General Opinions and Recommendations Related to Assessment of Pro Se Competence
| 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.