CRS Annotated Constitution

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Self–Representation.—The Court has held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.248 It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self–representation is so disruptive of orderly procedures that the judge may curtail it.

Supplement: [P. 1440, add to text at end of first paragraph of section:]

The right applies only at trial; there is no constitutional right to self–representation on direct appeal from a criminal conviction.11

The essential elements of self–representation were spelled out in McKaskle v. Wiggins,249 a case involving the self–represented defendant’s rights vis–a-vis “standby counsel” appointed by the trial court. The “core of the Faretta right” is that the defendant “is entitled to preserve actual control over the case he chooses to present to the jury,” and consequently, standby counsel’s participation “should not be allowed to destroy the jury’s perception that the defendant is representing himself.”250 But participation of standby counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.251

Right to Assistance of Counsel in Nontrial Situations

Judicial Proceedings Before Trial.—Dicta in Powell v. Alabama252 indicated that “during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thor[p.1441]oughgoing investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” This language has gradually been expanded upon and the Court has developed a concept of “a critical stage in a criminal proceeding” as indicating when the defendant must be represented by counsel. Thus, in Hamilton v. Alabama,253 the Court noted that arraignment under state law was a “critical stage” because the defense of insanity had to be pleaded then or lost, pleas in abatement had to be made then, and motions to quash on the ground of racial exclusion of grand jurors or that the grand jury was improperly drawn had to be made then. White v. Maryland254 set aside a conviction obtained at a trial at which defendant’s plea of guilty, entered at a preliminary hearing where he was without counsel, was introduced as evidence against him at trial. Finally in Coleman v. Alabama,255 the Court denominated a preliminary hearing as a “critical stage” necessitating counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand jury and to fix bail; no defense was required to be presented at that point and nothing occurring at the hearing could be used against the defendant at trial. The Court hypothesized that a lawyer might by skilled examination and cross–examination expose weaknesses in the prosecution’s case and thereby save the defendant from being bound over, and could in any event preserve for use in cross–examination at trial and impeachment purposes testimony he could elicit at the hearing; he could discover as much as possible of the prosecution’s case against defendant for better trial preparation; and he could influence the court in such matters as bail and psychiatric examination. The result seems to be that reached in pre–Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a dif256

Custodial Interrogation.—At first, the Court followed the rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access[p.1442]to counsel that his subsequent trial was tainted.257 It was held in Spano v. New York258 that under the totality of circumstances a confession obtained in a post–indictment interrogation was involuntary, and four Justices wished to place the holding solely on the basis that post–indictment interrogation in the absence of defendant’s lawyer was a denial of his right to assistance of counsel. That holding was made in Massiah v. United States,259 in which federal officers caused an informer to elicit from the already–indicted defendant, who was represented by a lawyer, incriminating admissions which were secretly overheard over a broadcasting unit. Then, in Escobedo v. Illinois,260 the Court held that preindictment interrogation was a violation of the Sixth Amendment. But Miranda v. Arizona261 switched from reliance on the Sixth Amendment to the Fifth Amendment’s self–incrimination clause, although that case still placed great emphasis upon police warnings with regard to counsel and foreclosure of interrogation in the absence of counsel without a valid waiver by defendant.

Massiah was reaffirmed and in some respects expanded by the Court. Thus, in Brewer v. Williams,262 the right to counsel was found violated when police elicited from defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post–arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in his absence. United States v. Henry263 held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would “pay attention” to incriminating remarks initiated by the defendant and others. The Court concluded that even if the government agents did not intend the informant to take affirmative steps to elicit incrimi[p.1443]nating statements from the defendant in the absence of counsel, the agents must have known that result would follow.

The Court has extended the Edwards v. Arizona264 rule protecting in–custody requests for counsel to post–arraignment situations where the right derives from the Sixth Amendment rather than the Fifth. Thus, the Court held in Michigan v. Jackson, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police–initiated interrogation is invalid.”265 The Court concluded that “the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before.”266 The protection, however, is not as broad under the Sixth Amendment as it is under the Fifth. While Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested,267 this extension does not apply for purposes of the Sixth Amendment right to counsel. The Sixth Amendment right is “offense–specific,” and so also is “its Michigan v. Jackson effect of invalidating subsequent waivers in police–initiated interviews.”268 Therefore, while a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may not waive that right, he may waive his Miranda–based right not to be interrogated about unrelated and uncharged offenses.

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained.269 And, while the basis for the Sixth Amendment exclusionary rule—to protect the right to a fair trial—differs from that of the Fourth Amendment rule—to deter illegal police conduct—exceptions to the Fourth Amendment’s exclusionary rule can apply as well to the Sixth. In Nix v. Williams,270 the Court held the “inevitable discovery” exception applicable to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights.[p.1444]“Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.”271 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant’s trial testimony.272


248 Faretta v. California, 422 U.S. 806 (1975) . Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. Id. at 834–35 n.46. Related to the right of self–representation is the right to testify in one’s own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule excluding all hypnotically refreshed testimony violates right).
249 465 U.S. 168 (1984) .
250 Id. at 178.
251 Id. at 184.
252 287 U.S. 45, 57 (1932) .
253 368 U.S. 52 (1961) .
254 373 U.S. 59 (1963) .
255 399 U.S. 1 (1970) . Justice Harlan concurred solely because he thought the precedents compelled him to do so, id. at 19, while Chief Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as the role of counsel at the preliminary hearing stage does not necessarily have the same effect upon the integrity of the factfinding process as the role of counsel at trial, Coleman was denied retroactive effect in Adams v. Illinois, 405 U.S. 278 (1972) . Justice Blackmun joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. at 285, 286. Hamilton and White, however, were held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5 (1968) .
256 Compare Hudson v. North Carolina, 363 U.S. 697 (1960) , with Chewning v. Cunningham, 368 U.S. 443 (1962) , and Carnley v. Cochran, 369 U.S. 506 (1962) .
257 Crooker v. California, 357 U.S. 433 (1958) (five–to–four decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five–to–three).
258 360 U.S. 315 (1959) .
259 377 U.S. 201 (1964) . See also McLeod v. Ohio, 381 U.S. 356 (1965) (applying Massiah to the States, in a case not involving trickery but in which defendant was endeavoring to cooperate with the police). But see Hoffa v. United States, 385 U.S. 293 (1966) . Cf. Milton v. Wainwright, 407 U.S. 371 (1972) .
260 378 U.S. 478 (1964) .
261 384 U.S. 436 (1966) .
262 430 U.S. 387 (1977) . Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare Rhode Island v. Innis, 446 U.S. 291 (1980) , decided on self– incrimination grounds under similar facts.
263 447 U.S. 264 (1980) Justices Blackmun, White, and Rehnquist dissented. Id. at 277, 289. But cf. Weatherford v. Bursey, 429 U.S. 545 (1977) .
264 451 U.S. 477 (1981) .
265 475 U.S. 625, 636 (1986) .
266 475U.S. at 631 475U.S. at 631. If a prisoner does not ask for the assistance of counsel, however, and voluntarily waives his rights following a Miranda warning, these reasons disappear. Moreover, although the right to counsel is more difficult to waive at trial than before trial, “whatever standards suffice for Miranda’s purposes will also be sufficient [for waiver of Sixth Amendment rights] in the context of postindictment questioning.” Patterson v. Illinois, 487 U.S. 285, 298 (1988) .
267 Arizona v. Roberson, 486 U.S. 675 (1988) .
268 McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) . The reason why the right is “offense–specific” is that “it does not attach until a prosecution is commenced.” Id.
269 See Michigan v. Jackson, 475 U.S. 625 (1986) .
270 467 U.S. 431 (1984) .
271 467U.S. at 446 467U.S. at 446.
272 Michigan v. Harvey, 494 U.S. 344 (1990) (postarraignment statement taken in violation of Sixth Amendment is admissible to impeach defendant’s inconsistent trial testimony).

Supplement Footnotes

11 Martinez v. Court of App. of Cal., Fourth App. Dist., 120 S. Ct. 684 (2000). The Sixth Amendment itself “does not include any right to appeal.” 120 S. Ct. at 690.
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