Federal and State Standards for Competency to Stand Trial

• Steven Gaskell, Psy.D.

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• April 14, 2025

• Federal Court - Dusky Standard

  Dusky v. United States (1960)

   

  – Created the standard for competency to stand trial. Dusky v. United States found 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 competency to stand trial standard used in Federal Court. The statutes addressing competency to stand trial 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

  Illinois (IL Article 104 5/104-10)

   

  – In Illinois, Competency to Stand Trial is referred to as Fitness to Stand Trial. 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 a Fitness to Stand trial examination (e.g., competency to stand trial) 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

  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.”

• Florida

  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 (e.g. competency to stand trial); 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 (competency to stand trial), the examining experts shall consider and include in their report:

   

  (A) Competency to Proceed or Competency to Stand Trial evaluations evaluated 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.”

• Arizona

  Arizona (Arizona Revised Statute 13-4501

   

  – “Incompetent to stand trial” means that as a result of a mental illness, defect or disability a defendant is unable to understand the nature and object of the proceeding or to assist in the defendant’s defense. In the case of a person under eighteen years of age when the issue of competency is raised, incompetent to stand trial also means a person who does not have sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the person. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.

   

  At any time after the prosecutor charges a criminal offense by complaint, information or indictment, any party or the court on its own motion may request in writing that the defendant be examined to determine the defendant’s competency to stand trial, to enter a plea or to assist the defendant’s attorney. The motion shall state the facts on which the mental examination is sought.

   

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

   

  Sec. 104-15. Report.) (a) The person or persons conducting a Fitness to Stand trial examination (e.g., competency to stand trial) 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.

• Kansas

  Kansas (Kansas Chapter 22, Article 33)

   

  – The Kansas standard for competency to stand trial 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 to stand trial. (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 to stand trial of the defendant.

• California

  California Penal Code Section 1367 (a)

   

  – The California standard for competency to stand trial 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.

• Colorado

  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 to stand trial evaluations and second opinion 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.

   

  (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.

   

  (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.

• Indiana

  Indiana Code 35-36-3 Chapter 3 – Comprehension to Stand Trial

   

  – Indiana’s standard for competency 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.”

• Iowa

  Iowa (Iowa Code 1999, Chapter 812.3 – Mental Incompetency of Accused)

   

  – The Iowa standard for competency to stand trial 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.”

• Michigan

  Michigan Mental Health Code Act 258 of 1974- Competency to Stand Trial

   

  330.2020 Defendant presumed competent to stand trial; determination of incompetency; effect of medication; statement by physician.

   

  Sec. 1020 – Competency to Stand Trial

   

  (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.

• Missouri

  Missouri (Chapter 552 Criminal Proceedings Involving Mental Illness – Section 552.020)

   

  – The Missouri standard for competency to stand trial 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 competency to stand trial 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.

• New Jersey

  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. Competency to Stand Trial – 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.

• New York

  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. Such persons are not competent to stand trial.

• North Carolina

  North Carolina SUBCHAPTER X. GENERAL TRIAL PROCEDURE. Article 56.

   

  Incapacity to Proceed – Competency to Stand Trial.

   

  § 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.”

   

  (b) This section does not prevent the court from going forward with any motions which can be handled by counsel without the assistance of the defendant. (1973, c. 1286, s. 1.

   

  § 15A-1002. Determination of incapacity to proceed (competency to stand trial); evidence; temporary commitment; temporary orders.

   

  (a) The question of the capacity of the defendant to proceed (e.g., issue of competency to stand trial) 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 or competency to stand trial.

   

  (b) When the capacity of the defendant to proceed (e.g., issue of competency to stand trial) 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.

• Ohio

  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 competency to stand trial report shall include all of the following:

   

  The examiner’s findings and the facts in reasonable detail on which the findings are based;

   

  If the evaluation was ordered to determine the defendant’s competency 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.

   

  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 to stand trial or insanity issues.

• Pennsylvania

  Pennsylvania – Title 50 Mental Health – 7402- Competency to Stand Trial

   

  § 7402. Incompetence to proceed on criminal charges and lack of criminal responsibility as defense

   

  (a) Definition of Incompetency to stand trial.–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.

• Tennessee

  Tennessee ( T.C.A. §33-7-301)

   

  – The legal standard of competency to stand trial 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).]

• Texas

  Texas Code of Criminal Procedure – Chapter 46B Incompetency To Stand Trial 

   

  Art. 46B.003. INCOMPETENCY; PRESUMPTIONS.- Defendant is presumed to be competent to stand trial

   

  (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.

• South Carolina

  South Carolina – (Section 44-23-410)

   

  South Carolina’s competency to stand trial standard 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

  Virginia – § 19.2-169.1. Raising question of competency to stand trial or plead; evaluation and determination of competency to stand trial.

   

  A. Raising competency to stand trial 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 to stand trial 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 competency to stand trial 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 to stand trial, but not to exceed 30 days from the date of admission to the hospital.

   

  D. The competency to stand trial 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 to stand trial 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 to stand trial 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 to stand trial 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 to stand trial if the defendant is able to understand the charges against him and assist in his defense while medicated.

• Wisconsin

  Wisconsin (Chapter 971.13 – Criminal Procedure – Proceedings Before and at Trial

   

  – The Wisconsin standard for competency to stand 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.”

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Steven Gaskell, Psy.D.