Abstract
The challenge of achieving an acceptable balance between respecting the autonomy of criminal defendants by allowing them to self-represent, and protecting the integrity of the judicial process by limiting this right when mental illness impedes such efforts, has been longstanding. Although courts have long tended to allow self-representation, a recognized ability of states to limit such rights was articulated by the U.S. Supreme Court in Indiana v. Edwards (2008). Because Edwards outlined no specific test for representational competence, numerous scholars have proposed criteria over the last 15 years, with variable frameworks and points of emphasis. We synthesized the published literature since Edwards on the evaluation of pro se competence. A search of electronic databases was conducted using relevant search terms, yielding 31 identified articles after review of titles, abstracts, full-text articles, and reference lists. Overall, in evaluating pro se competence, experts advise assessing whether a defendant can demonstrate the cognitive, communicative, and emotional abilities to conduct an adequate defense, engage in constructive social intercourse, provide a rational reason for pursuing self-representation, and willingly work with standby counsel. Using these factors, we propose a representational competence standard that balances defendant autonomy with court paternalism. Implications for future research are discussed.
The right of a criminal defendant to self-representation has long been considered by the U.S. Supreme Court as closely related to individual autonomy and dignity recognized by the Constitution.1,2 For some criminal defendants, symptoms of mental illness can hinder the ability to perform the legal tasks necessary to conduct an adequate defense (i.e., can interfere with pro se competence).
In Faretta v. California,1 the U.S. Supreme Court held in 1975 that preserving a defendant's right to self-represent, based on the importance of preserving the defendant's dignity, autonomy, and Sixth Amendment rights to confront one's accusers directly, outweighed the risk of an unjust outcome caused by impaired ability to self-represent competently. Eighteen years later, in Godinez v. Moran,2 the Court held that the competence standard for a defendant to waive the right to counsel was no greater than the standard for competence to stand trial. The majority again held that an individual's right to self-represent, even when resulting in an unfavorable outcome, was more important than ensuring a just trial.
In 2008, in Indiana v. Edwards,3 the Court shifted from its prior rulings in Faretta and Godinez, placing greater emphasis on the need to ensure the integrity of the judicial process rather than a defendant's autonomy and dignity. The Edwards Court noted that in Godinez, the standard for assessing competence to self-represent was felt to align with the standard for assessing competence to stand trial outlined in Dusky v. U.S.4; that is, that the defendant possessed “sufficient present ability to consult with his lawyer with a reasonable degree of understanding—and whether he has a rational as well as factual understanding of the proceedings against him” (Ref. 4, p 402). The Edwards Court stated that at the time of Godinez, this finding was considered reasonable because the defendant in Godinez merely wanted to represent himself to present a guilty plea, whereas in the Edwards case, the defendant intended to proceed to trial and conduct his own defense.
The Edwards Court noted that although the Dusky standard was helpful as a starting point, it was insufficient for testing a defendant's competence to conduct a defense because it required only a passive understanding of one's legal situation and ability to consult with one's attorney, as opposed to the more cognitively and legally demanding tasks involved in representing oneself. Those tasks involve organization of the defense, making motions, arguing points of law, conducting voir dire, examining witnesses, and addressing the court and jury. The Court indicated that the decision to grant a defendant's pro se request would be at the discretion of the trial judge, who would “often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant” (Ref. 3, p 177).
Although the Edwards Court ruled that a state may require a higher competency standard for self-representation, it did not mandate this, and many states have since chosen not to adopt such a higher standard. For example, in State v. Barnes,5 the Supreme Court of South Carolina held, “We decline to impose a higher competency standard upon an individual who wishes to waive his right to an attorney and represent himself at trial than that required for the waiver of other fundamental constitutional rights afforded a criminal defendant, such as the right against compulsory self-incrimination; the right to trial by jury; and the right to confront one's accusers” (Ref. 5, p 550). Similarly, in People v. Davis,6 the Supreme Court of Colorado reversed an appellate court decision prescribing a new, Edwards-based standard for evaluating a criminal defendant's competence to waive the right to counsel, noting that the state's “existing two-part framework for determining whether a defendant has validly waived the right to counsel affords trial courts sufficient discretion to consider a defendant's mental illness” (Ref. 6, p 952). This two-part framework included determination that a defendant was competent to waive the right to counsel, as measured by trial competence, and was waiving the right knowingly, intelligently, and voluntarily.
Since Edwards, nearly three times as many states have adopted or have indicated a willingness to adopt a higher competency standard for self-representation such as those equating a pro se competence standard to a Dusky standard.7 The Edwards Court did not articulate a specific test to determine a defendant's ability to complete trial-conducting tasks. Many legal and forensic mental health scholars have since proposed criteria to assist judges and forensic practitioners in assessing pro se competence. Although potentially helpful, their frameworks have varied and, in some cases, recommendations have been conflicting.8,9 This review aims to provide a comprehensive summary of the published literature to date on evaluation of pro se competence in the years following the U.S. Supreme Court's decision in Edwards.
Methods
A search of the electronic databases PsycINFO, Ovid MEDLINE, PubMed, and Index to Legal Periodicals and Books (with Full Text), from database inception to present, was conducted on February 25, 2023, using the search terms “competency,” “competence,” “represent,” “self,” “pro se,” “evaluation,” “assessment,” and “Indiana v. Edwards.” The initial search revealed 556 citations. After review of titles and abstracts and removal of duplicates, 27 citations remained. After review of full-text articles, 15 citations remained (12 were excluded for not relating to the question of pro se competence assessment). An additional 16 articles were identified from review of reference lists, resulting in 31 articles reviewed that were relevant to evaluation of pro se competence in the years following the Edwards decision.
Inclusion criteria for this review consisted of the following: published in English, published after June 2008 (the date of the Edwards decision), pertained to the topic of evaluation of pro se competence in criminal defendants, and peer-reviewed (or at least editor-reviewed and submitted by faculty or trainees in an accredited law or forensic psychiatry training program) in the author's field of practice (e.g., law, forensic mental health). Citations not meeting all the above criteria were excluded from review.
Results
The 31 identified articles fell into one of three categories: articles highlighting a legal (most often appellate or state supreme court) case related to pro se competence assessment; articles articulating general opinions or recommendations related to the assessment of pro se competence; and articles offering specific recommendations for criteria or guidelines to be used by forensic or legal professionals in the assessment of pro se competence.
Cases Related to Pro Se Competence
We identified eight such publications,10,–,17 five of them referencing federal circuit court appellate cases10,12,14,–,16 and three of them state supreme court decisions.11,13,17 These articles are presented in Table 1.
Case-Based Publications Illustrating Questions Related to Pro Se Competence
One common theme from our review of the cited cases is that competence to waive the right to counsel is given considerable weight by trial and higher courts in considering pro se competence.10,–,14,17 In many cases, the deciding courts discussed competence to waive counsel exclusively, or at least more emphatically than competence to represent oneself, supported by a Godinez interpretation that competence to waive the right to counsel requires no higher standard than competence to stand trial, and is the relevant legal inquiry in cases where representational competence is questioned.2 In these cases, trial or appellate courts held that defendants were appropriately deemed competent to self-represent if their waivers of the right to the assistance of counsel were “knowing, intelligent, and voluntary” (Ref. 2, pp 401–402). In at least three cases,11,13,14 courts held that a defendant's competent waiver of counsel obviated the need to assess separately representational competence.
Other points variably highlighted by these authors include that an unusual defense strategy,15 voluntary uncooperativeness,14 lack of educational achievement,16,17 and lack of technical knowledge17 do not necessarily reflect pro se incompetence; that representational competence should be assessed as related to mental functioning (including understanding of the pro se request)16; and that representational competence does not require perfect competence.11
General Opinions on Pro Se Competence
Authors in this category offered general opinions or recommendations about representational competence. We identified nine such publications (see Table 2).18,–,26
General Opinions and Recommendations Related to Assessment of Pro Se Competence
Overall, these authors pointed out the need for a higher standard than the Dusky trial competence standard in evaluating a defendant's pro se competence,20,22,–,25 given the different demands of each task as noted in Edwards. These authors asserted the need for clarity in the types of tasks a pro se defendant needs to be able to complete to conduct an adequate defense20,25 and in what mental (e.g., cognitive, emotional) capacities are needed to prepare a defense and conduct a trial.22 Some explicitly advised the use of mental health professionals to assist courts in determining a defendant's pro se competence,20,22,23,25 whereas others appeared to express opinions and recommendations targeting legal professionals or courts.19,24,26 Regarding the latter, one author argued that a higher standard than Dusky for competence to waive the right to counsel would preserve both the interests in dignity and autonomy of the defendant with mental illness and the interests of the court in a fair and just legal process and would make unnecessary a standard for competence to represent oneself.19
Some scholars emphasized the importance of a defendant's right to self-representation by virtue of constitutional provision23 and consideration of the psychological motivations for self-representing.18,26 Barth23 argued that the right to self-representation is a constitutional right grounded in the Sixth Amendment, and therefore competence to proceed pro se should be a restorable right, meaning that defendants deemed incompetent to self-represent because of a mental illness should be provided an opportunity to be treated to restore pro se competence, rather than have counsel forced on them. She likened this suggestion to how defendants deemed incompetent to stand trial or incompetent to plead guilty can be treated to restore competence in these respective spheres. She advised that a mental health professional should be appointed to assess whether a defendant is competent to proceed pro se, and if not, whether the defendant could be restored to pro se competence by being permitted to elect to take medication. Morris and Frierson18 asserted that, contrary to common perception, pro se defendants in most cases are not experiencing mental illness or displaying foolishness and have legitimate reasons for seeking to represent themselves. In a similar vein, Cabell26 noted that among a variety of psychological motivations, ideological interests (e.g., based on religious or political beliefs) and dissatisfaction with quality of appointed counsel often generate concerns about mental illness but do not necessarily imply incompetence to self-represent.
Other authors highlighted significant drawbacks and risks associated with pro se representation. For example, a survey of 986 state court judges by the American Bar Association Coalition for Justice21 showed that 62 percent of judges felt case outcomes were worse with self-representation, with the most common reasons for these outcomes being failure to present necessary evidence (94%), procedural errors (89%), ineffective witness examination (85%), failure to object properly to evidence (81%), and ineffective arguments (77%). In addition, 78 percent of judges noted that courts were negatively affected by pro se representation, most commonly via slowed procedures (90%), lack of fair presentation of relevant facts (56%), and even the impartiality of the court being compromised to avoid injustice (42%) when judges must act in place of an attorney to ensure justice was served. Similarly, Dillard24 argued that in capital cases, “borderline-competent defendants” (i.e., those competent to stand trial with the assistance of counsel but not competent to proceed pro se) pose a special risk that the death penalty will be imposed despite mitigating factors that would call for a less harsh penalty (e.g., presence of severe mental illness). Referencing the U.S. Supreme Court's decision in Atkins v. Virginia,27 in which the Court ruled that executing people with intellectual disabilities violates the Eighth Amendment's ban on cruel and unusual punishment, Dillard asserted that forcing marginally competent defendants with severe mental illness to face the death penalty similarly violated the moral dignity of criminal proceedings. She advised that such defendants be categorically exempted from the death penalty by being found incompetent to stand trial when death is a possible sentence and competent to stand trial when life in prison without the possibility of parole is a possible sentence.
In summary, authors providing general opinions or recommendations regarding pro se competence have argued that standards for waiving the assistance of counsel or for representing oneself should be higher than the Dusky standard for competence to stand trial, in disagreement and agreement, respectively, with the U.S. Supreme Court rulings in Godinez and Edwards. These authors advocate for a more stringent set of criteria to assess representational competence, in contrast to holdings in the previously cited federal circuit and state supreme court cases in which heavy reliance is placed on a Godinez approach of foregoing further consideration of criteria for representational competence in the context of a knowing, intelligent, and voluntary waiver of the right to counsel.
Criteria for Assessing Pro Se Competence
This category comprised legal and forensic scholars who provided specific recommendations for criteria to assess a criminal defendant's pro se competence. As shown in Table 3, we identified 14 such publications,7,–,9,28,–,38 nine of them written in a legal framework and addressed to judges or courts,8,9,28,29,33,34,36,–,38 three from a mental health framework mainly addressing forensic evaluators,7,31,35 and two from both a legal and mental health framework with courts and forensic evaluators as the target audience.30,32
Criteria Proposed over the Last 15 Years for Evaluating Pro Se Competence
Overall, these authors recommended criteria for assessing pro se competence that include whether a defendant has the cognitive,7,8,28,–,38 communicative,7,9,28,–,31,33,–,38 and emotional27,30,32,33,35 abilities to conduct an adequate defense; can engage in constructive social intercourse28,29,31,33,–,35,37,38; can provide a rationale reason for pursuing self-representation7,30,31; and is willing to work with standby counsel.7,30,–,32,36 Cognitive abilities include the capacities to engage in goal-directed behavior,8,29,31,33,35,36 understand and appreciate the legal process and how it applies to the defendant's case,7,–,9,28,–,35,37,38 and make reasoned choices about defense strategies.7,–,9,29,31,33,34,36,–,38
Although versions of these criteria were proposed by a near consensus of the authors identified, scholars had varying points of emphasis in their recommendations. For example, Johnston8 proposed that assessment of pro se competence be guided by a problem-solving theory framework that considers a defendant's willingness to address a problem (e.g., willingness to defend against being criminally prosecuted) and abilities to define a problem (e.g., review the prosecution's case), generate possible solutions (e.g., come up with defense strategies), make decisions (e.g., decide among various defense strategies, choose among plea options), and execute decisions (e.g., present arguments to the judge or jury, examine witnesses, enter pleas to the court).
Knoll et al.30 took a more empirical approach, eliciting New York state trial judges' opinions regarding pro se competence to help forensic evaluators structure their assessments. These authors found that among the 18 judges who responded to the survey, disorders of cognitive impairment (such as dementia) and psychosis were viewed as most potentially hindering pro se competence. In terms of which domains of functioning should be assessed, judges recommended intellectual and analytic abilities (n = 10), legal knowledge and experience (n = 9), language abilities (n = 8), presence of severe mental illness symptoms (n = 5), and behavioral control (n = 4). Several judges advised assessing for a rational reason for proceeding pro se and a willingness to accept the help of standby counsel. Limitations of the Knoll et al.30 study included the small number of respondents, precluding definitive conclusions, and the fact that judges from only one geographic region were surveyed, limiting reliability and generalizability of the results.
Following these findings, the researchers surveyed 68 forensic mental health experts to ascertain potential criteria for pro se competence.31 They found that appraisal of available legal defenses, planning a legal strategy, and questioning and challenging witnesses were cited by forensic mental health experts as McGarry39 criteria items requiring a higher standard for pro se competence than for competence to stand trial. Respondents also opined that average abilities for intelligence, literacy, and verbal ability were sufficient for pro se competence purposes and that assessment of a defendant's motivation or rationale for requesting pro se representation and willingness to work with standby counsel would also be important facets of the evaluation. A potential limitation of this study was the predominance of forensic psychiatrists among the respondents, with no analysis performed to correlate responses by profession. This study and that of Knoll et al.30 supplement Johnston's8 cognitive and problem-solving focus with attention to communication abilities, presence of a rational reason for a pro se request, and willingness to work with standby counsel as other pertinent factors to consider in assessing representational competence.
White and Gutheil35 further expanded on these contributions by proposing a five-part model to clarify the types of deficits that could hinder a defendant's effective execution of trial-conducting tasks, with implications for potential defendant assistance. This model included assessment of whether a defendant can engage in goal-directed behaviors, has sufficient oral and written communication skills, can engage in constructive social intercourse, can control emotions in an adversarial arena, and has the cognitive abilities to argue the case adequately. The authors noted that this model enables identification of specific areas in which assisting defendants may, in some cases, preserve effective self-representation (e.g., a defendant with difficulty engaging in goal-directed behavior could be provided an administrative assistant to ensure completion of pretrial tasks; a defendant lacking oral and written communication skills could be appointed counsel to help with proper legal modes of communication to present arguments and defenses; a defendant with marked social behavior deficits could be assisted by coaches or mental health practitioners).
Blume and Clark32 reviewed 39 appellate court decisions, most of which affirmed trial court decisions to approve defendant pro se requests, even in cases involving defendants with severe mental illness and in capital cases. These authors, concluding that the Dusky trial competence standard is too low a bar for assessing representational competence, advised considering input from defense attorneys in assessing pro se competence, categorically prohibiting defendants diagnosed with certain psychiatric conditions (e.g., schizophrenia, intellectual disability) from proceeding pro se, and forbidding pro se representation in capital cases.
LeCluyse9 proposed a standard analogous to considerations used by the medical community in assessing a patient's treatment decision-making capacity, including the ability to communicate a choice, the ability to understand relevant information, the ability to appreciate the legal situation and its likely consequences, and the ability to manipulate information rationally. She argued that such a standard provides courts with a competence guideline requiring abilities higher than trial competence while giving the trial judge broad discretion in the standard's application, thus balancing the court's paternalism in potentially denying the request for pro se representation and the autonomy of the defendant in being allowed to conduct the defense.
Johnston36 similarly proposed a pro se competence standard intended to better balance court paternalism with defendant autonomy. She noted that since the Edwards decision, seven states had adopted communication components to their pro se competence standards and 20 states had established vague, “capacious” standards that may consider communication skills. Johnston proposed a two-pronged competence to self-represent standard that includes assessment of competence to control one's defense (manifested in problem-solving and decision-making capacities) and competence to conduct one's defense (manifested in the ability to communicate coherently to courtroom actors). She argued that by using this two-pronged standard, a potential pro se defendant could still be allowed to control the defense but could have the assistance of an interpreter or other personnel if coherent communication is a problem (e.g., defendants with speech impediments, tic disorders, soft speech, or thick accents). Johnston further argued that this approach would be more likely to pass constitutional muster.
Patton et al.7 also reviewed state responses to the Edwards decision using both statutory provisions and state court rulings to comment that a patchwork of responses in terms of state pro se competence standards has followed the Edwards ruling, with 10 states simply adopting the Dusky standard for competence to stand trial, 28 states adopting or expressing a willingness to adopt a higher standard than Dusky for pro se competence, and 12 states not addressing the question of pro se competence. The authors proposed recommendations for assessing pro se competence that included being aware of the relevant standards in one's state, assessing a defendant's basic understanding of the elements of the adjudicatory process and how they apply to the defendant's case, and assessing for the presence of any mental health symptoms that could impede defense-related tasks. Other recommendations included assessing whether a defendant has the cognitive ability to carry out a defense, discerning whether a defendant's beliefs about the case or the defense attorney are likely inaccurate but not delusional in nature, and requesting guidance from courts regarding which capacities a defendant should have for self-representation and whether impairments unrelated to a severe mental illness should be considered.
Discussion
The arguments posed by some authors32,37 for experts to consider deliberately input from defense counsel in assessing pro se competence merit further exploration. Advantages to this practice would include: defense attorneys are most likely to have regular, direct contact with defendants and thus could provide information on observed demeanor, thought process, speech coherence, behavioral control, and other variables relevant to representational competence; defense attorneys possess a keen awareness of the legal tasks necessary for a defendant to conduct a trial effectively; and forensic evaluators commonly consult with defense counsel while conducting other competence assessments (such as competence to stand trial), and therefore such an approach would fall in line with related forensic mental health practice.
Regarding Dillard's24 argument that “borderline competent” capital defendants should be categorically exempted from the death penalty, it is interesting to consider the potential ramifications of such a practice. On the one hand, one might expect many defense attorneys to encourage their capital defendants to be evaluated for trial and pro se competence in hopes of avoiding a death penalty sentence based on a finding of “borderline competence.” On the other hand, the success of such a strategy would depend on assessment by a mental health professional that the defendant is experiencing mental illness symptoms of such a severity as to render that individual not competent to self-represent. This assessment implies a level of impairment from mental illness that may not apply to most capital defendants. Other authors have proposed abolishment of the right to self-represent in capital cases on constitutional and human rights grounds,38 characterizing the trying of a capital defendant who is incompetent to self-represent as “equivalent to suicide assistance” (Ref. 38, p 245).
Summarizing the literature since Edwards on assessing pro se competence is of practical importance, as the number of criminal defendants requesting self-representation has been increasing.21,35,40 Reasons for self-representation include dissatisfaction with court-appointed attorneys whose caseloads, greatly increased owing to cuts in funding support for public defender offices, render them less consistently available for legal support; and many defendants' inability to afford the fees associated with private criminal defense attorneys.35 Increases in pro se requests may also reflect greater access of defendants to self-help resources online and the portrayal of pro se legal procedures in popular media.41
In states that allow for a higher competency standard for self-representation, a failure to assess a defendant's pro se competence may have adverse consequences for the defendant. Such consequences might occur if a competent pro se defendant is wrongly denied the opportunity to self-represent and is forced to accept the assistance of ineffective counsel, or if a defendant not competent to self-represent is wrongly allowed to do so, resulting in an unjust judicial outcome. A failure to assess representational competence may also have adverse impacts for the court system, such as significant slowing of court proceedings (related to pro se defendants making procedural errors, displaying disruptive behavior, or having difficulty organizing legal strategies) or the appearance of an unfair trial. With increasing numbers of pro se requests by criminal defendants, courts would benefit from guidance from forensic and legal experts regarding which defendants are more likely to carry out their own defense effectively and which ones are not, to lower the risk of overbooked court dockets, unproductive use of increasingly limited court resources, or, conversely, erroneous deprivation of a defendant's right to self-represent.
Based on our review, eight areas appear to be highlighted by legal and forensic scholars as important in evaluating pro se competence, including assessing a defendant's ability to:
engage in goal-directed behavior;8,29,31,33,35,36
understand and appreciate the legal process and how it applies to the defendant's particular case;7,–,9,28,–,35,37,38
make reasoned choices about a defense;7,–,9,29,31,33,34,36,–,38
communicate adequately;7,9,28,–,31,33,–,38
engage in constructive social intercourse;28,29,31,33,–,35,37,38
control emotions and behavior in the courtroom setting;27,30,32,33,35
articulate a rational basis for wanting to self-represent;7,30,31
and work with standby counsel.7,30,–,32,36
Building on these eight factors, we consider the development of a pro se competence standard that is concise, easy to apply, and properly balances individual autonomy and court paternalism. For those states choosing to require a higher standard than Dusky for pro se competence, it seems practical to base this standard on a modification of the Dusky standard for competence to stand trial, for ease of recall and to highlight the important differences between the two standards. The eight factors highlighted in our review as important in assessing pro se competence are encapsulated in the following proposed representational competence standard:
A defendant to a criminal charge shall be considered competent to self-represent if the defendant possesses sufficient present ability to conduct trial-related tasks with a reasonable degree of rational understanding, has a rational and factual understanding of the proceedings against the defendant, has a rational basis for requesting self-representation, and is willing to accept the assistance of standby counsel.
Our interpretation of the elements of this proposed standard is presented in Table 4. Regarding willingness to accept the assistance of standby counsel, multiple experts7,32,35,36 and the U.S. Supreme Court42 have asserted that use of standby counsel can support the autonomy of the defendant while ensuring an orderly, fair, and reliable court process.
Interpretation of Elements in Proposed Pro Se Competence Standard
Although the above proposed standard is concise and incorporates recommendations from legal and forensic scholars identified in this review, an important question is how to determine practically whether the elements in the standard are satisfied. One could argue that until a defendant actually attempts to engage in the tasks required to conduct a trial, it is difficult to ascertain with accuracy whether these efforts will be effective, and waiting until a defendant has already started conducting a trial has drawbacks (e.g., if the defendant is ultimately deemed incompetent to self-represent, the court may need to declare a mistrial or appoint potentially ill-prepared counsel).32 This conundrum is in line with the stated reason of the Edwards Court in choosing not to provide a specific standard for pro se competence: that mental illness is “not a unitary concept” (Ref. 3, p 10), varying in nature, degree, and timing of impact on an individual's functioning and thus not lending itself to the application of a single standard.
Three considerations are worth noting. First, competence to self-represent, like any other competence, is time-specific and can vary over time depending on the evaluee's condition. Second, although mental illness may not be a unitary concept, certain mental illnesses at high states of severity, such as psychotic disorders and severely untreated bipolar disorder, would reasonably be expected to hinder a defendant's ability to conduct a defense. Third, the difficulty directly observing a defendant's attempts to conduct a defense to assess pro se competence may be addressed by eliciting input from the defendant's attorney, who may have valuable information regarding the defendant's ability to self-represent.32,37
If the above standard is not met, a defendant will typically be required to proceed to trial with counsel, which, per Edwards, is constitutionally permitted. Alternatively, the court could order the defendant to undergo treatment to restore pro se competence, in line with Barth's23 proposal. A defendant may not regain representational competence, however, if medication has already been optimized to restore trial competence (likely for many pro se defendants with mental illness). Hope for a restorable right model of pro se competence might be preserved by use of nonpharmacologic interventions to promote such competence, such as cognitive remediation therapy,43 but this possibility would require available clinicians trained in such treatments and could delay the court process because of time needed for pro se competence restoration and re-evaluation.
The above representational competence standard balances the desire to protect defendant autonomy and dignity with the need to ensure the integrity, fairness, and efficiency of the judicial process. Autonomy is protected by the fact that the standard requires sufficient, not perfect, ability to conduct trial-related tasks;11 assesses whether a defendant can conduct a defense, even if assistance is needed because of speech impediments, tic disorders, thick accents, or other communication-impairing conditions36; and recognizes that a defendant may have plausible reasons to request self-representation, even if at times these reasons are inaccurate (e.g., mischaracterizing but not harboring overt delusions about counsel).7 At the same time, the standard protects the integrity of the judicial process by requiring the defendant to conduct trial-related tasks in a manner that suggests understanding and appreciation of the legal situation at hand,28,29 control of one's emotions and behavior in the adversarial setting of the court,35 and acceptance of standby counsel as safeguard to ensure the trial process is completed in a fair and efficient manner.7,30,–,32,35,36
Limitations of our review include the fact that a fair number of identified publications were not peer reviewed; however, we reviewed all such articles to extract independently the main points relevant to our analysis. Another limitation is that although specifying collective and most-agreed-on relevant factors in assessing pro se competence is helpful in broadly approaching clarity in terms of a pro se competence standard, it remains unclear whether the satisfaction of all, most, or some of the proposed factors is pivotal to an adequate self-defense, and which criteria or combination thereof, when met, may allow a self-representing defendant to perform adequately, even if imperfectly.
Looking ahead, given the tasks associated with conducting a trial that are more demanding than standing trial with counsel, neurobiological studies aimed at identifying biomarkers for representational competence based on measures of intact versus deficient executive function (as assessed, for example, by functional neuroimaging) would be a potentially fruitful direction to, in the future, supplement data derived from forensic evaluation and court observation. This possibility is supported, for instance, by the fact that increased activation in the prefrontal cortex, anterior cingulate, and temporal and parietal cortices has been observed in individuals with schizophrenia following cognitive remediation therapy.43 Future research should also examine how judges and forensic evaluators respond to the increasing legal and forensic literature on pro se competence assessment, to determine any need for education to minimize the risk of an over-polarized judicial process in the direction of either defendant autonomy or court integrity.
Conclusions
Our review of the published literature since Indiana v. Edwards3 shows that numerous attempts have been made by legal and forensic scholars to propose criteria for assessing pro se competence to guide forensic evaluators and courts on how best to approach this question to achieve the most acceptable outcomes for both defendants and the judicial process. In our synthesis of this varying and sometimes conflicting literature, we identified relevant factors for assessing pro se competence to develop a concise competence standard that properly balances individual autonomy and court paternalism. We hope that such a standard can be of practical value to forensic evaluators and courts moving forward.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2023 American Academy of Psychiatry and the Law
