateverreason, the defendant was

Page 422 U. S. 822

considered to have confessed. [Footnote 18] Stephen commented on this procedure:

"There is something specially repugnant to justice in usingrules of practice in such a manner as

Page 422 U. S. 823

to debar a prisoner from defending himself, especially when theprofessed object of the rules so used is to provide for hisdefence."

1 J. Stephen, A History of the Criminal Law of England 341-342(1883). The Star Chamber was swept away in 1641 by therevolutionary fervor of the Long Parliament. The notion ofobligatory counsel disappeared with it.

By the common law of that time, it was not representation bycounsel, but self-representation, that was the practice inprosecutions for serious crime. At one time, every litigant wasrequired to "appear before the court in his own person and conducthis own cause in his own words." [Footnote 19] While a right to counsel developed early incivil cases and in cases of misdemeanor, a prohibition against theassistance of counsel continued for centuries in prosecutions forfelony or treason. [Footnote20] Thus, in the 16th and 17th centuries, the accused felon ortraitor stood alone, with neither counsel nor the benefit of otherrights -- to notice, confrontation, and compulsory process -- thatwe now associate with a genuinely fair adversary proceeding. Thetrial was merely a "long argument between the prisoner and the

Page 422 U. S. 824

counsel for the Crown." [Footnote 21] As harsh as this now seems, at least

"the prisoner was allowed to make what statements he liked. . .. Obviously, this public oral trial presented many moreopportunities to a prisoner than the secret enquiry based onwritten depositions, which, on the continent, had taken the placeof a trial. [Footnote22]"

With the Treason Act of 1695, there began a long and importantera of reform in English criminal procedure. The 1695 statutegranted to the accused traitor the rights to a copy of theindictment, to have his witnesses testify under oath, and "to make. . . full Defence, by Counsel learned in the Law." [Footnote 23] It also provided for courtappointment of counsel,but only if the accused sodesired. [Footnote24]

Page 422 U. S. 825

Thus, as new rights developed, the accused retained hisestablished right "to make what statements he liked." [Footnote 25] The right to counselwas viewed as guaranteeing a choice between representation bycounsel and the traditional practice of self-representation. Theban on counsel in felony cases, which had been substantially erodedin the courts, [Footnote 26]was finally eliminated by statute in 1836. [Footnote 27] In more recent years, Parliamenthas provided for court appointment of counsel in serious criminalcases, but only at the accused's request. [Footnote 28] At no point in this process ofreform in England was counsel ever forced upon the

Page 422 U. S. 826

defendant. The common law rule, succinctly stated inR. v.Woodward, [1944] K.B. 118, 119, [1944] 1 All E.R. 159 160, hasevidently always been that "no person charged with a criminaloffence can have counsel forced upon him against his will."[Footnote 29]See 3Halsbury's Laws of England � 1141, pp. 624-625 (4th ed.1973);R. v. Maybury, 11 L.T.R. (n.s.) 566 (Q.B. 1865).

C

In the American Colonies, the insistence upon a right ofself-representation was, if anything, more fervent than inEngland.

The colonists brought with them an appreciation of the virtuesof self-reliance and a traditional distrust of lawyers. When theColonies were first settled,

"the lawyer was synonymous with the cringing Attorneys-Generaland Solicitors-General of the Crown, and the arbitrary Justices ofthe King's Court, all bent on the conviction of those who opposedthe King's prerogatives, and twisting the law to secureconvictions. [Footnote30]"

This prejudice gained strength in the Colonies, where"distrust

Page 422 U. S. 827

of lawyers became an institution." [Footnote 31] Several Colonies prohibited pleading forhire in the 17th century. [Footnote 32] The prejudice persisted into the 18thcentury, as "the lower classes came to identify lawyers with theupper class." [Footnote 33]The years of Revolution and Confederation saw an upsurge ofanti-lawyer sentiment, a "sudden revival, after the War of theRevolution, of the old dislike and distrust of lawyers as a class."[Footnote 34] In the heat ofthese sentiments, the Constitution was forged.

This is not to say that the Colonies were slow to recognize thevalue of counsel in criminal cases. Colonial judges soon departedfrom ancient English practice and allowed accused felons the aid ofcounsel for their defense. [Footnote 35] At the same time, however, the basic rightof

Page 422 U. S. 828

self-representation was never questioned. We have found noinstance where a colonial court required a defendant in a criminalcase to accept as his representative an unwanted lawyer. Indeed,even where counsel was permitted, the general practice continued tobe self-representation. [Footnote 36]

The right of self-representation was guaranteed in many colonialcharters and declarations of rights. These early documentsestablish that the "right to counsel" meant to the colonists aright to choose between pleading through a lawyer and representingoneself. [Footnote 37] Afterthe

Page 422 U. S. 829

Declaration of Independence, the right of self-representation,along with other rights basic to the making of a defense, enteredthe new state constitutions in wholesale fashion. [Footnote 38] The right to counsel wasclearly thought to

Page 422 U. S. 830

supplement the primary right of the accused to defend himself,[Footnote 39] utilizing hispersonal rights to notice, confrontation, and compulsory process.And when the Colonies or newly independent States provided bystatute, rather than by constitution, for court appointment ofcounsel in criminal cases, they also meticulously preserved theright of the accused to defend himself personally. [Footnote 40]

Page 422 U. S. 831

The recognition of the right of self-representation was notlimited to the state lawmakers. As we have noted, § 35 of theJudiciary Act of 1789, signed one day before the Sixth Amendmentwas proposed, guaranteed in the federal courts the right of allparties to "plead and manage their own causes personally or by theassistance of . . . counsel." 1 Stat. 92.See 28 U.S.C. §1654. At the time James Madison drafted the Sixth Amendment, somestate constitutions guaranteed an accused the right to be heard "byhimself" and by counsel; others provided that an accused was to be"allowed" counsel. [Footnote41] The various state proposals for the Bill of Rights hadsimilar variations in terminology. [Footnote 42]

Page 422 U. S. 832

In each case, however, the counsel provision was embedded in apackage of defense rights granted personally to the accused. Thereis no indication that the differences in phrasing about "counsel"reflected any differences of principle about self-representation.No State or Colony had ever forced counsel upon an accused; nospokesman had ever suggested that such a practice would betolerable, much less advisable. If anyone had thought that theSixth Amendment, as drafted, failed to protect the long-respectedright of self-representation, there would undoubtedly have beensome debate or comment on the issue. But there was none.

In sum, there is no evidence that the colonists and the Framersever doubted the right of self-representation, or imagined thatthis right might be considered inferior to the right of assistanceof counsel. To the contrary, the colonists and the Framers, as wellas their English ancestors, always conceived of the right tocounsel as an "assistance" for the accused, to be used, at hisoption, in defending himself. The Framers selected in the SixthAmendment a form of words that necessarily implies the right ofself-representation. That conclusion is supported by centuries ofconsistent history.

IVThere can be no blinking the fact that the right of an accusedto conduct his own defense seems to cut against the grain of thisCourt's decisions holding that the Constitution requires that noaccused can be convicted and imprisoned unless he has been accordedthe right to the assistance of counsel.See Powell v.Alabama,287 U. S. 45;Johnson v. Zerbst,304 U. S. 458;Gideon v. Wainwright,372 U. S. 335;Argersinger v. Hamlin,407 U. S. 25. Forit is surely true that the basic thesis of those decisions is thatthe help of a lawyer is essential to assure

Page 422 U. S. 833

the defendant a fair trial. [Footnote 43] And a strong argument can surely be madethat the whole thrust of those decisions must inevitably lead tothe conclusion that a State may constitutionally impose a lawyerupon even an unwilling defendant.

But it is one thing to hold that every defendant, rich or poor,has the right to the assistance of counsel, and quite another tosay that a State may compel a defendant to accept a lawyer he doesnot want. The value of state-appointed counsel was notunappreciated by the Founders, [Footnote 44] yet the notion of compulsory counsel wasutterly foreign to them. And whatever else may be said of those whowrote the Bill of Rights, surely there can be no

Page 422 U. S. 834

doubt that they understood the inestimable worth of free choice.[Footnote 45]

It is undeniable that, in most criminal prosecutions, defendantscould better defend with counsel's guidance than by their ownunskilled efforts. But where the defendant will not voluntarilyaccept representation by counsel, the potential advantage of alawyer's training and experience can be realized, if at all, onlyimperfectly. To force a lawyer on a defendant can only lead him tobelieve that the law contrives against him. Moreover, it is notinconceivable that, in some rare instances, the defendant might, infact, present his case more effectively by conducting his owndefense. Personal liberties are not rooted in the law of averages.The right to defend is personal. The defendant, and not his lawyeror the State, will bear the personal consequences of a conviction.It is the defendant, therefore, who must be free personally todecide whether, in his particular case, counsel is to hisadvantage. And although he may conduct his own defense ultimatelyto his own detriment, his choice must be honored out of "thatrespect for the individual which is the lifeblood of the law."Illinois v. Allen,397 U. S. 337,397 U. S.350-351 (BRENNAN, J., concurring). [Footnote 46]

Page 422 U. S. 835

VWhen an accused manages his own defense, he relinquishes, as apurely factual matter, many of the traditional benefits associatedwith the right to counsel. For this reason, in order to representhimself, the accused must "knowingly and intelligently" forgo thoserelinquished benefits.Johnson v. Zerbst, 304 U.S. at304 U. S.464-465.Cf. Von Moltke v. Gillies,332 U. S. 708,332 U. S.723-724 (plurality opinion of Black, J.). Although adefendant need not himself have the skill and experience of alawyer in order competently and intelligently to chooseself-representation, he should be made aware of the dangers anddisadvantages of self-representation, so that the record willestablish that "he knows what he is doing and his choice is madewith eyes open."Adams v. United States ex rel. McCann,317 U.S. at317 U. S.279.

Here, weeks before trial, Faretta clearly and unequivocallydeclared to the trial judge that he wanted to represent himself anddid not want counsel. The record affirmatively shows that Farettawas literate, competent, and understanding, and that he wasvoluntarily exercising his informed free will. The trial judge hadwarned Faretta that he thought it was a mistake not to accept

Page 422 U. S. 836

the assistance of counsel, and that Faretta would be required tofollow all the "ground rules" of trial procedure. [Footnote 47] We need make no assessment ofhow well or poorly Faretta had mastered the intricacies of thehearsay rule and the California code provisions that governchallenges of potential jurors onvoir dire. [Footnote 48] For his technical legalknowledge, as such, was not relevant to an assessment of hisknowing exercise of the right to defend himself.

In forcing Faretta, under these circumstances, to accept againsthis will a state-appointed public defender, the California courtsdeprived him of his constitutional right to conduct his owndefense. Accordingly, the judgment before us is vacated, and thecase is remanded for further proceedings not inconsistent with thisopinion.

It is so ordered.

[Footnote 1]

See, e.g., Powell v. Alabama,287 U. S.45;Johnson v. Zerbst,304 U.S. 458;Betts v. Brady,316 U.S. 455;Gideon v. Wainwright,372 U.S. 335;Argersinger v. Hamlin,407 U. S.25.

[Footnote 2]

The judge informed Faretta:

"You are going to follow the procedure. You are going to have toask the questions right. If there is an objection to the form ofthe question and it is properly taken, it is going to be sustained.We are going to treat you like a gentleman. We are going to respectyou. We are going to give you every chance, but you are going toplay with the same ground rules that anybody plays. And you don'tknow those ground rules. You wouldn't know those ground rules anymore than any other lawyer will know those ground rules until hegets out and tries a lot of cases. And you haven't done it."

[Footnote 3]

The colloquy was as follows:

"THE COURT: In the Faretta matter, I brought you back down hereto do some reconsideration as to whether or not you should continueto represent yourself."

"How have you been getting along on your research?"

"THE DEFENDANT: Not bad, your Honor."

"Last night, I put in the mail a 995 motion, and it should bewith the Clerk within the next day or two."

"THE COURT: Have you been preparing yourself for the intricaciesof the trial of the matter?"

"THE DEFENDANT: Well, your Honor, I was hoping that the casecould possibly be disposed of on the 995."

"Mrs. Ayers informed me yesterday that it was the Court's policyto hear the pretrial motions at the time of trial. If possible,your Honor, I would like a date set as soon as the Court deemsadequate after they receive the motion, sometime before trial."

"THE COURT: Let's see how you have been doing on yourresearch."

"How many exceptions are there to the hearsay rule?"

"THE DEFENDANT: Well, the hearsay rule would, I guess, be calledthe best evidence rule, your Honor. And there are severalexceptions in case law, but in actual statutory law, I don't feelthere is none."

"THE COURT: What are the challenges to the jury for cause?"

"THE DEFENDANT: Well, there is twelve peremptory challenges."

"THE COURT: And how many for cause?"

"THE DEFENDANT: Well, as many as the Court deems valid."

"THE COURT: And what are they? What are the grounds forchallenging a juror for cause?"

"THE DEFENDANT: Well. numerous grounds to challenge a witness --I mean, a juror, your Honor, one being the juror is perhapssuffered, was a victim of the same type of offense, might beprejudiced toward the defendant. Any substantial ground that mightmake the juror prejudice[d] toward the defendant."

"THE COURT: Anything else?"

"THE DEFENDANT: Well, a relative perhaps of the victim."

"THE COURT: Have you taken a look at that code section to seewhat it is?"

"THE DEFENDANT: Challenge a juror?"

"THE COURT: Yes. ,"

"THE DEFENDANT: Yes, your Honor. I have done -- "

"THE COURT: What is the code section?"

"THE DEFENDANT: On voir diring a jury, your Honor?"

"THE COURT: Yes."

"THE DEFENDANT: I am not aware of the section rightoff-hand."

"THE COURT: What code is it in?"

"THE DEFENDANT: Well, the research I have done on challengingwould be in Witkins Jurisprudence."

"THE COURT: Have you looked at any of the codes to see wherethese various things are taken up?"

"THE DEFENDANT: No, your Honor, I haven't."

"THE COURT: Have you looked in any of the California Codes withreference to trial procedure?"

"THE DEFENDANT: Yes, your Honor."

"THE COURT: What codes?"

"THE DEFENDANT: I have done extensive research in the PenalCode, your Honor, and the Civil Code."

"THE COURT: If you have done extensive research into it, thentell me about it."

"THE DEFENDANT: On empaneling a jury, your Honor?"

"THE COURT: Yes."

"THE DEFENDANT: Well, the District Attorney and the defendant,defense counsel, has both the right to 12 peremptory challenges ofa jury. These 12 challenges are undisputable. Any reason that thedefense or prosecution should feel that a juror would be inadequateto try the case or to rule on a case, they may then discharge thatjuror."

"But if there is a valid challenge due to grounds of prejudiceor some other grounds, that these aren't considered in the 12peremptory challenges. There are numerous, and the defendant, thedefense and the prosecution both have the right to make any inquiryto the jury as to their feelings toward the case."

[Footnote 4]

The judge concluded:

"[T]aking into consideration the recent case ofPeopleversus Sharp, where the defendant apparently does not have aconstitutional right to represent himself, the Court finds that theends of justice and requirements of due process require that theprior order permitting the defendant to represent himself inpro per should be and is hereby revoked. That privilege isterminated."

[Footnote 5]

Faretta also urged without success that he was entitled tocounsel of his choice, and three times moved for the appointment ofa lawyer other than the public defender. These motions, too, weredenied.

[Footnote 6]

People v. Sharp, 7 Cal. 3d 448,499 P.2d 489.

When Sharp was tried, the California Constitution expresslyprovided that the accused in a criminal prosecution had the right"to appear and defend, in person and with counsel." Cal.Const.,Art. 1, § 13. In an earlier decision, the California Supreme Courthad held that this language meant that the accused had the right toappear by himself or with counsel.People v.Mattson, 51 Cal. 2d777, 336 P.2d 937. This view was rejected inSharp,the California Supreme Court there holding that the defendant in acriminal prosecution has no right under the State or the FederalConstitution to represent himself at trial.See generallyY. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure57-60 (4th ed.1974); Note, 10 Calif.Western L.Rev.196 (1973); Note,24 Hastings L.J. 431 (1973); Comment, 64 J.Crim.L. 240 (1973).

Although immaterial to the court's decision, shortly beforeSharp was decided on appeal, the California Constitutionhad been amended to delete the right of self-representation fromArt. 1, § 13, and to empower the legislature expressly "to requirethe defendant in a felony case to have the assistance of counsel."The new statutes, on their face, require counsel only in capitalcases.See Cal.Penal Code §§ 686(2), 686.1, 859, 987 (1970and Supp. 1975). In other than capital cases, the accused retains,by statutory terms, a right "to appear and defend in person andwith counsel." § 686(2). However, this language tracks the oldlanguage of Art. 1, § 13, of the California Constitution, and, inconstruing the constitutional language inSharp to excludeany right of self-representation under former Art. 1, § 13, of theState Constitution, the California Supreme Court also stated that §686(2) does not provide any right of self-representation.

[Footnote 7]

The Court of Appeal also held that the trial court had not

"abused its discretion in concluding that Faretta had not made aknowing and intelligent waiver of his right to be represented bycounsel,"

since "Faretta did not appear aware of the possible consequencesof waiving the opportunity for skilled and experiencedrepresentation at trial."

[Footnote 8]

The California courts' conclusion that Faretta had noconstitutional right to represent himself was made in the contextof the following not unusual rules of California criminalprocedure: an indigent criminal defendant has no right to appointedcounsel of his choice.See Drumgo v. SuperiorCourt, 8 Cal. 3d 930,506 P.2d 1007;People v. Miller, 7 Cal. 3d 562,574, 498 P.2d 1089, 1097;People v. Massie, 66 Cal. 2d899, 910, 428 P.2d 869, 876-877;People v.Taylor, 259 Cal. App.2d 448, 450-451, 66 Cal. Rptr. 514, 515-517. The appointedcounsel manages the lawsuit, and has the final say in all but a fewmatters of trial strategy.See, e.g., People v.Williams, 2 Cal. 3d 894,905, 471 P.2d 1008, 1015;People v. Foster, 67 Cal. 2d604, 606-607, 432 P.2d 976, 977-978;People v.Monk, 56 Cal. 2d288, 299, 363 P.2d 865, 870-871;see generally Rhay v.Browder, 342 F.2d 345, 349 (CA9). A California conviction willnot be reversed on grounds of ineffective assistance of counselexcept in the extreme case where the quality of representation wasso poor as to render the trial a "farce or a sham."People v.Ibarra, 60 Cal. 2d460, 386 P.2d 487;see People v. Miller, supra at 573,498 P.2d at 1096-1097;People v. Floyd, 1 Cal. 3d 694,709, 464 P.2d 64, 73;People v. Hill, 70 Cal. 2d678, 689, 452 P.2d 329, 334;People v.Reeves, 64 Cal. 2d766, 774, 415 P.2d 35, 39.

[Footnote 9]

See, e.g., Mackreth v. Wilson, 31 Ala.App. 191, 15 So.2d 112;Cappetta v. State, 204 So. 2d 913(Fla.Dist.Ct.App.);Lockard v. State, 92 Idaho 813, 451P.2d 1014;People v. Nelson, 47 Ill. 2d570,268 N.E.2d 2;Blanton v. State, 229 Ind. 701,98 N.E.2d186;Westberry v. State, 254 A.2d44 (Me.);Allen v. Commonwealth, 324 Mass. 558, 87N.E.2d 192;People v. Haddad, 306 Mich. 556, 11 N.W.2d240;State v. McGhee, 184 Neb. 352,167 N.W.2d765;Zasada v. State, 19 N.J.Super. 589,89 A.2d 45;People v. McLaughlin, 291 N.Y. 480, 53N.E.2d 356;State v. Pritchard, 227 N.C. 168, 41 S.E.2d287;State v. Hollman, 232 S.C. 489,102 S.E.2d873;State v. Thomlinson, 78 S.D. 235,100 N.W.2d121;State v. Penderville, 2 Utah 2d 281,272 P.2d 195;State v. Woodall, 5 Wash. App. 901, 491 P.2d 680.Seegenerally Annot., 77 A.L.R.2d 1233 (1961); 5 R. Anderson,Wharton's Criminal Law and Procedure § 2016 (1957).

[Footnote 10]

Some States grant the accused the right to be heard, or todefend, in person and by counsel: Ariz.Const., Art. 2, § 24;Ark.Const., Art. 2, § 10; Colo.Const., Art. 2, § 16; Conn.Const.,Art. 1, § 8; Del.Const., Art. 1, § 7; Idaho Const., Art. 1, § 13;Ill.Const., Art. 1, § 8; Ind.Const., Art. 1, § 13; Ky.Const. Billof Rights, § 11; Mo.Const., Art. 1, § 18(a); Mont.Const., Art. 3, §16; Nev.Const., Art. 1, § 8; N.H.Const., pt. 1, Art. 15;N.M.Const., Art. 2, § 14; N.Y.Const., Art. 1, § 6; N.D.Const., Art.1, § 13; Ohio Const., Art. 1, § 10; Okla.Const., Art. 2, § 20;Ore.Const., Art. 1, § 11; Pa.Const., Art. 1, § 9; S.D.Const., Art.6, § 7; Tenn.Const., Art. 1, § 9; Utah Const., Art. 1, § 12;Vt.Const., c. 1, Art. 10; Wis.Const., Art. 1, § 7; see La.Const.,Art. 1, § 9.

Others grant the right to defend in person or by counsel:Kan.Const.Bill of Rights, § 10; Mass.Const., pt. 1, Art. 12;Neb.Const., Art. 1, § 11; Wash.Const., Art. 1, § 22.

Still others provide the accused the right to defend either byhimself, by counsel, or both: Ala.Const., Art. 1, § 6; Fla.Const.,Art. 1, § 16; Me.Const., Art. 1, § 6; Miss.Const., Art. 3, § 26;S.C.Const., Art. 1 , § 14; Tex.Const., Art . 1 , § 10.

[Footnote 11]

See, e.g., Lockard v. State, supra; People v. Nelson, supra;Blanton v. State, supra; Zasada v. State, supra; People v.McLaughlin, supra; State v. Mems, 281 N.C. 658,190 S.E.2d164;State v. Verna, 9 Ore.App. 620,498 P.2d793.

[Footnote 12]

The holding ofAdams was reaffirmed in a differentcontext inCarter v. Illinois,329 U.S. 173,329 U. S.174-175, where the Court again adverted to the right ofself-representation:

"Neither the historic conception of Due Process nor the vitalityit derives from progressive standards of justice denies a personthe right to defend himself or to confess guilt. Underappropriate circumstances, the Constitution requires that counselbe tendered; it does not require that, under all circumstances,counsel be forced upon a defendant."

(Emphasis added.) See also Moore v. Michigan,355 U.S. 155,355 U. S.161.

[Footnote 13]

Jackson, Full Faith and Credit -- The Lawyer's Clause of theConstitution, 45 Col.L.Rev. 1, 26 (1945).

[Footnote 14]

Gideon v. Wainwright,372 U. S. 335, andArgersinger v. Hamlin,407 U. S. 25 (rightto counsel);Pointer v. Texas,380 U.S. 400 (right of confrontation);Washington v.Texas,388 U. S. 14 (rightto compulsory process).See also In re Oliver,333 U. S. 257,333 U. S.273.

[Footnote 15]

This Court has often recognized the constitutional stature ofrights that, though not literally expressed in the document, areessential to due process of law in a fair adversary process. It isnow accepted, for example, that an accused has a right to bepresent at all stages of the trial where his absence mightfrustrate the fairness of the proceedings,Snyder v.Massachusetts,291 U. S. 97; totestify on his own behalf,see Harris v. New York,401 U. S. 222,401 U. S. 225;Brooks v. Tennessee,406 U. S. 605,406 U. S. 612;cf. Ferguson v. Georgia,365 U. S. 570; andto be convicted only if his guilt is proved beyond a reasonabledoubt,In re Winship,397 U. S. 358;Mullaney v. Wilbur,421 U. S. 684.

The inference of rights is not, of course, a mechanicalexercise. InSinger v. United States,380 U. S.24, the Court held that an accused has no right to abench trial, despite his capacity to waive his right to a jurytrial. In so holding, the Court stated that "[t]he ability to waivea constitutional right does not ordinarily carry with it the rightto insist upon the opposite of that right."Id. at380 U. S. 34-35.But that statement was made onlyafter the Court hadconcluded that the Constitution does not affirmatively protect anyright to be tried by a judge. Recognizing that an implied rightmust arise independently from the design and history of theconstitutional text, the Court searched for, but could not find,any "indication that the colonists considered the ability to waivea jury trial to be of equal importance to the right to demand one."Id. at380 U. S. 26.Instead, the Court could locate only "isolated instances" of aright to trial by judge, and concluded that these were "cleardepartures from the common law."Ibid.

We follow the approach ofSinger here. Our concern iswith anindependent right of self-representation. We donot suggest that this right arises mechanically from a defendant'spower to waive the right to the assistance of counsel.Seesupra at422 U. S.814-815. On the contrary, the right must beindependently found in the structure and history of theconstitutional text.

[Footnote 16]

Such a result would sever the concept of counsel from itshistoric roots. The first lawyers were personal friends of thelitigant, brought into court by him so that he might "takecounsel' with them" before pleading. 1 F. Pollock & F.Maitland, The History of English Law 211 (2d ed.1909). Similarly,the first "attorneys" were personal agents, often lacking anyprofessional training, who were appointed by those litigants whohad secured royal permission to carry on their affairs through arepresentative, rather than personally.Id. at212-213.

[Footnote 17]

"The court of star chamber was an efficient, somewhat arbitraryarm of royal power. It was at the height of its career in the daysof the Tudor and Stuart kings. Star chamber stood for swiftness andpower; it was not a competitor of the common law so much as alimitation on it -- a reminder that high state policy could notsafely be entrusted to a system so chancy as English law. . .."

L. Friedman, A History of American Law 23 (1973).Seegenerally 5 W. Holdsworth, A History of English Law 155-214(1927).

[Footnote 18]

"The proceedings before the Star Chamber began by a Bill'engrossed in parchment and filed with the clerk of the court.' Itmust, like the other pleadings, be signed by counsel. . . .However, counsel were obliged to be careful what they signed. Ifthey put their hands to merely frivolous pleas, or otherwisemisbehaved themselves in the conduct of their cases, they wereliable to rebuke, suspension, a fine, or imprisonment."

Holdsworth,supra,n 17, at 178-179. Counsel, therefore, had to be cautiousthat any pleadings they signed would not unduly offend the Crown.See 1 J. Stephen, A History of the Criminal Law of England340-341 (1883).

This presented not merely a hypothetical risk for the accused.Stephen gives the following account of a criminal libel trial inthe Star Chamber:

"In 1632, William Prynne was informed against for his bookcalledHistrio Mastiz. Prynne's answer was, amongst otherthings, that his book had been licensed, and one of the counsel,Mr. Holbourn, apologised, not without good cause, for his style. .. . His trial was, like the other Star Chamber proceedings,perfectly decent and quiet, but the sentence can be described onlyas monstrous. He was sentenced to be disbarred and deprived of hisuniversity degrees; to stand twice in the pillory, and to have oneear cut off each time; to be fined �5,000; and to be perpetuallyimprisoned, without books, pen, ink, or paper. . . ."

"Five years after this, in 1637, Prynne, Bastwick, and Burton,were tried for libel, and were all sentenced to the same punishmentas Prynne had received in 1632, Prynne being branded on the cheeksinstead of losing his ears."

"The procedure in this case appears to me to have been as harshas the sentence was severe, though I do not think it has been somuch noticed. . . . Star Chamber defendants were not only allowedcounsel, but were required to get their answers signed by counsel.The effect of this rule, and probably its object, was that nodefence could be put before the Court which counsel would not takethe responsibility of signing -- a responsibility which, at thattime, was extremely serious. If counsel would not sign thedefendant's answer, he was taken to have confessed the information.Prynne's answer was of such a character that one of the counselassigned to him refused to sign it at all, and the other did notsign it till after the proper time. Bastwick could get no one tosign his answer. Burton's answer was signed by counsel, but was setaside as impertinent. Upon the whole, the case was taken to beadmitted by all the three, and judgment was passed on themaccordingly. . . ."

Stephen,supra, at 340-341.

That Prynne's defense was foreclosed by the refusal of assignedcounsel to endorse his answer is all the more shocking when it isrealized that Prynne was himself a lawyer. I. Brant, The Bill ofRights 106 (1965). On the operation of the Star Chamber generally,see Barnes, Star Chamber Mythology, 5 Am.J.Legal Hist.1-11 (1961), and Barnes, Due Process and Slow Process in the LateElizabethan -- Early Stuart Star Chamber, 6 Am.J.Legal Hist.221-249, 315-346 (1962).

[Footnote 19]

Pollock & Maitland,supra,n 16, at 211.

[Footnote 20]

Ibid.See also Stephen,supra,n 18, at 341.

[Footnote 21]

Id. at 326.

The trial would begin with accusations by counsel for the Crown.The prisoner usually asked, and was granted, the privilege ofanswering separately each matter alleged against him:

"[T]he trial became a series of excited altercations between theprisoner and the different counsel opposed to him. Every statementof counsel operated as a question to the prisoner, . . . theprisoner either admitting or denying or explaining what was allegedagainst him. The result was that . . . the examination of theprisoner . . . was the very essence of the trial, and his answersregulated the production of the evidence. . . . As the argumentproceeded, the counsel [for the Crown] would frequently allegematters which the prisoner denied and called upon them to prove.The proof was usually given by reading depositions, confessions ofaccomplices, letters, and the like. . . . When the matter had beenfully inquired into . . . , the presiding judge 'repeated,' orsummed up to the jury, the matters alleged against the prisoner andthe answers given by him, and the jury gave their verdict."

Id. at 325-326.

[Footnote 22]

Holdsworth,supra,n 17, at 195-196.

[Footnote 23]

7 Will. 3, c. 3, § 1. The right to call witnesses under oath wasextended to felony cases by statute in 1701. 1 Anne, Stat. 2, c. 9,§ 3.

[Footnote 24]

The statute provided, in pertinent part, that the accused

"shall be received and admitted to make his and their fullDefence, by Counsel learned in the Law, and to make any Proof thathe or they can produce by lawful Witness or Witnesses, who shallthen be upon Oath, for his and their just Defence in that Behalf;and in case any Person or Persons so accused or indicted shalldesire Counsel, the Court before whom such Person or Persons shallbe tried, or some Judge of that Court, shall and is herebyauthorized and required immediately, upon his or their Request, toassign to such Person and Persons such and so many Counsel, notexceeding Two, as the Person or Persons shall desire, to whom suchCounsel shall have free Access at all seasonable Hours, any Law orUsage to the contrary notwithstanding."

[Footnote 25]

Holdsworth,supra,n 17, at 195.

[Footnote 26]

In Mary Blandy's 1752 murder trial, for example, the courtdeclared that counsel for the defendant could not only speak onpoints of law raised by the defense, but could also examine defensewitnesses and cross-examine those of the Crown. 18 How.St.Tr. 1117.Later in that century, judges often allowed counsel for the accused"to instruct him what questions to ask, or even to ask questionsfor him, with respect to matters of fact . . . [or] law." 4 W.Blackstone, Commentaries *355-356.

[Footnote 27]

6 & 7 Will. 4, c. 114, § 1. The statute provided, inpertinent part, that the accused

"shall be admitted, after the Close of the Case for theProsecution, to make full Answer and Defence thereto by Counsellearned in the Law, or by Attorney in Courts where Attorniespractise as Counsel."

[Footnote 28]

See, e.g., Poor Prisoners' Defence Act, 1903, 3 Edw. 7,c. 38, § 1; Poor Prisoners' Defense Act, 1930, 20 & 21 Geo. 5,c. 32; Legal Aid and Advice Act, 1949, 12 & 13 Geo. 6, c.51.

[Footnote 29]

Counsel had been appointed for the defendant Woodward, butwithdrew shortly before trial. When the trial court appointed asubstitute counsel, the defendant objected: "I would rather nothave legal aid. I would rather conduct the case myself." The trialcourt insisted, however, that the defendant proceed to trial withcounsel, and a conviction resulted. On appeal, the Crown did noteven attempt to deny a basic right of self-representation, butargued only that the right had been waived when the accusedaccepted the first counsel. The Court of Appeal rejected thisargument:

"The prisoner, right at the beginning [of the trial], said thathe wished to defend himself . . . , and he was refused what wethink was his right to make his own case to the jury instead ofhaving it made for him by counsel."

This, the court held, was an "injustice to the prisoner," and,"although there was a good deal of evidence against the prisoner,"the court quashed the conviction.

[Footnote 30]

C. Warren, A History of the American Bar 7 (1911).

[Footnote 31]

D. Boorstin, The Americans; The Colonial Experience 197(1958).

[Footnote 32]

For example, the Massachusetts Body of Liberties (1641) in Art.26 provided:

"Every man that findeth himselfe unfit to plead his owne causein any Court shall have Libertie to imploy any man against whom theCourt doth not except, to helpe him, Provided he give him noe feeor reward for his paines. . . ."

Pleading for hire was also prohibited in 17th century Virginia,Connecticut, and the Carolinas. Friedman,supra,n 17, at 81.

[Footnote 33]

Id. at 82

[Footnote 34]

Warren,supra, n. 30, at 212.

[Footnote 35]

For example, Zephaniah Swift, in one of the first Americancolonial treatises on law, made clear that a right to counsel wasrecognized in Connecticut. He wrote:

"We have never admitted that cruel and illiberal principle ofthe common law of England that, when a man is on trial for hislife, he shall be refused counsel and denied those means of defencewhich are allowed when the most trifling pittance of property is inquestion. The flimsy pretence that the court are to be counsel forthe prisoner will only heighten our indignation at the practice,for it is apparent to the least consideration that a court cannever furnish a person accused of a crime with the advice, andassistance necessary to make his defence. . . ."

"Our ancestors, when they first enacted their laws respectingcrimes, influenced by the illiberal principles which they hadimbibed in their native country, denied counsel to prisoners toplead for them to anything but points of law. It is manifest thatthere is as much necessity for counsel to investigate matters offact, as points of law, if truth is to be discovered."

2 Z. Swift, A System of the Laws of the State of Connecticut398-399 (1796).

Similarly, colonial Virginia at first based its courtproceedings on English judicial customs, but, "[b]y the middle ofthe eighteenth century, the defendant was permitted advice ofcounsel if he could afford such services." H. Rankin, CriminalTrial Proceedings in the General Court of Colonial Virginia 67, 89(1965).

[Footnote 36]

See, e.g., id. at 89-90.

[Footnote 37]

See, e.g., the Massachusetts Body of Liberties, Art. 26(1641),supra,n32.

Similarly, the Concessions and Agreements of West New Jersey, in1677, provided, for all cases, civil and criminal,

"that no person or persons shall be compelled to fee anyattorney or councillor to plead his cause, but that all personshave free liberty to plead his own cause, if he please."

The Pennsylvania Frame of Government of 1682, perhaps "the mostinfluential of the Colonial documents protecting individualrights," 1 B. Schwartz, The Bill of Rights: A Documentary History130 (1971) (hereinafter Schwartz), provided:

"That, in all courts, all persons of all persuasions may freelyappear in their own way, and according to their own manner, andthere personally plead their own cause themselves; or, if unable,by their friends. . . ."

That provision was no doubt inspired by William Penn's beliefthat an accused should go free if he could personally persuade ajury that it would be unjust to convict him. In England, 12 yearsearlier, Penn, after preaching a sermon in the street, had beenindicted and tried for disturbing the peace. Penn conceded that hewas "unacquainted with the formality of the law," but requestedthat he be given a fair hearing and the "liberty of making mydefence." The request was granted, Penn represented himself, and,although the judges jailed him for contempt, the jury acquitted himof the charge. "The People's Ancient and Just Liberties Asserted,in the Trial of William Penn and William Mead, 1670," reproduced in1 Schwartz 144, 147.See The Trial of William Penn, 6How.St.Tr. 951 (1670), cited inIllinois v. Allen,397 U. S. 337,397 U. S. 353(opinion of DOUGLAS, J.).

[Footnote 38]

Article IX of the Pennsylvania Declaration of Rights, in 1776,guaranteed "[t]hat, in all prosecutions for criminal offences, aman hath a right to be heard by himself and his council. . . ." TheVermont Declaration of Rights (Art. X) in 1777 protected the rightof self-representation with virtually identical language. TheGeorgia Constitution (Art. LVIII), in 1777, declared that itsprovisions barring the unauthorized practice of law were "notintended to exclude any person from that inherent privilege ofevery freeman, the liberty to plead his own cause." In 1780, theMassachusetts Declaration of Rights, Art. XII, provided that theaccused had a right to be heard "by himself, or his counsel at hiselection." The New Hampshire Bill of Rights (Art. XV), in 1783,affirmed the right of the accused "to be fully heard in his defenceby himself, and counsel." In 1792, the Delaware Constitution (Art.I, § 7) preserved the right in language modeled after Art. IX ofthe Pennsylvania Declaration of Rights. Similarly, in 1798, Georgiaincluded in its Constitution (Art. III, § 8) a provision thatprotected the right of the accused to defend "by himself orcounsel, or both." Other state constitutions did not express inliteral terms a right of self-representation, but those documentsgranted all defense rights to the accused personally, and phrasedthe right of counsel in such fashion as to imply the existence ofthe antecedent liberty.See Del. Declaration of Rights, §14 (1776) (right "to be allowed counsel"); Md.Declaration ofRights, Art. XIX (1776) (right "to be allowed counsel");N.J.Const., Art. XVI (1776) (criminals to have "same privileges of. . . counsel, as their prosecutors"); N.Y.Const., Art. XXXIV(1777) ("shall be allowed counsel").

[Footnote 39]

The Founders believed that self-representation was a basic rightof a free people. Underlying this belief was not only theanti-lawyer sentiment of the populace, but also the "natural law"thinking that characterized the Revolution's spokesmen.See P. Kauper, The Higher Law and the Rights of Man in aRevolutionary Society, a lecture in the American EnterpriseInstitute for Public Policy Research series on the AmericanRevolution, Nov. 7, 1973, extracted in 18 U. of Mich.Law School LawQuadrangle Notes, No. 2, p. 9 (1974). For example, Thomas Paine,arguing in support of the 1776 Pennsylvania Declaration of Rights,said:

"Either party . . . has a natural right to plead his own cause;this right is consistent with safety; therefore it is retained; butthe parties may not be able, . . . therefore, the civil right ofpleading by proxy, that is, by a council, is an appendage to thenatural right [of self-representation]. . . ."

Thomas Paine on a Bill of Rights, 1777, reprinted in 1 Schwartz316.

[Footnote 40]

Statutes providing for appointment of counsel on request of theaccused were enacted by Delaware in 1719, 1 Laws of the State ofDelaware, 1700-1797, p. 66 (Adams 1797); by Pennsylvania in 1718, 3Stats. at Large of Pennsylvania 199 (Busch 1896); and by SouthCarolina in 1731, Laws of the Province of South Carolina 518-519(Trott 1736). Appointment was also the practice in Connecticut inthe latter part of the 18th century; appointment apparently wassometimes made even when the accused failed to request counsel, ifhe appeared in need of a lawyer, but there is no indicationappointment was ever made over the objection of the accused.See Swift, supra,n35, at 392. Free-choice appointment remained the rule as the newRepublic emerged.See the 1791 statute of New Hampshire,Laws of New Hampshire 247 (Melcher 1792), and the 1795 statute ofNew Jersey, § 2, Acts of the Nineteenth General Assembly of theState of New Jersey 1012.

[Footnote 41]

See counsel provisions inn 38,supra.

[Footnote 42]

In ratifying the Constitution, three States urged that a rightto counsel provision be added by way of amendment. Virginia andNorth Carolina proposed virtually identical packages of adefendant's rights, each including the provision that an accused be"allowed" counsel. 2 Schwartz 841, 967. The package proposed by NewYork provided that the accused "ought to . . . have . . . theassistance of Council for his defense."Id. at 913. Theidea of proposing amendments upon ratification had begun with thePennsylvania dissenters from ratification, whose proposed packageof a defendant's rights provided for the accused's "right . . . tobe heard by himself and his counsel."Id. at 664-665. Itcan be seen that Madison's precise formulation -- "the right . . .to have the Assistance of Counsel for his defence" -- varied inphrasing from each of the proposals.

"The available debates on the various proposals throw no lighton the significance or the interpretation which Congress attributedto the right to counsel."

W. Beaney, The Right to Counsel in American Courts 23(1955).

[Footnote 43]

As stated by Mr. Justice Sutherland inPowell v.Alabama,287 U. S. 45:

"Even the intelligent and educated layman has small, andsometimes no, skill in the science of law. If charged with crime,he is incapable, generally, of determining for himself whether theindictment is good or bad. He is unfamiliar with the rules ofevidence. Left without the aid of counsel, he may be put on trialwithout a proper charge and convicted upon incompetent evidence, orevidence irrelevant to the issue or otherwise inadmissible. Helacks both the skill and knowledge adequately to prepare hisdefense, even though he have a perfect one. He requires the guidinghand of counsel at every step in the proceedings against him.Without it, though he be not guilty, he faces the danger ofconviction because he does not know how to establish his innocence.If that be true of men of intelligence, how much more true is it ofthe ignorant and illiterate, or those of feeble intellect. If inany case, civil or criminal, a state or federal court werearbitrarily to refuse to hear a party by counsel, employed by andappearing for him, it reasonably may not be doubted that such arefusal would be a denial of a hearing, and, therefore, of dueprocess in the constitutional sense."

Id. at287 U. S.69.

[Footnote 44]

Seen 38,supra, for colonial appointment statutes that predate theSixth Amendment. Federal law provided for appointment of counsel incapital cases at the request of the accused as early as 1790, 1Stat. 118.

[Footnote 45]

See, e.g., U.S.Const., Amdt. 1. Freedom of choice isnot a stranger to the constitutional design of proceduralprotections for a defendant in a criminal proceeding. For example,"[e]very criminal defendant is privileged to testify in his owndefense, or to refuse to do so."Harris v. New York,401 U. S. 222,401 U. S. 225.See Brooks v. Tennessee,406 U. S. 605,406 U. S. 612;Ferguson v. Georgia,365 U. S. 570.Cf. Brown v. United States,356 U.S. 148.

[Footnote 46]

We are told that many criminal defendants representingthemselves may use the courtroom for deliberate disruption of theirtrials. But the right of self-representation has been recognizedfrom our beginnings by federal law and by most of the States, andno such result has thereby occurred. Moreover, the trial judge mayterminate self-representation by a defendant who deliberatelyengages in serious and obstructionist misconduct.See Illinoisv. Allen,397 U. S. 337. Ofcourse, a State may -- even over objection by the accused --appoint a "standby counsel" to aid the accused if and when theaccused requests help, and to be available to represent the accusedin the event that termination of the defendant'sself-representation is necessary.See United States v.Dougherty, 154 U.S.App.D.C. 76, 87-89, 473 F.2d 1113,1124-1126.

The right of self-representation is not a license to abuse thedignity of the courtroom. Neither is it a license not to complywith relevant rules of procedural and substantive law. Thus,whatever else may or may not be open to him on appeal, a defendantwho elects to represent himself cannot thereafter complain that thequality of his own defense amounted to a denial of "effectiveassistance of counsel."

[Footnote 47]

Seen 2,supra.

[Footnote 48]

Seen 3,supra.

MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR.JUSTICE REHNQUIST join, dissenting.

This case, likeHerring v. New York, post, p.422 U. S. 853,announced today, is another example of the judicial tendency toconstitutionalize what is thought "good." That effort fails on itsown terms here, because there is nothing desirable or useful inpermitting every accused person, even the most uneducated andinexperienced, to insist upon conducting his own defense tocriminal charges. [Footnote 2/1]Moreover, there is no constitutional basis for

Page 422 U. S. 837

the Court's holding, and it can only add to the problems of analready malfunctioning criminal justice system. I thereforedissent.

IThe most striking feature of the Court's opinion is that itdevotes so little discussion to the matter which it concedes is thecore of the decision, that is, discerning an independent basis inthe Constitution for the supposed right to represent oneself in acriminal trial. [Footnote 2/2]See ante at422 U. S.818-821, and n. 15. Its ultimate assertion that such aright is tucked between the lines of the Sixth Amendment iscontradicted by the Amendment's language and its consistentjudicial interpretation.

As the Court seems to recognize,ante at422 U. S. 820,the conclusion that the rights guaranteed by the Sixth Amendmentare "personal" to an accused reflects nothing more than the obviousfact that it is he who is on trial, and therefore has need of adefense. [Footnote 2/3] But neitherthat nearly

Page 422 U. S. 838

trivial proposition nor the language of the Amendment, whichspeaks in uniformly mandatory terms, leads to the furtherconclusion that the right to counsel is merely supplementary andmay be dispensed with at the whim of the accused. Rather, thisCourt's decisions have consistently included the right to counselas an integral part of the bundle making up the larger "right to adefense as we know it." For example, inIn re Oliver,333 U. S. 257(1948), the Court reversed a summary contempt conviction at thehands of a "one-man grand jury," and had this to say:

"We . . . hold that failure to afford the petitioner areasonable opportunity to defend himself against the charge offalse and evasive swearing was a denial of due process of law. Aperson's right to reasonable notice of a charge against him, and anopportunity to be heard in his defense -- a right to his day incourt -- are basic in our system of jurisprudence, and these rightsinclude, as a minimum, a right to examine the witnesses againsthim, to offer testimony, and to be represented by counsel."

Id. at333 U. S. 273.See also Argersinger v. Hamlin,407 U. S.25,407 U. S. 27-33(1972);Gideon v. Wainwright,372 U.S. 335,372 U. S. 344(1963).

The reason for this hardly requires explanation. The fact of thematter is that, in all but an extraordinarily small number ofcases, an accused will lose whatever defense he may have if heundertakes to conduct the trial himself. The Court's opinion inPowell v. Alabama,287 U. S. 45(1932), puts the point eloquently:

"Even the intelligent and educated layman has small, andsometimes no, skill in the science of law. If charged with crime,he is incapable, generally, of determining for himself whether theindictment is good or bad. He is unfamiliar with the rules ofevidence. Left without the aid of counsel he may

Page 422 U. S. 839

be put on trial without a proper charge, and convicted uponincompetent evidence, or evidence irrelevant to the issue orotherwise inadmissible. He lacks both the skill and knowledgeadequately to prepare his defense, even though he have a perfectone. He requires the guiding hand of counsel at every step in theproceedings against him. Without it, though he be not guilty, hefaces the danger of conviction because he does not know how toestablish his innocence. If that be true of men of intelligence,how much more true is it of the ignorant and illiterate, or thoseof feeble intellect."

Id. at287 U. S.69.

Obviously, these considerations do not vary depending uponwhether the accused actively desires to be represented by counselor wishes to proceedpro se. Nor is it accurate tosuggest, as the Court seems to later in its opinion, that thequality of his representation at trial is a matter with which onlythe accused is legitimately concerned.See ante at422 U. S. 834.Although we have adopted an adversary system of criminal justice,see Gideon v. Wainwright, supra, the prosecution is morethan an ordinary litigant, and the trial judge is not simply anautomaton who insures that technical rules are adhered to. Both arecharged with the duty of insuring that justice, in the broadestsense of that term, is achieved in every criminal trial.SeeBrady v. Maryland,373 U. S. 83,373 U. S. 87,and n. 2 (1963);Berger v. United States,295 U. S.78,295 U. S. 88(1935). That goal is ill-served, and the integrity of and publicconfidence in the system are undermined, when an easy conviction isobtained due to the defendant's ill-advised decision to waivecounsel. The damage thus inflicted is not mitigated by the lameexplanation that the defendant simply availed himself of the"freedom" "to go to jail under his own banner. . . ."UnitedStates ex rel.

Page 422 U. S. 840

Maldonado v. Denno, 348 F.2d 12, 15 (CA2 1965). Thesystem of criminal justice should not be available as an instrumentof self-destruction.

In short, both the "spirit and the logic" of the Sixth Amendmentare that every person accused of crime shall receive the fullestpossible defense; in the vast majority of cases, this command canbe honored only by means of the expressly guaranteed right tocounsel, and the trial judge is in the best position to determinewhether the accused is capable of conducting his defense. Truefreedom of choice and society's interest in seeing that justice isachieved can be vindicated only if the trial court retainsdiscretion to reject any attempted waiver of counsel and insistthat the accused be tried according to the Constitution. Thisdiscretion is as critical an element of basic fairness as a trialjudge's discretion to decline to accept a plea of guilty.SeeSantobello v. New York,404 U. S. 257,404 U. S. 262(1971).

IIThe Court's attempt to support its result by collecting dictafrom prior decisions is no more persuasive than its analysis of theSixth Amendment. Considered in context, the cases upon which theCourt relies to "beat its path" either lead it nowhere or point inprecisely the opposite direction.

InAdams v. United States ex rel. McCann,317 U.S. 269 (1942), andCarter v. Illinois,329 U. S. 173(1946), the defendants had competently waived counsel, but latersought to renounce actions taken by them while proceedingprose. In both cases, this Court upheld the convictions, holdingthat neither an uncounseled waiver of jury trial nor an uncounseledguilty plea is inherently defective under the Constitution. Thelanguage which the Court so carefully excises from those opinionsrelates not to an affirmative right of self-representation, butto

Page 422 U. S. 841

the consequences of waiver. [Footnote 2/4] InAdams, for example, Mr.Justice Frankfurter was careful to point out that his reference toa defendant's "correlative right to dispense with a lawyer's help"meant only that "[h]e may waive his Constitutional right toassistance of counsel . . . ," 317 U.S. at317 U. S. 279.See United States v. Warner, 428 F.2d 730, 733 (CA8 1970).But, as the Court recognizes, the power to waive a constitutionalright does not carry with it the right to insist upon its opposite.Singer v. United States,380 U. S. 24,380 U. S. 34-35(1965).

Similarly, inCarter, the Court's opinion observed thatthe Constitution "does not require that,under allcircumstances, counsel be forced upon a defendant," citingAdams, 329 U.S. at329 U. S.174-175 (emphasis added). I, for one, find thisstatement impossible to square with the Court's present holdingthat an accused is absolutely entitled to dispense with a lawyer'shelp under all conditions. Thus, althoughAdams andCarter support the Court's conclusion that a defendant whorepresents himself may not thereafter disaffirm his deliberatetrial decisions,see ante at422 U. S.834-835, n. 46, they provide it no comfort regarding theprimary issue in this case. [Footnote2/5]

Page 422 U. S. 842

Far more nearly in point isPrice v. Johnston,334 U. S. 266(1948), where this Court held that, although the courts of appealspossess the power to command that a prisoner be produced to arguehis own appeal, the exercise of that power is a matter of soundjudicial discretion. An examination of the whole of the Court'sreasoning on this point is instructive:

"The discretionary nature of the power in question grows out ofthe fact that a prisoner has no absolute right to argue his ownappeal, or even to be present at the proceedings in an appellatecourt. The absence of that right is in sharp contrast to hisconstitutional prerogative of being present in person at eachsignificant stage of a felony prosecution, and to his recognizedprivilege of conducting his own defense at the trial. Lawfulincarceration brings about the necessary withdrawal or limitationof many privileges and rights, a retraction justified by theconsiderations underlying our penal system. Among those so limitedis the otherwise unqualified right given by § 272 of the JudicialCode, 28 U.S.C. § 394 [now § 1654], to parties in all the courts ofthe United States to 'plead and manage their own causespersonally.'"

Id. at334 U. S.285-286 (citations omitted). It barely requires emphasisthat this passage contrasts the "constitutional prerogative" to bepresent at trial with the "recognized privilege" ofself-representation, and strongly implies that the latter arisesonly from the federal statute. It is difficult to imagine aposition less consistent withPrice v. Johnston than thattaken by the Court today.

Page 422 U. S. 843

The Court of Appeals cases relied upon by the Court are likewisedubious authority for its views. Only one of those cases,United States v. Plattner, 330 F.2d 271 (CA2 1964), evenattempted a reasoned analysis of the issue, and the decision inthat case was largely based upon the misreading ofAdamsandPrice which the Court perpetuates in its opiniontoday.See 330 F.2d at 275. In every other case citedante at422 U. S. 817,the Courts of Appeals assumed that the right of self-representationwas constitutionally based, but found that the right had not beenviolated and affirmed the conviction under review. It is highlyquestionable whether such holdings would even establish the law ofthe Circuits from which they came.

In short, what the Court represents as a well traveled road is,in reality, a constitutional trail which it is blazing for thefirst time today, one that has not even been hinted at in ourprevious decisions. Far from an interpretation of the SixthAmendment, it is a perversion of the provision to which we gavefull meaning inGideon v. Wainwright andArgersingerv. Hamlin.

IIILike MR. JUSTICE BLACKMUN, I hesitate to participate in theCourt's attempt to use history to take it where legal analysiscannot. Piecing together shreds of English legal history and earlystate constitutional and statutory provisions, without a fullelaboration of the context in which they occurred or any evidencethat they were relied upon by the drafters of our FederalConstitution, creates more questions than it answers, and hardlyprovides the firm foundation upon which the creation of newconstitutional rights should rest. We are well reminded that thisCourt once employed an exhaustive analysis of English and colonialpractices regarding the

Page 422 U. S. 844

right to counsel to justify the conclusion that it wasfundamental to a fair trial and, less than 10 years later, usedessentially the same material to conclude that it was not.Compare Powell v. Alabama, 287 U.S. at287 U. S. 60-65,with Betts v. Brady,316 U. S. 455,316 U. S.465-471 (1942).

As if to illustrate this point, the single historical fact citedby the Court which would appear truly relevant to ascertaining themeaning of the Sixth Amendment proves too much. As the Court pointsout,ante at422 U. S. 831,§ 35 of the Judiciary Act of 1789 provided a statutory right toself-representation in federal criminal trials. The text of theSixth Amendment, which expressly provides only for a right tocounsel, was proposed the day after the Judiciary Act was signed.It can hardly be suggested that the Members of the Congress of1789, then few in number, were unfamiliar with the Amendment'scarefully structured language, which had been under discussionsince the 1787 Constitutional Convention. And it would be mostremarkable to suggest, had the right to conduct one's own defensebeen considered so critical as to require constitutionalprotection, that it would have been left to implication. Rather,under traditional canons of construction, inclusion of the right inthe Judiciary Act and its omission from the constitutionalamendment drafted at the same time by many of the same men,supports the conclusion that the omission was intentional.

There is no way to reconcile the idea that the Sixth Amendmentimpliedly guaranteed the right of an accused to conduct his owndefense with the contemporaneous action of the Congress in passinga statute explicitly giving that right. If the Sixth Amendmentcreated a right to self-representation, it was unnecessary forCongress to enact any statute on the subject at all.

Page 422 U. S. 845

In this case, therefore, history ought to lead judges toconclude that the Constitution leaves to the judgment oflegislatures, and the flexible process of statutory amendment, thequestion whether criminal defendants should be permitted to conducttheir trialspro se.See Betts v. Brady, supra.And the fact that we have not hinted at a contrary view for 185years is surely entitled to some weight in the scales. [Footnote 2/6]Cf. Jackman v. RosenbaumCo.,260 U. S. 22,260 U. S. 31(1922).

IVSociety has the right to expect that, when courts find newrights implied in the Constitution, their potential effect upon theresources of our criminal justice system will be considered.However, such considerations are conspicuously absent from theCourt's opinion in this case.

It hardly needs repeating that courts at all levels are alreadyhandicapped by the unsupplied demand for competent advocates, withthe result that it often takes far longer to complete a given casethan experienced counsel would require. If we were to assume thatthere will be widespread exercise of the newly discoveredconstitutional right to self-representation, it would almostcertainly follow that there will be added congestion in the courts,and that the quality of justice will suffer. Moreover, the Courtblandly assumes that, once an accused has elected to defendhimself, he will be bound by his choice, and not be heard tocomplain of it later.Ante at422 U. S.834-835, n. 46. This assumption ignores the role ofappellate review, for the reported cases are replete with instancesof a convicted defendant being relieved of a

Page 422 U. S. 846

deliberate decision even when madewith the advice ofcounsel.See Silber v. United States,370 U.S. 717 (1962). It is totally unrealistic, therefore, tosuggest that an accused will always be held to the consequences ofa decision to conduct his own defense. Unless, as may be the case,most persons accused of crime have more wit than to insist upon thedubious benefit that the Court confers today, we can expect thatmany expensive and good faith prosecutions will be nullified onappeal for reasons that trial courts are now deprived of the powerto prevent. [Footnote 2/7]

[Footnote 2/1]

Absent a statute giving a right to self-representation, Ibelieve that trial courts should have discretion under theConstitution to insist upon representation by counsel if theinterests of justice so require. However, I would note that therecord does not support the Court's characterization of this caseas one in which that occurred. Although he requested, and initiallywas granted, permission to proceedpro se, petitioner hasexpressed no dissatisfaction with the lawyer who represented him,and has not alleged that his defense was impaired, or that hislawyer refused to honor his suggestions regarding how the trialshould be conducted. In other words, to use the Court's phrase,petitioner has never contended that "his defense" was notfully presented. Instances of overbearing or ineffective counselcan be dealt with without contriving broad constitutional rules ofdubious validity.

[Footnote 2/2]

The Court deliberately, and, in my view, properly, declines tocharacterize this case as one in which the defendant was denied afair trial.See Herring v. New York, post at422 U. S. 871(REHNQUIST, J., dissenting).

[Footnote 2/3]

The Court's attempt to derive support for its position from thefact that the Sixth Amendment speaks in terms of the "Assistance ofCounsel" requires little comment. It is most curious to suggestthat an accused who exercises his right to "assistance" has therebyimpliedly consented to subject himself to a "master."Anteat422 U. S. 820.And counsel's responsibility to his client and role in thelitigation do not vary depending upon whether the accused wouldhave preferred to represent himself.

[Footnote 2/4]

Indeed, the portion of the Court's quotation which warns againstturning constitutional protections into "fetters" refers to theright to trial by jury, not the right to counsel.See Adams v.United States ex rel. McCann,317 U.S. 269,317 U. S. 279(1942). This Court has, of course, squarely held that there is noconstitutional right to dispense with a jury.Singer v. UnitedStates,380 U. S. 24(1965).

[Footnote 2/5]

No more relevant isSnyder v. Massachusetts,291 U. S. 97(1934). The reference in that case to an accused's "power . . . tosupersede his lawyers" simply helped explain why his defense might"be made easier" if he were "permitted to be present at theexamination of jurors or the summing up of counsel. . . ."Id. at291 U. S. 106.Mr. Justice Cardozo's opinion for the Court made plain that thisright was rooted in considerations of fundamental fairness, and wasto be distinguished from those conferred by the ConfrontationClause.See id. at291 U. S. 107.The Court's present reliance on theSnyder dicta istherefore misplaced.See422U.S. 806fn2/2|>n.2,supra.

[Footnote 2/6]

The fact that Congress has retained a statutory right toself-representation suggests that it has also assumed that theSixth Amendment does not guarantee such a right.See 28U.S.C. § 1654.

[Footnote 2/7]

Some of the damage we can anticipate from a defendant'sill-advised insistence on conducting his own defense may bemitigated by appointing a qualified lawyer to sit in the case asthe traditional "friend of the court." The Court does not foreclosethis option.See ante at422 U. S.834-835, n. 46.

MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.JUSTICE REHNQUIST join, dissenting.

Today, the Court holds that the Sixth Amendment guarantees toevery defendant in a state criminal trial the right to proceedwithout counsel whenever he elects to do so. I find no textualsupport for this conclusion in the language of the Sixth Amendment.I find the historical evidence relied upon by the Court to beunpersuasive, especially in light of the recent history of criminalprocedure. Finally, I fear that the right to self-representationconstitutionalized today frequently will cause procedural confusionwithout advancing any significant strategic interest of thedefendant. I therefore dissent.

IThe starting point, of course, is the language of the SixthAmendment:

"In all criminal prosecutions, the accused shall enjoy

Page 422 U. S. 847

the right to a speedy and public trial, by an impartial jury ofthe State and district wherein the crime shall have been committed,which district shall have been previously ascertained by law, andto be informed of the nature and cause of the accusation; to beconfronted with the witnesses against him; to have compulsoryprocess for obtaining witnesses in his favor, and to have theAssistance of Counsel for his defence."

It is self-evident that the Amendment makes no direct referenceto self-representation. Indeed, the Court concedes that the rightto self-representation is "not stated in the Amendment in so manywords."Ante at422 U. S.819.

It could be argued that the right to assistance of counselnecessarily carries with it the right to waive assistance ofcounsel. The Court recognizes, however,ante at422 U. S.819-820, n. 15, that it has squarely rejected anymechanical interpretation of the Bill of Rights. Mr. Chief JusticeWarren, speaking for a unanimous Court inSinger v. UnitedStates,380 U. S. 24,380 U. S. 34-35(1965), stated: "The ability to waive a constitutional right doesnot ordinarily carry with it the right to insist upon the oppositeof that right."

Where, then, in the Sixth Amendment does one find this right toself-representation? According to the Court, it is "necessarilyimplied by the structure of the Amendment."Ante at422 U. S. 819.The Court's chain of inferences is delicate, and deserves scrutiny.The Court starts with the proposition that the Sixth Amendment is"a compact statement of the rights necessary to a full defense."Ante at422 U. S. 818.From this proposition, the Court concludes that the Sixth Amendment"constitutionalizes the right in an adversary criminal trial tomake a defense as we know it."Ibid. Up to this point, atleast as a general proposition, the Court's reasoning isunexceptionable.

Page 422 U. S. 848

The Court, however, then concludes that, because the specificrights in the Sixth Amendment are personal to the accused, theaccused must have a right to exercise those rights personally.Stated somewhat more succinctly, the Court reasons that, becausethe accused has a personal right to "a defense as we know it," henecessarily has a right to make that defense personally. Idisagree. Although I believe the specific guarantees of the SixthAmendment are personal to the accused, I do not agree that theSixth Amendment guarantees any particular procedural method ofasserting those rights. If an accused has enjoyed a speedy trial byan impartial jury in which he was informed of the nature of theaccusation, confronted with the witnesses against him, afforded thepower of compulsory process, and represented effectively bycompetent counsel, I do not see that the Sixth Amendment requiresmore.

The Court suggests that thrusting counsel upon the accusedagainst his considered wish violates the logic of the SixthAmendment because counsel is to be an assistant, not a master. TheCourt seeks to support its conclusion by historical analogy to thenotorious procedures of the Star Chamber. The potential forexaggerated analogy, however, is markedly diminished when onerecalls that petitioner is seeking an absolute right toself-representation. This is not a case where defense counsel,against the wishes of the defendant or with inadequateconsultation, has adopted a trial strategy that significantlyaffects one of the accused's constitutional rights. For suchoverbearing conduct by counsel, there is a remedy.Brookhart v.Janis,384 U. S. 1 (1966);Fay v. Noia,372 U. S. 391,372 U. S. 439(1963). Nor is this a case where distrust, animosity, or otherpersonal differences between the accused and his would-be counselhave rendered effective representation unlikely or impossible.

Page 422 U. S. 849

See Brown v. Craven, 424 F.2d 1166, 1169-1170 (CA91970).See also Anders v. California,386 U.S. 738 (1967). Nor is this even a case where a defendanthas been forced, against his wishes, to expend his personalresources to pay for counsel for his defense.See generallyFuller v. Oregon,417 U. S. 40(1974);James v. Strange,407 U.S. 128 (1972). Instead, the Court holds that anydefendant in any criminal proceeding may insist on representinghimself regardless of how complex the trial is likely to be andregardless of how frivolous the defendant's motivations may be. Icannot agree that there is anything in the Due Process Clause orthe Sixth Amendment that requires the States to subordinate thesolemn business of conducting a criminal prosecution to thewhimsical -- albeit voluntary -- caprice of every accused whowishes to use his trial as a vehicle for personal or politicalself-gratification.

The Court seems to suggest that, so long as the accused iswilling to pay the consequences of his folly, there is no reasonfor not allowing a defendant the right to self-representation.Ante at422 U. S. 834.See also United States ex rel. Maldonado v. Denno, 348F.2d 12, 15 (CA2 1965) ("[E]ven in cases where the accused isharming himself by insisting on conducting his own defense, respectfor individual autonomy requires that he be allowed to go to jailunder his own banner if he so desires. . . ."). That view ignoresthe established principle that the interest of the State in acriminal prosecution "is not that it shall win a case, but thatjustice shall be done."Berger v. United States,295 U. S. 78,295 U. S. 88(1935).See also Singer v. United States, 380 U.S. at380 U. S. 37.For my part, I do not believe that any amount ofpro sepleading can cure the injury to society of an unjust result, but Ido believe that a just result should prove to be an effective balmfor almost any frustratedpro se defendant.

Page 422 U. S. 850

IIThe Court argues that its conclusion is supported by thehistorical evidence on self-representation. It is true thatself-representation was common, if not required, in 18th centuryEnglish and American prosecutions. The Court points with specialemphasis to the guarantees of self-representation in colonialcharters, early state constitutions, and § 35 of the firstJudiciary Act as evidence contemporaneous with the Bill of Rightsof widespread recognition of a right to self-representation.

I do not participate in the Court's reliance on the historicalevidence. To begin with, the historical evidence seems to me to beinconclusive in revealing the original understanding of thelanguage of the Sixth Amendment. At the time the Amendment wasfirst proposed, both the right to self-representation and the rightto assistance of counsel in federal prosecutions were guaranteed bystatute. The Sixth Amendment expressly constitutionalized the rightto assistance of counsel, but remained conspicuously silent on anyright of self-representation. The Court believes that this silenceof the Sixth Amendment as to the latter right is evidence of theFramers' belief that the right was so obvious and fundamental thatit did not need to be included "in so many words" in order to beprotected by the Amendment. I believe it is at least equallyplausible to conclude that the Amendment's silence as to the rightof self-representation indicates that the Framers simply did nothave the subject in mind when they drafted the language.

The paucity of historical support for the Court's positionbecomes far more profound when one examines it against thebackground of two developments in the more recent history ofcriminal procedure. First, until the middle of the 19th century,the defendant in a criminal proceeding in this country was almostalways disqualified

Page 422 U. S. 851

from testifying as a witness because of his "interest" in theoutcome.See generally Ferguson v. Georgia,365 U.S. 570 (1961). Thus, the ability to defend "in person"was frequently the defendant's only chance to present his side ofthe case to the judge or jury.See, e.g., Wilson v. State,50 Tenn. 232 (1871). Such Draconian rules of evidence, of course,are now a relic of the past, because virtually every State haspassed a statute abrogating the common law rule ofdisqualification.See Ferguson v. Georgia, 365 U.S. at365 U. S.575-577,365 U. S. 596.With the abolition of the common law disqualification, the right toappear "in person" as well as by counsel lost most, if not all, ofits original importance.See Grano, The Right to Counsel:Collateral Issues Affecting Due Process, 54 Minn.L.Rev. 1175,1192-1194 (1970).

The second historical development is this Court's elaboration ofthe right to counsel. The road the Court has traveled fromPowell v. Alabama,287 U. S. 45(1932), toArgersinger v. Hamlin,407 U. S.25 (1972), need not be recounted here. For our purposes,it is sufficient to recall that, from start to finish, thedevelopment of the right to counsel has been based on the premisethat representation by counsel is essential to ensure a fair trial.The Court concedes this, and acknowledges that

"a strong argument can surely be made that the whole thrust ofthose decisions must inevitably lead to the conclusion that a Statemay constitutionally impose a lawyer upon even an unwillingdefendant."

Ante at422 U. S. 833.Nevertheless, the Court concludes that self-representation must beallowed despite the obvious dangers of unjust convictions in orderto protect the individual defendant's right of free choice. As Ihave already indicated, I cannot agree to such a drasticcurtailment of the interest of the State in seeing that justice isdone in a real and objective sense.

Page 422 U. S. 852

IIIIn conclusion, I note briefly the procedural problems that, Isuspect, today's decision will visit upon trial courts in thefuture. Although the Court indicates that apro sedefendant necessarily waives any claim he might otherwise make ofineffective assistance of counsel,ante at422 U. S.834-835, n. 46, the opinion leaves open a host of otherprocedural questions. Must every defendant be advised of his rightto proceed pro se? If so, when must that notice be given? Since theright to assistance of counsel and the right to self-representationare mutually exclusive, how is the waiver of each right to bemeasured? If a defendant has elected to exercise his right toproceedpro se, does he still have a constitutional rightto assistance of standby counsel? How soon in the criminalproceeding must a defendant decide between proceeding by counsel orpro se? Must he be allowed to switch in mid-trial? May aviolation of the right to self-representation ever be harmlesserror? Must the trial court treat thepro se defendantdifferently than it would professional counsel? I assume that manyof these questions will be answered with finality in due course.Many of them, however, such as the standards of waiver and thetreatment of thepro se defendant, will haunt the trial ofevery defendant who elects to exercise his right toself-representation. The procedural problems spawned by an absoluteright to self-representation will far outweigh whatever tacticaladvantage the defendant may feel he has gained by electing torepresent himself.

If there is any truth to the old proverb that "one who is hisown lawyer has a fool for a client," the Court by its opinion todaynow bestows a constitutional right on one to make a fool ofhimself.