The Legal Process for Competency to Stand Trial

In addition to understanding the general definition of competency to stand trial (look here for a basic review), one must also be familiar with the various stages in the competency process, because where one is in the process impacts what needs to happen, from a procedural perspective.

1) Raising the question - the question of a defendant’s competence is usually raised by the defendant’s attorney, though in most jurisdictions (including the federal system), the question can also be raised by the prosecutor, or the judge. The threshold for ordering an evaluation is quite low - depending on the jurisdiction, the judge is usually required to order the evaluation if information is presented that raises some doubt regarding the defendant’s competency. This information, and the judge’s decision based on it, it the first point where the definition of competency becomes relevant.

An examiner should not assume that an individual who has had a competency evaluation ordered is “likely” or “probably” incompetent. There are a few reasons this is so, including: A) The question was raised by an attorney for tactical reasons (e.g. buy time, explore the possibility of an insanity plea, etc.); B) Lack of understanding about mental health issues (I’ve encountered a number of highly competent legal professions who nonetheless don’t grasp many of the psychological issues present in the definitions of competency, sanity, etc.); C) Low threshold for referral - judges do not like to be overturned on appeal, and many interpret the “some doubt” part of the competency evaluation requirement quite liberally, and; D) the efforts and behaviors of the defendant to present as “Mad” rather than “bad” (interestingly, a trend I’ve noticed is that whenever a defense attorney informs me that it was the defendant’s initial idea to raise the issue of competency, it is likely the defendant is personality disordered rather than mentally ill).

2) The Evaluation - The evaluation must conform to the legal definition of competency; personal opinion is irrelevant. On the other hand, while there are sometimes suggestions, guidelines, or even requirements regarding the evaluation, these are almost never iron-clad and specific. It is up to the examiner to apply these guidelines to the definition using their own professional standards as a guide. Where the evaluation is conducted depends on the jurisdiction; some require an inpatient setting, while others allow for outpatient evaluations, or at least a “least restrictive environment” policy. Many will occur in correctional settings.

The “what” of the evaluation is complex, and will serve as its own series of posts. Generally, however, a thorough evaluation will include full disclosure, relevant history, conversations with any necessary collateral contacts (e.g. attorneys, family members, etc.), comprehensive review of all available records (both legal and medical/mental health), any necessary psychological testing, and legally focused interviews, including an assessment of the defendant’s factual and rational understanding of the proceedings against him or her, as well as their ability to aid in their defense.

3) The Competency Hearing - The evaluation is generally the primary evidence considered in the hearing to determine whether the defendant is competent or not. Often, both the prosecution and defense will stipulate to the evaluation, and further testimony by the evaluator is not necessary. Should there be any disagreement, the evaluator will be called to testify. The Court is under no obligation to automatically agree with the findings of the evaluator, and in contentious cases (such as the Jose Padilla case), more than one evaluator may be called on to both conduct an evaluation, as well as to testify regarding their findings. Ultimately, it is the judge’s responsibility to make the decision, based on all of the available evidence.

4) Disposition of Incompetence - If the Court finds the defendant competent to stand trial, the case proceeds. If, however, the defendant is found incompetent, then the Court must make a determination as to whether treatment can be expected to restore the defendant to competency. Some relevant questions would be:

A) Is the defendant’s condition amenable to treatment?

B) If it is, what type of treatment is necessary, and can it be applied in a reasonable amount of time?

C) Where can the treatment be provided?

D) Which facility would represent the least restrictive environment?

It is important to note that treatment is not expected to address the defendant’s symptoms in a general sense, but rather to “restore” the defendant’s abilities with respect to the definition of competency to stand trial. Also, the “reasonable time period” is usually defined as 12 to 18 months. Where a defendant goes, for how long, and for what treatment is addressed by the Court, with a reliance on the evaluation.

If a defendant is determined to be unrestorable to competence, the trial will end. They cannot be referred for restoration, and the proceedings cannot continue. Unless the defendant meets the criteria for an involuntary civil commitment, they must be released.

5) Restoration and Re-Evaluation - If a defendant has been referred for restoration, they go for the referred treatment. The treating facility is required to provide the court with periodic updates on the condition of the defendant, as well as when the defendant has been successfully restored to competency (in the opinion of the treatment providers - it remains the judge’s final decision). If the treating professional ever indicates the defendant cannot be restored, the judge must then make a determine, again, regarding whether to dismiss the charges. Another issue that may arise during the course of restoration is a defendant who resists efforts to be restored, such as a refusal to take medication that might restore competency. This would require a Sell Hearing, a topic for a later post.

I hope this post clarifies the overall process of competency to stand trial. Different jurisdictions may deviate from this generic pattern a little bit here and there, but this gets the main points. What the next few competency posts will address are the interactions between the legal and psychological fields regarding competency (including some myths), and some of the goals/objectives of an effective competency evaluation.

Comments

[Swivelchair]

Hi Postcard- I think I view mental "competency" as a continuum, between "bad mood" and "totally psychotic" with most falling in the gray area in between. But all have some sort of organic component.

I thought your comment about how when the defendent brings up "compentency" it is usually a personality disorder was very telling -- game the system.

[Swivelchair]

I forgot
http://neurologicalcorrelates.com/wordpress/2008/01/17/fetal-alcohol-x-genes-not-your-fault

Fetal alcohol spectrum disorders are pretty common on death row, I hear. There was a primate study showing genetic vulnerability + moderate fetal alcohol and you really get some behavioral phenotypes. Yet, the SCOTUS ruled that fetal alcohol isn't enough to be incompetent to stand trial (there's a link to the CNN article). So I guess if I were a defendant I might argue lack of equal protection -- not all defendants are treated equally.

[Jeremiah Dwyer]

Swivel,

In your first comment, you are getting at the puzzle that is created when the system blends the psychological with the legal, both theoretically, as well as practically. Psychologists generally want to consider a range of issues, usually on a continuum, while an attorney (or judge) wants a "yes or no." Ultimately, competency comes down to a yes/no answer, though in my reports, I will use language that demonstrates my degree of confidence in my finding, as well as the reasons why.

With respect to your second comment, it's important to remember that the presence of any disorder, in and of itself, is not sufficient to declare someone incompetent. A "severe mental disease or defect" is necessary, but not sufficient. I've found individuals with various psychotic disorders, mental retardation, etc, competent to stand trial, because their ability to understand the nature of the court proceedings, as well as their ability to aid their defense, were not impaired beyond a reasonable degree. With fetal alcohol syndrome, it would likely come down to the specific cognitive impairments (just like with a head injury), i.e. how cognitely impaired are they? If they can continue to track the procedings in court, have a grasp of the relevant issues, etc., then they may be competent. If not, then they wouldn't be. This would be assessed both formally (through cognitive and, if necessary, neuropsychological testing) as well as informally (their ability to provide historical information, sequence it properly, etc.

Interestingly, the SCOTUS was extremely inconsistent when they placed the restriction of the death penalty on the mentally retarded. Regardless of what one thinks about the death penalty, the standard was changed in this one specific instance, without any real consistency with how competency is defined. Since I'm not an attorney, I don't have any fancy legal arguements, and I really don't have a dog in the fight - I just assess the defendant, the court does the rest, but it is interesting.

Last, one of the most fascinating parts of my job is trying to ascertain if someone is "gaming the system." Many defendants exaggerate, if not outright feign, symptoms of mental illness (which I find to be a completely normal response for many individuals, when faced with the prospect of serving time in federal prison). However, most aren't very good at it, especially because the are cocky due to past success in gaming people who weren't looking for malingering (i.e. state hospital). In the general population, psychologists tend to take people at their word, but when secondary gain is likely, the burden of proff rises considerably...

[Swivelchair]

JD -
A yes/no, binary answer must be tough to get to. I mean, here an individual cognitively knows right from wrong, but then goes and wants to self-represent, and fire his defense attorney -- a judge then has to again rule if the person is competent to represent himself. So it seems like a moving target.

Interesting that you need to figure out the fakers. Are white collar criminals better at faking? Do you find yourself giving white collar criminals more of a break?