Competence Standard Not Good Enough for Self-Defense

BOSTON – A person with mental illness who insists on defending himself in court should not be allowed to sink or swim on his own, said a forensic psychiatrist at the annual meeting of the American Academy of Psychiatry and the Law.

A survey of forensic evaluators suggests that a minimum standard for determining pro se competency should include the defendant’s willingness to accept standby counsel, appraise legal defenses, plan legal strategy, and question and challenge witnesses.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman from the State University of New York Upstate Medical Center in Syracuse.

"To represent yourself, there are several things you have to do: You have to be able to organize your defense, make motions, argue points, participate in jury selection, question witnesses, read legal documents, address the court – a very complex skill set," he said.

Dr. Kaufman noted that the case of Indiana v. Edwards, decided by the U.S. Supreme Court in 2008, established that the state standard for determining competence required for self-defense may be higher than that for determining whether a defendant is competent to stand trial, with the trial judge having the final burden of making the determination.

In the Edwards case, a man who had fired at a security guard and wounded a bystander while attempting to steal a pair of shoes was twice found incompetent to stand trial by a judge and appealed for the right to represent himself.

The minority held that, in the words of Justice Antonin Scalia, "the dignity at issue is the supreme dignity of being master of one’s own fate rather than a ward of the state – the dignity of individual choice."

But Justice Stephen Breyer, writing for the majority, said that "a self-representation right at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without assistance of counsel." To allow a defendant to act as his own lawyer in such a case "may undercut the most basic of the Constitution’s criminal law objectives: providing a fair trial," the opinion stated.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman.

The Supreme Court failed, however, to provide much guidance for trial court judges who are charged with determining whether someone found competent to stand trial is also competent to conduct his own legal defense, Dr. Kaufman said.

He and his colleagues initially sent an open-ended survey to 400 New York trial court judges, and received 18 responses. The respondents said that they would consider cognitive disorders (mental retardation, dementia) and that psychosis as conditions that would limit pro se competence.

The judges expressed eagerness for expert assistance in determining competence, and said that the domains that should be assessed in individual cases include the defendant intellectual and analytic abilities, legal knowledge and experience, language ability, and issues of severe mental illness and behavioral control.

The investigators then used the pilot data from that survey to create a new survey of forensic mental health experts, asking whether scores on individual items of the Competency Assessment Instrument (CAI), established by A. Louis McGarry and widely used to assess competence to stand trial, would need to be the same, somewhat higher, or much higher to determine pro se competence. They also asked about suitable levels of cognitive abilities, whether standby counsel should be mandatory, and whether the presence of standby counsel would change the level of competence require for self-defense.

Of the 300 contacted, 68 (23%) responded. In all, 58 of the 68 respondents were forensic psychiatrists with a mean 16.6 years if experience, and a mean number of competence-to-stand-trial evaluations of 263.

The respondents said the ability to take advantage of and plan legal strategies, to question or challenge witnesses, to understand court procedures, and to appraise likely outcomes needed to be higher or much higher than those for a standard competence determination. Other domains, such as self-serving motivation, the ability to appreciate change, appropriate behavior, role of court personnel, and ability to testify relevantly could be the same.

Nearly two-thirds of the respondents (60.3%) said that standby counsel should be mandatory, 22.1% disagreed, and 17.6% expressed no opinion. Additionally, 76% said the defendant needed at least average intelligence, 69% said at least average literacy, and 71% said at least average verbal communication abilities to be judged competent for self defense.

"As in other criminal competencies, there should be a presumption of competence, and since pro se competency in our opinion should be a higher standard – the court said ‘may be’ a higher standard, we believe it should be – the defendant must of course meet competency to stand trial criteria," Dr. Kaufman said.

To be declared incompetent, there must be a mental disease or defect and not simply poor judgment as the cause for incompetence, he added.

The study was internally funded. Dr. Kaufman reported that he had no financial disclosures.

BOSTON – A person with mental illness who insists on defending himself in court should not be allowed to sink or swim on his own, said a forensic psychiatrist at the annual meeting of the American Academy of Psychiatry and the Law.

A survey of forensic evaluators suggests that a minimum standard for determining pro se competency should include the defendant’s willingness to accept standby counsel, appraise legal defenses, plan legal strategy, and question and challenge witnesses.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman from the State University of New York Upstate Medical Center in Syracuse.

"To represent yourself, there are several things you have to do: You have to be able to organize your defense, make motions, argue points, participate in jury selection, question witnesses, read legal documents, address the court – a very complex skill set," he said.

Dr. Kaufman noted that the case of Indiana v. Edwards, decided by the U.S. Supreme Court in 2008, established that the state standard for determining competence required for self-defense may be higher than that for determining whether a defendant is competent to stand trial, with the trial judge having the final burden of making the determination.

In the Edwards case, a man who had fired at a security guard and wounded a bystander while attempting to steal a pair of shoes was twice found incompetent to stand trial by a judge and appealed for the right to represent himself.

The minority held that, in the words of Justice Antonin Scalia, "the dignity at issue is the supreme dignity of being master of one’s own fate rather than a ward of the state – the dignity of individual choice."

But Justice Stephen Breyer, writing for the majority, said that "a self-representation right at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without assistance of counsel." To allow a defendant to act as his own lawyer in such a case "may undercut the most basic of the Constitution’s criminal law objectives: providing a fair trial," the opinion stated.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman.

The Supreme Court failed, however, to provide much guidance for trial court judges who are charged with determining whether someone found competent to stand trial is also competent to conduct his own legal defense, Dr. Kaufman said.

He and his colleagues initially sent an open-ended survey to 400 New York trial court judges, and received 18 responses. The respondents said that they would consider cognitive disorders (mental retardation, dementia) and that psychosis as conditions that would limit pro se competence.

The judges expressed eagerness for expert assistance in determining competence, and said that the domains that should be assessed in individual cases include the defendant intellectual and analytic abilities, legal knowledge and experience, language ability, and issues of severe mental illness and behavioral control.

The investigators then used the pilot data from that survey to create a new survey of forensic mental health experts, asking whether scores on individual items of the Competency Assessment Instrument (CAI), established by A. Louis McGarry and widely used to assess competence to stand trial, would need to be the same, somewhat higher, or much higher to determine pro se competence. They also asked about suitable levels of cognitive abilities, whether standby counsel should be mandatory, and whether the presence of standby counsel would change the level of competence require for self-defense.

Of the 300 contacted, 68 (23%) responded. In all, 58 of the 68 respondents were forensic psychiatrists with a mean 16.6 years if experience, and a mean number of competence-to-stand-trial evaluations of 263.

The respondents said the ability to take advantage of and plan legal strategies, to question or challenge witnesses, to understand court procedures, and to appraise likely outcomes needed to be higher or much higher than those for a standard competence determination. Other domains, such as self-serving motivation, the ability to appreciate change, appropriate behavior, role of court personnel, and ability to testify relevantly could be the same.

Nearly two-thirds of the respondents (60.3%) said that standby counsel should be mandatory, 22.1% disagreed, and 17.6% expressed no opinion. Additionally, 76% said the defendant needed at least average intelligence, 69% said at least average literacy, and 71% said at least average verbal communication abilities to be judged competent for self defense.

"As in other criminal competencies, there should be a presumption of competence, and since pro se competency in our opinion should be a higher standard – the court said ‘may be’ a higher standard, we believe it should be – the defendant must of course meet competency to stand trial criteria," Dr. Kaufman said.

To be declared incompetent, there must be a mental disease or defect and not simply poor judgment as the cause for incompetence, he added.

The study was internally funded. Dr. Kaufman reported that he had no financial disclosures.

BOSTON – A person with mental illness who insists on defending himself in court should not be allowed to sink or swim on his own, said a forensic psychiatrist at the annual meeting of the American Academy of Psychiatry and the Law.

A survey of forensic evaluators suggests that a minimum standard for determining pro se competency should include the defendant’s willingness to accept standby counsel, appraise legal defenses, plan legal strategy, and question and challenge witnesses.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman from the State University of New York Upstate Medical Center in Syracuse.

"To represent yourself, there are several things you have to do: You have to be able to organize your defense, make motions, argue points, participate in jury selection, question witnesses, read legal documents, address the court – a very complex skill set," he said.

Dr. Kaufman noted that the case of Indiana v. Edwards, decided by the U.S. Supreme Court in 2008, established that the state standard for determining competence required for self-defense may be higher than that for determining whether a defendant is competent to stand trial, with the trial judge having the final burden of making the determination.

In the Edwards case, a man who had fired at a security guard and wounded a bystander while attempting to steal a pair of shoes was twice found incompetent to stand trial by a judge and appealed for the right to represent himself.

The minority held that, in the words of Justice Antonin Scalia, "the dignity at issue is the supreme dignity of being master of one’s own fate rather than a ward of the state – the dignity of individual choice."

But Justice Stephen Breyer, writing for the majority, said that "a self-representation right at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without assistance of counsel." To allow a defendant to act as his own lawyer in such a case "may undercut the most basic of the Constitution’s criminal law objectives: providing a fair trial," the opinion stated.

The defendant also should have at least average cognitive abilities, including intelligence, literacy, and verbal ability, said Dr. Andrew R. Kaufman.

The Supreme Court failed, however, to provide much guidance for trial court judges who are charged with determining whether someone found competent to stand trial is also competent to conduct his own legal defense, Dr. Kaufman said.

He and his colleagues initially sent an open-ended survey to 400 New York trial court judges, and received 18 responses. The respondents said that they would consider cognitive disorders (mental retardation, dementia) and that psychosis as conditions that would limit pro se competence.

The judges expressed eagerness for expert assistance in determining competence, and said that the domains that should be assessed in individual cases include the defendant intellectual and analytic abilities, legal knowledge and experience, language ability, and issues of severe mental illness and behavioral control.

The investigators then used the pilot data from that survey to create a new survey of forensic mental health experts, asking whether scores on individual items of the Competency Assessment Instrument (CAI), established by A. Louis McGarry and widely used to assess competence to stand trial, would need to be the same, somewhat higher, or much higher to determine pro se competence. They also asked about suitable levels of cognitive abilities, whether standby counsel should be mandatory, and whether the presence of standby counsel would change the level of competence require for self-defense.

Of the 300 contacted, 68 (23%) responded. In all, 58 of the 68 respondents were forensic psychiatrists with a mean 16.6 years if experience, and a mean number of competence-to-stand-trial evaluations of 263.

The respondents said the ability to take advantage of and plan legal strategies, to question or challenge witnesses, to understand court procedures, and to appraise likely outcomes needed to be higher or much higher than those for a standard competence determination. Other domains, such as self-serving motivation, the ability to appreciate change, appropriate behavior, role of court personnel, and ability to testify relevantly could be the same.

Nearly two-thirds of the respondents (60.3%) said that standby counsel should be mandatory, 22.1% disagreed, and 17.6% expressed no opinion. Additionally, 76% said the defendant needed at least average intelligence, 69% said at least average literacy, and 71% said at least average verbal communication abilities to be judged competent for self defense.

"As in other criminal competencies, there should be a presumption of competence, and since pro se competency in our opinion should be a higher standard – the court said ‘may be’ a higher standard, we believe it should be – the defendant must of course meet competency to stand trial criteria," Dr. Kaufman said.

To be declared incompetent, there must be a mental disease or defect and not simply poor judgment as the cause for incompetence, he added.

The study was internally funded. Dr. Kaufman reported that he had no financial disclosures.