State v. Burkhart

541 S.W.2d 365, 1976 Tenn. LEXIS 542
CourtTennessee Supreme Court
DecidedJune 28, 1976
StatusPublished
Cited by105 cases

This text of 541 S.W.2d 365 (State v. Burkhart) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

Opinions

OPINION

HENRY, Justice.

We granted certiorari in this criminal action in order to examine the constitutional right of a criminal defendant, who is represented by counsel, to cross-examine witnesses and to argue his own case.1

The Court of Criminal Appeals reversed defendant’s conviction for first degree burglary, and awarded a new trial, upon the authority of Wilson v. State, 50 Tenn. 232 (1871) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

I.

A proper construction of the Federal and State constitutional provisions is dependent upon an understanding of the historical background of the rules relating to the testimony of a criminal defendant and his right to counsel. We summarize the historical data contained in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).

For centuries, parties to civil and criminal actions were disqualified as witnesses. In sixteenth century England, a criminal defendant could not testify, nor call witnesses in his own behalf nor be represented by counsel. Quoting from 1 Stephen, History of the Criminal Law of England, p. 326, the Court, in Ferguson, noted that the criminal trial of that period has been described as:

[A] long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other’s arguments with the utmost eagerness and closeness of reasoning. 365 U.S. at 574, 81 S.Ct. at 759.

By the seventeenth century he was allowed to call witnesses, but still could not testify in his own behalf.

Disqualification for interest was in vogue when this nation was formed. Neither in England nor in this country could criminal defendants testify in their own behalf. With the advent of the nineteenth century this disqualification came under attack. This was long after the adoption of the Constitution of the United States in 1788 and of Tennessee in 1796.

In 1859 Maine became the first state to permit criminal defendants to testify — and this only on a limited basis. In 1864 Maine adopted a general competency statute for criminal defendants, “the first such statute in the English-speaking world.” 365 U.S. at p. 577, 81 S.Ct. at p. 760. By the end of the nineteenth century every state of the American Union had adopted such a statute except Georgia, and this was corrected by the decision in Ferguson, supra.

By Chapter 79 of the Public Acts of 1887 the Tennessee General Assembly declared:

In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein. (Sec. 40-2402, T.C.A.).

Prior thereto, in order to achieve a measure of justice by appeasing the rigor of this common law rule, there came into being the practice of permitting the use of unsworn statements. As a part of the common law, or by statutory sanction in some states, this practice was followed; however, it was generally recognized to be “simply a stopgap solution for the serious difficulties for the accused created by the incompetency rule.” 365 U.S. at 585-86, 81 S.Ct. at 765.

In Ferguson, supra, the Court commented on this rule as follows:

“The custom grew up in England out of a spirit of fairness to give an accused, who was otherwise disqualified, an opportuni[367]*367ty to tell his story in exculpation." State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rule was therefore held in many jurisdictions also to abolish the unsworn-statement practice. “In such cases the un-sworn statement of an accused becomes secondary to his right of testifying under oath and cannot be received.” State v. Louviere, supra, 196 La., at 119, 124 So., at 192. “The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an un-sworn statement was removed.” Rex v. Krafchenko, [1914] 17 D.L.R. 244, 250 (Man.K.B.). 365 U.S. at 586, 81 S.Ct. at 765. State

Along with the competency statutes and the unsworn statement practice, there must be considered briefly the evolution of the right-to-counsel requirement. For the history of this phase of the historical background we turn to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

This right has existed throughout our existence as a nation, but it represents a deviation from the early common law. As observed by the Court in Faretta, “[a]t one time, every litigant was required to ‘appear before the court in his own person and conduct his own cause in his own words.’ ” 422 U.S. at 823, 95 S.Ct. at 2535, 45 L.Ed.2d at 575, quoting from 1 Pollock & Maitland, History of English Law (1909) n. 16, at 211.

In civil and misdemeanor cases there was a right to counsel but accused felons and traitors were “on their own.” Due process rights were unknown. Gradually, and by 1836, in England the ban on counsel in felony cases had been lifted. But, at no point during this evolution was counsel ever forced upon the defendant against his will. It is interesting to note that, according to Faretta, the only tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant was the Court of the Star Chamber, in the late sixteenth and early seventeenth centuries.

It is a fact of history that in Colonial America lawyers were somewhat less than popular. Lawyers were not banned from appearing in behalf of clients, but in several colonies, Massachusetts, Virginia, Connecticut and the Carolinas, they were prevented from charging for their services.

The basic right of self-representation was thus thrust upon early colonials and it is a part of our heritage.

The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the “right to counsel” meant to the colonists a right to choose between pleading through a lawyer and representing oneself. After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion. The right to counsel was clearly thought to supplement the primary right of the accused to defend himself, utilizing his personal rights to notice, confrontation and compulsory process. And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally. 422 U.S. at 828, 95 S.Ct. at 2537, 45 L.Ed. at 578-79.

All of this is the background against which the Sixth Amendment right to counsel, the provisions of Tennessee’s Constitution, and state and federal cases must be considered.

II.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

IN RE EASTON G.
Court of Appeals of Tennessee, 2025
State of Tennessee v. Marcus Anthony Pearson
Court of Criminal Appeals of Tennessee, 2025
State of TEnnessee v. Robert Joseph Atkins
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Martin Aron Harasim
Court of Criminal Appeals of Tennessee, 2025
Christopher Terrell Shipp v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2025
Darrnell Treshawn Wiggins v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Daniel McCaig
Court of Criminal Appeals of Tennessee, 2025
Rivera v. Boyd
E.D. Tennessee, 2022
Oliver v. Settles (PSLC1)
E.D. Tennessee, 2020
State of Tennessee v. Jerry A. Thigpen
Court of Criminal Appeals of Tennessee, 2020
Frederick Wendell Thomas v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2018
State of Tennessee v. Nathaniel Morton Champion
Court of Criminal Appeals of Tennessee, 2018
State of Tennessee v. Jacqueline Allen
Court of Criminal Appeals of Tennessee, 2017
Aaron Malone v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2017
Donald Wallace v. David Sexton
570 F. App'x 443 (Sixth Circuit, 2014)
State of Tennesse v. Cleo Henderson
Court of Criminal Appeals of Tennessee, 2013
Artis Whitehead v. State of Tennessee
402 S.W.3d 615 (Tennessee Supreme Court, 2013)
State of Tennessee v. Paul Fred Chappell
Court of Criminal Appeals of Tennessee, 2012
State of Tennessee v. Michael W. Parsons
437 S.W.3d 457 (Court of Criminal Appeals of Tennessee, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
541 S.W.2d 365, 1976 Tenn. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burkhart-tenn-1976.