Unfitness to Plead Consultation Responses - Law Commission ...

himself at trial. The Court did not attempt to define the standard that should be applicable in
these unusual cases, but its decision in Edwards clearly reflects a judgment that allowing an
defendant with severe mental illness to represent himself at trial poses an unacceptable risk of an
erroneous conviction and could also compromise the dignity of the proceedings, and that these
considerations are sufficient to override the otherwise “competent” defendant‟s right to make his
own decisions.
The Supreme Court assumed that Edwards was competent to stand trial under Dusky based on
the trial court‟s finding and was therefore competent to decide that he wanted to represent
himself. Beneath the surface, however, one has to worry about whether Edwards was really
capable of making a deliberate, self-interested decision about the advantages and disadvantages
of self-representation. The lesson in both Godinez and Edwards, in my opinion, is that decisions
to forgo legal representation should be scrutinized with great care and should not be allowed if
there is any significant doubt regarding the mental and emotional capacity of the accused to
exercise rational self-interested judgment – as there was in both cases. 7
13. As mentioned in Comment 8, note 3, I believe that the Commission should discuss the legal
rules that govern the allocation of decision-making prerogatives between the accused and
counsel. This issue has a direct bearing on the Commission‟s proposed approach to “assisted
participation” for accused persons with intellectual disabilities or other cognitive impairments.
Presumably the Commission‟s proposed decisional capacity criteria require an ability to make
the specific decisions that must be made by the accused (such as the plea). However, many other
decisions that might be made by an actively participating client may lawfully be made by the
attorney in cases involving clients with intellectual disabilities. Human rights norms and
professional ethical norms probably obligate counsel to facilitate participation by the accused to
the maximum possible extent allowed by his or her capacities, but these efforts have no bearing
on the fitness issue.
14. The Commission expresses its hope that a standardized instrument for assessing mental
capacity for criminal adjudication will be developed and seems to envision that use of such a
“test” would be a required element of the assessment. As one of the architects of the MacArthur
Competence Assessment Tool to which the CP refers (CP Paragraph 5.3) I believe that use of
such instruments can enhance the quality of these evaluations. However, I would be reluctant to
prescribe use of such an instrument. In this context, the law should require only that the experts
conducting the assessments have specialized training and experience in conducting forensic
assessments. The practice standards for conducting such assessments should be governed by
professional education, training and certification.
15. Based on the American experience, I believe that clinical psychologists are fully capable of
conducting forensic assessments of “fitness” to plead or stand trial. I suspect that the majority of
such evaluations in this country are now performed by psychologists, and that is certainly true in
Virginia. Medical expertise is not required for the routine case. When medical consultation is
needed (due to suspicions about a neurological condition, for example) it is standard practice to
7 As previously noted, the issues raised in Godinez and Edwards are subtle and complicated and I have not tried to
deal fully with them here. I mention them only to encourage the Commission to consider whether the criteria for
decisional capacity set forth in CP Paragraph 3.13 are sufficiently demanding to deal properly with such cases or
whether a distinct “test” should be formulated.
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