Psycholegal & Clinical Assessment Services

PROVIDING EXPERT FORENSIC PSYCHOLOGY EVALUATIONS IN ILLINOIS, GEORGIA, AND KANSAS

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Competency to Stand Trial

Psycholegal & Clinical Assessment Services offers Competency to Stand Trial or Fitness to Stand Trial and other Forensic Psychological Evaluations in Illinois, Georgia, and Kansas. Referrals from other states will be reviewed on a case by case basis.

Competency to Stand Trial or Fitness to Stand Trial Evaluations:

Competency to Stand Trial or Fitness to Stand Trial requires that a defendant understands the nature and purpose of the legal proceedings against him and be able to effectively cooperate with counsel in his defense. To understand the proceedings, a defendant must be able to comprehend the charges against him and the penalties if convicted. He must also have some level of understanding of courtroom procedure and the functions of those who participate in it. To cooperate with counsel, he must be able to plan a legal strategy, be able to recall and relate pertinent facts and events, including his motives and actions at the time of the offense, and be able to testify in his behalf and to challenge prosecution witnesses. Dr. Steven Gaskell’s function in Competency to Stand Trial cases, as a forensic psychologist, is to determine whether or not a mental disorder, defect, or impairment precludes this understanding and cooperation. Psychological testing is given on an as needed basis, and psychological testing of malingering is often indicated.

Dr. Gaskell submits a written forensic psychological evaluation report addressing Competency to Stand Trial or Fitness to Stand Trial, which includes:

The underlying bases for any diagnoses (mental disability or impairment);
A description of mental disability or impairment, if any, and the severity of any disability, defect or impairment;
An opinion on whether and to what extent the mental disability, defect or impairment impairs the defendant’s ability to understand the nature and purpose of the proceedings against him and/or to assist in his defense.
The issues of potential malingering (exaggerating or feigning symptoms of mental disability/impairment/disorder) will be evaluated.
If it was opined that a person was incompetent to stand trial, the potential for restoration to competency will be addressed. Expert testimony is also provided when necessary in competency to stand trial cases.

Dr. Gaskell has completed more than 1100 Forensic Psychological Assessments including over 500 Competency to Stand Trial or Fitness to Stand Trial forensic psychological assessments and he has testified in court on pretrial issues such as Competency to Stand Trial or Fitness to Stand Trial on numerous occasions. In some jurisdictions, such evaluations are called BCX or a Behavioral Clinical Exam.

Federal and State Standards for Competency to Stand Trial

The following provides information of various standards of Competency to Stand Trial or Fitness to Stand Trial and other relevant psycholegal abilities that may be the focus of evaluation.

Dusky v. United States (1960) – Created the standard that to be able to be competent to stand trial a defendant has to have “sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.” This case set the current standard for adjudicative competence in the United States and this is the standard used in Federal Court. The statutes addressing competency vary from state to state; however, the elements outlined in the Dusky v. United States decision are contained in common: The defendant must understand the charges against him and must have the ability to aid his attorney in his own defense.

Illinois (IL Article 104 5/104-10) – Fitness to Stand Trial – “A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.”

(725 ILCS 5/104-15) (from Ch. 38, par. 104-15)

Sec. 104-15. Report.) (a) The person or persons conducting an examination of the defendant, pursuant to paragraph (a) or (b) of Section 104-13 shall submit a written report to the court, the State, and the defense within 30 days of the date of the order. The report shall include:

(1) A diagnosis and an explanation as to how it was reached and the facts upon which it is based;

(2) A description of the defendant’s mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs the defendant’s ability to understand the nature and purpose of the proceedings against him or to assist in his defense, or both.

(b) If the report indicates that the defendant is not fit to stand trial or to plead because of a disability, the report shall include an opinion as to the likelihood of the defendant attaining fitness within one year if provided with a course of treatment. If the person or persons preparing the report are unable to form such an opinion, the report shall state the reasons therefor. The report may include a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate.

(c) The report shall indicate what information, if any, contained therein may be harmful to the mental condition of the defendant if made known to him.

Georgia (Rule 31.4) – Defines Competency to Stand Trial as “Whether the accused is capable of understanding the nature and object of the proceedings; whether the accused comprehends his or her own condition in reference to such proceedings; and, whether the accused is capable of rendering to counsel assistance in providing a proper defense.”

Kansas (Kansas Chapter 22, Article 33) – Indicates that a person is “incompetent to stand trial” when he or she is charged with a crime and, because of a mental illness or defect is unable: “To understand the nature and purpose of the proceedings against him” or “to make or assist in making his defense.”

Tennessee ( T.C.A. §33-7-301) – The legal standard of competence involves whether the defendant has sufficient present ability to: (1) consult with a lawyer with a reasonable degree of rational understanding, and (2) have a rational as well as factual understanding of the proceedings against him. [Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).]

Florida (Florida Rules of Criminal Procedure 2008) – Provide that in competency to stand trial evaluations

(1) “experts shall first consider factors related to the issue of whether the defendant meets the criteria for competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.

(2) In considering the issue of competence to proceed, the examining experts shall consider and include in their report:

(A) The defendant’s capacity to:

(i) appreciate the charges or allegations against the defendant;
(ii) Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant;
(iii) Understand the adversary nature of the legal process;
(iv) Disclose to counsel facts pertinent to the proceedings at issue;
(v) Manifest appropriate courtroom behavior;
(vi) Testify relevantly; and

(B) Any other factors deemed relevant by the experts.”

South Carolina – (Section 44-23-410) Indicates that a person is incompetent if he lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity. Clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future are mandated to be included in reports.

Missouri (Chapter 552 Criminal Proceedings Involving Mental Illness – Section 552.020) – Indicates that “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”

A report of the examination made under this section shall include: (1) Detailed findings; (2) An opinion as to whether the accused has a mental disease or defect; (3) An opinion based upon a reasonable degree of medical or psychological certainty as to whether the accused, as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense; (4) A recommendation as to whether the accused should be held in custody in a suitable hospital facility for treatment pending determination, by the court, of mental fitness to proceed; and (5) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in such hospital facility pending further proceedings.

Wisconsin (Chapter 971.13 – Criminal Procedure – Proceedings Before and at Trial – Indicates that “No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”

Iowa (Iowa Code 1999, Chapter 812.3 – Mental Incompetency of Accused) – Indicates “if at any stage of a criminal proceeding it reasonably appears that the defendant is suffering from a mental disorder which prevents the defendant from appreciating the charge, understanding the proceedings, or assisting effectively in the defense, further proceedings must be suspended and a hearing had upon that question.” Chapter 812.4 further states that “If upon hearing conducted by the court, the accused is found to be incapacitated in the manner described in section 812.3, no further proceedings shall be taken under the complaint or indictment until the accused’s capacity is restored, and, if the accused’s release will endanger the public peace or safety, the court must order the accused committed for treatment to the custody of the department of human services or to the custody of the department of corrections for placement at the Iowa medical and classification center.”

Indiana Code 35-36-3 Chapter 3 – Comprehension to Stand Trial- Indicates that “(a) If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability.” In addition, “(b) At the hearing, other evidence relevant to whether the defendant has the ability to understand the proceedings and assist in the preparation of the defendant’s defense may be introduced. If the court finds that the defendant has the ability to understand the proceedings and assist in the preparation of the defendant’s defense, the trial shall proceed. If the court finds that the defendant lacks this ability, it shall delay or continue the trial and order the defendant committed to the division of mental health and addiction. The division of mental health and addiction shall provide competency restoration services or enter into a contract for the provision of competency restoration services by a third party in the: (1) location where the defendant currently resides; or (2) least restrictive setting appropriate to the needs of the defendant and the safety of the defendant and others.”

Colorado ARTICLE 8.5 – Competency To Proceed

16-8.5-101. Definitions. As used in this article, unless the context otherwise requires:

(1) “Competency evaluation” includes both court-ordered competency evaluations and second evaluations.

(2) “Competency evaluator” means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology.

(3) “Competency hearing” means a hearing to determine whether a defendant is competent to proceed.

(4) ”Competent to proceed” means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or prevents the defendant from having a rational and factual understanding of the criminal proceedings.

(5) ”Court-ordered competency evaluation” means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant’s competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator, and includes evaluations concerning restoration to competency.

(6) “Court-ordered report” means a report of an evaluation, conducted by or under the direction of the department, that is the statutory obligation of the department to prepare when requested to do so by the court.

(7) “Criminal proceedings” means trial, sentencing, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant.

(8) “Department” means the department of human services.

(9) ”Developmental disability” means a disability that has manifested before the person reaches twenty-two years of age, that constitutes a substantial disability to the affected individual, and is attributable to mental retardation or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation. Unless otherwise specifically stated, the federal definition of “developmental disability”, 42 U.S.C. sec. 15001 et seq., shall not apply.

(10) “Executive director” means the executive director of the department of human services.

(11) “Incompetent to proceed” means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

(12) ”Mental disability” means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. “Mental disability” does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability.

(13) “Restoration hearing” means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has become competent to proceed.

(14) “Second evaluation” means an evaluation requested by the court, the district attorney, or the defendant that is performed by a competency evaluator and that is not performed by or under the direction of, or paid for by, the department.

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List of Items Relevant to Competency to Stand Trial (Group for the Advancement of Psychiatry) from Melton, et al. (2007) Psychological Evaluation for the Courts: A Handbook for Mental Health Professionals and Lawyers. Third Edition.

To understand his current legal situation.
To understand the charges against him.
To understand the facts relevant to his case.
To understand the legal issues and procedures in his case.
To understand legal defenses available in his behalf.
To understand the dispositions, pleas, and penalties possible.
To appraise the likely outcomes.
To appraise the roles of defense counsel, the prosecuting attorney, the judge, the jury, the witnesses, and the defendant.
To identify and locate witnesses.
To relate to defense counsel.
To trust and to communicate relevantly with his counsel.
To comprehend instructions and advice.
To make decisions after receiving advice.
To maintain a collaborative relationship with his attorney and to help plan legal strategy.
To follow testimony for contradictions or errors.
To testify relevantly and to be cross-examined if necessary.
To challenge prosecution witnesses.
To tolerate stress at the trial and while awaiting trial.
To refrain from irrational and unmanageable behavior during the trial.
To disclose pertinent facts surrounding the alleged offense.
To protect himself and utilize the legal safeguards available to him.

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Competency to Stand Trial Landmark Cases

Pate v. Robinson (US Supreme Court 1966)

The Supreme Court held that the question of competency to stand trial may be raised at ANY time during the criminal proceedings. Furthermore, they held that the Court had an obligation to raise the question after being confronted with evidence that would raise a “bona fide doubt” as to the defendant’s competence, whether or not defense counsel requested a competency evaluation. In the Court’s opinion, failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial is a deprivation of due process.

Drope v. Missouri (US Supreme Court 1975)

The Supreme Court held that any evidence of a defendant’s possible incompetence to stand trial must be addressed regardless of the stage of the proceedings. failure of the court to make further inquiry in such a situation violates due process. The court found that a number of factors may call for a competency evaluation including: (1) Evidence of a defendant’s irrational behavior; (2) The defendant’s demeanor at trial; and (3) Any prior medical opinion on the defendant’s competency. The court found that all of these factors are relevant in determining whether further inquiry is required, but that even one of the factors standing alone might, in some circumstances, be sufficient to warrant further inquiry.

Cooper v. Oklahoma (US Supreme Court 1996)

In regard to burden of proof, the Court ruled Oklahoma’s law that allowed the State to try a defendant who is more likely than not incompetent was unconstitutional as it violated the Due Process Clause. In other words, the State must have the burden of proof by at least preponderance of the evidence that the defendant is competent to proceed with trial.

Indiana v. Edwards (US Supreme Court, 2008)

The Supreme Court held that the ability for a defendant to actually represent himself and conduct his own trial is a different standard than being competent to stand trial or waive representation. That is, a trial court may determine that a defendant is competent to stand trial but not competent to represent himself and therefore “force” the defendant to accept representation. This decision held that the standard to represent oneself would be determined by the trial judge in each particular case.

Godinez v. Moran (US Supreme Court 1993)

The competency standard for a defendant to plead guilty or waive the right to counsel does not have to be higher or even different than the Dusky standard for Competency to Stand Trial. The Court held that there was no reason for the competency standard for either of those decisions to be higher than that for standing trial. This was based on the Court’s opinion that the decision to plead guilty is no more complicated than the sum total of decisions that a defendant may have to make during the course of a trial, such as whether to testify, whether to waive a jury trial, and whether to cross-examine witnesses for the prosecution. In addition, the Court held the decision to waive counsel did not require an appreciably higher level of mental functioning than the decision to waive other constitutional rights. The Court rejected the argument that a defendant who chooses to represent himself must have greater powers of comprehension, judgment and reason than would be necessary to stand trial with the aid of an attorney. The Court held that a higher standard was not necessary to ensure that a defendant is competent to represent himself, because the ability to do so has no bearing upon his competence to CHOOSE to represent himself. Simply put, the competence in question is the ability to WAIVE the right to counsel, NOT the ability to represent oneself. The court also held that finding a defendant competent is not all that is necessary before he may be permitted to enter a guilty plea or waive right to counsel. In addition, the trial court must satisfy itself that the waiver is KNOWING, INTELLIGENT, and VOLUNTARY. This case superseded Seiling v. Eyman (9^th Circuit 1973), which set the standard for Competency to Plead Guilty as the “reasoned choice” standard.

Estelle v. Smith (US Supreme Court, 1981)

The U.S. Supreme Court held that information obtained in a court-ordered competency evaluation as to the issue of future dangerousness was inadmissible at the penalty phase of a trial if the defendant had not been warned of his right to remain silent and that any statements he made could be used against him. The Court held that admission of such evidence was a violation of the 5th Amendment right against self-incrimination and the 6th Amendment right of right to counsel since defense counsel was not informed in advance that the examination would cover the issue of future dangerousness. The Court noted that there was no distinction between the guilt and penalty phases of the trial with regard to the defendant’s rights. Furthermore, the Court noted that the defendant’s responses in an in-custody, court ordered evaluation could not be considered to have been given “freely and voluntarily” unless the defendant had been informed of his rights.

Jackson v. Indiana (U.S. Supreme Court, 1972)

The court ruled that incompetent defendants may not be committed indefinitely. A person committed to a mental hospital based solely on account of incompetency to stand trail cannot be held more than a reasonable period of time necessary to determine if they will attain competency in the future. “Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” If after a reasonable period of time it is determined it is unlikely that the defendant will regain competency, he must either be civilly committed through proceedings applicable to those not charged with a crime or be released. Failure to conform to this procedure is a violation of the due process clause of the 14th Amendment.

Wilson v. U.S. (DC Circuit of Appeals, 1968)

This ruling gave the judge guidelines on how to evaluate if a person with amnesia has had a fair trial. It was ruled that amnesia alone does not render a defendant incompetent to stand trial. Factors to be considered in determining competency of an amnestic defendant include the extent to which the amnesia affects the defendant’s ability to: (1) Assist counsel; (2) Testify on his own behalf; and (3) Extrinsically reconstruct the events of a case. Other considerations included; (1) The strength of the State’s case; (2) The extent to which the State assisted in the extrinsic reconstruction of events; and (3) Any other facts or circumstances which would indicate whether or not the defendant had a fair trial.

North Carolina v. Alford (US Supreme Court, 1970)

The Supreme Court ruling held that a guilty plea is valid if it represents a voluntary, knowing and intelligent choice among reasonable alternatives. It is not compelled within the meaning of the 5th Amendment even if it is entered to avoid a harsh penalty, such as in the case of the death penalty. Choosing to enter a “best interest” plea such as this is now known as an Alford Plea.

Colorado v Connelly (US Supreme Court, 1986)

This case dealt with how to determine if a confession is voluntary. The Court held that competency to confess is dependent on whether or not: (1) The confession is VOLUNTARY and free from susceptible coercion; (2) Waiver of Miranda Rights is voluntary, and (3) The defendant’s reliability is impaired by any mental disability. The Court found that coercive police activity was a necessary predicate to finding that a confession is not “voluntary.” After Connelly, statements not caused by police misconduct are admissible regardless of defendant’s mental state unless the defendant did not understand he could remain silent (i.e. understand his Miranda rights).

Sell v. US (US Supreme Court, 2003)

The Court held that medication to restore trial competency for serious offenses could be administered involuntarily under certain circumstances. Because of this case, Competency to Stand Trial evaluations now often also have to offer an opinion regarding if the defendant should be forced to receive psychiatric medications based on the Sell criteria.

Competency to Be Executed Landmark Cases

Ford v. Wainwright (US Supreme Court 1986)

The Court ruled that an insane person (they meant an incompetent person) cannot be put to death. They found that the common law against condoning the execution of the insane — that such an execution has questionable retributive power, presents no example to others, has no deterrence value and offends humanity. The test for competence to be executed enunciated in Justice Powell’s concurring opinion is whether the prisoner is aware of his impending execution and the reason for it.

State v. Perry (Louisiana Supreme Court, 1992)

The Court ruled you cannot force an inmate on death row who is incompetent to be executed to be medicated in order to restore his competency to be executed.

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Psycholegal & Clinical Assessment Services
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Naperville, Illinois 60563

Office Phone: 630-780-1085
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Email : drgaskell@gmail.com

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