Criminal defendants facing trial have a right to be tried only if compe- tent to stand trial. This principle flows from the guarantees afforded in the United States Constitution, including the 6th Amendment’s right to the assistance of counsel and the right to confront witnesses, and the 14th Amendment’s rights to substantive and procedural due process of law. With respect to the 6th Amendment, a mentally ill defendant may be unable to cooperate with his attorney and, due to mental illness, effectively be denied assistance of counsel. Likewise, a mentally ill defendant may be unable to confront witnesses against him at trial. Regarding the substantive due process clause of the 14th Amendment, trying an incompetent defendant is fundamentally unfair. Finally, with respect to the procedural due pro- cess clause of the 14th Amendment, a mentally ill defendant may not be able to understand and exercise his procedural due process rights—such as understanding the notice of the charges, participate in a hearing, and take advantage of other procedural safeguards designed to ensure that the defendant receives a fair trial.
Trying an incompetent defendant risks the possibility of an erroneous conviction because the mentally ill incompetent defendant who cannot understand the proceedings against him and/or assist in his defense may be wrongly convicted. For that reason, defense attorneys often request an eval- uation of their client’s competence to stand trial. Prosecutors and judges also have an interest in evaluating a mentally ill defendant’s competence to stand trial because trying and convicting an incompetent defendant will likely lead to an overturn of the conviction on appeal. It simply does not serve justice to try an incompetent defendant.
In this chapter, the legal standards for competence to stand trial, the DSM-5 diagnostic changes most relevant to trial competency evaluations, and trial competency restoration programs are reviewed.
In this example, Joseph was adjudicated incompetent to stand trial because his delusions interfered with his working relationship with his
VIGNETTE 1
Joseph, a middle-aged man with schizophrenia, has been charged with felonious assault. Joseph refused to cooperate with his defense attor- ney, believing that his attorney is secretly working for the FBI. Joseph’s defense attorney requested that the court order a competence to stand trial evaluation.
defense attorney. He was committed to a psychiatric hospital for treatment to restore his competency to stand trial.
History of competence to stand trial
The origins of competence to stand trial can be traced to 13th century trials before the king’s court in England. Criminal defendants who failed to enter a plea of guilty or not guilty were given three warnings by the court, and then either confined and starved (prison forte et dure) or gradually crushed under increasing weights (peine forte et dure) until they entered a plea or died [1, 2]. The phrase “to press someone for an answer” originates from this practice. Before engaging such methods, the king’s court first needed to determine whether the defendant was intentionally withholding a plea (mute by mal- ice), or whether, due to a mental defect, the defendant was unable to under- stand that a plea was required of them (mute by visitation of God—having a God-given mental defect). Those mute by visitation of God were spared the extreme methods described above, and a not guilty plea was entered for them. In 1353, the first criminal defendant was formally adjudicated Incompetent to Stand Trial. Legal standards for trial competence developed over the course of several subsequent centuries, although the United States legal standard was not articulated until 1960.
Competence to stand trial legal standards
Modern American competence to stand trial standards stem from the U.S. Supreme Court ruling in Dusky v. United States (1960) [3] . The Dusky standard inquires “whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceed- ings against him.” Although the Dusky standard did not require that a men- tal illness be the cause of the defendant’s incompetence, the subsequently adopted Federal Insanity Defense Reform Act of 1984 [4] required a present mental disease or defect as the cause of the defendant’s incompetence to stand trial.
In response to Dusky v. United States, every American jurisdiction adopted a competence to stand trial standard based on the Dusky standard. In general, state and federal standards indicate that defendants may be incompetent to stand trial if their mental illness makes them (1) unable to understand the nature and objectives of the court proceedings and/or (2) unable to assist in their defense.
In this example, George would likely be incompetent to stand trial, given that his delusions cause him to make an irrational decision about his defense, severely hampering his ability to assist in his defense.
In this scenario, Anna is likely incompetent to stand trial based on her irrational wish to be convicted, which is the result of her depressive symptomatology.
Evaluating competence to stand trial
Defense attorneys question their client’s trial competency in 8%–15% of felony prosecutions [5, 6]. Typically, a defense attorney may question his cli- ent’s competency due to the defendant’s past history of a mental health diag- nosis or treatment, behavior suggesting the presence of a mental disorder (either currently or during the offense), and/or an uncooperative or irratio- nal client. The defense attorney formally enters a motion for a competence to stand trial evaluation, triggering the court to order a competence evaluation.
Competence to stand trial evaluations are one of the most commonly ordered forensic mental health evaluations: approximately 60,000 are per- formed annually in the United States [7] . Most competence evaluations are
VIGNETTE 2
George, an 18-year-old man, is charged with murder for the death of his mother. George has a severe psychotic disorder, which is now in remis- sion, except for his belief that a government official authorized George to kill his mother. George plans on subpoenaing government telephone records and government officials to testify at trial as part of his defense plan. Otherwise, George does not appear psychotic. Is he competent?
VIGNETTE 3
Anna, a 38-year-old woman with a severe depressive disorder, is charged with murder regarding the death of her child. Presently, in the midst of a depressive episode, Anna has no interest in an acquittal, and in fact she is hoping to be convicted and subject to the death penalty so that she can be reunited with her child in heaven. Is Anna competent to stand trial?
performed on an outpatient basis, although provisions for an inpatient eval- uation can be made for the defendant who is uncooperative or suspected of malingering [8]. On average, 30% of defendants evaluated for trial compe- tency are found to be incompetent to stand trial.
The clinician performing the competency to stand trial examination should:
1. Be familiar with the competence to stand trial standard in the jurisdiction; 2. Review the defendant’s relevant medical records;
3. Review relevant collateral sources of information (jail medical records, interview of family members, etc);
4. Conduct a personal interview of the defendant, consisting of:
• A standard psychiatric diagnostic interview and mental status exami- nation. The defendant’s orientation, memory, concentration, mood, affect, and the presence of delusions, hallucinations, and loose associa- tions are especially relevant.
• An inquiry into the specific areas of competency to stand trial (see below); and
5. Provide a written report with a well-reasoned opinion on the competence to stand trial issue by applying the facts of the case to the legal compe- tency standard.
Most states have statutes prohibiting data obtained from a competency to stand trial evaluation from being used to prove a defendant’s guilt. For example, if a defendant confesses guilt to a clinician during a competency evaluation, the confession would be inadmissible at trial in most jurisdic- tions. A number of specific inquiries must be made when performing a competence to stand trial evaluation. Using the two-part legal standard for competency to stand trial described above, the following areas should to be examined:
1. Ability to Understand Nature and Objectives of the Court Proceedings:
a. Charges—The defendant must be able to understand the nature of the criminal charges. Knowledge of the official name of the charge is use- ful, but it is more important that the defendant understand the nature of the specific act that he is accused of committing. For example, it is insufficient that a defendant knows that he is charged with Aggravated Robbery. A defendant should understand that they are charged with robbing a specific victim on a specific date.
b. Appreciate their situation as a criminal defendant—A defendant should be able to understand that they are charged with a crime and are facing prosecution [9] . A defendant who delusionally believes that he or
she is immune from criminal prosecution is likely to be incompetent to stand trial.
c. Severity of charge—A defendant should be able to understand the severity of the charge (misdemeanor or felony) and the possible range of sentences they face if convicted.
d. Pleas—A defendant should be able to understand the various pleas available, including Guilty, Not Guilty, No Contest, and Not Guilty by Reason of Insanity (and Alford Pleas and Guilty but Mentally Ill, in some jurisdictions).
e. Courtroom personnel roles—A defendant should be able to understand the roles of the defendant, defense attorney, judge, prosecutor, jury, witness, and victim.
f. Adversarial nature of trial—A defendant must be able to understand which court personnel are acting adversely to their interests and dem- onstrate self-protective behavior. A defendant who, due to a mental dis- order, seeks to confess to the prosecutor while waiting for the trial to begin may well be incompetent to stand trial.
2. Ability to Assist in Defense:
a. Cooperate with defense attorney—A defendant must be able to have logical and coherent discussions with their attorney and be free of para- noid thinking about their attorney. A defendant should also be able to communicate relevant information to their defense counsel. An inco- herent or mute defendant is likely to be incompetent [9] .
b. Understand plea-bargaining—Approximately 85% of criminal
defendants plea bargain, by agreeing to plead guilty in exchange for a reduced charge and/or sentence. Therefore, it is important that a defendant understands the concept of plea-bargaining and have the capacity to rationally make decisions about plea-bargaining in their own case.
c. Willingness to consider a mental illness defense—A defendant must possess sufficient insight into their mental illness to consider pleading Not Guilty by Reason of Insanity, Guilty but Mentally Ill, or seeking mitigation due to mental illness, if relevant. Defendants who are oth- erwise competent to stand trial but irrationally refuse a mental illness defense may have such a defense imposed on them by the court and still proceed to trial [10].
d. Appraisal of evidence, estimate of likely outcome of trial—A defendant must be able to evaluate evidence, determine which evidence is helpful or harmful to their case, and estimate their chances of conviction. The defendant must also be able to apply this data in deciding whether to enter a plea.
e. Sufficient memory and concentration to understand the events at trial—A defendant must be able to pay attention during trial and have sufficient memory to retain and apply the information during trial. f. Understand appropriate courtroom behavior—A defendant must be
able to understand appropriate courtroom behavior and possess suf- ficient impulse control to exercise appropriate courtroom demeanor. It is important to differentiate between a defendant who (due to a men- tal disorder) is not capable of acting appropriately from a defendant who elects to act inappropriately to make a political statement or other reasons.
g. Give a rational, consistent, and coherent account of the offense—A defendant must be able to give a consistent and organized account of the offense. Such an account may help to achieve alibi, acquittal, insan- ity or mitigation. However, a defendant with permanent amnesia for the offense is not categorically incompetent to stand trial [11].
h. Formulate a basic plan of defense—A defendant should be able to work with their attorney to develop a basic plan of defense, working toward the goal of acquittal or mitigation.
i. Make reasonable defense decisions—Using their knowledge of the information listed above, a defendant must be able to rationally apply their knowledge to their defense and make reasonable, logic-driven decisions.
j. Freedom from self-defeating behavior—A defendant must be motivated to seek the best possible outcome for their criminal trial. Defendants who consciously seek an unfavorable outcome, due to mental illness, may be incompetent to stand trial. For example, a depressed, suicidal defendant who is seeking capital punishment is likely incompetent to stand trial.
k. Testify at trial—A defendant must be able to give rational, organized, and logical trial testimony that may assist in their defense. A defendant must also be able to withstand the stress of testifying and being subject to cross-examination.
Competence to stand trial structured assessment instruments
Many structured instruments have been developed to assess competence to stand trial, including the Competency Screening Test [12], Competency to Stand Trial Assessment Instrument [13], Interdisciplinary Fitness Interview [14], Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST*MR) [15], and Georgia Court Competency Test [16]. Many of these instruments are of only limited utility because they only assess a defendant’s factual understanding, not reasoning ability [17]. Canadian
researchers have developed the Fitness Interview Test, specifically designed to address the Canadian competency to stand trial standard [18].
The MacArthur Competence Assessment Tool-Criminal Adjudication (Mac-CAT-CA) is an instrument that assesses “adjudicative competence,” which includes competence to enter a plea, stand trial, and participate in pretrial proceedings [17]. It is a standardized instrument that assesses both factual knowledge and decisional competence. In recent years, addi- tional competence assessment tools have been introduced, including the Computer-Assisted Determination of Competency to Stand Trial (CADCOMP) [19], Evaluation of Competency to Stand Trial-Revised (ECST-R) [20], and the Inventory of Legal Knowledge (ILK).
The designers of structured competency assessment instruments do not intend that the instruments be used as diagnostic tests that decide whether an individual is capable of proceeding with adjudication. Rather, the instru- ments’ designers recommend that forensic mental health professionals treat test results as one source of information, interpreting those results in light of the full clinical interview and other available data [7] .
Outcome of competency to stand trial evaluations
Once raised as a legal issue, a defendant’s competency to stand trial is usually addressed by the court in a competency hearing [21]. The competency issue is ultimately a legal question to be adjudicated by a judge. Clinical opinions on the issue of competence are admitted into evidence at a competency hearing. Courts usually (up to 90% of the time) base the adjudication of competence on the clinical opinion by the court-appointed forensic mental health profes- sional [22, 23].
The majority of defendants clinically examined for competency to stand trial are found to be competent. The presence of a mental disorder is insuf- ficient to conclude that a criminal defendant is incompetent to stand trial. In one study, almost one-third of defendants referred for competency evalu- ations and found competent to stand trial were diagnosed with a psychotic disorder [24]. Although a mental disorder is necessary to conclude that a defendant is incompetent to stand trial, incompetency also requires that the mental disorder impair the defendant’s performance on the specific func- tional areas relevant to the competency standard.
On average, 30% of defendants evaluated for competence to stand trial are adjudicated incompetent [25], although there is a wide range (4%–77%) of incompetency rates in different jurisdictions [26]. From 37% to 50% of geriatric defendants are found to be incompetent [27–29]. Males and females are equally likely to be found incompetent to stand trial [29]. Younger adults are more likely to be incompetent due to a psychotic or mood disorder or
mental retardation, whereas older defendants are more likely to be incom- petent due to dementia [27]. Preteens and young adolescents are frequently incompetent due to numerous deficiencies, including inability to disclose rel- evant data to defense counsel, susceptibility to outside influence, inability to appraise the quality of their legal representation, and difficulty making decisions about their defense [30, 31]. Table 5-2 lists common reasons for a finding of incompetence to stand trial.
Defendants adjudicated incompetent to stand trial are usually com- mitted to a hospital for treatment in order to restore them to competency. Approximately 7000 defendants are involuntarily committed to public hos- pitals annually for restoration to competence [32]. Restoration to compe- tence is accomplished by treating the defendant’s underlying mental illness and providing education about the trial process [33]. Incompetent defen- dants who incompetently refuse antipsychotic medication may receive involuntary treatment to restore their trial competency, if the trial court so authorizes. However, a criminal defendant adjudicated as incompetent to stand trial who nevertheless competently refuses antipsychotic medica- tions may still receive involuntary treatment, if the prosecution can prove that there is a compelling governmental interest at stake, such as bringing the defendant to trial on major charges [34]. Approximately 80%–90% of defendants found incompetent to stand trial will eventually be restored to competence. However, this rate varies, depending on the severity of the defendant’s illness and the statutory time allowed for restoration to competency.
Some defendants, due to the nature of their mental disorder, will not be restored to competency to stand trial. Common reasons for unrestorability include treatment-resistant psychosis, dementia, and moderate to severe
Table 5-2. COMMON REASONS FOR INCOMPETENCE
TO STAND TRI AL FINDINGS
1. Low intelligence or dementia that impairs the defendant’s understanding of the trial process.
2. Depression and self-defeating behavior that limit the defendant’s motivation for the best outcome at trial.
3. Mania that impairs the defendant’s ability to act appropriately in the courtroom. 4. Paranoid delusions that impair the defendant’s ability to work with their defense
counsel.
5. Disorganized thinking that impairs the defendant’s concentration and attention. 6. Irrational decision-making about their defense as the result of delusions,
disorganized thinking, low intellect or dementia.
intellectual disability. Defendants who are incompetent to stand trial may not be committed for restoration to competency unless there is a substantial likelihood that they can be restored [35]. Therefore, a clinician who opines that a defendant is incompetent to stand trial should offer an opinion about whether the defendant is likely to be restored to competency. Charges are dismissed or held in abeyance for defendants adjudicated incompetent to stand trial and not restorable. Incompetent, unrestorable defendants may remain hospitalized only if they are civilly committed.