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.