Self-Representation: Fitness and Difficult Accused
| Author | Richard D. Schneider; Hy Bloom |
| Pages | 149-184 |
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8
Self-Representation: Fitness and
Difficult Accused
Among emerging areas of concern for criminal (and civil) courts are
tness for self-representation; managing dicult, vexatious, or queru-
lous self-represented accused (and civil litigants); and guiding psychi-
atrically and behaviourally well (enough) but under-informed and
inexperienced accused (and civil litigants). Given our focus on mental
health issues in the context of tness to stand trial, we will say rela-
tively little about unrepresented accused and much about self-represented
accused. “Unrepresented accused” — a particular problem in the civil
justice system — generally refers to litigants/accused who would pre-
fer to have a lawyer but cannot aord legal representation because of
insucient resources, a wish to preserve limited resources, or because
of ineligibility for legal aid. “Self-represented accused” (SRA) denotes
accused (or litigants) who, for sound or unsound reasons, choose to
represent themselves. The distinction is important. Lack of (legal)
knowledge and experience denes the former category, while mental
illness and personality issues are much more common in the latter.
Our aim in this chapter is to briey review the hitherto under-
addressed issue of tness for self-representation and the conundrum
that SRAs — particularly mentally ill and querulous SRAs — create for
the courts. Foremost, we want to provide judges and lawyers with an
overview of the psychopathology found in this group and its eect on
accused and their ability to manage the exigencies and complexities
of their charge(s), and, importantly, some recommendations for how
to think about and manage dicult SRAs.
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A. FITNESS TO BE SELFREPRESENTED: A NEW TEST OR STANDARD?
American courts seemingly entered this discussion before their Can-
adian counterparts. In Faretta v California,1 the US Supreme Court upheld
an accused’s right to self-representation. Subsequently, in Godinez v
Moran,2 the same court concluded that the standard for waiving right to
counsel was the same as the standard for competency to stand trial. Until
this point in time, all that criminal defendants needed to do to demon-
strate the capacity for self-representation was to show that their decision
was made knowingly and voluntarily.3
Indiana v Edwards4 was the rst American case to adopt a higher
standard for competency for mentally ill defendants to represent
themselves (referred to in the United States as “pro se competence”)
than for competency to stand trial. Justice Breyer, who wrote the deci-
sion for the majority (7:2 decision) in Edwards, noted that an accused
who met the test for competency to stand trial (in the United States, most
frequently the Dusky standard5) may not necessarily be capable of per-
forming the functions required for self-representation.
The court’s view in Edwards was that some criminal defendants fall
into a “gray area” — capable of passing the low standard for competency
to stand trial but insuciently mentally capable for self-representation.
Justice Breyer noted the following reasons in support of imposing a
higher standard for self-representation:
◆A lack of capacity may result in an improper conviction.
◆The accused’s right to self-representation may be outweighed by
the state’s interest in ensuring the trial’s integrity.
◆Allowing incapable accused to represent themselves may detract
from the appearance of fairness of the trial process.
◆Allowing aicted individuals to represent themselves to their
detriment will not arm their dignity.
1 422 US 506 (1975).
2 509 US 389 (1993).
3 Mel Greenlee, “Disorder in the Court: Language Use by ‘Gray Area’ Pro Per Defen-
dants” (2015) 2:1 Language and Law 12.
4 554 US 164 (2008) [Edwards].
5 Referring to the standard in Dusky v United States, 362 US 402 (1960) [Dusky].
Chapter 8: Self-Representation: Fitness and Dicult Accused 151
The state of Indiana suggested that the proper standard was whether
the accused could “communicate coherently with the court or a jury,”
but this criterion was rejected by the majority. The court did not
articulate a specic test, formula, or standard, or provide guidelines
for how to determine whether a mentally ill defendant is capable of
self-representation. In this regard, Justice Breyer stated that, rather
than setting out an all-encompassing denition for competency for
self- representation, the matter should be le to individual trial judges,
whom Justice Breyer stated “will oen prove best able to make more
ne- tuned mental capacity decisions, tailored to the individual cir-
cumstances of a particular defendant.”6
Justice Scalia, who wrote the dissenting decision, opined that
a threat to the orderliness of the trial was the only valid reason for
denying an accused the right to self-representation. He found that Mr
Edwards had been “respectful and compliant” and had not yet failed an
opportunity to represent himself. In this regard, Justice Scalia stated,
“the dignity at issue is the supreme human dignity of being master of
one’s fate, rather than a ward of the State — the dignity of individual
choice.”7
Knoll et al.8 carried out a pilot survey of US judges’ views of pro se
competence aer Indiana v Edwards. In descending order of import-
ance, judges regarded cognitive/analytical limitations, lack of legal
knowledge and experience, and language diculties as the most likely
stumbling blocks to pro se competence.
Indiana v Edwards has received very little attention in most Canadian
courts, but it does feature prominently in a Yukon Territorial Court deci-
sion, R v Hureau,9 where Justice Lilles refers to it as a “signicant develop-
ment in the evolution of the tness standard in [the United States].”10
Justice Lilles noted that the exceptions to the right to self-representa-
tion set out in Edwards — an accused has no right to avoid compliance
6 Edwards, above note 4 at 177.
7 Ibid at 187.
8 James L Knoll IV et al, “A Pilot Survey of Trial Court Judges’ Opinions on Pro Se
Competence aer Indiana v. Edwards” (2010) 38 Journal of the American Academy of
Psychiatry and Law 536.
9 [2014] YJ No 48 (Terr Ct).
10 Ibid at para 31.
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