How Experts Advise Evaluating Pro Se Competence 15 Years Post-Edwards

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.