Competency, Foundational and Decisional

The law in the United States requires that criminal defendants be competent to participate in the adjudicatory proceedings against them. Legal competence is a complex construct that includes both the fundamental capacities needed to participate in the process (adjudicative competence) and a degree of autonomy in making important case decisions (decisional competence). This research paper examines the legal criteria for competence as well as the societal values that underlie the requirements concerning the ability of those accused of crime to participate in proceedings against them.

Criteria for Adjudicative Competence

In the United States, individuals accused of crimes are afforded certain constitutional rights and protections during the adjudicatory process. The Fifth Amendment, for example, protects defendants from being compelled by the state to testify against themselves. The Sixth Amendment provides defendants with the right to the assistance of legal counsel, the right to confront their accusers and the evidence against them, and the right to a trial by jury. To benefit from these rights, defendants must be mentally able to assert them. It is not enough that defendants be physically present during adjudicatory proceedings; they must also have the mental capacity to exercise their rights—that is, they must be “competent.”

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When questions are raised about a defendant’s competence, it is the responsibility of the trial judge to make an inquiry and determine whether he or she has the requisite abilities to go forward to adjudication. The broad criteria for adjudicative competence were articulated by the U.S. Supreme Court in the case of Dusky v. United States (1960). The trial judge must determine “whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him.”

Careful scrutiny of this “test” for legal competence reveals several important features:

  1. A defendant does not have to be completely competent. Only sufficient abilities are required (and these may vary with the complexity and demands of the case).
  2. Adjudicative competence is concerned with present mental capacities. It is arguably irrelevant that a defendant had significant mental impairment at some point in the past or may again experience such difficulties in the distant future (the current inquiry does assume that present capacities are likely to be maintained in the near future during the course of the pending proceedings). In particular, adjudicative competence is distinguished from inquiries related to legal insanity, a retrospective judgment as to the defendant’s mental state at the time of the offense.
  3. Adjudicative competence is about ability or A defendant who is ignorant (e.g., lacks present factual understanding of the legal proceedings) may still be competent if it is determined that he or she is intellectually able to assimilate the relevant information (e.g., through education by or consultation with the attorney). Similarly, a voluntary unwillingness or reluctance (e.g., due to bad character or attitude) to perform the required legal tasks (e.g., to consult with one’s attorney) is not a basis for a finding of incompetence.
  4. The criteria are functional legal abilities. The mere presence of symptoms of mental disorder, even if substantial in nature, is not sufficient to render a defendant legally incompetent. There must be a further showing that the mental disorder adversely affects the abilities articulated in Dusky (i.e., to assist counsel, to factually or rationally understand the proceedings).

Societal Values and Competency

For the state to proceed against a defendant who is incompetent affronts important societal values that the constitutional rights were intended to protect. One important value is the dignity of the process; it offends the moral dignity of society for the state to proceed against an individual, whose liberty (and in capital cases, life) is at stake, when that individual is not capable of competent participation in the adversary proceedings. Proceeding against an individual who is “defenseless” due to mental incapacity conjures notions of a “kangaroo court” and conflicts with fundamental notions of fairness.

A second and perhaps more obvious value is accuracy. A variety of forms of mental incapacity impair basic cognitive abilities such as attention and memory. Attentional capacity is needed, for example, to hear, process, and heed advice from one’s attorney or to attend to testimony by witnesses in order to identify erroneous or false statements. Intact memory is needed to recall and relate legally relevant, and potentially exculpatory, information to the attorney. Perceptual, emotional, or cognitive distortions regarding others’ attitudes or intentions—for example, delusional beliefs that one’s attorney is secretly working for the state—may impair the development of a cooperative working relationship, which is necessary for the preparation of a legal defense. Such impairments may result in inaccurate verdicts (i.e., wrongful convictions) and unjust punishments, with innocent individuals being incarcerated while criminals go free.

A third societal value implicated in the competence construct is individual autonomy. Respect for the individual and an individual’s right to self-determination demands that a defendant be capable of at least a minimal degree of autonomous participation in the adjudicatory process. Although the Sixth Amendment provides for the assistance of counsel, respect for individual autonomy limits the extent to which an attorney can act independently of the defendant. It is, after all, the defendant’s case. In recognition of this important value, the legal system precludes attorneys from making independent decisions regarding the waiver of constitutional rights; for a defendant to be competent, he or she must be capable of a minimal degree of autonomous participation in decisions such as whether to waive the right to trial and enter into a plea agreement, waive the protection against self-incrimination and testify as a witness, or waive the right to legal counsel and represent oneself in the proceedings.

Foundational and Decisional Competence

A theory of legal competence that reflects these societal values and encompasses the constitutional requirements has been articulated by the University of Virginia law professor Richard Bonnie. This theory distinguishes between two aspects of legal competence: a foundational competence to assist counsel and decisional competence. Foundational competence captures the minimal conditions necessary for a defendant to participate, in a general way, in his or her defense. These conditions include (a) understanding the allegations and the basic elements of the adversary system, (b) recognizing one’s own role as the accused individual whose liberty interests are at risk, and (c) having the ability to provide relevant factual information to the lawyer in order to facilitate the development of a defense. These specific functional abilities reflect the capacities articulated by the U.S. Supreme Court in Dusky v. United States as fundamental to competence: the ability to assist one’s attorney, and the capacity to understand, both factually and rationally, the proceedings that lead to adjudication. According to Bonnie, these baseline, or fundamental, legal capacities serve the dignity and accuracy concerns that underpin the adjudicatory process.

Decisional competence, as noted above, is more specific than the foundational competence construct. It derives from the underlying value of individual autonomy and implicates the functional abilities needed to demonstrate a minimal degree of independence in making decisions, specifically decisions to waive constitutional protections. Defense attorneys retain autonomy for a wide variety of case-related decisions, such as the general defense theory/strategy to pursue, which witnesses to call and what questions to ask, and so forth. However, the law does not permit attorneys to independently waive their clients’ constitutional rights, and the rationale for this limit on their authority is clear—all citizens, whether wrongfully accused or otherwise, would ultimately have no protection in a system that allowed any third party to sign away those rights.

When questions arise concerning a defendant’s competence to proceed, the courts routinely turn to mental health professionals for assistance in determining whether, and to what extent, mental problems (often cast as “mental disease or defect”) impair competence. As noted above, the Supreme Court’s language in Dusky v. United States provided broad descriptions of the functional legal abilities relevant to foundational competence, and these have served to guide forensic examiners’ evaluations about foundational competence issues. Unfortunately, there has been no parallel case that has attempted to articulate or operationalize the functional abilities related to decisional competence.

A number of lower courts have required that a defendant’s waiver of constitutional rights must be “knowing,” “intelligent,” and “voluntary,” and these concerns underpin the colloquies that judges routinely conduct, for example, with defendants who decide to waive their constitutional rights (e.g., to a trial, to not testify against themselves) and accept a plea offer from the state.

Although explicit legal guidance is lacking regarding the functional abilities relevant to decisional competence, legal scholars and mental health professionals informed by Bonnie’s theory have considered this issue. Approaches to assessing decisional competence abilities, some of which have been incorporated into contemporary competence assessment measures (e.g., the MacArthur Competence Assessment Tool-Criminal Adjudication), include evaluating (a) the defendant’s ability to articulate the advantages and disadvantages of alternative courses of action (e.g., going to trial vs. accepting a plea agreement), (b) the defendant’s ability to articulate a risks-and-benefits analysis of a proposed course of action, and (c) the plausibility of the defendant’s reasons for a choice that the defendant considers most appropriate in his or her own case. Articulating these clinical strategies for assessing the functional abilities related to decisional competence makes explicit the basis for the clinical opinions that mental health experts may offer in the absence of clear legal definitions and guidelines with respect to decisional competence.

To date, Bonnie’s distinction between foundational and decisional competence has had minimal impact in the highest legal circles. In Godinez v. Moran (1993), the Supreme Court addressed the issue of decisional competence and endorsed some of the lower courts’ language requiring that a defendant’s waiver of constitutional rights be “knowing” (intelligent) and “voluntary.” However, the Court declined to articulate a separate criterion or standard for decisional competence and held that, generally, the standard for competency to waive constitutional rights is encompassed within the Dusky standard.

The Court’s holding in Godinez notwithstanding, it is likely that Bonnie’s theory of foundational and decisional competence has had an important impact on the field. It has raised awareness of the complexities of the adjudicative competence construct and encouraged forensic evaluators, whose reports and testimony inform the courts regarding defendants’ competence-related abilities, to assess decision-making capacities as part of their evaluations.

Historically, pretrial competency evaluations for the courts were often captured under the rubric “competency to stand trial,” and many of the interview guides and competency assessment instruments developed for forensic examiners focused on defendants’ comprehension of trial proceedings. In a sense, this emphasis was misplaced because in reality, few defendants ever go to trial. Upward of 90% of criminal cases are resolved by some form of plea bargain or plea agreement, each of which entails the waiver of one or more of the constitutional protections discussed above. Thus, Bonnie’s elaboration of the decisional competence construct has stimulated clinical thinking about the mental abilities needed to intelligently weigh decisional alternatives (e.g., to be able to describe the potential risks and benefits of alternative courses of action) and ways to craft new measures for the systematic assessment of those abilities. Through careful consultation with defense attorneys about the likely case decision points, particularly those that involve the waiver of rights, psychiatric and psychological examiners may better tailor their evaluations to provide information to the courts about defendants’ foundational and decisional competence abilities.


  1. Bonnie, R. (1990). The competence of criminal defendants with mental retardation to participate in their own defense. Journal of Criminal Law and Criminology, 81, 419—146.
  2. Bonnie, R. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291-316.
  3. Bonnie, R. (1993). The competence of criminal defendants: Beyond Dusky and University of Miami Law Review, 46, 539-601.
  4. Dusky v. United States, 362 U.S. 402 (1960).
  5. Godinez v. Moran, 509 U.S. 389 (1993).
  6. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (in press). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford Press.

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