Competence for Criminal Adjudication: The Emerging Significance of Decisional Competence

44 Pages Posted: 24 Jul 2018

See all articles by Richard J. Bonnie

Richard J. Bonnie

University of Virginia School of Law

Date Written: July 23, 2018


The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other appellate courts for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making. In a series of articles in the early 1990s, I called attention to emerging issues regarding “decisional competence” and speculated about possible approaches for resolving them. During the past twenty-five years, some governing principles have come into view, but important issues remain unresolved. After a brief review of the historical and conceptual foundations of the competence requirement, the article focuses on two decisions in which the Supreme Court has addressed decisional competence. In Godinez v. Moran (1993), the Court ruled that a pretrial finding that the defendant was competent to stand trial established that he was competent to waive representation by counsel and plead guilty because the test for competence is the same in all three contexts. However, in Edwards v. Indiana (2007), the Court held that a defendant who is competent to stand trial while being represented by counsel may not be competent to represent himself at trial. Although these decisions are not strictly contradictory, they are in deep tension with one another. This article attempts to set the law on a coherent path by highlighting the significance of doubts about decisional competence in both cases. In so doing, it sometimes draws on a personal account of the recent intellectual and scientific history of competence for criminal adjudication.

Keywords: competence to stand trial, competence to proceed, adjudicative competence, decision-making capacity, decisional competence, criminal defense, self-representation

Suggested Citation

Bonnie, Richard J., Competence for Criminal Adjudication: The Emerging Significance of Decisional Competence (July 23, 2018). Virginia Public Law and Legal Theory Research Paper No. 2018-40, Available at SSRN:

Richard J. Bonnie (Contact Author)

University of Virginia School of Law ( email )

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Charlottesville, VA 22903
United States

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