Setting the Standard: A Critique of Bonnie’s Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at Trial

Abstract

In Indiana v. Edwards, 128 S. Ct. 2379 (2008), the 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 approval the standard of adjudicative competence developed by Professor Richard Bonnie. This paper challenges the legitimacy of applying Bonnie’s standard to self-representation at trial. In particular, the normative and contextual underpinnings of Bonnie’s standard, as well as its derivation from medical treatment decisionmaking, make it insufficient for and largely inapplicable to self-representation. To illuminate abilities necessary for decisionmaking at trial, the author draws upon social problem-solving theory. Self-representation is, at base, an exercise in problem solving, where the major “problem” is the prosecution of a criminal charge. Problem-solving theory thus provides insight into fundamental components of autonomous decisionmaking at trial. Applying a normative theory of representational competence that balances concerns of autonomy, reliability, and fairness, the paper concludes by suggesting a subset of problem-solving abilities that may be critical for self-representation at trial.

Keywords: Sixth Amendment, self-representation, competency