How to assess competency
If a judge asks you to evaluate a defendant’s competency, you need to know the standard governing competence to stand trial in the judge’s jurisdiction. All courts in the United States use the Dusky standard, but the wording varies.
Review the defendant’s case records, including court papers (with a list of charges), medical records, and psychiatric records. Then interview the defendant to thoroughly evaluate his mental status and collect a detailed psychiatric history.
If the defendant has a mental disorder, it must impair his ability to understand the proceedings or participate in his defense to result in incompetency. Sources who know the defendant (spouse, family, or friends) may provide useful collateral information.
Assessment tools. Some argue that tools designed to help determine competency can assess understanding of facts related to the trial but not ability to reason. The MacArthur Competency Assessment Tool—Criminal Adjudication is thought to assess both decisional competency and factual understanding.10 Another new tool, the Evaluation of Competency to Stand Trial-revised (ECST-R), is beginning to be used more frequently to evaluate possible malingering and case-specific information.
These tools can be purchased online through vendors such as www3.parinc.com. Though useful, these tools serve as adjuncts to the clinical interview.
In your report to the court, include relevant information from the mental status evaluation, the diagnosis, and—most important—a clear, concise opinion of the defendant’s current competence to stand trial.
Case: does Mr. P meet the standard?
During your interview, Mr. P endorses chronic auditory hallucinations telling him to harm others. He is alert and oriented to location, date, and current events. He can adequately describe courtroom proceedings and each individual’s role, noting that he had been to court before on a drug possession charge, for which he received probation.
When you ask Mr. P about his attorney, he leans in and whispers, “My attorney and my mother have a secret plan to send me to prison for the rest of my life.” He contends his attorney is telling him to claim he is “crazy” to make him “look bad” in court.
In a separate interview, you question the corrections officer who accompanied Mr. P to the evaluation. He says Mr. P refuses to see his mother and his attorney when they come to visit him in jail and takes his medications only sporadically.
Understanding court proceedings. A defendant such as Mr. P must be able to understand the charges against him, that he is on trial for those charges, and the severity of the charges. He must be able to understand the pleas he can offer (guilty, not guilty, not guilty by reason of insanity, or no contest).
The defendant also must be aware of the roles of trial participants, including defense attorney, prosecutor, witnesses, judge, and jury. He must appreciate the trial’s adversarial nature, that his attorney is acting in his best interests and defending him, and that the prosecutor is trying to convict him.
Ability to assist in defense. A defendant must be able to have logical, coherent discussions with his attorney and be free of paranoid beliefs about the attorney. He must recognize his role as the defendant and maintain no delusions that he is somehow immune to prosecution.
In cooperation with his attorney, he must be able to evaluate the evidence against him and predict the trial’s probable outcome. He must help his attorney formulate a plan for his defense and make reasonable decisions about that plan. If relevant, he must be willing to consider using a mental illness defense at trial; therefore, he must possess a reasonable amount of insight into his mental illness. He also must:
- be able to participate with his attorney in plea bargaining and grasp the meaning and outcome of this process
- have sufficient memory and concentration to understand the trial proceedings.
Finally, a defendant must be motivated to assist in his defense and free of self-defeating behavior. For example, severely depressed patients seeking to punish themselves by causing an unfavorable trial outcome could be considered incompetent.
Mentally ill and incompetent
Mr. P has a clear history of mental illness, the first criterion for a defendant to be considered incompetent to stand trial. He has psychotic symptoms, but these alone are insufficient to consider him incompetent. Also, having competently stood trial in the past does not necessarily mean he is competent now.