Hofstra Law Review


Both the right to self-representation and the right to representation by counsel are fundamental rights secured by the same Sixth Amendment text, and the consequence for preventing a defendant from freely exercising either right is automatic reversal of conviction. Most defendants proceed to trial having clearly elected either competing right, thereby thwarting the danger of automatic reversal. Certain manipulative defendants, however, will pit these rights against each other by deliberately failing to elect either one, placing trial courts in precarious positions with reversible error on the line. When a defendant fails to choose either of his Sixth Amendment rights, a choice must be made for the defendant if trial is to be conducted in a timely manner. Unfortunately, there is no uniform solution to this issue, and courts have responded to this manipulative conduct by sometimes imposing representation by counsel while other times imposing self-representation, despite no real distinction in facts, and often on the eve of trial. Such inconsistency has left the law muddled and confused, and has only heightened the danger of automatic reversal on appeal. To bring uniformity to this area and prevent defendants from manipulating courts, this article proposes the routine use of counsel for the obstructionist defendant who fails to make the requisite Sixth Amendment election. The solution proposed in this article is simple. Rather than being forced to participate in the defendant’s game all the way through the start of trial, where only then can a court be assured that any request for self-representation may properly be denied as untimely, a court faced with an unruly defendant should instead be permitted to make a factual finding that the defendant is refusing to make a clear choice between the right to counsel and the right to self-representation. Such a finding could be made at any point before trial, and, once made, would give the court sole discretion to make the Sixth Amendment election for the defendant, thereby precluding further manipulation. By requiring one clear path for the obstructionist defendant, this article’s proposal will better effectuate the Sixth Amendment’s fair trial guarantee by ensuring adequate representation for all defendants, will facilitate the prompt administration of justice, and will provide courts with a clear and easy-to-administer solution to this issue.

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