Setting the Standard: A Critique of Bonnie's Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at TrialUF Law Faculty Publications
AbstractIn Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competency standard for self-representation than to stand trial. The Court declined to specify the contents of a permissible representational competence standard, but cited with support the construct of adjudicative competence developed by Professor Richard Bonnie. While Bonnie's proposal may provide an appropriate framework for evaluating the competence of represented defendants' decisions, it is at most a starting point for defining the capacities needed for self-representation at trial. This Article begins by exposing three reasons why Bonnie's approach is inadequate to address self-representation. First, Bonnie selected the functional abilities necessary for decisional competence only in reference to the norm of autonomy. Second, Bonnie did not consider the unique decisionmaking context presented by self-representation. Third, Bonnie derived the elements in his decisional competence construct from the subset of abilities considered necessary to consent to medical treatment. While many similarities exist between a represented defendant and a medical patient, this analogy does not hold for unrepresented defendants forced to make decisions at trial without an expert's assistance. Next, the Article -- conceptualizing self-representation as an exercise in problem solving, where the major "problem" is the prosecution of a criminal charge -- draws upon psychological theories of problem solving to identify abilities necessary for decisionmaking at trial. Applying a normative theory of representational competence that balances concerns of autonomy, reliability, and fairness, the Article concludes by suggesting a subset of abilities that may be critical for self-representation at trial.
Citation InformationE. Lea Johnston, 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), available at http://scholarship.law.ufl.edu/facultypub/25