ABSTRACT
In this chapter, the author argues that competence in the criminal process is best viewed as two related but separable constructs, not as an open-textured single construct. He draws a distinction between a foundational concept of competence to assist counsel, and a contextualized concept of decisional competence. The authors show this approach is grounded securely in a proper theoretical understanding of the purposes of the legal rules relating to defendant competence, and it is generally compatible with the settled features of law. Competence in the criminal process might be sensibly understood as a single construct if a generally applicable test of decision-making ability could be defined and folded into a unitary test of adjudicative competence. Rules relating to a defendant’s decisional competence are derived from the rules allocating decision-making prerogatives in criminal defense. The ability to understand relevant information about a particular decision is the criterion most often utilized in both treatment settings and criminal defense.
