Encyclopedia of Psychology and Law

articulated by the U.S. Supreme Court in the case of

Dusky v. United States(1960). The trial judge must

determine “whether the defendant has sufficient pres-

ent ability to consult with his lawyer with a reasonable

degree of rational understanding, and whether he has

a rational as well as factual understanding of the pro-

ceedings against him.”

Careful scrutiny of this “test” for legal competence

reveals several important features:

1. A defendant does not have to be completely com-
   petent. Only sufficientabilities are required (and these
   may vary with the complexity and demands of the case).


2. Adjudicative competence is concerned with pres-
   entmental capacities. It is arguably irrelevant that a
   defendant had significant mental impairment at some
   point in the past or may again experience such difficul-
   ties in the distant future (the current inquiry does assume
   that present capacities are likely to be maintained in the
   near future during the course of the pending proceed-
   ings). In particular, adjudicative competence is distin-
   guished from inquiries related to legal insanity, a
   retrospective judgment as to the defendant’s mental state
   at the time of the offense.


3. Adjudicative competence is about ability or
   capacity. A defendant who is ignorant (e.g., lacks pres-
   ent factualunderstanding of the legal proceedings)
   may still be competent if it is determined that he or
   she is intellectually able to assimilate the relevant
   information (e.g., through education by or consulta-
   tion with the attorney). Similarly, a voluntary unwill-
   ingness or reluctance (e.g., due to bad character or
   attitude) to perform the required legal tasks (e.g., to
   consult with one’s attorney) is not a basis for a finding
   of incompetence.


4. The criteria are functional legal abilities. The
   mere presence of symptoms of mental disorder, even if
   substantial in nature, is not sufficient to render a defen-
   dant legally incompetent. There must be a further
   showing that the mental disorder adversely affects the
   abilities articulated in Dusky(i.e., to assist counsel, to
   factually or rationally understand the proceedings).

Societal Values and Competency

For the state to proceed against a defendant who is

incompetent affronts important societal values that the

constitutional rights were intended to protect. One

important value is the dignity of the process; it offends

the moral dignity of society for the state to proceed

against an individual, whose liberty (and in capital

cases, life) is at stake, when that individual is not

capable of competent participation in the adversary

proceedings. Proceeding against an individual who is

“defenseless” due to mental incapacity conjures

notions of a “kangaroo court” and conflicts with fun-

damental notions of fairness.

A second and perhaps more obvious value is accu-

racy. A variety of forms of mental incapacity impair

basic cognitive abilities such as attention and memory.

Attentional capacity is needed, for example, to hear,

process, and heed advice from one’s attorney or to

attend to testimony by witnesses in order to identify

erroneous or false statements. Intact memory is

needed to recall and relate legally relevant, and

potentially exculpatory, information to the attorney.

Perceptual, emotional, or cognitive distortions regard-

ing others’ attitudes or intentions—for example, delu-

sional beliefs that one’s attorney is secretly working

for the state—may impair the development of a coop-

erative working relationship, which is necessary for

the preparation of a legal defense. Such impairments

may result in inaccurate verdicts (i.e., wrongful con-

victions) and unjust punishments, with innocent indi-

viduals being incarcerated while criminals go free.

A third societal value implicated in the competence

construct is individual autonomy. Respect for the indi-

vidual and an individual’s right to self-determination

demands that a defendant be capable of at least a mini-

mal degree of autonomous participation in the adjudica-

tory process. Although the Sixth Amendment provides

for the assistance of counsel, respect for individual

autonomy limits the extent to which an attorney can act

independently of the defendant. It is, after all, the defen-

dant’s case. In recognition of this important value, the

legal system precludes attorneys from making indepen-

dent decisions regarding the waiver of constitutional

rights; for a defendant to be competent, he or she must

be capable of a minimal degree of autonomous partici-

pation in decisions such as whether to waive the right to

trial and enter into a plea agreement, waive the protec-

tion against self-incrimination and testify as a witness,

or waive the right to legal counsel and represent oneself

in the proceedings.

Foundational and

Decisional Competence

A theory of legal competence that reflects these

societal values and encompasses the constitutional

106 ———Competency, Foundational and Decisional

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