Survey of Forensic Mental Health Experts on Pro Se Competence After Indiana v. Edwards

In Indiana v. Edwards (2008) the U.S. Supreme Court held that a higher standard may be required for pro se competence (PSC) than for competence to stand trial (CST), but provided little guidance for the trial court judge. This survey of forensic mental health experts studied potential PSC criteria. Sixty-eight (22.7%) forensic evaluators replied. Three McGarry criteria were reported as requiring a much higher standard for PSC: to appraise the available legal defenses (45.6%), to plan a legal strategy (51.5%), and to question and challenge witnesses (44.1%). Sixty percent agreed that standby counsel should be mandatory. Respondents opined that average abilities were sufficient for intelligence (77.9%), literacy (69.1%), and verbal ability (70.6%) were sufficient. PSC examiners may wish to assess appraisal of available legal defenses, planning a legal strategy, and questioning and challenging witnesses for a higher standard than CST. Evaluators should also assess the defendant's willingness to accept standby counsel (SBC) and the defendant's motivation for attempting a pro se defense.