28 U.S.C 1654 Interpretation

In Michigan, a criminal defendant's right to counsel has two important constitutional sources.

The best known source is the Sixth Amendment to the United States Constitution, which provides in pertinent part that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of Counsel for his defence." Congress codified this principle as it applies to federal courts in 28 USC 1654, which prescribes that "in all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

The 1963 Michigan Constitution includes language similar to the Sixth Amendment in article 1, § 20, which states that "in every criminal prosecution, the accused shall have the right . . . to have the assistance of counsel for his or her defense . . . ."

This right to counsel, as opposed to the right to counsel that springs from the Fifth Amendment and Const 1963, art 1, § 17, exists "at or after the initiation of adversary judicial proceedings against the accused by way of a formal charge, preliminary hearing, indictment, information, or arraignment." People v. Bladel, 421 Mich 39, 52; 365 NW2d 56 (1984).

This right to counsel is so fundamental that it "does not depend upon a request by the accused . . . ." Id., citing Brewer v. Williams, 430 U.S. 387, 404-405; 97 S Ct 1232; 51 L Ed 2d 424 (1977).

While 28 USC 1654 does guarantee the right to proceed in propria persona in federal courts, there is no express provision in the United States Constitution extending the right to self-representation.

As a result, some courts initially struggled to determine whether the principle that a defendant cannot be forced to accept legal counsel in all situations was, in fact, a constitutional guarantee included in the Sixth Amendment right to counsel. See Carter v. Illinois, 329 U.S. 173, 174-175; 67 S Ct 216; 91 L Ed 172 (1946). Apparently guided by the same concern expressed in the well-worn adage that the person who acts as his own attorney has a fool for a client, see generally People v. Ahumada, 222 Mich App 612, 616-617; 564 NW2d 188 (1997), some courts were first inclined to hold that a defendant does not have a federal constitutional right to self-representation, see People v. Sharp, 7 Cal 3d 448; 103 Cal Rptr 233; 499 P 2d 489 (1972).

However, the United States Supreme Court clarified that the right to self-representation is a Sixth Amendment guarantee in its decision in Faretta v. California, 422 U.S. 806, 819-820; 95 S Ct 2525; 45 L. Ed. 2d 562 (1975), in which the Court reasoned:

It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him" and who must be accorded "compulsory process for obtaining witness in his favor."

Although not stated in the Amendment in so many words, the right to self-representation--to make one's defense personally--is thus necessarily implied by the structure of the Amendment.

The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

The counsel provision supplements this design. It speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant.

The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment shall be an aid to a willing defendant--not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. to thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment.