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The Champion

April 2009 , Page 36 

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Emotional Competence and 'Rational Understanding': A Guide for Defense Counsel

By Terry A. Maroney

The legal standards for adjudicative competence1 appear simple: as the U.S. Supreme Court declared in Dusky v. United States, the substantive test is whether a criminal defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings.”2 It is clear, too, that the defendant has a fundamental constitutional right not to be tried, convicted, sentenced, or executed while incompetent,3 and the procedure by which competence is raised and determined is relatively straightforward.4 But this apparent clarity is deceiving. Despite its evident importance5 and solid historical pedigree, adjudicative competence remains surprisingly ill-defined. The substantive meaning of Dusky — notably the distinction between “rational” and “factual” understanding — has escaped significant elaboration. Implementation of Dusky is also highly unpredictable, as it generally falls

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