Melton, G. B., Petrila, J., Poythress, N. G., & Slogobin, C.
(1997). Psychological valuations for the courts: A
handbook for mental health professionals and lawyers
(2nd ed.). New York: Guilford Press.
Riggins v. Nevada, 504 U.S. 127 (1992).
Roesch, R., & Golding, S. L. (1980). Competency to stand
trial. Chicago: University of Illinois Press.
Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. L. (1999).
Defining and assessing competency to stand trial. In
A. K. Hess & I. B Weiner (Eds.),The handbook of forensic
psychology(2nd ed., pp. 327–349). New York: Wiley.
Sell v. United States, 539 U.S. 166 (2003).
Washington v. Harper, 494 U.S. 210 (1990).
Zapf, P. A., & Roesch, R. (2006). Competency to stand trial:
A guide for evaluators. In I. B. Weiner & A. K. Hess
(Eds.),The handbook of forensic psychology(3rd ed.,
pp. 305–331). New York: Wiley.
Zapf, P. A., Viljoen, J. L., Whittemore, K. E., Poythress, N. G.,
& Roesch, R. (2002). Competency: Past, present, and
future. In J. R. P. Ogloff (Ed.),Taking psychology and law
into the twenty first century(pp. 171–198). Kluwer
Academic/Plenum.COMPETENCY TOWAIVEAPPEALS
Appellate review of a felony conviction is a constitu-
tional right. The validity of a relinquishment of this
or any other constitutional right rests on whether the
waiver is made knowingly, intelligently, and volun-
tarily. There are two distinct arenas where waivers of
appeals are encountered: plea bargains in criminal
cases and death-sentenced inmates “volunteering” for
execution. Though waivers of appellate review in
plea bargains are legally complex, they are not philo-
sophically, ethically, or forensically problematic.
This is largely because the defendant makes an elec-
tion that, viewed from both subjective and external
perspectives, is in his self-interest. A waiver of appel-
late review by a death-sentenced inmate, however, is
fraught with philosophical and ethical dilemmas, as
well as forensic evaluation ambiguities. This situa-
tion is compounded because the U.S. Supreme Court
has not articulated clear standards or procedures for
evaluation of the competency of death-sentenced
inmates to waive appellate review. Accordingly,
forensic evaluations of this issue by mental health
professionals are at best comprehensive and highly
descriptive in nature.Waiver of Appeals in Plea Bargains
Depending on the jurisdiction, a waiver of the right to
appellate review may be required of a defendant as a
condition for a plea bargain. A waiver under these cir-
cumstances can be viewed as analogous to the defen-
dant entering into a contract that is perceived to be
most beneficial (or least onerous) to the defendant, as
well as contributing to a more efficient administration
of justice. Critics, however, note that a waiver of
appeals as a precondition for securing a plea bargain
is inherently coercive. Furthermore, such a waiver is
invariably unknowing, as at the time of the waiver, the
defendant may not yet have been sentenced or may
not recognize limitations in the effectiveness of coun-
sel, sentencing in excess of the statutory maximum,
racially based sentencing, and so forth.
Though these opposing considerations result in a
complex legal analysis, waivers of appeals in a plea bar-
gain are not forensically, philosophically, or ethically
problematic. Forensic evaluations of the competency to
make such a waiver are routinely subsumed within the
broader consideration of competency to stand trial.
There is little philosophical tension, as the defendant
making this election is typically acting in rational
self-interest—that is, to secure a less severe sentence.
Furthermore, this plea bargain and the associated waiver
of appeals are usually accomplished with the advice,
participation, and assistance of defense counsel, whose
role of facilitating the most advantageous outcome for
the defendant is ethically straightforward.Complexities in Waiver of Appeals
Among Death-Sentenced Inmates
Waivers of appellate review among death-sentenced
inmates are notably different from those routinely
encountered at plea bargaining. Whereas the defen-
dant in a plea bargain may quite rationally waive
appeals as part of obtaining a more favorable sen-
tence, such a waiver by a death-sentenced inmate rep-
resents an acceleration of the arguably more onerous
punishment of execution. This volunteering, as it
were, for death cuts against basic expectations of self-
preservation and, accordingly, immediately raises
questions regarding the rationality and motivations of
such a determination. Equally problematic, the volun-
teering death-sentenced inmate is at cross-purposes
with appellate counsel, who are likely to regard that
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