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Wednesday, May 18, 2011

Article of Interest: E. Lea Johnston's Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

When should a defendant be allowed to represent himself at trial? This is a pretty fundamental criminal justice question because the denial of the right of self-representation is a structural error necessitating a new trial without a showing of actual prejudice. As the Supreme Court noted in McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), "The right is either respected or denied; its deprivation cannot be harmless."

And yet, how are trial courts to decide whether a defendant is sufficiently competent to represent himself at trial? In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that the Constitution does not permit the trial of a person who lacks mental comepetence and then defined the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him;" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."  28 years later, in Indiana v. Edwards, 554 U.S. 164, 177 (2008), the Court held that  "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

But under what circumstances should a court find that a defendant is competent to stand trial but not competent to represent himself? The Court in Edwards did not do much to answer this fundamental question, merely finding that the defendant's condition in the case before it fell "in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose." But don't take my word for it. Instead, consider the recent opinion in United States v. Saba, 2011 WL 202086 (W.D.Mich. 2011), in which the United States District Court for the Western District of Michigan concluded that "[t]he skeletal guidance of Edwards suggests that a case-by-case analysis is to be employed requiring, a review of the specifics of this case." This language suggests that the gray area between competence to stand trial and competence to self-represent is actually gray matter and that courts must probe the brain of each individual defendant to ascertain whether he can take the lead role in his trial instead of playing the understudy.

In her excellent forthcoming article, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (forthcoming, Notre Dame Law Review), E. Lea Johnston, a professor at the University of Florida Levin College of Law, argues that Edwards' skeletal frame is insufficient to support the enormity and complexity of the self-representation question. Instead, she argues that courts need to flesh out a test of representational competence, and she puts forward a test based upon social problem-solving theory.

I, I Want You Autonomy

After a vigorous discussion of Indiana v. Edwards in Part I of her article, Professor Johnston notes that in Faretta v. California, 422 U.S. 806, 834 (1975), the Supreme Court pinpointed autonomy as the fundamental principle served by self-representation. Professor Johnston then posits that "[r]eccognizing a criminal defendant's autonomy is justified on both deontological and utilitarian grounds." Why? Well, here are a few of the examples given by Professor Johnston:

•A court-appointed attorney may well have different goals, values, and priorities than the defendant, especially given their likely very different social, economic, and perhaps cultural or racial backgrounds;

•By foisting a lawyer on an unwilling defendant, we not only force a defendant to put on his case through counsel, but we also eliminate his ability to make strategic and tactical decisions concerning his defense;

•Deciding how to respond to the State’s charge—with the public watching—may be of profound personal value to the defendant;

•Allowing criminal defendants to exercise self-determination may enhance an individual’s happiness and maximize societal utility in several ways; for instance,

•Cognitive and social psychological theory suggests that self-determination also amplifies an individual’s ability to recognize and achieve his goals by increasing his motivation and effort; and

•Allowing a defendant to govern his defense may also reduce feelings of alienation from the legal process and result ultimately in individuals gaining greater respect for the rule of law.

At the same time, Professor Johnston acknowledges that 

While the interest of autonomy is paramount to self-representation, the U.S. Supreme Court in Edwards recognized that competing values may warrant overriding a defendant’s decision to proceed without counsel. In particular, the Court suggested that a trial court could deny a motion for self-representation when "a defendant’s lack of capacity threatens an improper conviction or sentence" or the provision of a fair trial. The Court also noted that "proceedings must not only be fair, they must 'appear fair to all who observe them.'"

So, how should we balance those competing values? According to Professor Johnston, we should do so by applying a two criteria test for representational competence:

First, representational competence should require those functional abilities necessarily present for the exercise of meaningful autonomy. Second, a representational competence standard should include a particular functional ability if its absence poses a grave threat to the reliability or the actual or apparent fairness of the adjudication

Bet You Thought You'd Solved All Your Problems

Now, how do we go about fleshing out this two criteria test for representational competence? Professor Johnston argues that we need to look at social problem-solving theory, which I think makes a great deal of sense. Again, we're trying to fill in the gray area between competence to stand trial and competence to self-represent. The logical starting point, then, is to consider the nature of these two competencies. Let's first look at the competency required to stand trial:

A represented defendant is authorized to make only a few decisions within the context of a criminal adjudication: whether to plead guilty, waive the right to a jury trial, waive the right to counsel, testify and be present at trial. As a matter of basic ethics, for each of these decisions counsel will identify for his client the decision point, clarify the issue, distill the possible options, gather relevant information, perform key analysis, and present his recommendation. The task left to the defendant is to select among the options outlined by counsel.


A pro se defendant...faces a markedly different and more challenging decisional context than his represented counterpart. To defend himself from prosecution, a pro se defendant will be called upon to make a multitude of decisions in short succession: which defense, if any, to exert and how to establish it, which witnesses to call and what to ask them, whether to testify and what to say, what evidence to introduce and how to introduce it, whether and how to cross-examine unfavorable witnesses, whether and how to object to incompetent evidence, what information to include in opening and closing statements, and which jurors to strike and on what basis. The list goes on and on. For each of these decisions, a pro se defendant must—often unassisted—identify the relevant decision point, gather information to understand the situation, brainstorm alternative responses, evaluate these alternatives, and select an alternative. He will need to make decisions extemporaneously, during the course of trial, often while an impatient decision maker (the judge or jury) is waiting. Finally, a pro se defendant must, unless assisted by standby counsel, translate his decisions into courtroom-appropriate action.

In other words, a represented defendant is like a patron at a restaurant with a menu. Sure, this patron must make several decisions: What item(s) to select, whether to order an appetizer and/or dessert, how his meat should be cooked, etc. On the other hand, a pro se defendant is like a Top Chef contestant given a series of challenges without immediately apparent responses (e.g., whip up a dish made entirely out of items from the vending machine down the hall) and forced to come up with on the spot solutions. According to Professor Johnston,

Self-representation, at its core, is an exercise in problem solving, where the "problem" is the prosecution of one or more criminal charges and the "solution" is the selection and implementation of an effective defense. To identify the range of decisional abilities potentially necessary for self-representation, our initial inquiry should focus on disaggregating the problem-solving process. This disaggregation will illuminate abilities necessary for making decisions worthy of deference at a criminal trial, without the assistance of counsel.

This begs the question of which problem-solving theory is most suitable to the self-representation analysis, and Professor Johnston finds the best match to be social-problem solving theory, with social problem-solving

defined as the self-directed cognitive, behavioral, and affective process by which an individual attempts to identify effective solutions for specific problems encountered in the natural environment. [The theory] define[s] a problem as "any life situation or task (present or anticipated) that demands a response for adaptive functioning but no effective response is immediately apparent or available to the person or people confronted with the situation because of the presence of one or more obstacles." Obstacles may include novelty, ambiguity, deficiency of performance skills, or lack of resources. A problem is thus a particular person-environment relationship marked by a perceived imbalance between demands and adaptive response availability.

By definition, social problem-solving theory applies to problems in everyday life. Social problem solving is intended to encompass impersonal problems such as insufficient finances, personal or intrapersonal problems such as cognitive or health problems, interpersonal problems such as marital conflicts, and broader community and social problems such as crime and racial discrimination. Thus, social problem-solving theory should be relevant in analyzing the decisionmaking process of a pro se defendant in a criminal trial.

Professor Johnston then breaks down which problem solving domains and associated abilities should (and should not) be included in the representational competence standard. Here is brief sketch of some of the arguments, and I would recommend that readers check out her article for her full analysis:

Problem Orientation

•Problem orientation...is a motivational process that involves the general cognitive, behavioral, and affective response of an individual when confronted with a specific problem....From a normative standpoint, three aspects of problem orientation are appropriate and important to include in a representational competence standard. 

Capacity to Perceive Problematic Situations: First, a defendant should possess some degree of problem perception, or the ability to recognize the presence of a problem or decision point. If a defendant is unable to recognize a decision point, then his reaction at that moment cannot stand for a deliberate exercise of autonomous decisionmaking. In the context of self-representation, a defendant should be capable, to the extent he possesses necessary procedural and evidentiary knowledge (an important caveat), of recognizing points at trial at which he could advance his defense.

Ability to Identify Plausible Source for the Prosecution: Second, a defendant should be capable of ascribing a problem to a rational, non-delusional source. If a defendant is unable to engage in a reality- based search for the cause of a stressful situation, then he will be incapable of accurately appraising the problem and setting realistic goals for remedying the situation. A court should hold a defendant incompetent to represent himself if he attributes the underlying offense or the origin of the prosecution to a source that is impossible, either absolutely or as to the individual.

Willingness to Attend the Prosecution: Third, the defendant’s approach/avoidance style should be one in which he possesses a willingness to tackle problems. This element implicates the defendant’s personal control beliefs, or beliefs about his ability to address problems adequately. If a defendant believes himself incapable of solving problems and thus persistently avoids and evades decision points, then he will be incapable of making the host of decisions (often in quick succession) that trial demands. For the defendant who opts to go to trial, an unwillingness to challenge the prosecution’s case because of mental illness or disability may signal an inadequate approach/avoidance style.

Problem Definition and Formulation

Ability to Gather Information to Evaluate the Prosecution's Case: Of primary importance at the problem formulation stage, according to social problem-solving theory, is to gather relevant information about how and why a situation is troubling or why action is necessary....To satisfy minimal standards of reliability, a defendant should be capable of selecting and building his defense in response to the government’s case. Assessing the "problem" of the prosecution prior to trial involves gathering information on the government’s likely prosecution theory and assessing the likely evidence to be introduced against the defendant. To this end, a criminal defendant should be capable of understanding the elements of the charged offense, identifying facts (including physical evidence and likely witness testimony) helpful to the State, and roughly evaluating the significance of that evidence for the government’s case. As the trial unfolds, the defendant should be able to comprehend the course of the proceedings and the substantial effect of the government’s evidence. He should be able to examine the government’s case and discern potential deficiencies in the evidence. Finally, he should be capable of identifying favorable evidence and understanding its legal relevance.

Generation of Alternative Solutions: 

Ability to Generate Alternative Courses of Action: A representational competence standard should not require a criminal defendant to exercise optimal strategies for generating alternative solutions, but it probably should encompass the basic ability to generate more than one option in response to a given problem. By definition, one cannot solve a problem without generating at least one possible solution. It is also likely true that one’s ability to generate an adequate response depends on the capacity to brainstorm multiple options. In the context of a criminal trial, generating alternative approaches at a given decision point—whether what defense to exert, how to build that defense, or how to respond to a witness called by the State—is a function normally served by counsel. Given the centrality of this process to problem solving in general and criminal litigation in particular, it seems reasonable to require a defendant seeking to represent himself at trial to possess the ability to generate alternative strategies for solving a problem at a given decision point


Ability to Justify Key Decisions With a Plausible Reason: To honor the preference for autonomy, I suggest that a defendant possesses adequate reasoning ability if he is capable of justifying his selection of a defense with a single reason that has a plausible grounding in reality. Justifications with a plausible grounding in reality would include reasons enjoying a modicum of evidentiary support and those capable of evidentiary support in the world as we understand it. In contrast to the requirement that a defendant demonstrate the capacity to engage in a logical, probability-laden decisionmaking process, this standard would accommodate individuals' differing decisionmaking styles. The standard would also respect variation in defendants’ beliefs, values, and preferences. It has the added benefit of providing a fairly objective measure of plausibility, which would serve to constrain a court’s ability to find "incompetent" those decisions that a court believes to be unwise.

Solution Implementation

•The final stage of problem solving involves solution implementation, or carrying out the chosen solution....While representational competence should not include a robust communication or performance element, several elements of solution implementation may be appropriate for inclusion in a representational competence standard.

Ability to Maintain Mental Organization and Ability to Withstand the Stress of Trial: In particular, a defendant should be able to make decisions within the context of trial. This requires the ability to sustain mental organization, maintain concentration or attention, make decisions within a short timeframe, and withstand the stress likely to accompany trial participation. Trial is stressful and necessitates the ability to make decisions within a short period of time before an impatient, potentially hostile audience. Often within the span of a few minutes, a defendant will need to decide, for instance, whether to object to arguably prejudicial or irrelevant questions in the direct examination of a witness, whether to cross-examine the witness, and what lines of inquiry to pursue. A representational competence standard should not require the ability to make numerous decisions under stress consistently....But a defendant arguably should have the capacity to make a decision without protracted delay, remember that decision, and act in general accordance with that decision as the trial proceeds.

Ability to Communicate Decisions to a Functionary of the Court: In addition, a defendant should be able to communicate his decisions to a functionary of the court. To satisfy the Dusky standard to stand trial, a defendant must be able to communicate pertinent information to counsel and express a preference as to fundamental decisions within his decisional domain. Self-representation may, depending on the support provided to the defendant, require communicative abilities of a different degree

Effect and Cause

In the final part of her article, Professor Johnston addresses an ambiguity created by the Court in Edwards. As noted, in Edwards, the Court held that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Based upon this language, it appears that a court cannot deem a defendant competent to stand trial incompetent to represent himself unless this incompetence is caused by mental illness (or mental disability). Professor Johnston, however, notes that other language is less clear and leaves open the door for courts possibly deeming defendants incompetent to represent themselves based, inter alia, upon temporary functional disabilities and functional disabilities due solely to physical limitations...."

Professor Johnston closes this door, noting that "[c]ausation is one of the defining hallmarks of legal competency standards in civil and criminal contexts" and that "[m]ost competency standards require that legally recognized deficiencies originate from mental illness or mental disability." She then concludes that

Limiting the legal recognition of a functional disability to those disabilities caused by mental illness or disability would help ensure that courts do not deprive individuals of their constitutional right to represent themselves merely because their choices are odd or different. A fundamental tenet of mental health law is that "the legally relevant behavior of mentally disordered persons is a product of their mental disorder and not of their free choice." A state’s power to deprive an incompetent defendant of his Sixth Amendment right to self-representation—and to impose a substitute decision maker on the defendant—extends from its parens patriae authority. Therefore, the justification for a state’s intervention should be to protect the defendant from decisions that stem from illness or disability rather than from those that are the product of the individual’s free will. Put simply, individuals capable of rational, autonomous decisionmaking should not have to suffer the state’s "protection" or the abdication of their ability to make choices


As I said at the start, the question of whether a defendant should be able to represent himself at trial is fundamental to the criminal justice system, and yet, the Supreme Court has not equipped lower courts with the tools to be able to answer that question. All the Court has provided is a skeletal framework, leaving lower courts to perform something akin to the game Operation, hoping that they don't set off the buzzer in the form of a constitutional violation. I think that the great value of Professor Johnston's proposal is that it sets forth a logical approach to the question that judges could smoothly incorporate into the existing case law. I asked Professor Johnston what led her to write the article, and she responded:

I wrote the piece in response to what I perceived as a large gap in the law -- the Supreme Court approved a higher standard of competence to represent oneself than to stand trial without delineating the essential features of that standard.  I worried, in particular, about how this standard could be applied to individuals with serious mental illnesses.  I therefore tried to identify a framework for identifying capabilities that every person should possess before she is permitted to represent herself.  For that, as you know, I drew on social problem-solving theory, after developing a normative framework to assess each capability suggested by that theory.  I received a call from a federal judge interested in implementing my proposed standard several months ago -- I hope it will ultimately have broad appeal.   

Representational Competence builds upon an earlier article, titled Setting the Standard: A Critique of Bonnie's Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at Trial (43 U.C. DAVIS L. REV. 1605 (2010)).   



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