Self-Representation and Competency When the Alleged Violence Is Bizarre: Two New York Capacity Questions Counsel Should Keep Apart

Stephan M. Carlson, MD, MBA, FAPA · Criminal Competency and Responsibility

A defendant charged with strange, almost improbable violence announces that he wants to fire counsel and try the case himself. Two separate capacity questions open at once, and the most common forensic error is letting the strangeness of the allegation answer both of them at the same time. Two capacities, not one New York law treats fitness to proceed and the waiver of counsel as distinct inquiries, and a violent-but-bizarre fact pattern puts both on the table simultaneously. The first question is whether the defendant is an "incapacitated person"—one who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense (CPL 73

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