Edwards and Erosion of the Defendant’s Right to Self-Represent

In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court.  The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding).  I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury.  (I discussed this point at greater length in this essay a few years ago.)  Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception.

More specifically, in Edwards, the Court held that the state may impose a lawyer on a defendant whose case is going to trial and who suffers from a mental illness that is not severe enough to render him incompetent to stand trial.  In so doing, the Court distinguished cases in which the defendant intends to enter a guilty plea.  As the Court held in Godinez v. Moran, 509 U.S. 389 (1993), in order to self-represent in a guilty-plea case, defendants need only establish their competency to stand trial.  However, Edwards has now raised the bar for defendants who want to self-represent at trial.  (Yes, strange as it may sound, the competency-to-stand-trial standard applies to defendants who have no intention of going to trial, but not to defendants who actually will stand trial.)

I find myself largely in agreement with Justice Scalia’s dissent in Edwards.  I think he is correct that the majority mischaracterized and devalued the dignitary interests that Faretta sought to protect: as he puts it, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State-the dignity of individual choice.”  Faretta recognized that the right of self-representation might come at the expense of accuracy in some cases, but nonetheless endorsed the primacy of the defendant’s dignitary interests.  As Scalia argues, Edwards represents a substantial retreat from Faretta‘s choice.

I also think the majority has it wrong in acting more paternalistically with defendants who are going to trial than defendants who are pleading guilty.  Indeed, I think a decent argument could be made that the defendants who most need a lawyer (perhaps even against their wishes) are those who plead guilty.  When a case goes to trial, the trial court judge has a real opportunity to protect the self-represented defendant from an obvious miscarriage of justice: the judge can ask witnesses important questions missed by the defendant, nudge the defendant away from clear tactical blunders, and award an acquittal to the defendant even if the defendant himself has not noticed major gaps in the state’s case.  But, in a guilty-plea case, the judge will see little or nothing of the state’s evidence, leaving the judge with little basis to question the defendant’s decision to plead guilty, no matter how foolhardy.

This Post Has One Comment

  1. Bruce Boyden

    I think the problem here is that no non-lawyer is competent to represent himself or herself in court, a fact that is in considerable tension with the American ideal that every citizen is equal before the law. That hasn’t been true since the rise of the regulatory state more than 100 years ago (which has perhaps had it’s biggest impact in criminal law in the sentencing area — so it’s interesting that you say that plea bargaining is the point at which defendants most need a lawyer).

    One of the things I’m most troubled by over in the Internet law arena is the way in which default presumptions about the ability of very complicated laws to regulate behavior — copyright, contracts, jurisdiction, communications, privacy — are being undermined by the entry of ordinary individuals into the regulatory sphere, e.g., bloggers, YouTube contributors, eBay sellers. These people are not equal before the law to more established publishers, film studios, or retail outlets in any practical sense. It sounds as though the majority in Edwards is applying that intuition in the criminal arena.

    Weighing on the other side is “the supreme human dignity of being master of one’s fate rather than a ward of the State.” But there are implicit limits on what choices we allow people to make to preserve their dignity. E.g., we wouldn’t consider the defendant’s inability to choose the outcome of the trial to be a violation of his or her dignity. That’s because no one expects a defendant to be able to choose the outcome of his or her own trial. But we do expect that defendants should be able to go unrepresented at trial, if they so choose. Perhaps we shouldn’t.

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