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

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