Article Figures & Data
Tables
Author(s)/Year Case Referenced Facts of Case Ruling/Relevant Points Saleh & Pinals (2010)10 United States v. deShazar, 554 F.3d 1281(10th Cir. 2009) Def indicted on stalking, carrying firearm charges. He insisted on proceeding pro se despite ct warning; ct granted request, finding he knowingly and voluntarily waived right to counsel. Convicted on both counts, he appealed, arguing district court erred in finding him CST, CWRC, CSR. Tenth Circuit affirmed conviction, reiterated Godinez2: defendant can conduct own defense if CST; interpreted Edwards as permitting but not requiring courts to deny defendant right to represent self, especially because in this case was found CST and CWRC. Lee & Pinals (2011)11 State v. Dahl, 776 N.W.2d 37 (N.D. 2009) Def charged with reckless endangerment (fired shotgun at victim's home); requested self-rep because atty didn't subpoena proposed witnesses; district ct warned him about risks of self-rep, granted request despite schizophrenia dx and asking bizarre questions to jurors. At trial, found guilty; he appealed, claiming he was not CWRC, which ct should have detected by his conduct. North Dakota Supreme Ct affirmed convictions; def had asked odd questions during jury selection, but no evidence at trial of mental illness symptoms impairing CSR. Although self-rep may have been unwise, he showed trial strategy, and waiver of right to counsel was knowing, intelligent, voluntary. Beaman and Noffsinger (2013)12 United States v. Turner, 644 F.3d 713 (Eighth Cir. 2011) Def charged with felony poss of firearm; he requested self-rep, which ct granted; at trial, he cross-examined witnesses, gave religious speech for closing argument. Found guilty; he argued ct failed to question him about CSR, require higher level for CSR than CST, and hold competency hearing in response to bizarre behavior. Eighth Circuit rejected all claims, holding district ct had adequately warned def of dangers of self-rep, that his waiver of counsel was knowing and voluntary, and that no parties (including def) had at any point during trial raised concern about his CSR. Martin and Weisman (2013)13 State v. Lane, 707 S.E.2d 210 (N.C. 2011) Def confessed to murdering five-year-old female neighbor; chose to self-represent during legal process. Found guilty of first-degree murder, multiple sex offenses; jury sentenced to death; he appealed; case bypassed appellate ct, went directly to North Carolina Sup Ct. North Carolina Sup Ct held def could waive right to counsel if did so knowingly and voluntarily; held Edwards did not apply, because trial ct determined that def had waived right to counsel knowingly and voluntarily. Boudreaux & Kelly (2014)14 United States v. Morris, 489 F. App'x 407 (11th Cir. 2012) Def indicted after making false statement in passport app, was convicted; before sentencing, had psych eval given odd behavior (sent child pornography to ct). Trial ct found incompetent for sentencing, ordered tx; he was restored; he moved to dismiss counsel, with whom he repeatedly refused to cooperate; ct warned him of risks of self-rep, made appointed atty standby counsel. Sentenced to 10 years prison; he argued he was not CSR, that trial ct erred in making him self-rep at sentencing. Eleventh Circuit affirmed def was CWRC and proceed to sentencing; CWRC shown by objections and arguments made to ct, final psych report opined competent to proceed, and by uncooperative conduct he knowingly and voluntarily waived right to counsel. Authors noted that after thorough eval, if a def is opined to be voluntarily uncooperative, this should not be labeled incompetence. Wiita & Simpson (2017)15 United States v. Dubrule, 822 F.3d 866 (Sixth Cir. 2016) Def charged with conspiracy to distribute and delivery of controlled substances; proceeded to trial pro se, was convicted on all counts. He appealed, arguing he should have had competency hearing before trial, that he was given ineffective stand-by counsel, and that expert who opined he was CST and CSR provided testimony not “peer-reviewed.” Sixth Circuit rejected all claims, stating trial ct had spent much time with def who showed working knowledge of relevant law, rational and factual understanding of proceedings, and ability to consult with standby counsel. Authors noted that an unorthodox defense strategy not sufficient to render a def IST. Saxton and Resnick (2017)16 Tatum v. Foster, 847 F.3d 459 (Seventh Cir. 2017) Def charged with homicide; had trial competence eval, was opined CST; def requested self-rep. Ct found def CST, but denied his pro se request, partly because of his achieving only 10th grade education. Was convicted; on appeal, state appellate ct affirmed, Wisc Sup Ct denied review, district ct rejected claims, Seventh Circuit agreed to hear case. Seventh Circuit ultimately reversed judgment of district ct and held that right to represent oneself is constitutional right not to be infringed on based on lack of education, skill, or achievement; rather, CSR must be considered as it relates to mental functioning. Chandarana & Kelly (2020)17 Hooks v. State, 286 So. 3d 163 (Fla. 2019) Def charged with drug possession, probation violation; requested self-rep; trial judge gave him written material and warned him of risks regarding self-rep. At trial, found guilty; def appealed, arguing trial ct did not inquire about his age, legal understanding and experience, or other factors related to knowing and voluntary waiver of right to counsel; state appeals ct rejected claim, but certified question to Florida Sup Ct regarding relevant factors in pro se competence inquiries. Florida Sup Ct held trial ct did not err in granting def's pro se request despite not inquiring about his age, experience, and understanding of criminal procedure, including ability to prepare a defense and legal knowledge. Ct held a def should be allowed to waive right to counsel following thorough inquiry into def's comprehension of the request. Note. app, application; atty, attorney; CSR, competent to self-represent; CST, competent to stand trial; ct, court; CWRC, competent to waive right to counsel; def, defendant; dx, diagnosis; eval, evaluation; IST, incompetent to stand trial; poss, possession; psych, psychiatric; self-rep, self-representation; Sup, Supreme; tx, treatment.
Author(s)/Year Framework Opinion/Analysis Recommendations Morris & Frierson (2008)18 Legal and Mental Health Pro se defs, in most cases, not experiencing mental illness or being foolish, have legitimate reasons for seeking self-rep. Edwards will lead cts to increasingly request forensic consultation to assess defs' CSR. Forensic evaluators must be cautious and claim expertise only in areas in which they have actual knowledge, skills, training, and experience. Slobogin (2009)19 Legal Godinez ct should have required higher standard for CWRC, and Edwards ct should have affirmed findings in Faretta and Godinez that central concern was CWRC, not CSR. By requiring higher standard for CWRC, interests of mentally ill def in autonomy and dignity and interests of ct in ensuring fair and just process both preserved. Cts evaluating CWRC should ensure def has capacity to communicate facts to an atty and testify relevantly, understand all consequences of self-rep, and give nondelusional, self-regarding reasons for waiver. Higher standard for CWRC averts need for standard for CSR, preserves dignity of defs with mental illness by avoiding “circus-like” hearings. Moore and Ramsland (2011)20 Legal There is need to assess representational competence, in line with Edwards decision that standard for trial competence should be distinct from that for pro se competence based on different demands of each task. Ct guidance needed in terms of types of tasks a pro se def needs to be able to conduct to adequately self-represent; given complexity of abilities involved, mental health professionals should provide input, with judge as final arbiter. American Bar Association Coalition for Justice (2010)21 Legal Most judges reported an increase in parties representing themselves, worse outcomes with self-rep, and negative impacts on cts with self-rep (e.g., inefficiency, unfair presentation of facts). Eighty-six percent of judges felt cts would be more efficient if both parties were represented; 73% felt legal services funding should be increased; 68% supported increases in pro bono attys to enhance def representation to improve justness and efficiency of judicial process. White & Gutheil (2011)22 Legal and Mental Health Worse outcomes for many pro se defs. More defs wishing self-rep, likely owing to less financial support for public defenders, inability to afford private attys. Edwards supported but did not specify test for higher standard than Dusky for CSR eval. Generally worse outcomes with self-rep, increasing numbers of defs requesting self-rep, and lack of clarity in Edwards ruling make development of operationalized schemata for cts, attys, and forensic mental health experts for assessing CSR important. Barth (2011)23 Legal CSR can and should be restorable right, given right to self-rep grounded in the Sixth Amendment. Although Edwards did not provide specific standard for CSR, it did provide “floor and ceiling;” standard higher than Dusky, lower than Indiana's proposed “communicate coherently with the court or jury” standard. Mental health professional should be appointed to assess whether potential pro se def is CSR and if not, whether can be restored to CSR via medication. Standby counsel should be mandatorily appointed as safeguard to ensure integrity of judicial process. Counsel should be appointed against def wishes only if def unable to have CSR restored. Dillard (2012)24 Legal “Borderline-competent” defs (those CST but not CSR), like intellectually disabled defs, pose special risk that death penalty will be imposed despite mitigating factors that would call for less severe penalty. In capital cases, allowing a “borderline-competent” def to proceed pro se with standby counsel violates due process. Defs not CSR should be exempted from death penalty. Mackin (2013)25 Mental Health Surveyed 111 forensic psychologists on CSR. More experienced evaluators more likely to consider legal consequences of pro se def and less likely to be swayed by personal opinion of def, def's crime, or overall fairness of hearings. Future research should examine what elements are necessary and sufficient to determine threshold for higher level of competence in evaluating defs requesting self-rep. Cabell (2013)26 Legal and Mental Health Pro se defendants have various psychological motivations for self-rep, including dissatisfaction with counsel and perceiving fairness because of being able to present arguments to a listening authority. Two types of dissatisfaction with counsel: concern about effort from or communication with counsel, and ideological differences with counsel based on religious, political, or other beliefs about role of government. In cases of def dissatisfaction with effort of or communication with counsel, choice to proceed pro se is fueled by self-preservation and perceived lack of other options. In cases of ideologically based motivations to self-represent, while often generating mental illness accusations, these motivations do not necessarily imply incompetence to self-represent, particularly when viewed from a nonoutcome-oriented legal perspective. Note. atty, attorney; CSR, competent to self-represent; CST, competent to stand trial; ct, court; CWRC, competent to waive right to counsel; def, defendant; eval, evaluation; self-rep, self-representation.
Author(s)/Year Framework Approach Target Audience Recommended Criteria Willis (2010)28 Legal Theoretical Judges Whether def can communicate with ct, witnesses, and jury, and has de minimis understanding of substantive and procedural law, as well as factual and rational understanding of proceedings. Johnston (2010)8 Legal Theoretical Judges Consider def's willingness to address a problem (e.g., willingness to defend against being prosecuted) and abilities to define a problem, generate possible solutions, make decisions, and execute decisions. Marks (2010)29 Legal Theoretical Judges Def not CSR if mental disorder or disability prevents def from understanding charges, law, and evidence, formulating simple defense strategies, and communicating with witnesses, ct, prosecutor, and jury in manner calculated to implement those strategies in rudimentary fashion. Knoll et al. (2010)30 Legal and Mental Health Empirical Forensic Evaluators and Judges Assess intellectual and analytic abilities, legal knowledge and experience, language abilities, presence of severe mental illness sxs, behavioral control, rational reason for proceeding pro se, and willingness to accept standby counsel. Kaufman et al. (2011)31 Mental Health Empirical Forensic Evaluators Assess whether def can appraise available legal defenses, plan legal strategy, question and challenge witnesses, provide rational reason for requesting self-rep, and willingly work with standby counsel. Blume & Clark (2011)32 Legal and Mental Health Empirical Judges and Forensic Evaluators Replace words “reasonable” and “sufficient” with “significant” in current Dusky trial competence standard to protect defs with severe mental illness from being deemed CST and thus, in some cases, CSR. Meaningfully consider opinions of defense attys regarding competence of defs. Prohibit pro se defense for defs diagnosed with certain psychiatric conditions and in capital cases. Johnston (2011)33 Legal Theoretical Judges Assess def's ability to perceive problematic situations, generate alternative courses of action, maintain mental organization, communicate decisions to ct functionary, identify an alternative, plausible explanation for circumstances leading to prosecution, attend to prosecution, withstand stress of trial, and justify a defense decision with a plausible reason. Beck (2013)34 Legal Theoretical Judges Three-part analysis, including whether def is CST, has voluntarily, knowingly, and intelligently waived right to counsel, and is mentally CSR without counsel. For CSR, ct should consider facts of case, in-person interaction with def, and def's ability to carry out basic defense tasks without help of counsel (e.g., make rational choices, communicate coherently, make objections and closing arguments). White & Gutheil (2016)35 Mental Health, Legal Theoretical Forensic Evaluators Five-part model assessing whether def can engage in goal-directed behaviors, has sufficient oral and written communication skills, can engage in constructive social intercourse, can control emotions in adversarial arena, and has cognitive abilities to argue case adequately. LeCluyse (2015)9 Legal Theoretical Judges Use approach analogous to assessing tx decision-making capacity, including assessment of ability to communicate a choice, understand relevant information, appreciate legal situation and its likely consequences, and manipulate information rationally. Johnston (2016)36 Legal Empirical Judges Use two-pronged standard that includes assessment of competence to “control” and “conduct” a defense; potential pro se def could thus be allowed to control defense but could have assistance of interpreter or other personnel if coherent communication a problem. Leckar (2017)37 Legal Empirical Judges Perspectives of defense counsel should be considered but are not dispositive. Trial judge should hold hearing to determine whether def can articulate rational defense strategy, noting speech and communication abilities. Judge should order forensic eval to offer opinions on def dx, px, whether can conduct trial proceedings rationally, and if malingering. Judge should appoint counsel for Edwards hearing and explain and define atty's role. Patton (2019)7 Mental Health, Legal Empirical Forensic Evaluators Be aware of relevant standards in one's state; assess def's basic understanding of trial process, rationale for proceeding pro se, mental state (sxs that could impede defense tasks), cognitive ability to carry out defense, beliefs about case or atty; request guidance from cts regarding capacities needed for self-rep and if nonmental illness-related impairments considered. Yacoub & Briggs (2022)38 Legal Theoretical Judges Adopt four-prong test proposed by LeCluyse9 based on similar capacities used to assess medical decision-making competence. Appoint standby counsel in all criminal cases, as judge then benefits from counsel's knowledge of def's mental capability to self-represent. Abolish right for defs to proceed pro se in capital cases on constitutional and human rights grounds. Note. atty, attorney; CSR, competent to self-represent; CST, competent to stand trial; ct, court; def, defendant; dx, diagnosis; eval, evaluation; px, prognosis; self-rep, self-representation; sxs, symptoms; tx, treatment.
Element of Pro Se Competence Standard Abilities Included Ability to conduct trial-related tasks Ability to engage in trial-relevant goal-directed behavior (such as organizing defense strategies); make reasoned choices about defense; communicate adequately (either alone or with assistance of interpreter or standby counsel) with judge, jury, and other courtroom actors (e.g., when making motions or arguing points of law); and engage in constructive social intercourse (e.g., when examining or cross-examining witnesses). Conducting trial-related tasks with a reasonable degree of rational understanding Ability to control one's emotions and behavior in a courtroom setting. Having a rational and factual understanding of the proceedings Understanding and appreciating the legal process and how it applies to the defendant's particular case. Having a rational basis for requesting self-representation Includes dissatisfaction with counsel for plausible reasons (e.g., counsel is unavailable or too passive, or ideological disagreements about defense approach), but excludes dissatisfaction for irrational or delusional reasons (e.g., that counsel is trying to kill defendant or is part of conspiracy to imprison defendant). Being willing to accept the assistance of standby counsel Appreciation that standby counsel can help defendant carry out defense-related tasks as needed (e.g., by helping navigate complex courtroom procedures or by coherently communicating to courtroom actors in cases of defendant physical disability or illiteracy) while not compromising defendant's ability to conduct defense.
