FAQs about 46B Competency Jeanette Kinard
When should you ask <strong>for</strong> a competency evaluation Competency should be addressed at <strong>the</strong> earliest possible stage of <strong>the</strong> proceedings where <strong>the</strong>re is evidence 1 to “suggest” that competency might be lacking. 2 If not suggested by <strong>defense</strong> counsel, a competency examination may be requested by <strong>the</strong> prosecution or <strong>the</strong> court on its own motion. 3 Once <strong>the</strong> request has been made, <strong>the</strong> court will conduct an in<strong>for</strong>mal inquiry to determine if <strong>the</strong>re is “some evidence” <strong>the</strong> defendant is incompetent to stand trial. 4 If <strong>the</strong> issue of competency was not apparent be<strong>for</strong>e trial, it may none<strong>the</strong>less be raised subsequent to <strong>the</strong> trial on <strong>the</strong> merits. 5 More specifically, it may be raised at any time be<strong>for</strong>e <strong>the</strong> “sentence is pronounced.” 6 If raised after <strong>the</strong> return of <strong>the</strong> verdict, “<strong>the</strong> court shall make <strong>the</strong> determination as soon as reasonably possible after <strong>the</strong> return.” 7 However, <strong>the</strong> issue of competency is moot if a verdict of not guilty is returned. 8 It is advantageous to <strong>defense</strong> counsel and <strong>the</strong> client to raise <strong>the</strong> competency issue as soon as possible. First, <strong>the</strong> prosecution may dismiss <strong>the</strong> charges against <strong>the</strong> defendant, regardless of a finding of incompetency. 9 Once dismissed, if <strong>the</strong> court feels <strong>the</strong>re is evidence to support a finding of incompetency, <strong>the</strong> court may transfer <strong>the</strong> defendant to civil commitment proceedings (more in-depth discussion to follow). 10 Second, a client deemed incompetent might be more likely to take medication in order to become competent and not continue to languish in jail. Fur<strong>the</strong>rmore, once <strong>the</strong> suggestion of incompetency is made by ei<strong>the</strong>r party and an in<strong>for</strong>mal inquiry has been held by <strong>the</strong> court supporting incompetency, <strong>the</strong> court orders an expert examination to make <strong>the</strong> final determination as to <strong>the</strong> defendant’s competency to stand trial. 11 While a jury trial, to determine a defendant’s incompetency to stand trial is not required; it may never<strong>the</strong>less be requested by ei<strong>the</strong>r party or <strong>the</strong> court upon its own motion. 12 However, an interlocutory appeal, as to <strong>the</strong> defendant’s incompetency to stand trial is barred by <strong>the</strong> rules. 13 Who can per<strong>for</strong>m a competency evaluation <strong>The</strong> court may appoint an expert when <strong>the</strong>re has been a suggestion as to <strong>the</strong> defendant’s incompetency, ei<strong>the</strong>r to examine <strong>the</strong> defendant or testify. 14 However, if <strong>the</strong>re is evidence to support a finding of incompetency, <strong>the</strong> court must appoint an expert to examine or testify as to <strong>the</strong> defendant’s incompetence. 15 This expert may not also be involved in <strong>the</strong> defendant’s treatment. 16 If <strong>the</strong>re exists evidence to support a finding of incompetency, <strong>the</strong> court must appoint an expert, whe<strong>the</strong>r it be a psychologist or psychiatrist employed by <strong>the</strong> local mental health or retardation authority; 17 an expert chosen by <strong>the</strong> defendant; 18 or ano<strong>the</strong>r appointed by <strong>the</strong> court. 19 <strong>The</strong> code specifically delineates <strong>the</strong> qualifications <strong>the</strong> a<strong>for</strong>ementioned experts must have. 20 <strong>The</strong>y include being a physician or psychologist with a doctoral degree, licensed in this state, and certification by <strong>the</strong> American Board of Psychiatry and Neurology “with added or special qualifications in <strong>for</strong>ensic psychiatry” or American Board of Professional Psychology in <strong>for</strong>ensic psychology. 21 If <strong>the</strong> expert is not board certified, <strong>the</strong>n he or she must have “at least 24 hours of specialized <strong>for</strong>ensic training relating to incompetency or insanity evaluations” or at least 5 years’ experience be<strong>for</strong>e Jan uary 1, 2004, in per<strong>for</strong>ming criminal <strong>for</strong>ensic evaluations <strong>for</strong> courts and at least 8 hours of continuing education relating to <strong>for</strong>ensic evaluations (completed in <strong>the</strong> 12 months preceding <strong>the</strong> appointment). 22 In addition, regardless of any board certification, <strong>the</strong> expert must have completed at least 6 hours of continuing education courses in <strong>for</strong>ensic psychiatry or psychology in <strong>the</strong> preceding 24 months. 23 If an expert does not fit into <strong>the</strong> criteria above, as long as <strong>the</strong>re are some exigent circumstances based on <strong>the</strong> expert’s specialized training or experience he may qualify. 24 As a practical matter, most counties have an approved list of PhD psychologists and MD psychiatrists that <strong>the</strong>y will appoint to do a competency examination. How is competency different from Not Guilty by Reason of Insanity (NGRI) Competency is a determination as to <strong>the</strong> defendant’s ability to stand trial. This evaluation focuses on <strong>the</strong> defendant’s present ability to consult with <strong>the</strong>ir attorney and understand <strong>the</strong> proceedings against <strong>the</strong>m. 25 Competency is not a <strong>defense</strong> or excuse <strong>for</strong> <strong>the</strong> crime committed; however, it acts as a stay to <strong>the</strong> proceedings. 26 Insanity is an affirmative <strong>defense</strong> that acts as an acquittal <strong>for</strong> <strong>the</strong> defendant. 27 <strong>The</strong> <strong>defense</strong> is focused on <strong>the</strong> mental state of <strong>the</strong> defendant at <strong>the</strong> time of <strong>the</strong> incident. 28 In addition, <strong>the</strong> insanity <strong>defense</strong> uses <strong>the</strong> term “mental disease or defect” and “does not include an abnormality manifested only by repeated criminal or o<strong>the</strong>rwise antisocial conduct.” 29