[ Stevens ]
[ Kennedy ]
[ Breyer ]
[ Scalia ]
SALVADOR MARTINEZ, PETITIONER v. COURT OF APPEAL OF CALIFORNIA, FOURTH
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
[January 12, 2000]
Justice Stevens delivered the opinion of the Court.
The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.1 In Faretta v. California, 422 U.S. 806 (1975), we decided that the defendant also has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Id., at 807. Although that statement arguably embraces the entire judicial proceeding, we also phrased the question as whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. Ibid. Our conclusion in Faretta extended only to a defendants constitutional right to conduct his own defense. Id., at 836. Accordingly, our specific holding was confined to the right to defend oneself at trial. We now address the different question whether the reasoning in support of that holding also applies when the defendant becomes an appellant and assumes the burden of persuading a reviewing court that the conviction should be reversed. We have concluded that it does not.
Martinez describes himself as a self-taught paralegal with 25 years experience at 12 different law firms. See App. 13. While employed as an office assistant at a firm in Santa Ana, California, Martinez was accused of converting $6,000 of a clients money to his own use. He was charged in a two-count information with grand theft and the fraudulent appropriation of the property of another. He chose to represent himself at trial before a jury, because he claimed
There is no constitutional right to self-representation on the initial appeal as of right. The right to counsel on appeal stems from the due process and equal protection clauses of the Fourteenth Amendment, not from the Sixth Amendment, which is the foundation on which Faretta is based. The denial of self-representation at this level does not violate due process or equal protection guarantees. People v. Scott, 64 Cal. App. 4th 550, 554, 75 Cal. Rptr. 2d 315, 318 (1998).
The Faretta majority based its conclusion on three inter-related arguments. First, it examined historical evidence identifying a right of self-representation that had been protected by federal and state law since the beginning of our Nation, 422 U.S., at 812817. Second, it interpreted the structure of the Sixth Amendment, in the light of its English and colonial background, id., at 818832. Third, it concluded that even though it is undeniable that in most criminal prosecutions defendants could better defend with counsels guidance than by their own unskilled efforts, a knowing and intelligent waiver must be honored out of that respect for the individual which is the lifeblood of the law. Illinois v. Allen, 397 U.S. 337, 350351 [(1970)]. Faretta, 422 U.S., at 834. Some of the Courts reasoning is applicable to appellate proceedings as well as to trials. There are, however, significant distinctions.
The historical evidence relied upon by Faretta as identifying a right of self-representation is not always useful because it pertained to times when lawyers were scarce, often mistrusted, and not readily available to the average person accused of crime.3 For one who could not obtain a lawyer, self-representation was the only feasible alternative to asserting no defense at all. Thus, a governments recognition of an indigent defendants right to represent himself was comparable to bestowing upon the homeless beggar a right to take shelter in the sewers of Paris. Not surprisingly, early precedent demonstrates that this right was not always used to the defendants advantage as a shield, but rather was often employed by the prosecution as a sword. The principal case cited in Faretta is illustrative. In Adams v. United States ex rel. McCann, 317 U.S. 269 (1942), the Court relied on the existence of the right of self-representation as the basis for finding that an unrepresented defendant had waived his right to a trial by jury.4
It has since been recognized, however, that an indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963). Thus, an individuals decision to represent himself is no longer compelled by the necessity of choosing self-representation over incompetent or nonexistent representation; rather, it more likely reflects a genuine desire to
The scant historical evidence pertaining to the issue of self-representation on appeal is even less helpful. The Court in Faretta relied upon the description of the right in §35 of the Judiciary Act of 1789, 1 Stat. 92, which states that the parties may plead and manage their own causes personally or by the assistance of such counsel . 422 U.S., at 812. It is arguable that this language encompasses appeals as well as trials. Assuming it does apply to appellate proceedings, however, the statutory right is expressly limited by the phrase as by the rules of the said courts. 1 Stat. 92. Appellate courts have maintained the discretion to allow litigants to manage their own causesand some such litigants have done so effectively.5 That opportunity, however, has been consistently subject to each courts own rules.
We are not aware of any historical consensus establishing a right of self-representation on appeal. We might, nonetheless, paraphrase Faretta and assert: No State or Colony ever forced counsel upon a convicted appellant, and no spokesman ever suggested that such a practice would be tolerable or advisable. 422 U.S., at 832. Such negative historical evidence was meaningful to the Faretta Court, because the fact that the [dog] had not barked6 arguably demonstrated that early lawmakers intended to preserve the long-respected right of self-representation at trial. Ibid. Historical silence, however, has no probative force in the appellate context because there simply was no long-respected right of self-representation on appeal. In fact, the right of appeal itself is of relatively recent origin.
Appeals as of right in federal courts were nonexistent for the first century of our Nation, and appellate review of any sort was rarely allowed. Abney v. United States, 431 U.S. 651, 656, n. 3 (1977). The States, also, did not generally recognize an appeal as of right until Washington became the first to constitutionalize the right explicitly in 1889.7 There was similarly no right to appeal in criminal cases at common law, and appellate review of any sort was limited and rarely used.8 Thus, unlike the inquiry in Faretta, the historical evidence does not provide any support for an affirmative constitutional right to appellate self-representation.
The Faretta majoritys reliance on the structure of the Sixth Amendment is also not relevant. The Sixth Amendment identifies the basic rights that the accused shall enjoy in all criminal prosecutions. They are presented strictly as rights that are available in preparation for trial and at the trial itself. The Sixth Amendment does not include any right to appeal. As we have recognized, [t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute. Abney, 431 U.S., at 656. It necessarily follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal.
The Faretta majoritys nontextual interpretation of the Sixth Amendment also included an examination of British criminal jurisprudence and a reference to the opprobrious trial practices before the Star Chamber. 422 U.S., at 821824. These inquiries into historical English practices, however, again do not provide a basis for extending Faretta to the appellate process, because there was no appeal from a criminal conviction in England until 1907. See Griffin v. Illinois, 351 U.S. 12, 21 (1956) (Frankfurter, J., concurring in judgment); 7 Edw. VII, ch. 23 (1907). Indeed, none of our many cases safeguarding the rights of an indigent appellant has placed any reliance on either the Sixth Amendment or on Faretta. See, e.g., Douglas v. California, 372 U.S. 353, 356358 (1963); Griffin, 351 U.S., at 12.
Finally, the Faretta majority found that the right to self-representation at trial was grounded in part in a respect for individual autonomy. See 422 U.S., at 834. This consideration is, of course, also applicable to an appellant seeking to manage his own case. As we explained in Faretta, at the trial level [t]o force a lawyer on a defendant can only lead him to believe that the law contrives against him. Ibid. On appellate review, there is surely a similar risk that the appellant will be skeptical of whether a lawyer, who is employed by the same government that is prosecuting him, will serve his cause with undivided loyalty. Equally true on appeal is the related observation that it is the appellant personally who will bear the consequences of the appeal. See ibid.
In light of our conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause. Under the practices that prevail in the Nation today, however, we are entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a constitutional right of self-representation is a necessary component of a fair appellate proceeding. We have no doubt that instances of disloyal representation are rare. In both trials and appeals there are, without question, cases in which counsels performance is ineffective. Even in those cases, however, it is reasonable to assume that counsels performance is more effective than what the unskilled appellant could have provided for himself.
No one, including Martinez and the Faretta majority, attempts to argue that as a rule pro se representation is wise, desirable or efficient.9 Although we found in Faretta that the right to defend oneself at trial is fundamental in nature, 422 U.S., at 817, it is clear that it is representation by counsel that is the standard, not the exception. See Patterson v. Illinois, 487 U.S. 285, 307 (1988) (noting the strong presumption against waiver of right to counsel). Our experience has taught us that a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.10
As the Faretta opinion recognized, the right to self-representation is not absolute. The defendant must
In the appellate context, the balance between the two competing interests surely tips in favor of the State. The status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict. We have recognized this shifting focus and noted:
[T]here are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the States point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt .
By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the States prosecutor but rather to overturn a finding of guilt made by a judge or a jury below. Ross v. Moffitt, 417 U.S. 600, 610 (1974).
In the words of the Faretta majority, appellate proceedings are simply not a case of hal[ing] a person into its criminal courts. 422 U.S., at 807.
The requirement of representation by trained counsel implies no disrespect for the individual inasmuch as it tends to benefit the appellant as well as the court. Courts, of course, may still exercise their discretion to allow a lay person to proceed pro se. We already leave to the appellate courts discretion, keeping the best interests of both the prisoner and the government in mind, the decision whether to allow a pro se appellant to participate in, or even to be present at, oral argument. Price v. Johnston, 334 U.S. 266, 284 (1948). Considering the change in position from defendant to appellant, the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta. Yet the overriding state interest in the fair and efficient administration of justice remains as strong as at the trial level. Thus, the States are clearly within their discretion to conclude that the governments interests outweigh an invasion of the appellants interest in self-representation.
For the foregoing reasons, we conclude that neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self-representation on direct appeal from a criminal conviction. Our holding is, of course, narrow. It does not preclude the States from recognizing such a right under their own constitutions. Its impact on the law will be minimal, because a lay appellants rights to participate in appellate proceedings have long been limited by the well-established conclusions that he has no right to be present during appellate proceedings, Schwab v. Berggren, 143 U.S. 442 (1892), or to present oral argument, Price, 334 U.S., at 285286. Meanwhile the rules governing appeals in California, and presumably those in other States as well, seem to protect the ability of indigent litigants to make pro se filings. See, e.g., People v. Wende, 25 Cal. 3d 436, 440, 600 P.2d 1071, 1074 (1979); see also Anders v. California, 386 U.S. 738 (1967). In requiring Martinez, under these circumstances, to accept against his will a state-appointed attorney, the California courts have not deprived him of a constitutional right. Accordingly, the judgment of the California Supreme Court is affirmed.
It is so ordered.
2. Compare Myers v. Collins, 8 F.3d 249, 252 (CA5 1993) (finding right of self-representation extends to appeals); Campbell v. Blodgett, 940 F.2d 549, 549 (CA9 1991) (same); Chamberlain v. Ericksen, 744 F.2d 628, 630 (CA8 1984) (same); Commonwealth v. Rogers, 537 Pa. 581, 583, 645 A. 2d 223, 224 (1994) (same); State v. Van Pelt, 305 Ark. 125, 127, 810 S. W. 2d 27, 28 (1991) (same); Webb v. State, 274 Ind. 540, 542, 412 N. E. 2d 790, 792 (1980) (same); Webb v. State, 533 S. W. 2d 780, 784 (Tex. Crim. App. 1976) (same), with United States v. Gillis, 773 F.2d 549, 560 (CA4 1985) (finding no right of self-representation on appeal); Lumbert v. Finley, 735 F.2d 239, 246 (CA7 1984) (same); Hill v. State, 656 So. 2d 1271, 1272 (Fla. 1995) (same); State v. Gillespie, 898 S. W. 2d 738 (Tenn. Crim. App. 1994) (same).
3. The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the Kings Court, all bent on the conviction of those who opposed the Kings prerogatives, and twisting the law to secure convictions. This prejudice gained strength in the Colonies where distrust of lawyers became an institution. Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as the lower classes came to identify lawyers with the upper class. The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class. Faretta, 422 U.S., at 826827 (footnotes omitted)
4. Similarly, in the state cases cited by the Court in Faretta, see 422 U.S., at 813, n. 9, the defendants right to represent himself was often the predicate for upholding the waiver of an important right. See, e.g., Mackreth v. Wilson, 31 Ala. App. 191, 193, 15 So. 2d 112, 113 (1943) (failure of the defendant to request counsel equaled an election to proceed pro se); Lockard v. State, 92 Idaho 813, 822, 451 P.2d 1014, 1023 (1969) (court relied on defendants right of self-representation to uphold an uncounseled guilty plea, despite claims that it was coerced); People v. Nelson, 47 Ill. 2d 570, 268 N. E. 2d 2, 3 (1971) (defendants pro se status is predicate for upholding waiver of indictment and jury trial and also to uphold guilty plea); Allen v. Commonwealth, 324 Mass. 558, 562563, 87 N. E. 2d 192, 195 (1949) (life sentence upheld despite fact that indigent defendant was unable to procure counsel); Westberry v. State, 254 A. 2d 44, 46 (Me. 1969) (guilty plea upheld because defendant failed to claim indigency or to request counsel); State v. Hollman, 232 S. C. 489, 499, 102 S. E. 2d 873, 878 (1958) (right of defendant to represent himself used as basis for finding he had no right to appointed counsel). But see State v. Thomlinson, 78 S. D 235, 237, 100 N. W. 2d 121, 122 (1960) (vacating conviction based on courts failure to allow defendant to represent himself); State v. Penderville, 2 Utah. 2d 281, 287, 272 P.2d 195, 199 (1954) (same); Cappetta v. State, 204 So. 2d 913, 918 (Fla. App. 1967) (same), revd, State v. Capetta, 216 So. 2d 749, 750 (Fla. 1968) (finding voluntary and intelligent waiver of right to proceed pro se).
6. A. Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes 383, 400 (1938).
7. See Lobsenz, A Constitutional Right to An Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget Sound L. Rev. 375, 376 (1985). Although Washington was the first State to constitutionalize an appeal as of right, almost all of the States historically had some form of discretionary appellate review. See, generally, L. Orfield, Criminal Appeals in America 215231 (1939).
8. 1 J. Stephen, A History of the Criminal Law of England 308310 (1883).
9. Some critics argue that the right to proceed pro se at trial in certain cases is akin to allowing the defendant to waive his right to a fair trial. See, e.g., United States v. Farhad, 190 F.3d 1097, 11061107 (CA9 1999) (Reinhardt, J., concurring specially), cert. pending, No. 997127.
11. See id., at 544550 (collecting cases).