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When should you ask for a competency evaluation
Competency should be addressed at the earliest possible
stage of the proceedings where there is evidence 1 to “suggest”
that competency might be lacking. 2 If not suggested
by defense counsel, a competency examination may be requested
by the prosecution or the court on its own motion. 3
Once the request has been made, the court will conduct an
informal inquiry to determine if there is “some evidence”
the defendant is incompetent to stand trial. 4
If the issue of competency was not apparent before
trial, it may nonetheless be raised subsequent to the trial
on the merits. 5 More specifically, it may be raised at any
time before the “sentence is pronounced.” 6 If raised after
the return of the verdict, “the court shall make the determination
as soon as reasonably possible after the return.” 7
However, the issue of competency is moot if a verdict of
not guilty is returned. 8
It is advantageous to defense counsel and the client to
raise the competency issue as soon as possible. First, the
prosecution may dismiss the charges against the defendant,
regardless of a finding of incompetency. 9 Once dismissed,
if the court feels there is evidence to support a finding of
incompetency, the court may transfer the 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.
Furthermore, once the suggestion of incompetency is
made by either party and an informal inquiry has been held
by the court supporting incompetency, the court orders an
expert examination to make the final determination as to
the 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 nevertheless be requested by
either party or the court upon its own motion. 12 However,
an interlocutory appeal, as to the defendant’s incompetency
to stand trial is barred by the rules. 13
Who can perform a competency evaluation
The court may appoint an expert when there has been a
suggestion as to the defendant’s incompetency, either to
examine the defendant or testify. 14 However, if there is evidence
to support a finding of incompetency, the court must
appoint an expert to examine or testify as to the defendant’s
incompetence. 15 This expert may not also be involved in the
defendant’s treatment. 16 If there exists evidence to support
a finding of incompetency, the court must appoint an expert,
whether it be a psychologist or psychiatrist employed
by the local mental health or retardation authority; 17 an
expert chosen by the defendant; 18 or another appointed
by the court. 19
The code specifically delineates the qualifications the
aforementioned experts must have. 20 They include being a
physician or psychologist with a doctoral degree, licensed
in this state, and certification by the American Board of
Psychiatry and Neurology “with added or special qualifications
in forensic psychiatry” or American Board of Professional
Psychology in forensic psychology. 21 If the expert is
not board certified, then he or she must have “at least 24
hours of specialized forensic training relating to incompetency
or insanity evaluations” or at least 5 years’ experience
before Jan uary 1, 2004, in performing criminal forensic
evaluations for courts and at least 8 hours of continuing
education relating to forensic evaluations (completed in
the 12 months preceding the appointment). 22 In addition,
regardless of any board certification, the expert must have
completed at least 6 hours of continuing education courses
in forensic psychiatry or psychology in the preceding 24
months. 23 If an expert does not fit into the criteria above, as
long as there are some exigent circumstances based on the
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 they 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 the defendant’s ability
to stand trial. This evaluation focuses on the defendant’s
present ability to consult with their attorney and understand
the proceedings against them. 25 Competency is not
a defense or excuse for the crime committed; however, it
acts as a stay to the proceedings. 26
Insanity is an affirmative defense that acts as an acquittal
for the defendant. 27 The defense is focused on the
mental state of the defendant at the time of the incident. 28
In addition, the insanity defense uses the term “mental
disease or defect” and “does not include an abnormality
manifested only by repeated criminal or otherwise antisocial
conduct.” 29