Psycholegal & Clinical Assessment Services
FORENSIC PSYCHOLOGY EXPERT EVALUATIONS IN ILLINOIS AND GEORGIA
CALL Dr. Steven Gaskell for a FREE CONSULTATION at 630-780-1085 or 404-504-7039
Competency to Stand Trial Evaluations
Psycholegal & Clinical Assessment Services offers psychological expert evaluations in 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 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 is a psychological expert who 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.”
Statute 22-3302: Proceedings to determine competency. (1) At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.
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).]
California Penal Code Section 1367 (a) - indicates that a person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.
Texas Code of Criminal Procedure – Chapter 46B Incompetency To Stand Trial -
Art. 46B.003. INCOMPETENCY; PRESUMPTIONS.
(a) A person is incompetent to stand trial if the person does not have:
(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.
(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.
New York – Consolidated Laws of New York, Chapter 11 A, Title U, Article 730 Mental Disease or Defect Excluding Fitness to Proceed
§ 730.10 Fitness to proceed; definitions. As used in this article, the following terms have the following meanings:
1. “Incapacitated person” means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.
New Jersey Statutes – Title 2C:4-4 Mental incompetence excluding fitness to proceed
a. No person who 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 such incapacity endures.
b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
(2) That his elementary mental processes are such that he comprehends:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense.
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.”
Pennsylvania – Title 50 Mental Health – 7402
§ 7402. Incompetence to proceed on criminal charges and lack of criminal responsibility as defense
(a) Definition of Incompetency.–Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.
Ohio Chapter 2945 – 2945.371 G-3 Competency to Stand Trial - Indicates that the examiner shall file a written report with the court within 30 days after entry of a court order for evaluation, and the court shall provide copies of the report to the prosecutor and defense counsel. The report shall include all of the following:
(1) The examiner’s findings;
(2) The facts in reasonable detail on which the findings are based;
(3) If the evaluation was ordered to determine the defendant’s competence to stand trial, all of the following findings or recommendations that are applicable:
(a) Whether the defendant is capable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense;
(b) If the examiner’s opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, whether the defendant presently is mentally ill or mentally retarded and, if the examiner’s opinion is that the defendant presently is mentally retarded, whether the defendant appears to be a mentally retarded person subject to institutionalization by court order;
(c) If the examiner’s opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, the examiner’s opinion as to the likelihood of the defendant becoming capable of understanding the nature and objective of the proceedings against the defendant and of assisting in the defendant’s defense within one year if the defendant is provided with a course of treatment;
(d) If the examiner’s opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense and that the defendant presently is mentally ill or mentally retarded, the examiner’s recommendation as to the least restrictive placement or commitment alternative, consistent with the defendant’s treatment needs for restoration to competency and with the safety of the community.
(4) If the evaluation was ordered to determine the defendant’s mental condition at the time of the offense charged, the examiner’s findings as to whether the defendant, at the time of the offense charged, did not know, as a result of a severe mental disease or defect, the wrongfulness of the defendant’s acts charged.
(H) If the examiner’s report filed under division (G) of this section indicates that in the examiner’s opinion the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense and that in the examiner’s opinion the defendant appears to be a mentally retarded person subject to institutionalization by court order, the court shall order the defendant to undergo a separate mental retardation evaluation conducted by a psychologist designated by the director of developmental disabilities. Divisions (C) to (F) of this section apply in relation to a separate mental retardation evaluation conducted under this division. The psychologist appointed under this division to conduct the separate mental retardation evaluation shall file a written report with the court within thirty days after the entry of the court order requiring the separate mental retardation evaluation, and the court shall provide copies of the report to the prosecutor and defense counsel. The report shall include all of the information described in divisions (G)(1) to (4) of this section. If the court orders a separate mental retardation evaluation of a defendant under this division, the court shall not conduct a hearing under divisions (B) to (H) of section 2945.37 of the Revised Code regarding that defendant until a report of the separate mental retardation evaluation conducted under this division has been filed. Upon the filing of that report, the court shall conduct the hearing within the period of time specified in division (C) of section 2945.37 of the Revised Code.
(I) An examiner appointed under divisions (A) and (B) of this section or under division (H) of this section to evaluate a defendant to determine the defendant’s competence to stand trial also may be appointed to evaluate a defendant who has entered a plea of not guilty by reason of insanity, but an examiner of that nature shall prepare separate reports on the issue of competence to stand trial and the defense of not guilty by reason of insanity
(J) No statement that a defendant makes in an evaluation or hearing under divisions (A) to (H) of this section relating to the defendant’s competence to stand trial or to the defendant’s mental condition at the time of the offense charged shall be used against the defendant on the issue of guilt in any criminal action or proceeding, but, in a criminal action or proceeding, the prosecutor or defense counsel may call as a witness any person who evaluated the defendant or prepared a report pursuant to a referral under this section. Neither the appointment nor the testimony of an examiner appointed under this section precludes the prosecutor or defense counsel from calling other witnesses or presenting other evidence on competency or insanity issues.
(K) Persons appointed as examiners under divisions (A) and (B) of this section or under division (H) of this section shall be paid a reasonable amount for their services and expenses, as certified by the court. The certified amount shall be paid by the county in the case of county courts and courts of common pleas and by the legislative authority, as defined in section 1901.03 of the Revised Code, in the case of municipal courts.
Michigan Mental Health Code Act 258 of 1974
330.2020 Defendant presumed competent to stand trial; determination of incompetency; effect of medication; statement by physician.
(1) A defendant to a criminal charge shall be presumed competent to stand trial. He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner. The court shall determine the capacity of a defendant to assist in his defense by his ability to perform the tasks reasonably necessary for him to perform in the preparation of his defense and during his trial.
(2) A defendant shall not be determined incompetent to stand trial because psychotropic drugs or other medication have been or are being administered under proper medical direction, and even though without such medication the defendant might be incompetent to stand trial. However, when the defendant is receiving such medication, the court may, prior to making its determination on the issue of incompetence to stand trial, require the filing of a statement by the treating physician that such medication will not adversely affect the defendant’s understanding of the proceedings or his ability to assist in his defense.
Incapacity to Proceed.
§ 15A-1001. No proceedings when defendant mentally incapacitated; exception.
(a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as “incapacity to proceed.”
§ 15A-1002. Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.
(a) The question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court. The motion shall detail the specific conduct that leads the moving party to question the defendant’s capacity to proceed.
(b) When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant’s capacity to proceed. If an examination is ordered pursuant to subdivision (1) or (2) of this subsection, the hearing shall be held after the examination. Reasonable notice shall be given to the defendant and prosecutor, and the State and the defendant may introduce evidence. The court:
(1) May appoint one or more impartial medical experts, including forensic evaluators approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, to examine the defendant and return a written report describing the present state of the defendant’s mental health; reports so prepared are admissible at the hearing and the court may call any expert so appointed to testify at the hearing; any expert so appointed may be called to testify at the hearing by the court at the request of either party; or
(2) In the case of a defendant charged with a misdemeanor only after the examination pursuant to subsection (b)(1) of this section or at any time in the case of a defendant charged with a felony, may order the defendant to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine the defendant’s capacity to proceed; in the case of a defendant charged with a felony, if a defendant is ordered to a State facility without first having an examination pursuant to subsection (b)(1) of this section, the judge shall make a finding that an examination pursuant to this subsection would be more appropriate to determine the defendant’s capacity; the sheriff shall return the defendant to the county when notified that the evaluation has been completed; the director of the facility shall direct his report on defendant’s condition to the defense attorney and to the clerk of superior court, who shall bring it to the attention of the court; the report is admissible at the hearing.
(3) Repealed by Session Laws 1989, c. 486, s. 1.
(b1) If the report pursuant to subdivision (1) or (2) of subsection (b) of this section indicates that the defendant lacks capacity to proceed, proceedings for involuntary civil commitment under Chapter 122C of the General Statutes may be instituted on the basis of the report in either the county where the criminal proceedings are pending or, if the defendant is hospitalized, in the county in which the defendant is hospitalized.
(c) The court may make appropriate temporary orders for the confinement or security of the defendant pending the hearing or ruling of the court on the question of the capacity of the defendant to proceed.
(d) Any report made to the court pursuant to this section shall be forwarded to the clerk of superior court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. A copy of the full report shall be forwarded to defense counsel, or to the defendant if he is not represented by counsel provided, if the question of the defendant’s capacity to proceed is raised at any time, a copy of the full report must be forwarded to the district attorney. Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court. Any report made to the court pursuant to this section shall not be a public record unless introduced into evidence. (1973, c. 1286, s. 1; 1975, c. 166, ss. 20, 27; 1977, cc. 25, 860; 1979, 2nd Sess., c. 1313; 1985, c. 588; c. 589, s. 9; 1989, c. 486, s. 1; 1991, c. 636, s. 19(b); 1995, c. 299, s. 1; 1995 (Reg. Sess., 1996), c. 742, ss. 13, 14.)
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.
Virginia – § 19.2-169.1. Raising question of competency to stand trial or plead; evaluation and determination of competency.
A. Raising competency issue; appointment of evaluators. – If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who is qualified by training and experience in forensic evaluation.
B. Location of evaluation. – The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless the court specifically finds that outpatient evaluation services are unavailable or unless the results of outpatient evaluation indicate that hospitalization of the defendant for evaluation on competency is necessary. If the court finds that hospitalization is necessary, the court, under authority of this subsection, may order the defendant sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for evaluations of persons under criminal charge. The defendant shall be hospitalized for such time as the director of the hospital deems necessary to perform an adequate evaluation of the defendant’s competency, but not to exceed 30 days from the date of admission to the hospital.
C. Provision of information to evaluators. – The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.
D. The competency report. – Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant’s capacity to understand the proceedings against him; (ii) his ability to assist his attorney; and (iii) his need for treatment in the event he is found incompetent but restorable, or incompetent for the foreseeable future. No statements of the defendant relating to the time period of the alleged offense shall be included in the report.
E. The competency determination. – After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant’s competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2. If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant’s incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing.
The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated.
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.
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.
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 (9th 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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