Legal and Clinical Issues Regarding the Pro Se Defendant: Guidance for Practitioners and Policy Makers

Defendants who attempt to represent themselves, or proceed pro se, make up less than 1% of felony cases. However, when the issue of competency to proceed pro se arises, it can present interesting questions and challenges not only for the defendant, but also for others involved with the trial process. In Indiana v. Edwards (2008), the U.S. Supreme Court permitted states to impose a higher standard of competency for defendants who wish to proceed to trial without an attorney than for defendants who stand trial with representation. States have responded by adopting a patchwork of different, and often vague, competency standards. The current paper describes states’ differing responses to Edwards, courts’ efforts to ensure the constitutionality of those standards, and extant research on the legal standards and guidelines that should apply to forensic evaluators. Drawing upon this body of law and commentary, this paper distills principles to guide evaluations of defendants’ pro se competency. To facilitate discussion, this paper utilizes three case studies involving defendants with severe mental illness, antisocial personality disorder, and communication impediments unrelated to mental illness. The analysis of these case studies illustrates the application of guiding principles and demonstrates how to distinguish impairments relevant to pro se competence from those that may be legally irrelevant yet still present significant fairness or efficiency concerns