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Keywords

Faretta v. California; waiver of counsel; Sixth Amendment; pro se; right of self-representation; right to counsel; criminal defendant; standard of review; de novo; plain error; self-representation; appellate review; knowing and intelligent; Faretta hearing; standby counsel; competence; McKaskle v. Wiggins; Indiana v. Edwards; Godinez v. Moran

Abstract

Courts appoint counsel for indigent criminal defendants who cannot afford legal representation to uphold their Sixth Amendment rights. In its seminal waiver case, Faretta v. California, the U.S. Supreme Court elevated the corollary right—the right to self-representation—to constitutional status. In dicta, the Court created a standard by which defendants must waive their right to counsel “knowingly and intelligently” to proceed pro se. The Court subsequently sculpted the right to self-representation as it came to standby counsel and mental competency, but it never prescribed a precise waiver colloquy for district court judges to administer, causing the Faretta colloquy to look different in nearly all cases.

This Note examines the circuit split regarding which standard of review the U.S. Courts of Appeals should apply to appeals of the validity of Faretta waivers: de novo or plain error. This Note then advocates for circuit courts to uniformly apply a de novo standard of review to Faretta waivers, a mixed question of fact and law. De novo, an exacting standard of review, is warranted because (1) the right to self-representation is constitutional in nature, (2) a defendant’s legal knowledge plays no role in determining whether their waiver was “knowing and intelligent,” and (3) defendants are not expected to know the perils of self-representation. This Note argues that applying plain error review puts criminal defendants in an unfairly treacherous position, as they must rely on counsel whom they no longer desire to represent them to preserve the issue of valid waiver for appeal.

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