*1 DEPART- TEXAS DIRECTOR, McKASKLE, ACTING WIGGINS v. CORRECTIONS OF MENT January 23, 1984 9, 1983 Decided Argued November No. 82-1135. *2 Burger, Court, O’Connor, J., opinion in which delivered Blackmun, Rehnquist, Stevens, Powell, JJ., joined. J., and C. White, J., dissenting opinion, in which in the filed a J., result. concurred Marshall, joined, post, p. 188. JJ., Brennan Attorney Texas, Benitez, A. Assistant General Leslie petitioner. argued With her on the brief were the cause for Attorney Richards, David R. Execu- Mattox, General, Jim Attorney Nancy Simonson, M. General, and tive Assistant Attorney Assistant General.

Craig Smyser, by appointment of the 460 U. S. Court, *3 argued pro a for the cause hac vice and filed brief Respondent respondent. se. filed brief delivered the Court. opinion Justice O’Connor (1975), 422 806 this Court In Faretta v. U. S. California, recognized a defendant’s Sixth Amendment to conduct held that a trial court own defense. The Court also “standby appoint to assist the se defendant counsel” Today we must decide what role defense. objection may tri,al over the defendant’s

who is protection play Faretta of the defendant’s consistent with rights.

I robbery Wiggins and sen- Edwin was convicted of Carl imprisonment a recidivist. His conviction tenced to life Wig- of a defective indictment. When was set aside because again gins was retried he was convicted sentenced imprisonment. Standby appointed to assist life counsel were Wiggins challenges trials. now at both participation in his second trial. hearing the first was held on trial,

Prior to granted proceed pro motion, se. The court motion to attorneys simultaneously appointed to act but two 4a, Record as standby counsel. Wiggins initially objected to their pres- Id., ence. at 11a. Shortly thereafter, however, counsel asked Wiggins how they should conduct themselves at trial, and Wiggins expressly requested that they bring appropriate objections directly attention of the court, without first him. consulting at 37a. After the trial, newly ap- pointed counsel discovered that the original indictment was defective, and a new trial was granted.

On 16, 1973, April about two months before the second trial began, filed a request for appointed counsel, stating he wished to rescind his earlier waiver of coun sel. A-54 —A-55.1 App. The next day Wiggins filled out and signed a form captioned “Petition for Appointment of Counsel and Order Thereon.”2 The trial court appointed Benjamin Samples. About a month later Wiggins filed an additional request counsel.3 Five later days

1Wiggins’ letter to the trial judge stated: “I wish to my rescind request earlier to waive appointed court assistance request counsel —and that this honorable appoint court counsel to assist me. “I appreciate very would much if the court appoint would the Honorable Stewart J. Alexander who previously appointed appeal, assist before sentence was set aside.

“And I apologize I if have caused an inconvenience to the court.” Record (original emphasis). petition read: *4 “Now comes Carl Wiggins, Edwin defendant in styled the above cause, numbered and respectfully petitions the Court appoint to counsel to

represent him in felony said cause and would show to the Court that he is poor too employ Id., to counsel.” at 586. request This pertinent read in part: (4) “I have been indicted four times of the same offense .... “According Higgins to v. State State, and Snow v. prosecutions where were dismissed —and according to 28.13, VACCP I Art. should’nt [sic] be again. tried you please “Will appoint counsel to cite issue, authorities on also, this in favor of the state. I only find indicating authorities prosecu- that further tion is barred. None indicating Id., other-wise (original [sic].” at emphasis). trial and the appointment form, of counsel out filled another appointed Graham. R. Norvell court appointed respecting counsel remained Wiggins’ wishes pro- pretrial approached. When trial as his second volatile Wiggins he that announced ceedings began 1973, 4, on June firmly requested defending se; he then himself would be Wiggins’presen- to interfere with allowed not be that counsel Wiggins reaf- 12, 39-40. 8, Record court. tations morning, following proceed se on the firmed his desire coun- that objected insistence to the court’s even 5, June Id., at 66-67. for consultation. sel remain available Wiggins shortly day, thereafter began that later trial consult with interrupted of a witness his cross-examination Wiggins later, Id., 201. Still at record. off the Graham dire of voir to conduct expressly agreed Graham to allow Id., at 210. another witness. day re- a 6, June with

Wiggins trial, the next started Samples’ proceed from the absence quest not trial that the morning Wiggins re- 255. Later Id., at courtroom. interrupt, id., or quested not be allowed assist interrupted Wiggins his own after while at but short 308, Samples off confer with of witness cross-examination in the after- trial reconvened Id., 310. When record. at Samples’ Id., proceed agreed absence. Wiggins noon, again Wiggins Samples returned, however, at 328. After confer a witness to interrupted cross-examination of his own that counsel insisted 333. Later Id., at with him. Id., private with him. consultations should initiate again day once at Before end 345-346. interrupt a witness his own examination found occasion to Samples. Id., at 384. to confer with Wiggins agreed day, following Graham 7, June On the jury. opening statement to would make again willing to have the once 486. On June proceed of one of his counsel. in the absence *5 Following Id., at 546. his conviction, moved for July trial. hearing new Wiggins’ At motion, he standby denounced the services provided. counsel had they He unfairly insisted that had presen- interfered with his tation of his defense. at 572b. exhausting

After appellate direct and state habeas review petition filed a corpus for federal habeas relief. He argued deprived counsel’s conduct him of his right present guaranteed his own by defense, as Faretta. The District Court petition, denied the habeas but the Court Appeals for the Fifth Circuit reversed. v. Es- rehearing (1982). telle, F. 2d 266, denied, 691 F. 2d 213 Appeals Court held that Sixth Amendment right self-representation was violated the unsolicited of overzealous counsel:

“[T]he rule today that we establish is that court- appointed standby ‘to be seen, but not heard.’ By this we mean compete that he is not to with the de- supersede fendant or his defense. Rather, his advisory purposes is there for only, to be used or not (foot- used the defendant sees fit.” 681 F. 2d, at 273 omitted). note accept

We Appeals’ do not the Court rule, and reverse its judgment.

II A In Faretta the Court considered the of a case criminal de- required fendant who was exclusively his defense through counsel. The Court held that an accused ahas Sixth Amendment provided only conduct his own defense, knowingly intelligently that he forgoes to coun- willing sel and that he is able and proce- to abide rules of protocol. dure and courtroom “[u]n- Faretta concluded that acquiesced less the accused [representation has through *6 174 guaranteed presented defense not the is defense the

counsel], very not his it is sense, real in for, a Constitution, him the 821. S., at 422 U. defense.” recogni- longstanding holding the based on

Faretta’s state self-representation in most right federal and a of tion of spirit language, of the Sixth structure, on the courts, and accused, not it is the Amendment, Under Amendment. cause of the nature “informed must be who counsel, right witnesses, and to confront has the who accusation,” the obtaining process “compulsory for be accorded must who which itself, Clause The in his favor.” Counsel witnesses permits for of Counsel Assistance “to have the accused conduct his implies to in defendant defence,” not all, his, what, after assistance at defense, own trial. B self-representation plainly encom- to A defendant’s rights specific heard. to have his voice passes certain organization allowed to control pro must se defendant argue motions, to make defense, of his own and content question wit- participate dire, to points in voir law, appropriate court and at and to address nesses, was in reveals points The record in the trial. rights. all of these fact accorded prepa- court order the trial moved

Before transcript coun- He, first of the trial. of a ration transcript receipt and announced then waived sel, argued at ready He filed 65-66. 7-11, for trial. Record proceedings.4 pretrial in se motions least id,., 14, aside discovery, to set at motion included a motion These id., 17-22, id., claim, a motion jeopardy at 16, a double indictment, at id., 23-24, to correct an limine, relief, at a motion special in a motion for mate id., discovery any exculpatory 31, a motion for report, at offense id., keep document a marked file, at a motion prosecutor’s rial in id., id., jury, sequester the at 42, a jury, at motion sight of the out of id., change limine, 57-58, for a a motion 44-45, another motion voir

alone conducted the dire of prospective jurors5 defense’s and made the opening statement for the defense to the jury. Id., at 347-348.

Wiggins filed numerous motions the course of the trial.6 He cross-examined the prosecution’s witnesses id., freely, at 26-30, 199-206, 224-226, 228-237, 269-286, 290-292, 296-301, 310, 319-326, 332-336, 434-447, 455-468, 532-534, and registered his own id., objections, at 237, 238, 317, 318, 352, 353-359, 418-420, 450, 484, 485, 497, 502-503, *7 536. Throughout the trial Wiggins selected the witnesses for the defense, id., at 47, 56, 60-61, 348, 368, 381, 383, 384, 393, 396, 398-399, 403, 408, 412, 413, 424, examined them, id., at 47-55, 349-351, 363-367, 368-373, 374-376, 380-381, 381-382, 383-384, 384-387, 399-401, 404-407, 408-412, 424- 426, decided that certain questions would not be asked the by id., at 414, 449-450, and decided which witnesses defense, id., would called, at 390, 422. 415, Against counsel’s advice, Wiggins announced that the defense Id., rested. at 413. Wiggins filed his own requested charges to the jury, id., at 471-473, and made his own objections the court’s id., at suggested charge, 473-478. He obtained the removal of one of the court’s proposed charges over counsel’s express id., objection, at 478, approved the verdict form supplied to id., the jury, at and 479, a gave closing argument to the jury, id., at 490-497. Wiggins elected to to the go at the jury pun- his trial, id., at 69, ishment phase he argued his case to the jury at that id., stage well, at 540-541. (withdrawn venue id., defendant), 59, at speedy trial, a motion for a id., at id., a motion shuffle, for 67-68, a at and a motion witness fees, id., at 69-70. 5Wiggins made an opening id., statement venire, 101-103, at

examined 33 individual venirepersons. Id., at 106-185. 6 These included a motion for acquittal, to question motion a witness out of jury, and a motion appointment for the of an investigator. 342-344, 392-393, 394-395.

c placed on his complaint not at limits is directed clearly It is were none. participation for there trial, in the placed inadequate allegedly on limits instead at directed obj Wiggins ected to participation. At trial assist available to very remain would fact that objection; has abandoned Id., at 66-67. him. only his Faretta contends he now distracting, impaired by intrusive, pro se was defense throughout trial. of counsel and unsolicited HHHH Appeals agreed, that the Court claims, may presenting own case insist on se defendant interruption involvement wholly or other uninvited from free primarily Faretta’s relies counsel. standby counsel: reference sole objection by ac- over course, a State

“Of —even ‘standby if accused appoint to aid the counsel’ cused— and help, requests and to be available accused when the *8 represent in event that termination the the accused to necessary. self-representation See is the defendant’s App. Dougherty, 76, D. C. 154 U. S. v. States United 835, 422 at S., U. F. 2d 1124-1126.” 1113, 473 87-89, n. 46. language the defines “if the when” contends that argues standby Faretta the He role. counsel’s on

limits argue with to if is allowed right be eviscerated will contrary court motions to the defendant, make the steps specifically wishes, and take other defendant’s approved the defendant. logic and its citation Faretta’s view, both our

In standby Dougherty indicate that no absolute bar case appropriate or was unsolicited counsel’s right appear pro affirm the se exists The intended.

177 dignity autonomy pres- of the accused and to allow the may, occasionally, entation of what at least be the accused’s possible objectives best defense. Both of these can be categorically silencing standby achieved without counsel. determining In rights whether Faretta have defendant’s respected, primary been focus must be on whether had a defendant fair chance to in case own way. Faretta itself dealt with the defendant’s affirmative right participate, standby not with the limits on specificrights additional involvement. The to make his voice plainly heard that swpra, accorded, see at 174- right self-representation. 175,form the core aof defendant’s recognize, right speak We nonetheless, that the for one- entails opportunity self cacophony more than the to add one’s voice to a objectives others. As contends, the underlying right proceed pro may be undermined excessively participation by unsolicited and intrusive proceedings counsel. In may before a the defendant legitimately multiple be concerned that voices “for the de- message fense” will confuse the the defendant wishes to con- vey, defeating objectives.7 thus Accordingly, Faretta’s right impose Faretta must some limits onthe extent of participation.8 counsel’s unsolicited 7 pro A se defendant generally accept must any help unsolicited or hindrance that come from judge who chooses to question call and witnesses, prosecutor from the faithfully who duty exercises his to present evidence defense, favorable to the plural from the voices speaking “for defense” a trial of defendant, more than one or from an amicus appointed court, to assist the States, Brown v. United see App. U. S. 77, 83, (1959) D. C. 264 F. 2d (Burger, J., concurring part). right self-representation Since is a that when exercised usually increases the likelihood of a trial outcome unfavorable to de fendant, its denial is not amenable to analysis. error” “harmless respected denied; is either or deprivation its cannot be harmless. *9 corollary, however, As a a defendant who right exercises his appear to pro se “cannot complain quality thereafter that the of his own defense ” amounted to a denial of ‘effective Faretta, assistance of counsel.’ 422 S., 835, U. Moreover, at n. 46. the pro se right proceed to defendant’s 178 actual con- pro se defendant to preserve is entitled

First, the is This the jury. to to he chooses the case over trol participa- Faretta If right. of the the core allows effectively objection over defendant’s tion tactical significant any interfere substantially or to make toor witnesses, of the questioning control or to decisions, importance, of any on matter instead the defendant speak the Faretta is eroded. right the de- without

Second, participation the jury’s destroy to not be allowed should consent fendant’s himself.9 is representing the defendant that perception his conducting of one in the status appearance defendant's to right trial, since in a criminal important is own defense dignity pro individual se exists accused’s affirm appear recog- have courts In contexts related autonomy. and impor- all at to be present has a a defendant nized that Snyder Massachusetts, 291 97 U. S. v. trial, stages tant in court appear forced be normally not he may that (1934), Williams, S. Estelle 425 U. v. garb, or prison in shackles testi- to present has a he that (1976), and 504-505 501, to determine designed trial criminal of the larger context in the exists charged. he is which guilty of the offense with or not a defendant whether reconciling the rulings make numerous required to may judge The trial to that objection se defendant’s with a standby counsel that right suggests Faretta nothing in the nature participation; judge these issues on “judgment calls” usual deference elsewhere. obtain here should not on In its footnote requirement. this second anticipated Faretta Dougherty, v. States of United pages three cited Faretta standby counsel find (1972), we this in which F. 2d 1113 App. D. C. 154 U. S. statement: explanation dependent on appointment is utility an amicus “The too, he understanding, defendant, by [the] cooperation appear right rights include merit some claim with this is himself, defending one status of jury before clearly attorney, unless by an played role is conspicuous if a too defeated counsel.” of defense the status that he have does appears omitted). (footnote 2d, at 88, 473 F.

179 mony in his own behalf, see Harris v. New York, 401 U. S. (1971); 222, 225 Brooks v. Tennessee, 406 U. S. 612 605, (1972). Appearing jury the before in the status of one who is defending may equally himself important be pro defendant. jury’s From perspective, the message the con- veyed by may depend the defense messenger as much on the message as on the itself. From point the defendant’s own right appear pro view, the se can impor- lose much of its only lawyers tance if the in the courtroom know that the being exercised.

IV Participation by standby presence counsel outside the jury engages only the first of these two limitations. A judge, any who in event original receives a defendant’s request supervises Faretta protection of the throughout the trial, capable must be considered of differen tiating presented by the claims proa se defendant from those presented by standby counsel. Cf. United States Marti v. (CA5), nez, 597F. 2d 509, 510-511 cert. 444 denied, S. 979 U. (1979); United States v. (CA7), 496 Penick, F. 2d 1105, 1108 cert. (1974); denied, 419 U. S. 897 United States v. Reeves, (CA2 1965), 348 F. 2d (1966). 469 cert. denied, 383 U. S. 929 Accordingly, appearance pro of a se defendant’s self- representation unacceptably will not undermined coun presence sel’s jury. outside of the rights adequately Thus, Faretta are proceed- vindicated in ings outside if se defendant is freely allowed address the court on his own and if behalf disagreements between counsel and the se defendant are resolved in the defendant’s favor whenever the matter is one normally that would be left to the discretion counsel.10 10 Cf. ABA For Standards (2d Criminal 1980) Justice 6-3.7 (standby ed. judge’s “call the attention to matters favorable to the accused upon judge which should rule on his or her motion...”); Uniform Rule (1974) of Criminal Procedure (same); Mayberry Pennsylvania, v. (1971) (Burger, U. S. J., 467-468 (same). C. concurring) occurred complains of which incidents Most of the ab- jury’s In the courtroom. was not the jury when explained frequently two sence disagreement views and their points judge the trial *11 strate- proposed dictated motions, made Counsel Wiggins. to the prosecu- objections record,11 registered into the gies wit- additional summoning urged testimony, tion’s should the defendant questions suggested and nesses, of witnesses. asked have expressly adopted Wiggins occasions several

On a jury to quash moved counsel When initiatives. counsel’s 81- Record the motion. joined Wiggins example, for panel, a police report requests counsel’s seconded 82. Wiggins counsel twice, At least 54. 51-52, at photographs. and then denied, Wiggins .and the motion was motion, a made to the denial.12 exception registered opposed strongly Wiggins other occasions several On suggestion counsel’s He resisted of counsel. initiatives prior of his transcript that the so postponed trial be 10-day to a he waived could be prepared,13 Id., at invoke. wished which counsel period, preparation concerning discussion a pretrial In the course 64-66. coun- demanded indignantly request Wiggins discovery Id., at 39-40. invitation. without further not participate sel the inclusion successfully opposed Later, Wiggins included. felt should that counsel of a charge instructions Id., at 476-478. and Wig- Graham between exchange acrimonious

The most voir a witness of questioning in the course occurred gins coun- typical of this was exchange dire. suggests Wiggins 449-450, 427-428, 414-415, 478. 344-345, Record simply did Wiggins occasions id., 246; 447, 449. On other 12 See id., at 32. g., e. See, participation. standby counsel’s react unavailability of the regret 13 Id., at 7-9. Wiggins later came to it. to receive waived his he had never transcript, and claimed that Id., at 252-254. overbearing

sel’s place conduct, but he fails to the incident in Wiggins expressly context. agreed had to have Graham con- duct dire, the voir id., at attempted 210, but to take questioning over the Plainly exasperated, midstream. profanity curtly Graham used “[s]it directed down.”14

Though several of these regrettable, incidents are we are satisfied that counsel’s outside the jury fully satisfied the first standard we have outlined. given ample opportunity his own position every to the court on matter discussed. He was given time explain to think problems matters over, to informally, speak concerns Standby judge and to off the record. participated actively, part but for the most orderly in an manner. The overbearing one instance of con- duct was direct result of own indecision *12 question as to who would the Wiggins witness on voir dire. given was opportunity abundant argue to his contentions to the court.

Equally important, all conflictsbetween and coun- Wiggins’ sel were in resolved judge repeat- favor. The trial edly explained to Wiggins’ all strategic concerned that prevail. choices, not counsel’s, would Id., at 12-13, 65, 210, 223-224, 306-308, 341-342, 345-346, 414-415, 427, every 430, 450, by 477-478. Not motion made was granted, in but position no instance was adopted counsel’s over normally on a matter that would be left to the defense’s discretion.

V Participation by standby in counsel the jury problematic. is more It is may here the that defendant legitimately claim that by excessive involvement counsel will destroy appearance the acting pro that the defendant is se. 14 Id., 215, 218, at 223. given a full opportunity question the witness when Graham had 224-226, finished. at 228-237. right to dignitary the that values may erode the turn, in This, promote undercut self-representation intended to is ef- most of his own presentation defendant’s categorical that a believe Nonetheless, we defense. fective presence of the by in counsel participation bar unnecessary. jury is

A against the involvement measuring In sight important to lose it is described, we have standards his waive can A defendant own conduct. the defendant’s de- Participation counsel rights. Faretta constitutionally un- approval course, express is, of fendant’s partici- to counsel invitation objectionable. defendant’s A participation in any that claim pate in trial obliterates own de- over of control deprived the defendant question any general claim participation also diminishes fense. Such unreasonably the defendant’s interfered with that defending himself. appear status of one in easily overlooked. also it is Although self-evident, this vehemently objects Wiggins, who like A defendant very presence standby counsel’s beginning of trial as the quite views may express different courtroom, waiving he is not he insists progresses. when Even acquies- orof solicitation rights, pro se defendant’s Faretta counsel substan- types in certain cence interfered protestations tially later undermines unacceptably. Wiggins’pro se efforts case reveals

The record this *13 changes frequent primarily own, undermined were Wiggins in- Early in the trial regarding role. counsel’s mind entirely but assistance, proceed without to he wished sisted agreed should expressly that counsel shortly he thereafter Wiggins objected vehe- dire. on voir question a witness warmly embraced motions, but mently counsel’s to some standby objected counsel’s Initially to others. proceed in trial to to allow refused presence; later he their agreed absence; the end he that counsel would make closing statement only for the long defense. The two appearances by counsel at trial, one before the presence, and one outside its were both initiated with Wiggins’ express approval. Record 210-223, 486- 241-243; 489. In these very circumstances it is difficult to determine how participation much of counsel’s contrary inwas fact Wiggins’ desires of the moment. require

Faretta does judge permit “hybrid” a trial representation type Wiggins actually allowed. given But if opportunity a defendant is and elects to have appear counsel jury, before the complaints or court con- cerning subsequent participation unsolicited lose much of their A force. defendant does not have a constitu- choreograph special tional appearances by counsel. Once a se agrees defendant any invites or substantial subsequent appearances by counsel, counsel presumed must be to be acquiescence, with the defendant’s expressly least until the unambiguously defendant request renews his counsel be silenced.

B rights infringed Faretta are also not when assists the overcoming defendant procedural routine evidentiary or completion obstacles to specific of some introducing task, such objecting testimony, evidence or clearly that the defendant has complete. shown he wishes to they infringed Nor are merely helps when to ensure compliance the defendant’s pro- with basic rules of courtroom procedure. tocol and any In significant neither case is there interference with the defendant’s actual control over presentation of his defense. The likelihood that the defend- appearance ant’s defending in the status of one himself will slight, any eroded is also and in event is tolerable. A defendant does not have a per- constitutional to receive sonal judge instruction from the proce- on courtroom *14 require judges over to take the Nor does Constitution dure. normally be at- that would a se defendant chores for Faretta matter of course. as a trained counsel tended to self-representation is not recognized “The of as much. it dignity Neither of the courtroom. the a license to abuse procedural comply rules of relevant with license not to a n. 46. 835, atS.,U. law.” substantive already today explicit im- Accordingly, what is make we rights are Amendment plicit A Sixth in Faretta: defendant’s appoints judge counsel— a trial violated when not judge objection of relieve over the defendant’s even —to pro- explain courtroom basic rules of and enforce need to overcoming obsta- in routine defendant to assist the tocol or way achievement of the defendant’s that stand cles Participation goals. clearly counsel to indicated his own per- procedures through of trial is the basic steer a defendant unlikely under- that it somewhat event even missible appearance of control over se defendant’s mines the own defense. significant part trial a

At jury’s presence involved in and out of both informing type have we mechanics basic described— Wiggins supplying witnesses, of the whereabouts the court punish- go jury at the needed to elect to a form with Wiggins explaining not phase that he should trial, ment questioning on. argue witness, and so See his case while 255, 232, 251, 254, 69, 191, 206, 11-12, 45, 50, 9, Record attempted in- 406, 471. When 393, 396, 404, failed to mark for evidence, but into troduce a document lay predicate coun- introduction, its for or to identification questioned suggestion, the witness court’s at the trial sel, predicate, lay appropriate resumed then an judge Similarly, Id., at 293-296. examination. repeatedly counsel, to consult with instructed procedure appropriate regarding court, summoning 207-208, 248, 272, 204-205, witnesses. 402. 395, 396, *15 Notwithstanding Wiggins’ general objections several to presence

the participation of counsel, we find these as- pects of irreproachable. involvement None inter- Wiggins’ fered actual control over his defense; none can reasonably thought to have Wiggins’ appear- undermined jury ance before the in the status of a se defendant.

C Putting participation aside approved was by either Wiggins or attendant to procedural routine clerical or mat ters, counsel’sunsolicited comments in jury front of the were infrequent and part for the most innocuous. On two occa sions interrupted Graham a witness’ question answer to a put by Wiggins. Id., at 204, 287. interruption The first was trivial. When the second jury was made the briefly ex subsequently cused and given a cautionary instruction as re quested by Graham. objection. made no Standby counsel also moved for a mistrial three times in the jury. Id., at 262, 421-422, 498-499. Each motion response was in allegedly prejudicial questions or com by prosecutor. ments Wiggins did not comment first opposed motion, but he following two. All three motions grettably, immediately were by denied the trial court. Re profanity

counsel used express exasperation on the second Finally, occasion.15 played an active

15“MR. GRAHAM: Objection, Your Honor. The district attorney is testifying.

“THE COURT: Don’t lead. “MR. I GRAHAM: ask the Court to jury instruct disregard remarks of counsel as not being testimony in the case. “THE COURT: The Court will instruct the jury to disregard the last statement made Rodriguez. Mr. “MR. GRAHAM: Notwithstanding the Court’s instruction, I am sure is so prejudicial as require a mistrial. No, “DEFENDANT: Your object Honor. I to a object mistrial. I counsel— “THE COURT: I denied the motion for mistrial. Overruled. “MR. GRAHAM: Jesus Christ.” at 421-422. sup record phase the trial. punishment at the

role regard. change in this explanation the sudden plies no this objection to counsel’s no made Wig by then only surmise canWe phase the trial. in his best not appearing se was gins had concluded interests. phase guilt during made The statements Wiggins’ ex- without presence of the in the trial, transcript. portion only occupy a small press consent, While unobjectionable, sort. mechanical of an were Most should participation at standby counsel’s *16 that counsel’s we believe trials, for future model as a serve Wiggins’ Faretta infringing on of short fell involvement actual control unquestionably maintained Wiggins rights. all at times. defense presentation his own of the over appear to Wiggins allowed was persuaded that also areWe defending At himself. of one jury status in the the before jury that explained carefully to the judge trial the outset the Wiggins, 84. Record appearing se. Wiggins be would dire, cross- jurors on voir prospective examined counsel, not wit- his own witnesses, examined prosecution’s examined the defense. for opening statement an and made nesses, as often at least prosecutor’s case objected to jury had closing statement If counsel. did Wig- only by because counsel, made compete one arrangement. agreed gins in advance wit- or interruptions of By counsel’s contrast, presence by in the questioned being nesses uninvited counsel’s perfunctory. Most jury and few were interrup- prosecutor.16 Such at the directed were comments pros during the course objections about registered Graham Id., at 196, closing argument. of witnesses questioning ecutor’s pedes involved These 501. 339-340, 420-421, 498, 304, 261-262, 301, conclusion, calling witness, leading the hearsay, such as matters trian id., 339-340, were one, at All but record, so on. in the not evidence

tions little threat to a defendant’s Faretta at rights, least when the defendant’s view those regarding objections has not been articulated. clearly On the rare occasions that disagreements between counsel and Wiggins were aired the trial jury judge consistently ruled Wiggins’ favor. This was a pattern more likely to reinforce than to detract from the appearance that Wiggins was con- his trolling own defense.17 The intrusions at Wig- gins’ trial were simply not or substantial frequent enough have seriously undermined Wiggins’ appearance before the in the status jury of one himself. representing

HH > Faretta affirmed the defendant’s constitutional appear on at stage his trial. We recognize made without Wiggins, comment from were most sustained the trial judge argument without prosecutor. from the We note that at first Wiggins, asked, agreed when that standby counsel objec- should make tions without first consulting Wiggins. Id., at 37a. On several occasions second trial Wiggins expressly joined objections or motions. 17 might suggested It very that the fact interrupted trial was by standby several times prevented Wiggins presenting from own defense effectively jury. argument This line does with scrutiny By stand here. our count the left the courtroom 15 times *17 between the time when the indictment was read and the time when the jury retired to question deliberate on the guilt. tell, As best we can four of interruptions these by counsel, id., were 287, caused at 307, 341, 413, by Wiggins four himself, id., 356, 389, 393, 403, at and seven by Id., 207, 244, court. at 327, 373, 392, Likewise, 424. we 15 count conferences, presence off-the-record but jury, Wig of the between gins and Eight appear counsel. id., by Wiggins, have initiated been 191, 201, 333, 340, 384, at (two), 450, id., 406 by standby counsel, and four 340, 407, 415, 469; at we cannot determine remaining who initiated the three, id., 280, 337, at Certainly 412. judge expressed the trial his view himself responsible delays interrup most of the Id., tions. at 397. circumstances, In these interruptions caused standby counsel did significantly control, ap detract from or control, pearance of over his se defense. 188 pas deux. a not a de solo, wish to dance

defendant preference. generally respect Standby must altogether, especially excluded when But counsel need not be of the or is with is outside express or tacit consent. The defendant the defendant’s appearances he to make his own as saw this case was allowed judgment unsolicited involvement was fit. In our held reasonable limits. within Appeals judgment is therefore Court

Reversed. in the result. concurs Justice Blackmun whom Justice Brennan and Jus- White, Justice with tice join, dissenting. Marshall an a funda Amendment accords accused

Just as Sixth right so this counsel, also, mental to the assistance of Court right dispense recognized, has “the correlative embodies lawyer’s help,” v. ex rel. with a Adams United States (1942), manage and to one’s 269, 317 U. S. 279 own McCann, (1975). It Faretta v. U. S. 806 California, defense. prosecutions I that in most criminal is, believe, “undeniable guidance than could better defend with counsel’s defendants Nevertheless, efforts.” at 834. Id., their own unskilled right that the to counsel is more than “Faretta establishes presented right competently case and ef to have one’s (1983) fectively.” Barnes, v. 745, Jones U. S. dissenting). per “The to defend is J., (Brennan, sonal,” S., 422 U. at and the text and structure Faretta, juris as well as the common-law Amendment, Sixth prudence emerged, comport the Amendment from which people part nearly our conviction, “a universal on the forcing lawyer upon unwilling an well as our courts, contrary if defendant his basic to defend himself truly he an Thus, wants to so.” 817. accused do voluntarily knowingly, intelligently, who elects to do *18 constitutionally so is entitled to refuse the services of a government-appointed attorney develop his own defense. Id., at 835-836. rH granting

After Wiggins’ request that he be rep- allowed to resent himself, the designated trial court appointed his two attorneys as counsel and made they it clear that purely served in a advisory capacity. attorneys One of the began soon to assume a more active proceedings, role Wiggins protested that counsel’s participa- unsolicited tion frustrating the conduct of his defense. The trial court informed that he would receive counsel’s aid whether he wanted it or not,1 and it refused to instruct standby counsel not to volunteer their assistance without a request Wiggins.2 from 1“DEFENDANT: Honor, Your I would like to myself. defend I would

appreciate it, you sir if would ask this man to let me defend myself.

“MR. GRAHAM: Certainly. Help yourself. “DEFENDANT: I grateful. would be I have solicited his assist- ance, Your Honor, I and don’t want it. “THE COURT: You going are get help and/or assistance from him you because are obviously not a lawyer.

“DEFENDANT: Yes sir. I am not a lawyer. “THE COURT: And trial, this go if we it, do into going is to be con- ducted according to the rules law.

“DEFENDANT: Yes sir. “THE COURT: And might there be an occasion when this Court is going to require you consult with them to what the proper proce- dure be.

“DEFENDANT: Yes sir. “THE COURT: You will have every right made you available to under law, as this Court is able to determine. “DEFENDANT: appreciate I that, Honor, Your but for assistant coun- sel to initiate something that the defendant want, does not I would like to consult the attorneys for advice. I appreciate will that, but for counsels [sic] to initiate something contrary to defense, defendant’s well, then, I appreciate couldn’t that.” App. A-8 —A-9. 2“THE COURT: You are waiving days the ten as far as Mr. Graham is concerned?

“THE Yes, DEFENDANT: Your Honor. *19 pretrial Wiggins, motions, numerous own, on his made directly witnesses, cross-examined own examined his attempted argue his case to witnesses, and State’s attorney for you expect to an “THE of that is COURT: basis yourself pro se? only that, I like fact, In not would Yes, Your Honor.

“DEFENDANT: assistance, may. Iif to waive his Now, you you of that. going to relieve is not “THE COURT: The Court you in this case. not use it. It’s available can use or Mr. sir, the court to ask Graham I would ask Yes but “DEFENDANT: here, if I do the defendant interfere with the initiative to not to take that? “THE COURT: Well— help I will ask for it mean, Mr. Graham’s I if I want “DEFENDANT: asking me for it. without appreciate it if he wouldn’t volunteer attorney and he has competent Well, Mr. Graham is “THE COURT: trying I he is to do thing and am sure what experience type in this

much not going to order him to do or you. I am not thinks is for is what he best arises, I it at that will act on anything. problem or situation If some to do him not to. going I to order time. am forcing Honor, I understand that Court Your do “DEFENDANT: on the defendant? the services of Mr. Graham availability, yes. “THE His COURT: Id,., that, at A-13— May except I Your Honor?” “DEFENDANT: A-14. counsel, Wiggins disagreements numerous between After of the trial court: again request the assistance moved me, I would May say peculiar I Your Honor and “DEFENDANT: it is my the assist- if I . conduct defense without really appreciate it could . . counsel, respect, interruptions of with all Mr. Graham. ance right. All “THE COURT: I move back I from now on. will

“MR. will sit third chair GRAHAM: one notch. Graham, I you because going I Mr. “THE COURT: am not to order you unless he counsel, suggest to you competent are but let me know object or your thing anyway, don’t you you do own but consults with — you consult requests that until the Court questions don’t ask unless and way something.” proper to do him because he doesn’t know the with also Record 345-346. at A-30 —A-31. See his own admonition, to act of Notwithstanding counsel continued this throughout disrupt presentation of defense accord and to the trial. stages

at both of the go bifurcated trial. But the trial did not smoothly, “continuously participated proceedings, both and outside the jury.” Wiggins v. Estelle, 681F. rehearing 2d 269-270, (CA5 1982). denied, 691 F. 2d 213 making In addition to ob- jections and motions too numerous argued to cite, counsel Wiggins, against moved for a mistrial his wishes at sev- *20 points during eral trial, and twice cursed, once in the presence jury.

Although petitioner participation characterizes counsel’s nothing “limited” and “intermittent,” could be further from Standby the truth. counsel intervened in a substantial man- Wiggins’ permission ner without during well over 50 times 3-day many course of the interruptions trial; pre- of these cipitated direct conflictsbetween and counsel, often presence jury. App. ofthe Although See A-3—A-54. appears the trial court to calling have resolved the conflicts ruling Wiggins’ for a disrupted favor, their mere existence proceedings and through turned the trial into an ordeal required which the g., to suffer. e. See, id., at points A-29; 423. during Record At several trial, more- blatantly over, counsel Wiggins’ attempt interfered with calling his ruling defense in a manner not for a from g., App. the bench, see, e. A-20, and we of course have no way knowing Wiggins’ the extent to which defense was subtly adversely by undermined or affected counsel’s exten- participation. sive unsolicited Appeals

The concluding Court of had little trouble that expressly tacitly approved counsel’s conduct, and the trial prevented conducting court, from his own defense. Although Appeals recognized the Court of that courts empowered appoint standby are counsel for defend- “court-appointed standby ants, declared that counsel is ‘to Standby be seen, but not heard.’” F. coun- 2d, at 273. compete sel, the Fifth Circuit clear, made “is not to supersede defendant or his Rather, defense. used as only, or not used advisory purposes . . . for omitted). Ibid, (footnotes fit.” sees the defendant interjec- counsel’s cases in some recognized that court necessary is not reversal innocuous”; “few will be tions acting interests in the best counsel, “every overzealous time permission.” prior volunteer[s] without aid client, of his intervention substantial But the continuous 274. Id., at repeated that demands Wiggins’ despite standby counsel, “anything but had not have could passive role, play a he destroyed own jury. It also impact negative conducting Ms defense.” he was perception that Appeals held thus original). The Court (emphasis in had demonstrate had failed the State he was prejudiced been relief. entitled respects, I would in several the Court Disagreeing with Appeals. the Court judgment of affirm *21 hHHH used standard the seen-but-not-heard that holds Court standby determining whether Appeals in of the Court self- of on improperly encroached counsel the conduct rigid restrictive too representation too is the Court however, above, indicated standby As counsel. of volunteered every of instance hold that not Appeals would would vio- instances every of such series even or assistance it, would I understand rights. Nor, late defendant’s a directing judge from holding prevent a Appeals’ Court necessary standby where counsel with consult to a defendant insisting a that from or the trial proper conduct for respect when ground with rules agree some defendant agree I trial. inject into himself standby could edu- be burdened should judge himself the trial he should procedure and in trial cating defendant know he needs to what learn the defendant to insist able from judgment counsel. The below is not to the contrary. my In Appeals view, the Court of announced a proper wholly standard, one that is consistent with Faretta’s ruling that “a State objection by over the ac- —even appoint ‘standby a counsel’ to aid the if cused— accused requests help,” when accused Faretta v. California, applied S.,U. at 835, n. 46, and it in acceptable way. an In any event, it seems to me proffers poor that the Court a sub- approach stitute for the Appeals. the Court of

H—I I—I As the Court observes, presented ante, at 173, Faretta situation which wholly the trial court denied a defendant’s request proceed pro required se and him to address the charges only through State’s appointed attorney. Wig- gins, unlike proceed Faretta, allowed to pro se and took an active role in his trial. The Court concludes, on the basis of its examination of the record, that was afforded “a present fair chance to way,” case his own ante, at 177, and that “counsel’s unsolicited involvement was held within reasonable limits,” ante, at 188. It arrives at this conclusion by applying two-part my test judgment, that, in provides guidance little or no judges, imposes and trial impossible, if difficult, not appellate burdens on courts, and undoubtedly will lead to the swift erosion of defendants’ proceed constitutional se.

Under the Court’s new necessary test, to determine whether se defendant retained “actual control over [chose] the case he jury,” ante, at 178, whether “destroyed] jury’s perception [was] that the defendant representing him- *22 Although self,” ibid. purports protect this test all of underlying the holding values our in Faretta, it is unclear whether it can achieve this result. long pro

As as the say, defendant is allowed his the first prong of the Court’s test accords counsel at a bench virtually jury presence aof any proceeding the outside trial or argu- legal any or factual discretion untrammeled object. limits not does the defendant to which ment by the “actual participation in this context placed counsel’s on apparent First, counsel real. than are more test control” any significant substantially interfere “make or not directly overrides Ibid. Unless tactical decisions.” judge, however, strategy in the a defendant’s wholly incapable of be almost apparent will courts it is par- of counsel’s effects not-so-subtle assessing and the subtle suggests that the Court Second, ticipation defense. on the standby counsel pro se defendant the between conflicts normally the left to defense’s “matter[s] that would on the defendant’s resolved in 181, will be at discretion,” ante, produce direct con- disagreements many will favor. But position over one choose court to requiring a trial flicts apparently opinion, the burden Court’s Under the another. comprehend sub- se defendant the fall on will court to resolve. the trial conflicts for create and to missions incapa- surely prove way, test applied will Court’s If this autonomy from safeguarding in individual interest ble of right derives. the Faretta which pro se defendant’s

Although of a more solicitous the Court jury, a intervenes before interests when shortcomings. To prong similar suffers from test’s second point appellate courts can discern that trial and the extent substantially un- counsel’s unsolicited at which jury, appearance before se defendant’s dermines deci- doubts, their I harbor substantial matter which about individual the accused’s extent, to a certain “affirm will, sions they autonomy.” do so will dignity Ante, at 178. But focusing the de- incompletely, views on how emphasis opinion majority ignores Faretta’s fendant, sys- justice perception of the criminal the defendant’s own implies that supra, at California, Faretta v. tem, actually harmless- result-oriented the Court adheres 8. 177-178, n. purports reject. Ante, error standard *23 guide standby As a counsel and lower courts, more- two-part over, the clearly Court’s test is deficient. Instead encouraging accept counsel to a limited role, the Court plainly participate despite invites them to their clients’ con- trary objections instructions until the clients renew their trial courts required draw the line. Trial courts to rule on objections se defendants’ to counsel’s intervention also They clearly are prevent left at sea. must standby counsel overtly muzzling from their se clients and resolve certain in conflicts defendants’ opinion places favor. But the Court’s any, if few, other clear limits on participa- counsel’suninvited requires tion; instead it trial courts to make numerous sub- jective judgments concerning the effect of counsel’s actions rights. on defendants’ Faretta gener- Because trial courts ally only will consider isolated actions of expressly challenged by pro only appellate se defendants, position courts impressions to form on the basis of the entire trial. These courts, however, also will suffer from the lack of clear inability standards and from their or unwillingness to inquiries make the factual necessitated two-part the Court’s test.

In I short, believe that the Court’s test is unworkable and insufficiently protective of the fundamental interests we rec- ognized in Faretta.

IV inappropriateness of the Court’s standard is made manifest standby the Court’s conclusion conduct of passes this case muster under stand- frequently In ard. grievously exceeding proper role counsel, the more appointed active of attorneys usurped distracted prerogatives,3

3As has been cogently observed in a related context: “[N]umerous strategic and tactical decisions must be made in the course of trial, many criminal of which are made in circumstances that do allow extended, if any, Every experienced consultation. advocate can recall the disconcerting experience of trying to conduct the examination of a witness disrupted the under defense, trial,4 altered the tenor of Wiggins’ perception fate, he his own controlled mined *24 at S., U. induced belief— California, Faretta v. sincerely assuredly unfounded, but held nevertheless— most against App. contrive[d] ibid.; him,” see “the law undoubtedly and 679, 700-701, 716-717, A-81; Record A-78 — reduced eyes credibility prejudiced him the jury. allowing intervention to continue de In such of the spite Wiggins’repeated

requests the trial court cease, self-representation. Wiggins’ right clearly The denied right means little one’s own defense and control any “standby” attorneys free to take if remain indeed one’s they with the desired de choose, action whether consistent any point during In at the trial. it, fense or inimical to Wiggins might advantage or satisfaction short, whatever g., self-representation, hoped e. see, from have to derive 6-3.6(a) (2d 1980), ABA ed. Standards for Criminal Justice surely of counsel’s nullified the trial court’s tolerance conduct. by pinning conclusion

The reaches a different Court proceed pro se on interference with the blame for the by dissecting into activities himself and counsel’s categories failing im their overall to consider discrete required pact. the Court tactics, course, These both normally factfinding, left for district a function do its own scrutiny. approach Particu can courts. Neither withstand ‘plucks arguments judge’s charge while the client opposing or follow or the ABA attorney’s offering gratuitous suggestions.” Stand- sleeve’ (2d 1980). ards for 4-5.2 ed. Criminal Justice need for nu Among things, standby actions created a other jury. disruptive, vexa hearing of the merous conferences out of the have tious, repeated conferences possibly prejudicial effects of bench acknowledged id., 15-3.9, expressly long recognized, been and indeed were attempt g., e. See, The Court’s the trial court. Record 423. Wiggins’ conduct many interruptions solely to attribute of these unpersuasive.

larly expressly when the trial court has refused to order purely advisory capacity, pro counsel to serve in a reasonably expected object se defendant cannot to coun every only sel’s action. Not would the trial court’s initial de impress upon futility cision tend to the defendant the of con tinuing objections, repeated objections destroy but also could impression convey jury. the defendant seeks to Accordingly, acquiescence a defendant’s in a violation of his judicial Faretta should not immunize that violation from Similarly, review. the fact that a defendant, approval, per court’s has authorized counsel to representational form give a discrete function should not rise presumption to a that the defendant also has sanctioned sub sequent any interference in the conduct of the trial. In *25 glaring by the most event, intrusions counsel occurred with Wiggins’ blessing.5 out many types in

Considered isolation, of interference likely appear in se defense will incon- sequential. compartmentalize The Court’s desire to coun- my sel’s while in actions, has, understandable, view, led it to ignore frequent participa- the cumulative effect of counsel’s Wiggins’right tion on himself. defend To the extent that proposition every transgres- the Court rests on the that not sion of I constitutes reversible error, have quarrel reasoning. no with its A trial court’s tolerance of participation by standby isolated and innocuous counsel could perhaps Appeals’ be characterized —in line with the Court holding harmless error; constitutional one also could —as participation simply conclude that such does not rise to the level of a constitutional violation. The second formulation is

5Although the Court attributes counsel’s extensive penalty phase appearing of the trial to a conclusion interests, was not in equally plausible assumption Wig his best an is that gins simply gave up attempted self-representation as a result of the approval trial court’s repeated interruptions guilt phase. of counsel’s in the 198 between to choose unnecessary is but it

clearly preferable,6 under prevail should since this case resolve them to view. either

V from different if a standard to me seems It also case, this to govern is Appeals Court by the applied 6 harm the traditional renders pro se to defend “The nature other constitutional inapposite. Unlike peculiarly error doctrine less The normal is not ‘result-oriented.’ represent oneself rights, the challenged where the cases doctrine error operation of the harmless or to his defense to facilitate the defendant right accorded error concerns de contrast, recognize we By ... suspect him evidence. insulate from that he out of the belief primarily pro se not right to defend fendant’s case, rather of defer winning his but out chance thereby a better stands ultimately responsible for person is that each axiomatic notion ence to the defendant the law. A fate, including position before choosing his own trial and to embrace in his hour of alone right to stand has the moral States, F. Chapman v. United 553 that course action.” consequences of omitted). 1977) (footnote (CA5 886, 891 2d (CA5 1983); Bittaker v. Estelle, 717 171, 173, 1 2d n. Moreno v. F. See (CA9 denied, 913 1978), 441 U. S. Enomoto, 400, cert. 402-403 587 F. 2d 76, 90-93, F. 473 Dougherty, 154 U. S. App. D. C. States v. United (1979); Plattner, 271, 273 States v. (1972); 330 F. 2d United 1113, 1127-1130 2d 52, 352, 356, Rptr. Tyner, 76 Cal. (CA2 App. 143 Cal. People v. 1964); 3d 489, 448, 462-463, P. 2d People Sharp, Cal. 3d (1977). 499 see v. 7 54 But State, 33, (1973); Burney v. 244 Ga. (1972), denied, 944 cert. 410 U. S. Kirby, (1979); State v. 543, 547, denied, 444 37, cert. U. S. 257 S. E. 2d (1977). Walker v. 648-649, 424, 254 N. 2d See also W. 198 Neb. *26 (CA9 1979) (Carter, J., dissenting). Loggins, 608 F. 2d completely the trial court denies defendant’s As is the when case application harmless-error self-representation, of result-oriented of pro- one, like this where the defendant allowed standard cases standby counsel inhibited se but appointed the conduct of his ceed right. If counsel’s so, denigration of the ability to do would result in the minimis, consistent with be characterized as de it is more interference can violation self-representation conclude that no nature of error. say constitutional than to that the was harmless occurred violation autonomy signifi- here, If, is the case acted substantial defense, se defendant’s of his cantly presentation with the interfered question automatically any inquiry into the reversal follow without should the trial. likely the outcome whether the constitutional violation affected announcing remanding Court should be content with it and Appeals light Court reconsideration of that undertaking apply rather than itself standard, the new standard in the first instance. That course would more com- port proper with the roles and functions of both this Court appeals. and the courts of respect, judg-

With all due I dissent and would affirm the Appeals. ment of the Court