requirements has been articulated by the University of
Virginia law professor Richard Bonnie. This theory
distinguishes between two aspects of legal compe-
tence: a foundational competence to assist counsel
and decisional competence. Foundational competence
captures the minimal conditions necessary for a
defendant to participate, in a general way, in his or her
defense. These conditions include (a) understanding
the allegations and the basic elements of the adversary
system, (b) recognizing one’s own role as the accused
individual whose liberty interests are at risk, and
(c) having the ability to provide relevant factual infor-
mation to the lawyer in order to facilitate the develop-
ment of a defense. These specific functional abilities
reflect the capacities articulated by the U.S. Supreme
Court in Dusky v. United Statesas fundamental to
competence: the ability to assist one’s attorney, and
the capacity to understand, both factually and ratio-
nally, the proceedings that lead to adjudication.
According to Bonnie, these baseline, or fundamental,
legal capacities serve the dignity and accuracy con-
cerns that underpin the adjudicatory process.
Decisional competence, as noted above, is more spe-
cific than the foundational competence construct. It
derives from the underlying value of individual auton-
omyand implicates the functional abilities needed to
demonstrate a minimal degree of independence in mak-
ing decisions, specifically decisions to waive constitu-
tional protections. Defense attorneys retain autonomy
for a wide variety of case-related decisions, such as the
general defense theory/strategy to pursue, which wit-
nesses to call and what questions to ask, and so forth.
However, the law does not permit attorneys to indepen-
dently waive their clients’ constitutional rights, and the
rationale for this limit on their authority is clear—all
citizens, whether wrongfully accused or otherwise,
would ultimately have no protection in a system that
allowed any third party to sign away those rights.
When questions arise concerning a defendant’s
competence to proceed, the courts routinely turn to
mental health professionals for assistance in determin-
ing whether, and to what extent, mental problems (often
cast as “mental disease or defect”) impair competence.
As noted above, the Supreme Court’s language in
Dusky v. United Statesprovided broad descriptions of
the functional legal abilities relevant to foundational
competence, and these have served to guide forensic
examiners’ evaluations about foundational competence
issues. Unfortunately, there has been no parallel case
that has attempted to articulate or operationalize the
functional abilities related to decisional competence.A number of lower courts have required that a defen-
dant’s waiver of constitutional rights must be “know-
ing,” “intelligent,” and “voluntary,” and these concerns
underpin the colloquies that judges routinely conduct,
for example, with defendants who decide to waive their
constitutional rights (e.g., to a trial, to not testify against
themselves) and accept a plea offer from the state.
Although explicit legal guidance is lacking regarding
the functional abilities relevant to decisional compe-
tence, legal scholars and mental health professionals
informed by Bonnie’s theory have considered this issue.
Approaches to assessing decisional competence abili-
ties, some of which have been incorporated into contem-
porary competence assessment measures (e.g., the
MacArthur Competence Assessment Tool–Criminal
Adjudication), include evaluating (a) the defendant’s
ability to articulate the advantages and disadvantages of
alternative courses of action (e.g., going to trial vs.
accepting a plea agreement), (b) the defendant’s ability
to articulate a risks-and-benefits analysis of a proposed
course of action, and (c) the plausibility of the defen-
dant’s reasons for a choice that the defendant considers
most appropriate in his or her own case. Articulating
these clinical strategies for assessing the functional abil-
ities related to decisional competence makes explicit the
basis for the clinical opinions that mental health experts
may offer in the absence of clear legal definitions and
guidelines with respect to decisional competence.
To date, Bonnie’s distinction between foundational
and decisional competence has had minimal impact in
the highest legal circles. In Godinez v. Moran(1993),
the Supreme Court addressed the issue of decisional
competence and endorsed some of the lower courts’
language requiring that a defendant’s waiver of consti-
tutional rights be “knowing” (intelligent) and “volun-
tary.” However, the Court declined to articulate a
separate criterion or standard for decisional compe-
tence and held that, generally, the standard for compe-
tency to waive constitutional rights is encompassed
within the Duskystandard.
The Court’s holding in Godineznotwithstanding, it
is likely that Bonnie’s theory of foundational and
decisional competence has had an important impact
on the field. It has raised awareness of the complexi-
ties of the adjudicative competence construct and
encouraged forensic evaluators, whose reports and
testimony inform the courts regarding defendants’
competence-related abilities, to assess decision-
making capacities as part of their evaluations.
Historically, pretrial competency evaluations
for the courts were often captured under the rubricCompetency, Foundational and Decisional——— 107C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 107