Norman, M. T. (1998). Standards and procedures for
determining whether a defendant is competent to make the
ultimate choice—death; Ohio’s new precedent for death
row “volunteers.”Journal of Law and Heath, 13,103.
Rees v. Peyton, 384 U.S. 312 (1966).
Rumbaugh v. Procunier, 753 F. 395 (2d 5th Cir. 1985).
Soering v United Kingdom, 11 E.H.R.R. 439 (1989).
Whitmore v. Arkansas, 495 U.S. 149 (1990).COMPETENCY TOWAIVE
COUNSEL(PROCEED PROSE)
In the United States, it is permissible, with the
approval of the judge, for a criminal defendant to act
as his or her own attorney when the case goes to court.
Legal and clinical issues related to the defendant’s
being competent to waive the right to legal represen-
tation are discussed in this entry.
In the United States, defendants accused of crimi-
nal charges are entitled to rights and protections by
the Constitution. One important right articulated in
the Sixth Amendment is that every accused person is
entitled to representation by a legal counsel. Like
other constitutional rights, the right to counsel is
guaranteed—that is, no one, including even the judge,
can deprive the defendant of this right. However, a
defendant may request a waiver of the Sixth
Amendment right to legal representation and permis-
sion of the court to represent himself or herself—in
legal parlance, to proceed pro se.
Waiving some constitutional rights is a common
occurrence. The overwhelming majority of criminal
cases (more than 90%) are resolved through a plea
agreement between the defendant and the state, and to
enter a guilty plea, a defendant must waive the consti-
tutional rights to a trial and to confront the evidence.
When it is required that the defendant provide a fac-
tual basis or justification for the plea, he or she may
further have to waive the Fifth Amendment right
against self-incrimination.
In the context of entering a guilty plea, defendants’
waiver requests typically occur after consultation with,
and with the advice and consent of, their attorneys.
Furthermore, by their nature, plea agreements are about
disposition of the case; thus, defendants are commonly
well-informed about the personal consequences of
these waivers. In contrast, the request to waive the right
to counsel more often marks a rift between the client
and the attorney, and the potential impact on caseoutcome is usually not known. However, it is almost
universally agreed that the likely impact is not good, as
reflected in the adage that a defendant who proceeds
pro se “has a fool for a client and an idiot for a lawyer.”
But in the most exceptional cases, criminal defendants
likely disadvantage themselves because they might lack
the litigation skills needed to present their cases most
effectively. Nevertheless, the judge may approve a
request if he or she determines that the defendant is
competent to waive counsel.
Case law has articulated the qualities that must be
present with respect to competentwaivers of constitu-
tional rights. Although there are minor variations in
language across cases, generally, the judge must
determine that the waiver is made knowingly, intelli-
gently, and voluntarily. One court stated that the judge
must determine whether the waiver was “made with
full awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon it.” The courts have not further articulated the
specific functional abilities (i.e., behavioral indica-
tors) that are required for a defendant to demonstrate
that his or her request meets these qualitative criteria.
However, the case law is clear as to what is not
required: It is not required that the judge deem the
defendant’s decision to be a prudent one, nor does the
competence determination hinge in any way on a
demonstration that the defendant has litigation skills.
When a defendant expresses the desire to waive the
right to counsel, the court, either on its own motion or
on the motion of the defense attorney, may order a clin-
ical evaluation of the defendant’s mental competence.
Presently, there are no standardized methods for psy-
chiatrists or psychologists to use to evaluate compe-
tence to waive counsel, and most such evaluations will
be based on unstructured interviews, the substance and
process of which may vary widely across examiners.
An interviewing strategy used in evaluating compe-
tence to plead guilty is embedded in the MacArthur
Competence Assessment Tool–Criminal Adjudication
and may offer some guidance for evaluations of compe-
tence to proceed pro se. Briefly, this strategy involves
having the defendant articulate what the choices are—
in this instance, proceeding with an attorney in charge
of presenting the defense or proceeding pro se. The
defendant is then asked to describe both the potential
advantages and the potential disadvantages of each
alternative. Subsequent queries require that the alterna-
tives be compared and contrasted (e.g., “Explain why
Alternative a might be better than Alternative b. Are
there some ways in which Alternative b might be better126 ———Competency to Waive Counsel (Proceed Pro Se)C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 126