Competency to Waive Counsel

In the United States, it is permissible, with the approval of the judge, for a criminal defendant to act as his or her own attorney when the case goes to court. Legal and clinical issues related to the defendant’s being competent to waive the right to legal representation are discussed in this research paper.

In the United States, defendants accused of criminal charges are entitled to rights and protections by the Constitution. One important right articulated in the Sixth Amendment is that every accused person is entitled to representation by a legal counsel. Like other constitutional rights, the right to counsel is guaranteed—that is, no one, including even the judge, can deprive the defendant of this right. However, a defendant may request a waiver of the Sixth Amendment right to legal representation and permission of the court to represent himself or herself—in legal parlance, to proceed pro se.

Waiving some constitutional rights is a common occurrence. The overwhelming majority of criminal cases (more than 90%) are resolved through a plea agreement between the defendant and the state, and to enter a guilty plea, a defendant must waive the constitutional rights to a trial and to confront the evidence. When it is required that the defendant provide a factual basis or justification for the plea, he or she may further have to waive the Fifth Amendment right against self-incrimination.

In the context of entering a guilty plea, defendants’ waiver requests typically occur after consultation with, and with the advice and consent of, their attorneys. Furthermore, by their nature, plea agreements are about disposition of the case; thus, defendants are commonly well-informed about the personal consequences of these waivers. In contrast, the request to waive the right to counsel more often marks a rift between the client and the attorney, and the potential impact on case outcome is usually not known. However, it is almost universally agreed that the likely impact is not good, as reflected in the adage that a defendant who proceeds pro se “has a fool for a client and an idiot for a lawyer.” But in the most exceptional cases, criminal defendants likely disadvantage themselves because they might lack the litigation skills needed to present their cases most effectively. Nevertheless, the judge may approve a request if he or she determines that the defendant is competent to waive counsel.

Case law has articulated the qualities that must be present with respect to competent waivers of constitutional rights. Although there are minor variations in language across cases, generally, the judge must determine that the waiver is made knowingly, intelligently, and voluntarily. One court stated that the judge must determine whether the waiver was “made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” The courts have not further articulated the specific functional abilities (i.e., behavioral indicators) that are required for a defendant to demonstrate that his or her request meets these qualitative criteria. However, the case law is clear as to what is not required: It is not required that the judge deem the defendant’s decision to be a prudent one, nor does the competence determination hinge in any way on a demonstration that the defendant has litigation skills.

When a defendant expresses the desire to waive the right to counsel, the court, either on its own motion or on the motion of the defense attorney, may order a clinical evaluation of the defendant’s mental competence. Presently, there are no standardized methods for psychiatrists or psychologists to use to evaluate competence to waive counsel, and most such evaluations will be based on unstructured interviews, the substance and process of which may vary widely across examiners. An interviewing strategy used in evaluating competence to plead guilty is embedded in the MacArthur Competence Assessment Tool-Criminal Adjudication and may offer some guidance for evaluations of competence to proceed pro se. Briefly, this strategy involves having the defendant articulate what the choices are— in this instance, proceeding with an attorney in charge of presenting the defense or proceeding pro se. The defendant is then asked to describe both the potential advantages and the potential disadvantages of each alternative. Subsequent queries require that the alternatives be compared and contrasted (e.g., “Explain why Alternative a might be better than Alternative b. Are there some ways in which Alternative b might be better than Alternative a?”). A query as to the final choice and the reasons for that choice solicits the defendant’s beliefs about his or her case and situation, enabling the clinician to formulate a judgment of the plausibility or rationality and coherence of the defendant’s thinking.

Ultimately, it is the judge’s decision whether to permit the waiver of the right to counsel. Even if the request to waive representation by counsel is granted and the case proceeds with the accused having primary responsibility for the defense, the judge may still order that a lawyer be present during subsequent proceedings and available as a consultant to the defendant. Providing for such consultation, whether or not the defendants makes use of it, is a positive gesture by the court that attempts to ensure fairness and preserve the dignity of the adjudicatory process.

References:

1. Litwack, T. R. (2003). The competency of criminal defendants to refuse, for delusional reasons, a viable insanity defense recommended by counsel. Behavioral Sciences and the Law, 21, 135-156.
2. Mossman, D., & Dunseith, N. W., Jr. (2001). “A fool for a client”: Print portrayal of 49 pro se criminal defendants. Journal of the American Academy of Psychiatry and the Law, 29, 408-119.
3. Perlin, M. (1996). “Dignity was the first to leave”: Godinez v. Moran, Colin Ferguson, and the trial of mentally disabled criminal defendants. Behavioral Sciences and the Law, 14, 61-81.
4. Skeem, J., Golding, S. L., & Emke-Francis, P. (2003). Assessing adjudicative competency: Using legal and empirical principles to inform practice. In W. T. O’Donohue & E. R. Levensky (Eds.), Handbook of forensic psychology: Resource for mental health and legal professionals (pp. 175-211). Amsterdam: Elsevier.

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