April 14, 2014 | Volume XXI, Issue 14

Johnston quoted extensively, favorably in recent California Supreme Court case

Published: February 13th, 2012

Category: News Briefs

The following language from a recent California Supreme Court case (People v. Johnson) looks extensively and favorably upon Professor Lea Johnston’s work: “Two thoughtful law review articles have suggested more specific standards … Drawing on ‘social problem-solving theory,’ [the second] article suggests a more technical standard: ‘[P]roblem-solving theory suggests that, to represent oneself at a criminal trial, one should possess foundational abilities to perceive problematic situations, generate alternative courses of action, maintain mental organization, and communicate decisions to a functionary of the court. Within the context of a prosecution, a defendant should also possess the ability to identify a plausible source of the prosecution, an ability to gather information to evaluate the state’s case, a willingness to attend to the prosecution, and an ability to withstand the stress of trial. Finally, for certain key decisions, such as selecting the defense to pursue at trial, a defendant should be capable of justifying a decision with a plausible reason.’ (Johnston, Representational Competence: Defining the Limits of the Right to Self-representation at Trial (2011) 86 Notre Dame L.Rev. 523, 595.) All of these suggested standards are plausible. But we are constrained by the circumstance that what is permissible is only what Edwards permits, not what pre-Faretta California law permitted … At this point, at least, we also think it best not to adopt a more specific standard. The discussion in People v. Burnett, supra, 188 Cal.App.3d at page 1327, and the standards suggested in the two law review articles quoted above are helpful to the extent they suggest relevant factors to consider. Experts asked to examine defendants for this purpose, and trial courts called on to make these rulings, may consider these factors in their examinations and rulings. …”

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