Examining the Sixth Amendment Right to Self-Representation

On July 29, the U.S. Court of Appeals for the Seventh Circuit, in United States v. Lee, decided Daniel T. Lee’s Sixth Amendment claim under Faretta v. California, a case in which the U.S. Supreme Court recognized a criminal defendant’s right to represent herself. In Lee, the defendant, after filing a pre-trial motion to suppress evidence (through an attorney), moved to be allowed to discharge his attorney, waive his Sixth Amendment right to counsel, and proceed pro se (i.e., representing himself). The magistrate judge who ultimately conducted the suppression hearing ordered that the hearing proceed with the defendant represented by counsel. At the conclusion of that hearing, the magistrate judge recommended to the district judge that the motion to suppress be denied and that the defendant be permitted to represent himself at trial, and the district judge accepted both recommendations.

On appeal, the Seventh Circuit held that Lee suffered a violation of his Sixth Amendment right to represent himself at his suppression motion and ruled that it would be inappropriate to apply harmless error analysis to the violation. In this column, I will consider the Seventh Circuit’s decision and examine more broadly why it might be valuable to have a right to self-representation (a right the exercise of which generally hinders, rather than helps, a criminal defendant’s case).

Self-Representation and Harmless Error Analysis

In Faretta, the U.S. Supreme Court announced that competent defendants have a Sixth Amendment entitlement to discharge counsel and represent themselves during criminal proceedings. This right was controversial, as Chief Justice Burger and Justice Blackmun each filed dissents (both of which the other and Justice Rehnquist joined). But the contrary view prevailed.

We began this discussion with Lee’s case, which considered the defendant’s claims that he was entitled to represent himself at his suppression hearing and that the denial of that right should not be subject to harmless error analysis. Harmless error is a conclusion that courts are authorized to draw about many of the (inevitable) errors that judges make in presiding over criminal matters, where the error can often be said to have had no effect on the outcome of the proceeding. When there has been harmless error, the verdict or other outcome remains in place, while a finding of reversible error yields a reversal and perhaps the opportunity to repeat the trial or other proceeding without the error in question.

A finding of harmless error in a case involving a constitutional violation requires that the prosecutor prove, beyond a reasonable doubt, that the error did not affect the outcome. Once the prosecutor meets that burden, even an egregious constitutional violation may not lead to a reversal and retrial. For example, the U.S. Supreme Court said in Arizona v. Fulminante that when a judge, in violation of the Fifth and Fourteenth Amendments, admits a defendant’s coerced confession into evidence at his trial, that error could, in theory, be harmless if the prosecutor were able to satisfy the burden of proving that the outcome would have been the same had the confession been properly excluded.

Some errors, however, are always reversible and not subject to harmless error analysis at all. One example occurs when the judge gives a constitutionally deficient reasonable doubt instruction in a criminal case. Such an error, under Sullivan v. Louisiana, is not subject to harmless error analysis. Another example is the denial of counsel. Such errors are structural and call into question the fairness and legitimacy of the entire proceeding in a way that cannot be readily severed from the rest of the process to determine their particular impact.

A denial of the right to self-representation is similar to these other errors in that having an (unwanted) attorney representing the defendant fundamentally alters the entire proceeding rather than constituting a discrete error subject to conceptual severance from the rest of the (legitimately conducted) process. In one respect, however, a denial of the right to self-representation is quite different from the other types of automatically reversible error: being represented by counsel almost always reduces the odds of conviction relative to self-representation. That is, unlike other structural errors, it would be most accurate to describe the denial of Faretta rights as likely to be harmless (in the sense of posing no increased risk of conviction) and perhaps best characterized as “helpful error.” As the U.S. Supreme Court explained in McKaskle v. Wiggins, then, “[s]ince the right of self-representation is a right that, when exercised, usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis,” an explanation aptly quoted by the Seventh Circuit in Lee.

In Lee’s case, because he did have the opportunity to represent himself at trial, the Seventh Circuit ruled that he was entitled not to a new trial but to a new suppression hearing, where he would be able to argue to the district court in favor of suppressing the evidence that his attorney unsuccessfully challenged at his first suppression motion. If Lee fails (as the court plainly expects him to do), then he will have to live with the conviction. As the court said in Lee, “[a]llowed to do that [to redo his suppression motion, this time representing himself], he obtains everything to which he’s entitled.”

Does This Right Make Sense?

The court of appeals’ analysis is sound. Lee was denied his right of self-representation at the suppression motion, and the proper remedy for this type of error is to allow Lee to redo the motion on his own. But a perhaps more basic question may arise out of this Faretta case, namely, should a criminal defendant have a constitutional right to act in a way that increases the odds of his being found guilty?

“No” might be the correct answer to this question. In the words of Justice Blackmun, dissenting in Faretta, “[i]f there is any truth to the old proverb that ‘one who is his own lawyer has a fool for a client,’ the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.” A primary objective of the criminal justice system is to ensure that innocent people are acquitted of crimes that they did not in fact commit. Allowing a defendant (who might be innocent) to represent herself seriously compromises this central objective. In Chief Justice Burger’s words in his Faretta dissent, “Both [judge and prosecutor] are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. That goal is ill-served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant’s ill-advised decision to waive counsel.”

And a misguided defendant who believes—without foundation—that she can do a good job of representing herself in a courtroom should perhaps be protected from her foolishness rather than permitted to indulge it. Again from Chief Justice Burger’s dissent: “The system of criminal justice should not be available as an instrument of self-destruction.”

For those who believe that Faretta was correctly decided, however, a different answer is possible. That answer has to do with an individual’s interest in autonomy. As the majority in Faretta pointed out ominously, “[i]n the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber,” an institution that operated in the late 16^th and early 17^th centuries and that “has for centuries symbolized disregard of basic individual rights.”

To be sure, most instances of autonomy to harm oneself in the context of a criminal proceeding do not find expression in constitutional rights. And even in Faretta, the majority acknowledged that, as the Supreme Court held in Singer v. United States, “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite.”

An arrested suspect has an autonomy interest in confessing her crimes to the police and may waive the Miranda right to remain silent in custody, but that interest in confessing to the police is not protected by a constitutional right. The suspect may waive her right to remain silent, and a knowing and voluntary waiver will stand as a bar against her subsequent claims of constitutional right, but there is no right to confess. If police refuse to listen to her confession, she is simply out of luck (at least along this rather narrow autonomy dimension) and cannot later be heard to complain in court that her rights were violated.

So what makes the right to self-representation different, if it is different? Many criminal defendants do not have the benefit of representation by their first choice of attorney. If they are poor (or simply lack the means to hire the particular person they want), then then they will have to “settle” for someone with whom they might not see eye to eye and who does not appear to the defendants to authentically speak on their behalf.

When this happens, defendants may feel a sense of alienation in the courtroom, being unable to speak for themselves while simultaneously having the person designated to speak for them not doing so to their satisfaction. When a defendant is so dissatisfied as to prefer to speak for herself than to be represented by the person assigned (or available) to speak for her, then insisting that she nonetheless endure the undesired representation is tantamount to silencing her at her own criminal proceeding. In the language of the Faretta Court, “although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’”

My earlier reference to silencing the defendant is no accident, because the defendant enjoys another right the exercise of which can prove (at least some of the time) to be very damaging to her case: the right to testify on her own behalf. In Rock v. Arkansas, the Supreme Court held that, as a matter of Due Process, Sixth Amendment Compulsory Process, and a necessary corollary to the Fifth Amendment right against compelled self-incrimination, a criminal defendant has the right to testify on her own behalf. If the defendant wishes to take the witness stand, even against the firm advice of her attorney, she is entitled to do so.

It may be clear in some cases that the defendant can only hurt herself by testifying (because prior convictions will make a horrible impression on the jury, or because she is a terrible witness who will wilt under cross-examination). Yet she may nonetheless insist on taking the stand and speaking to the jury about what happened.

The Faretta right takes this logic one step further. As a matter of autonomy, a person who stands accused of a crime is entitled to be heard. One way in which she may be heard is by testifying, if she so chooses, and she may do so no matter how dire the likely consequences. Another way in which a defendant may be heard is by presenting her case in court. Indeed, when courts and attorneys refer to arguments made by a lawyer during trial, they usually say that “the defendant/appellant/petitioner” made an argument instead of saying that “the lawyer” made an argument. This is because the lawyer, in an important sense, merges with her client, and what the lawyer says or decides is generally binding on the client.

Accordingly, if the client is uncomfortable with the representation and agency of her attorney and would prefer to go without representation—and represent herself—rather than continue with that attorney, a deep respect for the right to speak and respond to criminal charges demands that we accede to that request, however foolhardy. And as the majority observed in Faretta, “it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages.”

One way of thinking about the autonomy right here is to analogize it to the right to refuse medical treatment. Doctors might deem a medical treatment to be beneficial, and society might consider the right to receive that treatment, if it is desired, to be of paramount importance. Yet the person who chooses not to receive the treatment, if he is competent to understand the choice that he is making, is entitled to make that choice. This is true no matter how “foolish” the election, when viewed exclusively through a cost/benefit lens. In some cases, of course, the patient may turn out to have been wiser than his doctors.

Regardless of its wisdom, the purest expression of autonomy may be manifest precisely when its exercise defies a cost/benefit analysis. If so, then—like the right to refuse life-saving treatment—the right to speak on one’s own behalf, whether as a witness or as one’s own counsel, may rightfully belong with the individual whose life or liberty is actually at stake, and that individual is the criminal defendant herself.