Does An Overly Intrusive Participation by Standby Counsel Defeat the Right to Self Representation ?
In McKaskle v. Wiggins, 465 U.S. 168, 176, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), the United States Supreme Court held that the Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) decision established no "absolute bar" on unsolicited participation by standby counsel.
However, the Court concluded that Faretta does not require a trial court to permit dual representation and further recognized that overly intrusive participation by standby counsel can defeat the right to self representation:
The right to speak for oneself entails more than the opportunity to add one's voice to a cacophony of others. . . . the objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel.
In proceedings before a jury the defendant may legitimately be concerned that multiple voices "for the defense" will confuse the message the defendant wishes to convey, thus defeating Faretta's objectives.
Accordingly, the Faretta right must impose some limits on the extent of standby counsel's unsolicited participation. Id. at 177.
In the context of proceedings held outside the presence of a jury, the Supreme Court held that "if standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded." Id. at 178.
The Supreme Court provided two specific instances in which the right to self-representation is not infringed upon even though standby counsel participates without solicitation by the defendant:
(1) when standby counsel assists the defendant to overcome procedural or evidentiary obstacles toward the completion of a task that the defendant wishes to complete;
(2) when standby counsel assists the defendant to ensure compliance with basic rules of courtroom procedure and protocol. See id. at 183-84.
The Court has previously held that appellate counsel was not ineffective for the failure to challenge on direct appeal the alleged limitations that were placed on standby counsel in a capital case. See State v. Knight, 866 So. 2d 1195, 1204 (Fla. 2003), cert. denied, 541 U.S. 1066, 124 S. Ct. 2396, 158 L. Ed. 2d 969 (2004).