Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

74 Pages Posted: 25 Mar 2010 Last revised: 9 Jun 2011

E. Lea Johnston

University of Florida - Levin College of Law

Date Written: March 15, 2010

Abstract

In 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 delineate a permissible representational competence standard but indicated that findings of incompetence based on a lack of decisionmaking ability would withstand constitutional scrutiny. To date, no court or commentator has suggested a comprehensive competency standard to address the particular decisional context of self-representation at trial. Conceptualizing self-representation as an exercise in problem solving, this Article draws upon social problem-solving theory to identify abilities necessary for autonomous decisionmaking. The Article develops and applies a normative theory of representational competence to evaluate particular problem-solving abilities in light of competing norms of self-representation. It concludes by proposing a representational competence standard.

Keywords: self-representation, Sixth Amendment, competence, problem solving

Suggested Citation

Johnston, E. Lea, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (March 15, 2010). Notre Dame Law Review, Vol. 86, 2010; University of Florida Levin College of Law Research Paper No. 2010-08. Available at SSRN: https://ssrn.com/abstract=1571157

E. Lea Johnston (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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