Table 3

Criteria Proposed over the Last 15 Years for Evaluating Pro Se Competence

Author(s)/YearFrameworkApproachTarget AudienceRecommended Criteria
Willis (2010)28LegalTheoreticalJudgesWhether 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)8LegalTheoreticalJudgesConsider 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)29LegalTheoreticalJudgesDef 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)30Legal and Mental HealthEmpiricalForensic Evaluators and JudgesAssess 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)31Mental HealthEmpiricalForensic EvaluatorsAssess 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)32Legal and Mental HealthEmpiricalJudges and Forensic EvaluatorsReplace 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)33LegalTheoreticalJudgesAssess 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)34LegalTheoreticalJudgesThree-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)35Mental Health, LegalTheoreticalForensic EvaluatorsFive-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)9LegalTheoreticalJudgesUse 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)36LegalEmpiricalJudgesUse 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)37LegalEmpiricalJudgesPerspectives 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)7Mental Health, LegalEmpiricalForensic EvaluatorsBe 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)38LegalTheoreticalJudgesAdopt 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.