Representational competence: defining the limits of the right to self-representation at trial.

AuthorJohnston, E. Lea

In 2008, the Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competence standard for self-representation than to stand trial. The Court declined to delineate a permissible representational competence standard but indicated that findings of incompetence based on a lack of decision-making ability would withstand constitutional scrutiny. To date, no court or commentator has suggested a comprehensive competence standard to address the particular decisional context of self-representation at trial. Conceptualizing self representation as an exercise in problem solving, this Article draws upon social problem-solving theory to identify abilities necessary for autonomous decision-making. The Article develops and applies a normative theory of representational competence to evaluate particular problem-solving abilities in light of competing norms of self-representation. It concludes by proposing a representational competence standard.

INTRODUCTION I. INDIANA V. EDWARDS II. NORMATIVE THEORY OF REPRESENTATIONAL COMPETENCE III. THE PROMISE OF PROBLEM-SOLVING THEORY FOR REPRESENTATIONAL COMPETENCE A. Problem Orientation B. Problem Definition and Formulation C. Generation of Alternatives D. Decisionmaking 1. Differences in Individuals' Decisionmaking Styles 2. Identifying a Plausible Reason for a Decision E. Solution Implementation IV. IMPORTANCE OF CAUSATION CONCLUSION [A]s a human being, please, let me handle my own case. I know I don't know much about law, I don't know anything, but I know enough to get me through.

Jeffrey Connor (1)


On April 3, 2006, the Honorable Carmen Espinosa entertained Jeffrey Connor's third request to discharge his attorney and proceed pro se. (2) Connor expressed distrust in his court-appointed attorney and disagreed with him on matters of strategy. (3) Evidence suggested, however, that Connor might have impaired mental abilities. Several years before, Connor had suffered a stroke, possibly secondary to cocaine abuse. (4) The stroke left him partially paralyzed and might have damaged the frontal lobe of his brain, impairing his judgment and cognitive abilities. (5) A neuropsychological evaluation indicated that the defendant "showed word-finding difficulty, memory difficulty, and some thinking impairment that was secondary to [the] stroke." (6) Connor refused evaluation by court-ordered psychologists,7 but one expert testified to a "strong possibility" of "significant mental health problems." (8) Connor's behavior oscillated widely: at times, he appeared lucid and interacted in "an intelligent, reasonable way," (9) while on other occasions he ate his own feces (10) and appeared "comatose." (11) This inconsistency prompted the state to charge, (12) and a previous presiding judge to find, (13) that Connor was malingering. (14) That judge had rejected Connor's first self-representation request on the grounds that his preoccupation with irrelevant matters-including an apparent obsession with imagined outstanding "worldwide" warrants-precluded him from focusing on the pending charges of kidnapping, larceny, and robbery. (15) Connor attested that, "although he could not 'hold any thoughts' when he first was arrested, 'now it seems like someone is helping me and ... it's got to be God or a spirit or something.'" (16) Connor pleaded with the court to allow him to handle his own case. (17)

Assuming that Connor is competent to stand trial, must the judge grant his motion to proceed pro se? Given evidence of Connor's mental impairment, may she grant his request? In the wake of Indiana v. Edwards,(tm) the answers to these questions remain unclear. Though competence has been widely discussed by courts and commentators alike, no clear standards currently exist to define when a criminal defendant, who is competent to stand trial, may be incompetent to represent himself.

In Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competence standard for self-representation than to stand trial. The Court declined to expound upon the contents of a permissible representational competence standard but indicated that findings of incompetence involving a lack of decision-making ability due to severe mental illness would withstand constitutional scrutiny. (19) Post-Edwards, we are left to ask which abilities are necessary for self-representation. Lower courts have yet to provide much guidance on how to go about answering this question.

This ambiguity and void in the law suggest the need for a competence standard based on normative theories of self-representation and decisionmaking. Incompetence is ultimately a normative judgment, expressing society's determination that sufficient interests exist to warrant denying a person's right to control his fate. Allowing a mentally ill individual to control his defense may cast into doubt the accuracy of a resulting conviction and the legitimacy of the adjudication. At the same time, a defendant has a Sixth Amendment right to represent himself at trial according to his self-defined interests, despite probable damage to his defense. (20) Balancing the competing norms implicated by self-representation, this Article suggests that a defendant capable of autonomous decisionmaking should be allowed to control his defense, unless a defendant's self-representation poses a grave threat to the reliability or fairness of the proceeding. (21)

Self-representation is, at base, an exercise in problem solving, (22) where the major "problem" is the prosecution of one or more criminal charges. Psychological theories of problem solving identify cognitive, behavioral, and affective abilities requisite for sound decisionmaking. Social problem-solving theory is one of the earliest and most comprehensive prescriptive models of decisionmaking. (23) This theory conceives of everyday problem solving as consisting of a motivational component called problem orientation and four goal-directed cognitive, behavioral, and affective problem-solving skills. (24) These skills include problem definition and formulation, generation of alternative solutions, decisionmaking, and solution implementation. (25) In determining those abilities necessary for self-representation, social problem-solving theory may offer important insight. Requiring the possession of at least a subset of problem-solving abilities may be an appropriate means to ensure that defendants who wish to represent themselves at trial are sufficiently capable of recognizing and advancing their own interests.

This Article derives a representational competence standard from social problem-solving theory. Part I discusses Edwards and its guidance for a constitutionally permissible representational competence standard. Part II presents a normative theory of representational competence, which balances the competing norms of autonomy, reliability, and fairness. Part III introduces the cognitive, behavioral, and affective elements of social problem-solving theory and employs the normative theory developed in Part II to analyze and evaluate the importance of particular abilities for self-representation at trial. Part IV discusses the importance of including a causation element in a representational competence standard and of precluding self-representation only for individuals whose functional deficits stem from mental illness or disability. The Article concludes by suggesting a representational competence standard.


    In Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment2" permits a trial court to require a defendant to meet a higher threshold of competence for self-representation than to stand trial. (27) Edwards was unforeseen, given that the Court in Godinez v. Moran (28) had prohibited an appellate court from imposing a higher competence standard for self-representation than for standing trial. (29) After Godinez, most states assumed that the standard for competence to represent oneself (denominated in this Article as "representational competence" (30)) was equivalent to the standard for competence to stand trial. (31) Dusky v. United States (32) established that, to stand trial, a defendant must possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." (33) Because Edwards had been found competent to stand trial and to effect a valid waiver of his right to counsel, (34) the Court of Appeals of Indiana (35) and the Supreme Court of Indiana (36) each found that he was, de facto, competent to represent himself.

    The U.S. Supreme Court disagreed, holding that the Sixth Amendment (37) permits a trial court to impose counsel upon an unwilling defendant found competent to stand trial. (38) The Court employed several strands of reasoning in support of its holding. First, the Court found that precedent (39)--requiring that, to stand trial, a defendant possess "sufficient present ability to consult with his lawyer" (40)--"points slightly" in the direction of its holding in that it emphasizes the centrality and importance of representation to the competence inquiry. (41) Second, the Court found that the varying nature of mental illness calls for applying a different mental competence standard to different activities. (42) Third, the Court asserted that allowing a borderline-competent defendant to represent himself is not respectful of his autonomy because the representation could result in a "humiliating" spectacle. (43) Finally, the Court found its holding consistent with the government's interests in securing a reliable verdict and an actual-and apparent--fair trial. (44)

    While the Court declined to speculate as to permissible components of a representational competence standard, Edwards indicates that decisionmaking abilities are particularly relevant to one's competence to proceed...

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