AAPL Practice Guideline for the Forensic Psychiatric ... to Stand Trial.pdf · AAPL Practice...

AAPL Practice Guideline for theForensic Psychiatric Evaluation ofCompetence to Stand Trial

Douglas Mossman, MD, Stephen G. Noffsinger, MD, Peter Ash, MD,Richard L. Frierson, MD, Joan Gerbasi, JD, MD, Maureen Hackett, MD,Catherine F. Lewis, MD, Debra A. Pinals, MD, Charles L. Scott, MD,Karl G. Sieg, MD, Barry W. Wall, MD, and Howard V. Zonana, MD

Statement of Intent and DevelopmentProcess

This document is intended as a review of legal andpsychiatric factors to give practical guidance and as-sistance in the performance of competence to standtrial evaluations. This Guideline was developedthrough the participation of forensic psychiatristswho routinely conduct evaluations of competence tostand trial and have expertise in this area. Some con-tributors are actively involved in related academicendeavors. The process of developing the Guidelineincorporated a thorough review that integrated feed-back and revisions into the final draft. This Guide-line was reviewed and approved by the Council of theAmerican Academy of Psychiatry and the Law onOctober 17, 2007. Thus it reflects a consensusamong members and experts about the principlesand practice applicable to the conduct of evaluationsof competence to stand trial. This Practice Guidelineshould not be construed as dictating the standard forthis type of evaluation. It is intended to inform prac-tice in this area. This Guideline does not present allacceptable current ways of performing these forensicevaluations, and following this Guideline does notlead to a guaranteed outcome. Differing fact pat-terns, clinical factors, relevant statutes, administra-tive and case law, and the psychiatrist’s judgmentdetermine how to proceed in any individual forensicevaluation.

The Guideline is directed toward psychiatrists andother clinicians who are working in a forensic role inconducting evaluations and providing opinions re-

lated to competence to stand trial. It is expected thatany clinician who agrees to perform forensic evalua-tions in this domain have appropriate qualifications.

Overview

Adjudicative competence, or competence to standtrial, is a legal construct that usually refers to a crim-inal defendant’s ability to participate in legal pro-ceedings related to an alleged offense. Although noprecise U.S. statistics are available, the best estimatessuggest that the frequency of evaluations of compe-tence to stand trial has risen significantly in recentyears.1 The often-cited 1973 estimate by McGarry2

put the number of competence evaluations at 25,000to 36,000 each year in the United States. Estimatesfrom 19983 and 20004 put the annual number ofcompetence evaluations at 50,000 and 60,000, re-spectively. The frequency of these evaluations makesdetermining whether a defendant meets a jurisdic-tion’s criteria for competence to stand trial a core skillin forensic psychiatry.

This document provides practical guidance to psy-chiatrists who agree to perform forensic evaluationsof adjudicative competence. Psychiatrists in activeprivate sector, public sector, or academic practice de-veloped this Practice Guideline after an in-depth re-view of relevant professional publications and caselaw and after comparing actual practices of cliniciansin a broad range of geographic and work settings.Interested members of the American Academy ofPsychiatry and the Law (AAPL) have also reviewedthe document and have provided substantive and

S3Volume 35, Number 4, 2007 Supplement

editorial suggestions. The contents of and recom-mendations in this Guideline address only evalua-tions of competence to stand trial and not other typesof evaluations that psychiatrists undertake.

The Guideline distinguishes between the legal re-quirements of various jurisdictions and the principlesof ethics that govern clinicians’ actions. Differencesin jurisdictional rules concerning discovery, hearsayevidence, and other legal matters may require psychi-atrists to adopt different practices.

Definitions

Competence to stand trial: the legally determinedcapacity of a criminal defendant to proceed withcriminal adjudication. Jurisdictional statutes andcase law set out the criteria for competence tostand trial.

Adjudicative competence: The terms “adjudicativecompetence,” “competence to proceed with ad-judication,” “competence to stand trial,” and“fitness to stand trial” are used interchangeablythroughout the Guideline. Competence to standtrial is the phrase that U.S. criminal courts havetraditionally used to designate the set of legalconcerns that will be discussed herein. As some5

have noted, however, these concerns encompassa defendant’s participation, not only in a court-room trial, but in all the other proceedings in thecourse of a criminal prosecution. Also, for mostcriminal defendants whose cases are disposed ofthrough guilty pleas and without trials, the termsadjudicative competence and fitness to proceedare more relevant and appropriate than is com-petence to stand trial.

Collateral data: information about the defendantthat comes from sources other than the defen-dant’s statements during the psychiatrist’s inter-view. Such sources include police reports, medi-cal records, statements by the defendant’sattorney, and reports from the defendant’s familymembers.

I. Background

A. History of the Competence Requirement

Anglo-American legal doctrine concerning com-petence to stand trial extends back at least as far as the

mid-17th century in England.6 According to somecommentators, the requirement for mental compe-tence originally arose in English courts as a reactionto those defendants who, rather than enter a plea ofguilt or innocence, stood mute. In such cases, courtsimpaneled juries to decide whether the accused was“obstinately mute, or whether he be dumb ex visita-tione Dei [by visitation of God]” (Ref. 7, Book 4,Chap 25, p 477). Those defendants found “obsti-nately mute” were subjected to peine forte et dure, aprocedure (continued, albeit rarely, as late as the18th century) in which increasingly heavy weightswere placed on the defendant’s chest until he re-sponded or died.7,8 Defendants found mute ex visi-tatione Dei, however, were spared this ordeal. Thiscategory originally referred to individuals who wereliterally deaf and mute, but over time, it came toinclude persons with mental illness.1

By the time Blackstone wrote his famous Com-mentaries, competency in defendants was regarded asintrinsic to the fairness of a trial process in which theuse of attorneys was often forbidden. Thus, commonlaw held that a defendant who was “mad” should“not to be arraigned . . . because he is not able toplead to [the charge] with that advice and cautionthat he ought,” nor should he undergo trial, “for howcan he make his defense?” (Ref. 7, Book 4, Chap.289). In a late 18th-century case in England, the trialwas postponed until the defendant “by collecting to-gether his intellects, and having them entire,. . . shall be able to model his defense and to ward offthe punishment of the law” (Ref. 9, p 307).

Historically, courts and commentators in English-speaking jurisdictions have offered several reasons forrequiring mental fitness of criminal defendants dur-ing their legal proceedings. A defendant who lackedcompetence might fail to communicate exculpatoryinformation to defense counsel.10 If trials are con-ceived of as contests, then a courtroom battle inwhich an accused could not present evidence in hisown defense seems like combat between unequal ad-versaries: one overpowering, the other defenseless.9

The requirement for adjudicative competence alsohas been justified as a way to avoid cruel treatment ofdefendants: “It would be inhumane, and to a certainextent a denial of a trial on the merits, to require onewho has been disabled by the act of God from intel-ligently making his defense to plead or to be tried forhis life or liberty” (Ref. 11, p 328).

Practice Guideline: Evaluation of Competence to Stand Trial

S4 The Journal of the American Academy of Psychiatry and the Law

In an era when even poor criminal defendantshave access to legal counsel, the practical require-ment that an accused be able to formulate his owndefense no longer holds in many cases. Nonetheless,the U.S. Supreme Court still regards the competencerequirement as an important safeguard that assuresthe fairness, accuracy, and dignity of the trialprocess.12

One of the earliest and most cited English formu-lations for judging adjudicative competence appearsin King v. Pritchard, 173 Eng. Rep. 135 (1836),13 inwhich the court instructed a jury first to considerwhether a defendant was “mute of malice or not;secondly, whether he can plead to the indictment ornot; thirdly, whether he is of sufficient intellect tocomprehend the course of proceedings on the trial.”During the 19th century, U.S. jurisdictions contin-ued English common law tradition, explicitly recog-nizing the competence requirement and formulatingtheir own tests for it. In 1899 one federal appealscourt noted that requiring defendants to be compe-tent at trial was a fundamental protection guaranteedby the U.S. Constitution: “It is not ‘due process oflaw’ to subject an insane person to trial upon anindictment involving liberty or life” (Ref. 14, p 941).

In the early 20th century, another federal appealscourt articulated the following test for decidingwhether a defendant is competent:

Does the mental impairment of the prisoner’s mind, if suchthere be, whatever it is, disable him . . . from fairly present-ing his defense, whatever it may be, and make it unjust to goon with his trial at this time, or is he feigning to be in thatcondition . . . ? [Ref. 10, p 298].

A later test asked courts to consider whether the de-fendant was “capable of properly appreciating hisperil and of rationally assisting in his own defense”(Ref. 15, p 725).

B. Landmark U.S. Cases

1. The U.S. Constitutional Standard

In 1960, Dusky v. U.S., 362 U.S. 402 (1960),16

established what is usually taken to be the minimalconstitutional standard for adjudicative fitness in theUnited States. The appellant, Milton Dusky, faced acharge of unlawfully transporting a girl across statelines and raping her. A pretrial psychiatric evaluationrendered a diagnosis of “schizophrenic reaction,chronic undifferentiated type.” A separate psychiat-ric report and psychiatric testimony at trial stated

that Dusky could not “properly assist” counsel be-cause of suspicious thoughts, including a belief thathe was being “framed.” Yet, the trial court found thatDusky was competent to stand trial. He was con-victed of rape, and the Eighth Circuit Court of Ap-peals affirmed his conviction.

The U.S. Supreme Court held, however, that thetrial court’s determination that Dusky was orientedand could recall events was not sufficient to establishhis competence to stand trial. Instead, the Courtstated that the test for his competence to stand trialwas “whether he [had] sufficient present ability toconsult with his lawyer with a reasonable degree ofrational understanding—and whether he [had] a ra-tional as well as factual understanding of the proceed-ings against him” (Ref. 16, p 402). Taking note of“the doubts and ambiguities regarding the legal sig-nificance of the psychiatric testimony in this case andthe resulting difficulties of retrospectively determin-ing the petitioner’s competency of more than a yearago” (Ref. 16, p 403), the Supreme Court remandedthe case to the trial court to ascertain Dusky’s presentcompetence to stand trial and to retry him if he wasfound competent.

Several points about the Dusky standard deservenoting (see Ref. 1):

Adjudicative competence hinges on a defen-dant’s present mental state, in contrast withother criminal forensic assessments (e.g., assess-ments of criminal responsibility or of compe-tence to waive Miranda rights at the time of ar-rest), which refer to past mental states.

The Dusky Court was silent about what condi-tions may make a person incompetent to standtrial Although mental illness, mental retardation,and neurologically based impairments in cogni-tion would all be plausible candidates, the Duskystandard leaves open the possibility that otherfactors, such as cultural differences or immatu-rity, could justify a finding of incompetence.Most jurisdictions’ statutes require the presenceof some mental abnormality for a finding of in-competence, thereby limiting the range of con-ditions for which defendants may be found in-competent to stand trial. For example, theInsanity Defense Reform Act (IDRA) of 198417

holds that a criminal defendant in federal court isincompetent to stand trial if a preponderance ofthe evidence shows that he “is presently suffering



from a mental disease or defect rendering himmentally incompetent to the extent that he isunable to understand the nature and conse-quences of the proceedings against him or to as-sist properly in his defense.”18

The attention of the courts (and, implicitly, theattention of the psychiatrist) is directed to thedefendant’s “ability” to consult rationally withan attorney, rather than the defendant’s willing-ness to consult rationally.

The term “reasonable” connotes flexibility in de-termining competence, while the phrase “ratio-nal as well as factual understanding” requires thecourts and psychiatrists to consider broadly howthe defendant exercises his cognitive abilities.

Evaluating clinicians are given no guidance con-cerning what level of capacity justifies a findingof competence. In stating that the defendantmust have “sufficient present ability” to workwith his attorney, the Court leaves it to the trialcourt to decide, in a given case, whether a defen-dant’s abilities suffice for a finding of adjudica-tive competence.

A subsequent decision, Drope v. Missouri, 420U.S. 162 (1975),19 amplified on the requirement inDusky for the defendant to be capable of consultationwith an attorney, stating that a criminal defendantmust be able “to assist in preparing his defense” (Ref.19, p 171). In Godinez v. Moran, 509 U.S. 389(1993),20 the Supreme Court declared explicitly thatstates may adopt criteria for competence that aremore elaborate than Dusky’s formulation. However,the Court stated that “the Due Process Clause doesnot impose these additional requirements” (Ref. 20,p 402).

In observing that “all criminal defendants . . . maybe required to make important decisions once crim-inal proceedings have been initiated” (Ref. 20, p398), the majority opinion in Godinez appears tointerpret Dusky as requiring that a defendant havecertain decision-making capacities to be deemedcompetent to stand trial. As examples, Godinez notesthat standing trial often requires defendants to makechoices about whether to have a jury trial, to testify,and to cross-examine witnesses. Before trial, defen-dants may have to decide whether and how to put ona defense and whether to raise an “affirmative de-fense” (e.g., a claim of self-defense or an insanity

plea). In stating that the Dusky definition of compe-tence to stand trial encompasses such decision-mak-ing, Godinez suggests that the courts (and thereforethe psychiatrist) may have to evaluate at least some ofa defendant’s decision-making abilities when makingjudgments about adjudicative competence.21

2. Required Hearings

Six years after establishing the constitutional stan-dard for adjudicative competence, the United StatesSupreme Court issued a decision regarding when ahearing on competence should occur. Pate v. Robin-son, 383 U.S. 375 (1966),22 concerned a man foundguilty of homicide. Two to three months before thetrial, a psychiatrist had examined Robinson andfound that he understood the charges against himand could cooperate with counsel. During the trial,however, defense counsel asserted that Robinson wasnot competent to stand trial and asked for additionalpsychiatric testimony on the matter. The trial courtrefused the request, despite uncontroverted testi-mony about Robinson’s history of head injuries,hearing voices, hallucinating, and “pronounced irra-tional behavior” (Ref. 22, p 386).

The Supreme Court ruled that the refusal was im-proper, holding that the Due Process Clause of theFourteenth Amendment requires trial courts to holda suitable hearing on competence to stand trial when-ever there is a “bona fide doubt” (Ref. 22, p 385)about a defendant’s adjudicative capacity. Bona fidedoubt sets a low threshold for holding a competencehearing, implying that, to protect all defendants’rights to a fair trial, many competent defendants mayhave to undergo evaluation, to avoid the prosecutionof a defendant who is not competent.

Drope v. Missouri,19 dealt with what level of evi-dence should trigger a hearing regarding a defen-dant’s competence. Drope faced a charge of rapinghis wife. Before trial, defense counsel filed a motionfor a continuance, attaching a psychiatrist’s reportstating that Drope needed psychiatric treatment. Onthe second day of trial, Drope shot himself in a sui-cide attempt and was hospitalized for three weeks.The trial continued in his absence. Although Drope’sattorney moved for a mistrial, the trial court deniedthe motion, stating that Drope shot himself volun-tarily in a specific effort to avoid trial. Drope wasconvicted. After a series of appeals, the U.S. SupremeCourt heard his case.



In a unanimous decision that reversed Drope’sconviction and remanded his case for a new trial, theSupreme Court held that the trial court had violatedthe defendant’s due process right to a fair trial by notsuspending the trial to hold a hearing on his compe-tence. Referring to Pate v. Robinson,22 the Courtfound that data available at the time of the trial—thepsychiatrist’s report, the defendant’s suicide attempt,and his wife’s testimony—were sufficient to raisegenuine doubts about Drope’s competence. The Su-preme Court said:

The import of our decision in Pate v. Robinson is that evi-dence of a defendant’s irrational behavior, his demeanor attrial, and any prior medical opinion on competence tostand trial are all relevant in determining whether furtherinquiry is required, but that even one of these facts standingalone may, in some circumstances, be sufficient. There are,of course, no fixed or immutable signs which invariablyindicate the need for further inquiry to determine fitness toproceed; the question is often a difficult one in which a widerange of manifestations and subtle nuances are implicated[Ref. 19, p 180].

Although Drope may have appeared competent atthe beginning of his trial, the Supreme Court heldthat “a trial court must always be alert to circum-stances suggesting a change that would render theaccused unable to meet the standards of competenceto stand trial” (Ref. 19, p 181). Because Drope’sabsence at trial precluded courtroom observationsabout his demeanor and ability to engage with hisattorney, the proper course would have been to sus-pend the trial until Drope could undergo evaluation.

3. Competence Evaluations and the Fifth Amendment

In virtually all jurisdictions, a defendant may beordered to undergo a mental health evaluation as aprelude to a hearing on his competence to stand trial.Such evaluations may implicate a defendant’s FifthAmendment protection against self-incrimination,because defendants may admit to certain actions ei-ther spontaneously or in response to the psychiatrist’squestion. Whether a court can convict a defendantbased on information in a competence assessmentbecame the subject of two U.S. Supreme Court cases.

Estelle v. Smith, 451 U.S. 454 (1981),23 arose fromthe murder conviction and death sentence of ErnestSmith who, while being held in jail before trial, hadundergone a court-ordered psychiatric examinationto assess his competence to stand trial. After beingfound competent, he was found guilty of murder andthen underwent a separate sentencing proceeding

held before the convicting jury. To impose a deathsentence under Texas law, jurors had to find that adefendant was likely to commit future criminal actsof violence that would constitute a continuing threatto society. At the sentencing hearing the psychiatristtestified that, based on his pretrial competence exam-ination, Smith lacked remorse, was untreatable, andwas destined to commit more violent criminal acts.The testimony supported the death penalty, and thejurors imposed it.

After unsuccessful appeals in state courts, a federaldistrict court vacated Smith’s death sentence, findingthat the trial court made a constitutional error inadmitting the psychiatrist’s testimony at the penaltyphase. The U.S. Court of Appeals affirmed, as didthe U.S. Supreme Court.

The Supreme Court found that the psychiatrist’suse of the competency evaluation violated Smith’sright to avoid self-incrimination, because the FifthAmendment applied to the sentencing as well as theguilt phase of the trial. Because the psychiatrist hadneither advised Smith of his right to remain silent norwarned him that his statements could be used duringcapital sentencing, Smith’s death sentence was over-turned. The Court also held that admitting the psy-chiatrist’s testimony at the penalty phase had violatedSmith’s Sixth Amendment right to assistance of coun-sel. Defense counsel had not known in advance that thepsychiatric examination would encompass the questionof future dangerousness, and thus Smith was preventedfrom receiving legal advice about the competence exam-ination and its possible consequences.

In Buchanan v. Kentucky, 483 U.S. 402 (1987),24

the Supreme Court expressly limited the protectionsin Smith to situations in which the defendant did notinitiate the psychiatric examination or attempt tointroduce psychiatric evidence at trial. Buchanan wasone of three youths charged with the murder of ayoung woman. At his murder trial, his attorney at-tempted to establish the affirmative defense of “ex-treme emotional disturbance,” calling a social workeras his sole witness. During her testimony, the socialworker read from several reports and letters concern-ing evaluations of Buchanan’s mental condition thathad been prepared following an arrest on a previousburglary charge. On cross-examination, the prosecu-tor had the social worker read another report from apsychological evaluation that defense counsel andthe prosecutor had jointly requested and that hadbeen prepared while Buchanan had been institution-



alized before the murder trial. When defense counselobjected on the basis that the evaluation concernedonly Buchanan’s competence to stand trial and hadnothing to do with his emotional disturbance, theprosecutor responded that the report dealt with thesame matters raised by having the social worker readother reports from earlier evaluations. Defense coun-sel also argued that the psychological report wouldviolate Buchanan’s Fifth and Sixth Amendmentrights because an attorney had not been present dur-ing the evaluation, and no one had told Buchananthat the results could be used against him at trial. Thetrial judge allowed the social worker to read an editedversion of the report, commenting, “You can’t argueabout his mental status at the time of the commit-ment of this offense and exclude evidence when hewas evaluated with reference to that mental status”(Ref. 24, p 412).

The Supreme Court held that using the reportsolely to rebut psychological evidence had not vio-lated Buchanan’s Fifth and Sixth Amendment rightsas established in Estelle v. Smith. The privilege againstself-incrimination was not violated, because the de-fendant had requested a psychological evaluation. Inaddition, unlike the situation in Smith, Buchanan’sattorney himself had requested the mental healthevaluation and presumably discussed it with his cli-ent. Smith had put defense counsel on notice that, ifhe intended to present such a mental-state defense,he could anticipate the use of psychological evidencein rebuttal.

4. Burdens of Persuasion and Standards of Proof

Legal decisions in the 1960s and 1970s made itclear that trial courts must be vigilant about the com-petence of criminal defendants. Yet it was not untilthe 1990s that the U.S. Supreme Court clarified, intwo separate cases, who bears the burden of persua-sion in a competence hearing and the level of proofneeded to show that a defendant lacks adjudicativecompetence.

In the first case, Medina v. California, 505 U.S.437 (1992),25 a defendant faced several criminalcharges, including three counts of first-degree mur-der. Defense counsel requested and the trial courtgranted a hearing on his client’s competence, whichtook place pursuant to a California statute that pre-sumes defendants are competent and gives the partyclaiming incompetence the burden of proving it by apreponderance of the evidence. Over a six-day pe-

riod, a jury heard conflicting expert testimony aboutMedina’s mental condition. He had made severalverbal and physical outbursts during the hearing; onone occasion, he overturned a table.

The jury found Medina competent to stand trial,and following a trial at which he raised the insanitydefense, a different jury found him guilty and recom-mended the death sentence. The trial court imposedthe death penalty for the murder convictions andsentenced Medina to prison for the remainingoffenses.

In appeals to the California and U.S. SupremeCourts, Medina argued that the statutory presump-tion of competence and placing the burden of proofon the defendant violated his right to due process.The California Supreme Court rejected these con-tentions, and the U.S. Supreme Court, after grantingcertiorari, affirmed. Reasoning that preventing anddealing with crime is primarily the business of states(rather than the federal government), and, findingthat there is “no settled tradition on the proper allo-cation of the burden of proof in a proceeding todetermine competence” (Ref. 25, p 446), the Courtconcluded:

Once a State provides a defendant access to procedures formaking a competency evaluation, . . . we perceive no basisfor holding that due process further requires the State toassume the burden of vindicating the defendant’s constitu-tional right by persuading the trier of fact that the defen-dant is competent to stand trial [Ref. 25, p 449].

Four years later, however, the U.S. SupremeCourt ruled unconstitutional an Oklahoma law thatpresumed that a defendant was competent to standtrial unless he proved otherwise by clear and convinc-ing evidence. Cooper v. Oklahoma, 517 U.S. 348(1996)12 challenged the conviction and death sen-tence of a man whose competence had been consid-ered on five separate occasions. Cooper spent time ina psychiatric facility after an initial finding of incom-petence and then was ruled competent despite con-flicting testimony by mental health experts. Oneweek before trial, Cooper’s lawyer reported that thedefendant was still behaving oddly and refusing tocommunicate. On the first day of trial, Cooper’s bi-zarre behavior prompted the trial court judge to holdanother competence hearing that included testimonyof several lay witnesses, a psychologist, and Cooperhimself (who remained in prison overalls for the trialbecause he thought regular clothes were “burning”him). On the witness stand, Cooper expressed fear



that the lead defense attorney wanted to kill him, andduring the hearing, Cooper talked to himself and toan imaginary “spirit” who, he said, gave him counsel.The trial judge concluded:

My shirtsleeve opinion of Mr. Cooper is that he’s not nor-mal. Now, to say he’s not competent is something else. Ithink it’s going to take smarter people than me to make adecision here. I’m going to say that I don’t believe he hascarried the burden by clear and convincing evidence of hisincompetency and I’m going to say we’re going to go to trial[Ref. 12, p 352].

In his appeals, Cooper claimed that Oklahoma’spresumption of competence and its requirement thata criminal defendant establish incompetence by clearand convincing evidence placed too heavy a burdenon the defendant and therefore violated his right todue process. After a lower court rejected his argu-ment, the U.S. Supreme Court heard the case andagreed with Cooper. The Court interpreted early En-glish and U.S. case law as suggesting that the com-mon-law standard of proof for incompetence is onlya preponderance of the evidence (that is, more likelythan not), and that the preponderance standard wasbeing used in federal courts and 46 of the states.Holding that regulation of the procedural burdenfalls within the Due Process Clause of the FourteenthAmendment, the Court concluded that the standardof clear and convincing failed to safeguard the fun-damental right not to stand trial while incompetent,because it allowed criminal courts to try defendantswho had shown that they were probably incompe-tent. The Court noted that “difficulty in ascertainingwhether a defendant is incompetent or malingeringmay make it appropriate to place the burden of proofon him, but it does not justify the additional onus ofan especially high standard of proof ” (Ref. 12, p366).

5. Pretrial Management of Mentally Disabled Defendants

As the Supreme Court addressed questions relatedto standards and procedures for determining a defen-dant’s incompetence to stand trial, it also issued rul-ings regarding pretrial management of mentally dis-abled defendants. Jackson v. Indiana, 406 U.S. 715(1972),26 concerned “a mentally defective deaf mutewith a mental level of a preschool child” (Ref. 26, p717) who, at age 27 years, faced two separate robberycharges involving a combined value of nine dollars.Upon receiving guilty pleas from Jackson, the trialcourt followed Indiana procedures for determinationof his competence to stand trial. The court-

appointed psychiatrists opined that Jackson’s deficitsleft him unable to understand the nature of thecharges against him or to participate in his defense,and that his ability was unlikely to improve. The trialcourt found Jackson incompetent to stand trial andcommitted him to the Indiana Department of Men-tal Health until he could be certified sane.

Jackson’s defense counsel asked for a new trial andcontended that Jackson’s commitment, given the un-likelihood of his improvement, amounted to a lifesentence in the absence of any conviction. As such,Jackson’s confinement violated his FourteenthAmendment right to due process and equal protec-tion and his Eighth Amendment protection fromcruel and unusual punishment. After the trial courtand the Indiana Supreme Court rejected these argu-ments, the U.S. Supreme Court heard Jackson’s case.

The Court held that when Jackson was committedbecause he was deemed incompetent to stand trial, hehad been subjected to a more lenient standard forconfinement but a more stringent standard for re-lease than those persons who are committed undercivil statutes, and this imbalance constituted a viola-tion of the Fourteenth Amendment’s Equal Protec-tion Clause. The Court also held that indefinite com-mitment of a pretrial defendant solely because of hisincompetence to stand trial violated Jackson’s rightto due process. Writing for the Court, Justice Black-mun stated that a trial-incompetent defendant mightnot “be held more than the reasonable period of timenecessary to determine whether there is a substantialprobability that he will attain that competency in theforeseeable future” (Ref. 26, p 738). If treatmentcould not restore a defendant to competence, thestate must either initiate civil commitment proceed-ings or release the defendant.

In two U.S. Supreme Court cases, the right of apretrial defendant to refuse antipsychotic medica-tions has been examined. Riggins v. Nevada, 504 U.S.127 (1992),27 concerned a man charged with murderand robbery who, a few days after his apprehension,told a jail psychiatrist that he was hearing voices andhaving trouble sleeping. Riggins reported that he hadpreviously taken the antipsychotic drug thioridazine,and the psychiatrist prescribed the drug, graduallyincreasing the dose to 800 mg a day.

A few months later, Riggins underwent evaluationand was found competent to stand trial. The defensethen moved for suspension of the thioridazine (andphenytoin, which Riggins was also receiving) during



the trial, arguing that his taking the drugs “infringedupon his freedom and that the drugs’ effect on hisdemeanor and mental state during trial would denyhim due process” (Ref. 27, p 130). The defense alsoargued that Riggins had a right to show jurors his“true mental state” in the presentation of a plannedinsanity defense. The trial court denied the motionto terminate the medication, the trial continued,Riggins was found guilty, and he received the deathsentence.

After Riggins’ Nevada appeals failed, the U.S. Su-preme Court granted certiorari to “decide whetherforced administration of antipsychotic medicationduring trial violated rights guaranteed by the Sixthand Fourteenth Amendments” (Ref. 27, pp 132–3).The Court found that due process would have beensatisfied if the trial court had found that antipsy-chotic medication was medically appropriate and es-sential for the sake of Riggins’ safety or the safety ofothers, taking into account “less intrusive” alterna-tives. The Court also stated that the state might havebeen able to justify medically appropriate involun-tary medication for Riggins if the trial court hadfound that no less-intrusive measures would havepermitted adjudication of his case.

However, the trial court’s ruling requiring Rigginsto keep taking antipsychotic medication neither es-tablished that thioridazine would ensure that hecould be tried nor showed that safety considerationsor some other compelling concern outweighed hisinterest in being free of unwanted drugs. Thus,forced administration of antipsychotic medicationduring trial may have violated his trial-related rightsunder the Sixth and Fourteenth Amendments. TheSupreme Court reversed his conviction and re-manded his case for further proceedings.

Riggins left open the question of whether a defen-dant can be forcibly medicated solely to render himcompetent to stand trial. Eleven years after Riggins,Sell v. U.S., 539 U.S. 166 (2003),28 provided theanswer. Charles T. Sell, a dentist, was charged inMay 1997 with submitting false insurance claims.After he was found incompetent to stand trial, Sellrefused to accept the antipsychotic medication thathis doctors believed would be likely to restore hiscompetence. A federal magistrate and a district courtjudge both authorized administration of medicationover Sell’s objections, ruling that Sell’s behavior inthe hospital showed that he posed a danger to others.A divided panel of the court of appeals affirmed the

district court’s decision to authorize forced medica-tion, but found that Sell was not dangerous whileinstitutionalized. Therefore, in accepting Sell’s casefor review, the U.S. Supreme Court had to decidewhether psychotropic medication can be forced on anondangerous defendant solely to render him com-petent to stand trial.

In developing criteria for imposing competence-restoring medication on unwilling defendants, theCourt turned to Washington v. Harper, 494 U.S. 210(1990),29 (which had dealt with involuntary medica-tion of prison inmates) and Riggins.27 Taken to-gether, said the Court, these cases implied that:

. . . the Constitution permits the Government to involun-tarily administer antipsychotic drugs to a mentally ill de-fendant facing serious criminal charges to render that de-fendant competent to stand trial, but only if the treatmentis medically appropriate, is substantially unlikely to haveside effects that may undermine the fairness of the trial,and, taking account of less intrusive alternatives, is signifi-cantly necessary to further important governmental trial-related interests [Ref. 28, p 179].

Before imposing involuntary medication, said theSell majority, trial courts must address four points:

Whether the government has an interest in pros-ecuting the defendant, by considering the seri-ousness of the charges; how long the defendanthas already been confined (time that wouldcount against a possible sentence); and whetherthe defendant might, if not treated, be confinedto a psychiatric hospital for a lengthy period,which “would diminish the risks that ordinarilyattach to freeing without punishment one whohas committed a serious crime” (Ref. 28, p 180).

Whether the proposed medication would “besubstantially likely” to render the defendantcompetent without causing side effects thatwould interfere with his ability to work with hisattorney.

Whether there is a less intrusive treatment thatwould restore the defendant’s competence.

Finally, whether the proposed involuntary med-ication would be “medically appropriate, i.e., inthe patient’s best medical interest in light of hismedical condition” (Ref. 28, p 181; emphasis inoriginal).

The Court also held that, before ordering forcedmedication to restore competence, trial courtsshould consider other possible grounds for forced



medication, including a patient’s dangerousness tohimself or others and situations in which the pa-tient’s refusal to take medication poses a risk to hishealth. If medications were authorized on thesegrounds, it would not be necessary to decide whetherto force medication to restore trial competence. TheCourt commented:

. . . [M]edical experts may find it easier to provide an in-formed opinion about whether, given the risk of side ef-fects, particular drugs are medically appropriate and neces-sary to control a patient’s potentially dangerous behavior(or to avoid serious harm to the patient himself) than to tryto balance harms and benefits related to the more quintes-sentially legal questions of trial fairness and competence[Ref. 28, p 182].

In Sell, the Court ruled that the existing orders forforced medication could not stand, because lowercourts had not adequately considered trial-relatedside effects, the impact on the sentence of Sell’s al-ready-lengthy confinement, and any potential futureconfinement that might lessen the importance ofprosecuting him. The Court therefore remandedSell’s case for further proceedings in accordance withits ruling.

6. Standards for Waiving Constitutional Rights

Whether there should be a separate, higher stan-dard of competence for defendants who want towaive their constitutional rights to counsel and entera plea of guilty was settled in Godinez v. Moran,20 inwhich the U.S. Supreme Court stated that fitness tostand trial implies competence to waive counsel andplead guilty. After being charged with three counts offirst-degree murder, Moran had initially pleaded notguilty, and two psychiatrists who evaluated Moranopined that he was depressed but competent to standtrial. Moran then told the Nevada trial court that hewanted to change his plea to guilty and dismiss hisattorneys—his purpose being to prevent the presen-tation of mitigating evidence at his sentencing. Thetrial court found that Moran understood the chargesagainst him, was capable of assisting his lawyers, hadwaived his right to counsel knowingly and intelli-gently, and had entered his guilty pleas freely andvoluntarily. Moran was subsequently sentenced todeath on all three murder counts.

In a postconviction appeal hearing, a trial courtrejected Moran’s claim that he had been mentallyincompetent to represent himself. The Nevada Su-preme Court denied Moran’s appeal for dismissal,and a federal district court rejected his habeas corpus

application. The federal court of appeals reversed,however, holding that the district court should haveheld a hearing regarding Moran’s competence beforeaccepting his guilty plea and his decision to waivecounsel. Further, the court of appeals held that com-petence to waive constitutional rights requires ahigher level of mental functioning than that neededto stand trial. The correct standard for such a waiverrequired that the defendant have the capacity tomake a “reasoned choice” among the availablealternatives.

Rulings from various federal circuit courts had dis-agreed about whether a higher standard of compe-tence was necessary for pleading guilty or waiving theright to counsel, and the U.S. Supreme Courtgranted certiorari in Godinez to resolve the matter. ACourt majority, per Justice Thomas, “reject[ed] thenotion that competence to plead guilty or to waivethe right to counsel must be measured by a standardthat is higher than (or even different from) the Duskystandard” (Ref. 20, p 398), and cited the language ofDusky as the proper criterion in these situations.When a defendant waives the right to counsel, hemust do so “competently and intelligently.” To becompetent to waive counsel, however, the defendantneed only have the capacity to make an “intelligentand voluntary” decision to choose self-representa-tion. The defendant need not have the “technicallegal skills” or heightened mental abilities necessaryto represent himself capably in a criminal proceed-ing. The Court also found that the decision to pleadguilty is “no more complicated than the sum total ofdecisions that a defendant may have to make duringthe course of a trial, such as whether to testify,whether to waive a jury trial, and whether to cross-examine witnesses for the prosecution” (Ref. 20, p398). The Supreme Court therefore upheld Moran’sconviction and death sentence. Moran’s later appealswere unsuccessful, and the state of Nevada executedhim in March 1996.

II. Special Topics in Recent U.S. Case Law

A. Mental Conditions and AdjudicativeIncompetence

As explained in the previous section, the U.S. Su-preme Court has construed the Sixth and FourteenthAmendments as forbidding trial of incompetent de-fendants and as requiring courts to hold hearingsabout a defendant’s fitness for trial whenever suffi-



cient doubt about competence arises. There is nobright-line threshold about what constitutes suffi-cient doubt, but the Court has recommended thattrial courts consider “a defendant’s irrational behav-ior, his demeanor at trial, and any prior medicalopinion” (Ref. 19, p 180) in weighing whether tohold a hearing on competence.

In applying Drope, federal appeals courts havefaulted trial courts for failure to hold hearings oncompetence to stand trial in cases in which:

The defendant could not communicate intelli-gently, had a family history of mental distur-bance, and had sustained a severe head injury.30

The trial judge was informed that the defendanthad several mental disorders, had undergonemany psychiatric hospitalizations, and probablyhad used antipsychotic medication, and defensecounsel had repeatedly asked for assistance frommental health experts.31

The defendant who displayed odd, self-defeatingbehavior in court had believed his lawyer and thejudge were part of a conspiracy.32

The defendant claimed to have experienced au-ditory and visual hallucinations at the time of theoffense, his family had a history of mental illness,psychiatrists found that he had severe paranoidschizophrenia, and the judge had written a letterto the state department of corrections expressingconcern about his competence.33

Appellate courts have been clear, however, that“the presence of some degree of mental disorder inthe defendant does not necessarily mean that he isincompetent to . . . assist in his own defense” (Ref.34, p 445). Neither a past nor a current mental dis-order— be it mental retardation, mental illness,brain damage, or substance abuse—necessarilymakes a defendant incompetent.35–37 Thus, for ex-ample, appeals courts have ruled that:

Despite indications of grandiose or paranoid de-lusions, the defendant was competent because anexamining psychologist found no need for treat-ment and a psychiatrist testified that the defen-dant understood the legal proceedings and couldassist counsel.38

despite a history of depression, severe learningimpairment, and suicidal tendencies, the defen-dant was competent because he showed that he

understood legal proceedings and the appealsprocess.39

although the defendant had brain damage causedby multiple head injuries and drug addiction, hewas competent because the he had assisted coun-sel in preparing for trial; had given appropriateresponses in interviews; and had written letters tothe jury, counsel, and his wife and because nei-ther the defendant’s family nor counsel haddoubted his competence.40

Despite the presence of structural brain abnor-malities and a history of behavioral problems, thedefendant was fit because a prosecution psychia-trist had testified to that effect.41

Although the defendant had mild mental retar-dation and organic brain damage and had en-gaged in substance abuse, the opinion of the gov-ernment’s mental health experts, the defendant’sown coherent testimony, his confession to po-lice, and his two escapes all had represented evi-dence that he was competent.42

Although he had narcolepsy, the defendant hadtestified coherently at trial, and the trial courthad verified that, throughout the trial, he hadtaken notes and conversed with counsel.43

Although the defendant gave “rambling and of-ten nonresponsive answers to questions that hewas asked,” most of the his statements showed“that he simply wanted his day in court andwanted an opportunity to tell his story hisway.”44

B. Competence and Criminal Responsibility

Courts have also repeatedly distinguished betweenfindings regarding fitness for trial (which reflects adefendant’s present mental capabilities during adju-dication) and criminal responsibility (which is re-lated to a defendant’s mental state when the allegedoffense took place), holding that these are indepen-dent determinations on distinct ultimate issues.45,46

A finding that a defendant is competent to stand trialcannot not prevent him from trying to establish aninsanity defense, and such a finding is not admissibleat trial.47

C. Attorney’s Failure to Challenge Competence

Occasionally, forensic clinicians encounter refer-rals for competence evaluations that seem frivolous,



because the defendant is obviously competent. Cli-nicians should recognize, however, that when a de-fendant displays signs of a competence-impairingmental disorder, defense counsel is obligated toquestion whether the client can proceed withadjudication.48

The leading case in this area is Curry v. Zant, 371S.E.2d 647 (Ga. 1988),49 a Georgia Supreme Courthabeas corpus ruling that set aside the guilty plea anddeath sentence of a defendant charged with commit-ting murder in the course of a rape and burglary. Thefirst of two attorneys appointed to represent the de-fendant believed that his client had a severe mentalillness, and the trial court told this attorney that itwould grant funds for an independent evaluation ofthe defendant’s competence to stand trial. On itsown motion, the trial court also had clinicians at astate hospital evaluate the defendant. The hospital’sexamining physician reported that the defendant was“not hitting on all cylinders” and had a borderlinepersonality disorder, but might be malingering andmanipulative.

A second appointed attorney ultimately repre-sented the defendant, who entered a plea of guilty attrial and subsequently received the death sentence.The attorney never asked for the independent evalu-ation because, given his observations of the defen-dant and the report from the state hospital, he feltthat a second evaluation “would be futile” (Ref. 49, p649). At the habeas corpus hearing, however, a psy-chologist testified that the defendant had not beencompetent to waive his right to trial and that infor-mation from “an independent evaluation would havebeen invaluable to a jury trying his case” (Ref. 49, p648). The Georgia Supreme Court believed that thesecond attorney had been conscientious. He hadthoroughly discussed with the defendant and hisfamily the decision to plead guilty and had preparedwell for the trial’s sentencing phase. Nonetheless,concluded the court, the attorney’s failure to get asecond psychiatric evaluation constituted ineffectiveassistance of counsel, because a second opinionmight well have provided crucial information aboutincompetence and insanity, and may have resulted indeath penalty mitigation.

1. Other Cases

Recent cases from other jurisdictions support theview that a defense attorney’s failure to investigatebona fide signs of incompetence constitutes ineffec-

tive assistance of counsel and grounds for reversal ofa criminal conviction.

Hull v. Kyler, 190 F.3d 88 (3rd Cir. 1999),50 con-cerned another defendant charged with murder whowas found incompetent soon after his arrest and washospitalized for four years. The trial court found thedefendant competent based on testimony from acourt-appointed psychiatrist who had seen the defen-dant three months earlier and who said the defendantcould understand proceedings and assist counsel “atthat time.” Defense counsel did not cross-examinethe expert and conceded competence, and the defen-dant pleaded guilty to murder. In finding defensecounsel ineffective, the appeals court noted that dur-ing his hospital stay, at least eight doctors had foundthe defendant incompetent because of mental retar-dation and schizophrenia and that an evaluation twoweeks before the court-appointed expert had foundno change in him from previous examinations.

Woods v. State, 994 S.W.2d 32 (Mo. Ct. App.1999),51 concerned a defendant with a manic-de-pressive disorder who tried to commit suicide the onday of his sentencing. The defendant seemed as de-pressed as usual to the attorney when she talked withhim after the suicide attempt, and she thought he wascompetent. “This was not counsel’s call,” said theappeals court (Ref. 51, p 39), and ruled that counselwas ineffective in her failure to seek a competenceevaluation after the suicide attempt.

In the Matter of Fleming, 16 P.3d 610 (Wash.2001) (en banc),52 concerned the potential impact offindings by a defense expert, who was retained toinvestigate the possibility of a diminished-capacitydefense, but who thought that the defendant wasincompetent to stand trial. Defense counsel did notinform the trial judge of the expert’s opinion, and thedefendant pleaded guilty to a burglary charge. TheWashington Supreme Court held that the defenseattorney’s failure to inform the judge constituted in-effective assistance of counsel because the defendant“might have been found incompetent and shouldhave had a competency hearing before entering a pleaof guilty” (Ref. 52, p 615).

D. Personality Disorders

Personality disorders usually are not conditionsthat render defendants incompetent to stand trial,and numerous appellate cases affirm convictions ofdefendants whom trial courts found competent de-spite their personality problems. However, several



cases suggest that personality disorders could causeadjudicative incompetence and that failure to recog-nize this possibility could result in reversal of aconviction.

1. State Court Cases

In State v. Stock, 463 S.W.2d 889 (Mo. 1971),53

the Missouri Supreme Court held that the trial courthad erred in failing to hold a hearing concerning thedefendant’s competence to stand trial for selling mar-ijuana. After conviction but before sentencing, thedefense attorney moved for a new trial because hehad just learned that Stock had previously receivedpsychiatric treatment. At a hearing on the motion,the treating psychiatrist testified that his former pa-tient “had schizoid traits . . . and a tendency to bewithdrawn, hostile, and sometimes paranoid” (Ref.53, p 893). A court-appointed physician examinedthe defendant and submitted a written report thatsaid that the defendant had “a personality disordercharacterized by general inadequacy,” but that this“would not interfere with his ability to participate inhis defense in a trial” (Ref. 53, p 893). Defense coun-sel contested the court-appointed physician’s conclu-sion. However, the trial court believed that the pe-riod during which competence could be consideredhad lapsed, and concluded—without holding a hear-ing—that there was no basis for finding that the ac-cused lacked the mental capacity to proceed. TheMissouri Supreme Court found, however, that thedefendant was entitled under the state’s statutes to ahearing on his competence: “the trial court appar-ently considered that it had reasonable cause to be-lieve that the appellant had a mental disease or defectexcluding fitness to proceed, because it exercised itsdiscretion and appointed a private physician to makean examination and report” (Ref. 53, p 894).

Hayden v. Commonwealth, 563 S.W.2d 720 (Ky.1978),54 concerned the appeal of a Kentucky defen-dant after his conviction for manslaughter and rob-bery. Before trial, defense counsel had expresseddoubt about his client’s competence. An examiningpsychiatrist thought the defendant had a schizoidpersonality, would probably decompensate into apsychotic episode when under stress, and could par-ticipate only in trial procedures that were “very con-crete” and in which participants used only “ex-tremely” simple phrases to express simple ideas (Ref.54, p 722). Though the defendant had testified attrial, this did not constitute evidence sufficient to

overcome the trial court’s previous doubts about thedefendant’s competence. Holding that the trial judgeerred when he failed to conduct an evidentiary hear-ing on the defendant’s competence, the KentuckySupreme Court reversed the defendant’s conviction.The court remanded the case for an evidentiary hear-ing on the defendant’s competence to stand trial,indicating that the defendant might be retried werehe found competent. (A subsequent Kentucky case,Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001),55 overruled the portion of Hayden that re-quired vacating a defendant’s sentence, holding thata retrospective hearing on whether a defendant hadbeen competent was permissible.)

2. Federal Court Cases

Two cases illustrate the potential role that person-ality disorders may play in federal court determina-tions of competence.

In U.S. v. Wayt, 24 Fed.Appx. 880 (10th Cir.2001), a Wyoming federal court indicted Glen Wayton charges of conspiracy and distributing metham-phetamine, and eventually he pleaded guilty to theconspiracy charge. Before Wayt had entered his plea,the district (trial) court had heard testimony fromtwo experts, one of whom testified that althoughWayt understood the proceedings against him, hisdrug-induced paranoia would significantly affect hisability to assist counsel and prevent him from pro-viding adequate information for his defense. Waytappealed the district court’s decision finding himcompetent to stand trial, contending that the courtincorrectly concluded, as a matter of law, that a per-sonality disorder derived from long-term substanceabuse cannot constitute a “mental disease or defect”under federal statute 18 U.S.C. § 4241, which setsforth criteria of adjudicative incompetence. The gov-ernment countered that a personality disorder indeedshould not be considered to be “a mental disease ordefect” for the purpose of finding a defendant in-competent to stand trial.

The appeals court accepted neither the appellant’snor the government’s position.56 Before trial, the dis-trict court considered the evidence before it and con-cluded that even if Wayt had a personality disorderwith paranoid features, the disorder, in his particularcase, did not meet the statutory criteria for findingthat Wayt was incompetent to stand trial. “Contraryto Mr. Wayt’s contentions,” wrote the appeals court,“the district court’s ruling does not convey a gener-



alized legal rule that personality disorders do notqualify for consideration” when a defendant’s com-petence is in question (Ref. 56, p 883). This languageseems to imply that had the district court based itsdecision on such “a generalized legal rule,” it wouldhave been in error, which, in turn, implies that apersonality disorder could be a “mental disease ordefect” for the purpose of finding a defendant in-competent to stand trial.

A district court ruling in U.S. v. Veatch, 842F.Supp. 480 (W.D. Okla. 1993),57 illustrates how acourt might conclude that a personality disorder ren-ders a defendant incompetent to stand trial. Thecourt heard testimony that the defendant’s “paranoidthinking and mistrust of the judicial system in gen-eral prevented him from participating in the pro-ceeding with the requisite degree of rationality” (Ref.57, p 482). The defendant believed, for example, that“his current incarceration was the direct result of thepersistence of the government in persecuting him forother acts.” Although Veatch understood what washappening in his criminal proceedings, “his severepersonality disorder, which both experts agree iswrought with paranoid, narcissistic and antisocialtraits, rendered him incapable of effectively assistingcounsel in his defense or conducting his own defense.In sum, the defendant’s irrational thoughts pre-vented him from being competent to stand trial”(Ref. 56, p 482).

E. Defendants With Impaired Hearing

For several decades, courts have held that defen-dants with impaired hearing are constitutionally en-titled to special accommodations during legal pro-ceedings. In 1925, an Alabama appeals court ruledthat a hearing-impaired defendant:

. . . must not only be confronted by the witnesses againsthim, but he must be accorded all necessary means to knowand understand the testimony given by said witnesses. Theconstitutional right [to confront one’s accuser] would bemeaningless and a vain and useless provision unless thetestimony of the witnesses against him could be understoodby the accused. Mere confrontation of the witnesses wouldbe useless, bordering upon the farcical, if the accused couldnot hear or understand their testimony [Ref. 58, p 387].

More recently, a Louisiana court held, in State v.Barber, 617 So.2d 974 (La. Ct. App. 1993),59 that:

. . . the Constitution requires that a defendant sufficientlyunderstand the proceedings against him to be able to assistin his own defense. Clearly, a defendant who has a severehearing impairment, without an interpreter, cannot under-

stand the testimony of witnesses against him so as to be ableto assist in his own defense [Ref. 59, p 976].

Decisions from Ohio and New York liken the situa-tion of a hearing-impaired defendant with that of adefendant who cannot understand English:

Clearly, a non-English speaking defendant could not mean-ingfully assist in his/her own defense without the aid of aninterpreter. A hearing impaired person is similarly deprivedof due process in court proceedings conducted without as-sistance [Ref. 60, p 509].

A defendant who cannot hear is analogous to a defendantwho cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting rea-sonable measures to accommodate his or her disability [Ref.61, p 672].

The Arizona Supreme Court said that without someform of assistance, hearing-impaired defendantswere forced to view “proceedings from a soundproofbooth” (Ref. 62, p 733).

Once the trial court decides that a hearing-im-paired defendant requires some assistance, the trialcourt has broad discretion in accommodating thedefendant’s right to that assistance. However, twocases illustrate the potential sensitivity that trialcourts must display concerning the competence ofdefendants with hearing impairments.

Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct.App. 1986),63 appealed the second-degree murderconviction of a deaf and mute defendant who, as a17-year-old student, stabbed a teacher. Before trial,the judge considered the opinions of seven expertsbefore concluding that Holmes was competent, andtook “every possible precaution to assure thatHolmes’ due process rights were protected” (Ref. 63,p 232). At trial, Holmes admitted that he hadstabbed the victim, but claimed self-defense.Holmes’ lawyer tried to show that Holmes hadstabbed the teacher because the teacher had heldHolmes around the upper body, effectively cuttingoff Holmes’ air supply, and that his client had be-lieved he would be injured or killed if not released bythe teacher. But when the defense attorney tried toquestion Holmes about what he thought would havehappened if the teacher had continued to exert pres-sure, Holmes could not respond. The trial judgenoted that Holmes could not answer questions cru-cial to his defense, and subsequently, Holmes’ attor-ney moved for a hearing to present psychologicaltestimony concerning Holmes’ ability to present thedefense of self-defense. However, the trial judge de-clined to conduct another hearing on Holmes’ com-



petence to stand trial. The appeals court held thatHolmes’ problems in testifying had raised a bona fidedoubt about his competence to stand trial and thatthe trial court abused its discretion in denyingHolmes’ motion. The appeals court vacated Holmes’conviction and sent the case back to the trial court fora reevaluation of Holmes’ competence to stand trial.

The kinds of courtroom accommodations thatwould preserve a hearing-impaired defendant’s con-viction appear in Shook v. State, 552 So.2d 841(Miss. 1989), writ of habeas corpus denied, Shook v.Mississippi, 2000 U.S. Dist. LEXIS 8851 (N.D.Miss. 2000).64 In this appeal, a deaf defendant whohad been convicted for aggravated assault and firinginto a dwelling contended that (1) he should nothave been tried until he had learned sign language,and (2) he had been tried while he was physically(and possibly mentally) incompetent.

The appeals court rejected both claims. Concern-ing the first, the court noted that Shook could readand that an interpreter had “kept him well informedas the trial progressed. He is a high school graduateand was a college student. During the trial he waskept advised of what was being argued and what thetestimony was” (Ref. 64, pp 844–5). The secondclaim, said the appeals court, was “totally refuted bythe facts” (Ref. 64, p 845). At the trial, the judge hadappointed an interpreter who sat at defense counsel’stable during the trial and wrote notes to the defen-dant. Lay witnesses had testified that they could com-municate with Shook, and he could communicatewith them. The trial court also had allowed membersof the defendant’s family to be with the defendant atcounsel table to assist in communication, eventhough they might have been witnesses in the case. Ata subsequent habeas corpus hearing, a federal courtaffirmed that Shook’s criminal trial proceedings hadadequately protected his due process rights becausethe trial court had taken all reasonable measures tocompensate for Shook’s hearing impairment and hadalso delayed the trial while Shook underwent a com-petence evaluation at the state hospital.

Hearing and communication impairment may bethe basis for a court’s finding of incompetence tostand trial, even when no evidence is presented con-cerning the defendant’s mental disorder. For exam-ple, State v. Burnett, 2005 Ohio 49 (Ohio Ct. App.2005),65 affirmed the trial court’s finding that a “deafmute” defendant was incompetent to stand trial. Thedefendant’s concrete thinking and idiosyncratic

method of communication (which involved use ofgestures, American Sign Language, and a system of“home signing” established among his family mem-bers) precluded having interpreters function as inter-mediaries between him and legal personnel. No men-tal health expert ever evaluated the defendant. Thetrial court based its finding on the testimony of amaster’s-level social worker who also had an associ-ate’s degree in sign language. In another case (U.S. v.Jones, 2006 U.S. Dist. LEXIS 9257 (E.D. Tenn.2006))66 involving a hearing-impaired defendantwho could not understand standard sign language, afederal district court declared that the defendant was“physically incompetent” (Ref. 66, p 17) to standtrial under the Dusky standard.

F. Amnesia

Many U.S. cases have addressed whether trying adefendant who cannot remember the events that ledto his arrest constitutes a denial of due process or ofthe right to effective assistance of counsel. The most-cited case in this area is Wilson v. U.S. 391 F.2d 460(D.C. Cir. 1968).67 Wilson and an accomplice stolea car and held up a pharmacy. Police pursued the pairin a high-speed chase that ended when the allegedthieves’ vehicle left the road and crashed into a tree.The accomplice died, and Wilson fractured his skulland ruptured several blood vessels in his brain. Heremained unconscious for three weeks, and at thetime of trial, he could remember nothing that hadhappened from the afternoon of the robberies untilhe had regained consciousness. However, his mentalcondition was otherwise “normal,” and he had onlyminor neurological sequelae (partial paralysis and aslight speech defect). The trial court found Wilsoncompetent to stand trial, and he was found guilty ofassault with a pistol and robbery. Wilson appealedhis conviction on the grounds that he had been in-competent to stand trial and that his being triedwhile amnesic had violated his constitutional rights.

The appeals court remanded the case to the trialcourt for more extensive posttrial findings aboutwhether Wilson’s amnesia had indeed deprived himof his rights to a fair trial and effective assistance ofcounsel under the Fifth and Sixth Amendments. Theappeals court held that to have a fair trial, a defendantmust be competent under the Dusky standard. A trialcourt would have to predict before trial at a compe-tence hearing whether an amnesic defendant has thecapacities required under Dusky. But after a trial has



taken place, continued the appeals court, “the trialjudge should determine whether the defendant has infact been able to perform the functions” (Ref. 67, p463) required by Dusky. Further, the trial courtshould “make detailed written findings” (Ref. 68, p463) concerning how the defendant’s amnesia hadactually affected the fairness of the trial, taking intoaccount six factors:

The effect of the amnesia on the defendant’s abil-ity to consult with and assist his lawyer;

the effect of the amnesia on the defendant’s abil-ity to testify;

how well the evidence could be extrinsically re-constructed, including evidence relating to thealleged offense and any plausible alibi;

the extent to which the government assisted thedefense in this reconstruction;

the strength of the prosecution’s case, includingthe possibility that the accused could, but for hisamnesia, establish an alibi or other defense; and

“[a]ny other facts and circumstances whichwould indicate whether or not the defendant hada fair trial” (Ref. 67, p 464).

Though many other courts have adopted featuresof the reasoning and approach in Wilson to the prob-lem of the amnesic defendant (e.g.,, Refs. 68–73),some have declined to do so (e.g., Refs. 74–76).

U.S. v. Stubblefield, 325 F.Supp. 485 (D.C. Tenn.1971),77 illustrates the potential impact of the fourthpoint. The court held that a defendant’s memoryimpairment and incapacity to testify were such as torequire the prosecution to help the defense in recon-structing evidence relating to the crime charged andvarious possible defenses. To this end, the court or-dered the prosecution to open its files to defensecounsel and to keep those files open continuallythroughout the trial.

Wilson clearly implies that amnesia for the eventsthat led to an arrest could be a ground for a finding ofincompetence and that a trial court may have to ex-amine whether a defendant is incompetent prospec-tively (before trial) and/or retrospectively (after adju-dication has occurred). Thus, appellate courts havereversed convictions or remanded cases after findingthat amnesia, coupled with other factors, may haveprevented the defendant from intelligently testifyingor remembering matters needed to make his defense.

Courts have remanded or reversed in cases in whichthe amnesia had diverse causes, including traumaticbrain injury,67 “a psychotic type of regression,”78

drugs administered by a sheriff,79 self-administerednarcotics,80 and psychogenic causes.81,82

However, these cases held only that memory im-pairments may entitle defendants to trial court as-sessments of their competence to proceed with adju-dication or to postconviction reviews of whethertheir amnesia had adversely affected their defense. Ina 1967 case (Bradley v. Preston, 263 F.Supp. 283(D.C. Dist. 1967), cert. den. 390 U.S. 990 (1967)),83

the court stated that it was “unable to locate any caseto support the contention that amnesia does precludemental competency as a matter of law” (Ref. 83, p285), nor was there any record of a court’s holding adefendant incompetent to stand trial solely becauseof amnesia. In subsequent years, courts have consis-tently hewed “to the well-accepted principle that aloss of memory of the alleged offense does not in andof itself preclude fitness to proceed” (Ref. 81, p 566;see also Ref. 84). “[C]ases without exception rejectthe notion that an accused possesses that ability [tostand trial] only if he is able to remember the circum-stances of the crime with which he is charged” (Ref.85, p 301).

By itself, amnesia is only one factor for the trialcourt to consider when determining whether a defen-dant is competent and will receive a fair trial.86 In-deed, courts have held this, even in cases in whichdefendants’ cognitive problems arose from gunshotwounds to the head.87–90 In one of these cases, Statev. McClendon, 437 P.2d 421 (Ariz. 1968),87 the Ar-izona Supreme Court concluded that limited amne-sia would not totally incapacitate the defense or pre-vent the defendant from assisting counsel innumerous ways, commenting, “We believe that a de-fendant is entitled to a fair trial, but not necessarily toa perfect trial” (Ref. 87, p 425). McClendon notedthat amnesia was nothing more than a failure ofmemory concerning facts or events to which an indi-vidual has been exposed, that everyone’s memory ismarked by some postevent distortion, that no one’smemory is ever complete, and that therefore, every-one is amnesic to some degree. The ruling in McClen-don also voiced a persistent concern of the courts inthis area: that defendants could easily feign amnesiaand that discovery and proof of feigning and malin-gering are difficult, especially if a defendant refuses totake the stand.



G. The Pro Se Defense

1. Historical Background

The notion that an attorney should represent acriminal defendant is a recent historical develop-ment. Western literature contains many importanthistorical accounts of individuals (e.g., Socrates andThomas More) who defended themselves againstvarious types of criminal charges. Old English lawtraditionally denied the aid of counsel to felony de-fendants, and only after an 1836 act of Parliamentwere persons accused of felonies granted the full rightto legal representation.91,92

In the United States, the Sixth Amendment estab-lished a criminal defendant’s right to be representedby attorneys. Though a 1932 decision91 mandatedcounsel in death penalty cases under the Due ProcessClause, it was not until 196393 that the U.S. Su-preme Court held that the Sixth Amendment guar-antees indigent felony defendants the right to court-appointed counsel in state criminal trials.

U.S. law does not require criminal defendants touse lawyers in criminal proceedings, however. InFaretta v. California, 422 U.S. 806 (1975),92 theU.S. Supreme Court recognized a constitutionallyprotected right, derived from the Sixth Amendmentas made applicable to the states by the Fourteenth,that lets a defendant proceed without counsel in astate criminal prosecution if the defendant voluntar-ily and intelligently elects to do so. The Faretta courtheld that the right to self-representation is implicit inthe structure of the Sixth Amendment, which statesthat “the accused [and not his attorney] shall enjoythe right to be informed of the nature and cause ofthe accusation; to be confronted with the witnessesagainst him; [and] to have compulsory process forobtaining witnesses in his favor.”

2. Legal Criteria for Permitting a Pro Se Defense

Because pro se defendants relinquish many of thetraditional benefits associated with the right to coun-sel, Faretta requires that accused persons knowinglyand intelligently forgo those relinquished benefitsbefore being permitted to represent themselves. Sub-sequent cases have held that when the defendantchooses self-representation, the record should showthat “he knows what he is doing and his choice ismade with eyes open” (Ref. 92, p 835). A Connect-icut appeals court held that a trial record sufficientlysupported a valid waiver of right to counsel when itshowed that the defendant was literate, competent,

and understanding and that he had voluntarily exer-cised his informed free will.94 The Nevada SupremeCourt has held that the record should establish that adefendant has been made aware of the dangers anddisadvantages of self-representation.95

To make a knowing and intelligent decision torepresent oneself, the defendant must have the men-tal competence to make a valid waiver of the right tocounsel. In the United States, a self-representingcriminal defendant has the right to have “a fool for aclient,” and the wisdom of representing oneself doesnot have a legal bearing on whether a decision toproceed pro se is intelligent and knowing.96 Further,when trial courts assess whether a defendant is mak-ing a knowing and intelligent decision to defendhimself, it does not consider his lack of skill or tech-nical legal knowledge to be relevant, because it is thedefendant who will experience the consequences of aconviction.97,98 Even in capital cases, defendantswho are competent to stand trial and who know-ingly, intelligently, and voluntarily waive the right toan attorney are entitled to represent themselves.99

Exactly what trial courts must do when a defen-dant asks to proceed pro se appears to vary between,and even within, jurisdictions.

In a 1987 case (People v. Burnett, 234 Cal. Rptr. 67(Cal. Ct. App. 1987)),100 a California court of appealheld that when a trial court has doubts about a de-fendant’s competence to represent himself, the courtmust make a careful inquiry into the matter, ordi-narily by ordering a psychiatric evaluation.

In a 2001 case, however (People v. Williams, 111Cal. Rptr. 2d 732 (Cal. Ct. App. 2001)),101 anotherCalifornia court of appeal deemed a defendant’swaiver of counsel and request for self-representationto have been voluntary, knowing, and intelligent,even though the defendant’s lawyer and a psycholo-gist said that self-representation would be “a disas-ter.” The defendant was convicted. The trial courthad neither questioned Williams about whether hisrequest to represent himself was voluntary, knowing,and intelligent, nor made any expressed finding onthose points. Yet the court of appeal found that Wil-liams had been competent to stand trial and hadexecuted a form acknowledging that he was advisedof various problems associated with self-representa-tion. Thus, Williams’ conviction stood.

The Indiana Supreme Court has held that, gener-ally, trial courts should respond to a defendant’s re-quest for self-representation by having a pretrial



hearing to determine the defendant’s competence toproceed pro se and to establish a record of the defen-dant’s waiver of his right to counsel.102

The Florida Supreme Court has held that a trialcourt must determine whether a defendant is com-petent to choose pro se representation and has know-ingly and intelligently waived the right to counsel.103

Some jurisdictions have spelled out specific factorsto be considered when deciding whether a waiver ofcounsel is valid. The Rhode Island Supreme Courtsuggested that trial courts consider: (1) the defen-dant’s background, experience, behavior at the hear-ing, age, education, and physical and mental health;(2) the defendant’s contact with lawyers before thehearing; (3) the defendant’s knowledge of the pro-ceedings and the sentence that may be imposed; (4)whether standby council has been appointed and isavailable; (5) whether mistreatment or coercion haveoccurred; and (6) whether the defendant is trying tomanipulate the events of the hearing.104 A Wisconsinappellate court held that the trial court must considerthe defendant’s education, literacy, fluency in En-glish, and any physical or psychological disabilitythat may significantly affect communication.105

3. Deportment and Rationality of Pro Se Defendants

Although the Faretta decision permits a criminaldefendant to act pro se, it is not a license to abuse thedignity of the courtroom, and a trial judge may ter-minate self-representation by a defendant who doesnot behave acceptably. Thus, several appellate deci-sions (e.g., Refs. 106–109) have found that trialcourts properly revoked the right to self-representa-tion in cases in which pro se criminal defendants en-gaged in disruptive behavior at trial.

Several courts have held that a history or currentpresence of mental illness is not, by itself, a reason todeny the right to self-representation. In a 1975 Texascase (Stepp v. Estelle, 524 F.2d 447 (5th Cir.1975)),110 the appeals court found that the fact thatthe defendant had attempted suicide two or threedays before his trial did not by itself mean that helacked the appropriate mental capacity. In a 1981Arizona case, the court held that granting of the de-fendant’s request to represent himself at trial was notan error, although the defendant had history of men-tal illness, had been confined several times in mentalinstitutions, and was at times disruptive in court.111

In an appeal of a capital murder conviction, the Ne-vada Supreme Court held that the defendant’s waiver

of his right to counsel had been valid, knowing, vol-untary, and intelligent, although the defendant had anarcissistic personality disorder.112

However, trial courts must recognize when mentalillness actually affects a defendant’s competence andability to choose self-representation. Granting a de-fendant’s request to proceed pro se was held improperin a case in which the defendant said that his fivedifferent public defenders were incompetent and inwhich his disruptive behavior and claims of ineffec-tive assistance raised questions about his understand-ing of legal proceedings.113 The Michigan SupremeCourt held that a defendant was properly found to beincompetent to represent himself at trial when hewanted his appointed lawyer dismissed for “lack ofevidence” and told the trial judge that this evidenceconsisted of a “mask ruling of Jesse James’ case con-cerning the Supreme Court” (Ref. 114, p 860). If adefendant wants to represent himself, but his state-ments or behavior give the trial judge sufficient causeto doubt his competence to make a knowing, intel-ligent waiver of counsel, the court must appoint anattorney to represent the defendant, and the attorneymust serve until the question of competence isresolved.115

Although the legal literature contains numerousappellate cases and articles about pro se defendants,mental health publications contain very little empir-ical research on such individuals. In what they believewas the first effort to characterize pro se defendantssystematically, Mossman and Dunseith116 foundthat, although newspaper descriptions of individualswho represented themselves often contained indiciaof mental problems, a substantial fraction of pro sedefendants had rational reasons for wanting to rep-resent themselves. In a few cases, pro se defendantswere skillful and successful in representing them-selves and took advantage of opportunities (e.g., es-tablishing rapport with jurors) that are not availableto attorney-represented defendants.

H. Malingering

Many defendants referred for evaluations of com-petence to stand trial are found to be malingering.Two reports from the 1990s suggest that at least tenpercent of defendants referred for competence eval-uations attempt to feign mental problems that wouldimpair competence.117,118 Judges persistentlyraise the possibility of malingering as a reason forskepticism about the defendant’s having a genuine



mental disorder.119,120 In at least two federal cases,appeals courts have held that deliberate efforts tofeign mental problems could be grounds for im-posing a longer prison term under federal sentenc-ing guidelines.

U.S. v. Greer, 158 F.3d 228 (5th Cir. 1998)121

concerned the sentencing of a defendant found guiltyof kidnapping and several firearms charges. The bi-zarre behavior that Greer exhibited after his arrest ledto stays at two federal facilities. Psychiatrists at bothfacilities concluded that he was competent and ma-lingering mental illness, though he also had “a per-sonality disorder with antisocial and borderline ten-dencies that could not be treated” (Ref. 121, p 231).

On the first day of his trial, Greer tried to flush hisclothing down the holding-cell toilet and spat upblood. Evaluation at a local hospital suggested thatthe blood came from self-inflicted mucosal abrasionslikely induced by Greer’s gagging himself with hisinch-long fingernails. Outside the presence of thejury, the district court (trial) judge told Greer that hewas a malingerer and that he should “get with theprogram, and stop acting like a fool” (Ref. 121, p232). During testimony toward the end of the day,however, Greer leapt up from his chair and shouted,leading to his removal from the courtroom.

During a meeting before the second day of thetrial, Greer used an obscenity and tried to hit hislawyer. On learning about this occurrence, the trialjudge ruled that Greer had “consciously, deliberately,and voluntarily” (Ref. 121, p 233) waived his right tobe present during trial. The trial continued withGreer absent from the courtroom, and he was con-victed on all counts against him. The governmentthen recommended that, because Greer had fakedmental illness before and during his trial, he shouldreceive a two-level enhancement of his prison sen-tence, as is required under the federal sentencingguidelines when a defendant “willfully” attempts toobstruct justice. The trial judge agreed, and Greerreceived a 210-month sentence. Without the en-hancement for obstruction of justice, the maximumsentence would have been 185 months.

Greer appealed the enhancement, but lost. Theappeals court acknowledged that the sentencingguidelines did not specifically list malingering as anaction meriting a longer sentence. However, feigningmental symptoms was similar in purpose to otheractions aimed at avoiding punishment, such as lyingon the stand about one’s mental state, or submitting

a willfully disguised handwriting sample, that courtshave held are forms of obstruction that justify a sen-tence enhancement. In upholding the district judge’sruling, the appeals court was not saying “that everyinstance of feigned mental illness justifies an en-hancement for obstruction of justice.” Greer’s con-duct, however, represented “a sustained pattern ofappearing considerably more impaired than he was,and when he was told that certain actions would notconvince the experts that he was in fact insane, hemodified his behavior” (Ref. 121, p 241).

Greer argued that enhancing sentences of defen-dants who feign incompetence interfered with theirconstitutional right not to be tried while incompe-tent, because defense attorneys would be reluctant toseek evaluations of their clients. But the appeals courtcountered this by saying that:

. . . defense counsel should warn his client that feigningincompetency, whether to create doubt as to his compe-tency so as to prod his attorney into requesting competencyhearings or to convince the court that he cannot stand trial,will trigger a [sentence] enhancement. The defendant andhis attorney need not choose between a competency hear-ing and avoiding an obstruction enhancement (Ref. 121,pp 237–8).

Greer also argued that because his faking had been amanifestation of his personality disorder, he had notacted “willfully” in trying to mislead the trial court.The appeals court responded that before imposing asentence enhancement for malingering, the trialcourt must be certain that the defendant’s conductwas a “calculated attempt to derail justice.” However,the appeals court noted that the criminal justice sys-tem consistently holds persons “who are ‘antisocial’or ‘borderline’” accountable for their criminal con-duct. “Thus, the mere fact that a defendant suffersfrom a personality disorder does not make him im-mune to a [sentencing] enhancement” (Ref. 121, p239).

In the second case, defendant Dammeon Binion(U.S. v. Binion, 132 Fed.Appx. 89 (8th Cir. 2005),cert. denied, 546 U.S. 919 (2005))122 faced a chargeof being a felon in possession of a firearm. He filed apro se motion requesting an examination of his com-petence to stand trial, which a magistrate judgegranted. Binion underwent evaluation at the U.S.Medical Center for Federal Prisoners in Springfield,Missouri, where doctors concluded that he had nopresent mental illness and that his reports of pastsymptoms sounded implausible. The evaluating psy-chiatrist believed that Binion’s dishonesty probably



was a form of recreation, and that Binion did notseem to be planning his false complaints for a specificmaterial gain. After Binion entered a guilty plea, apresentence investigation report recommended asentence enhancement because Binion’s fabricationof mental illness had necessitated a labor-intensive,time-consuming, costly evaluation. Although Binionobjected, the district court added a two-level increaseto Binion’s charge for obstruction of justice and sen-tenced him to six and one-half years in prison fol-lowed by two years of supervised release.

In appealing his sentence, Binion argued that thetwo-level increase violated the U.S. Supreme Court’sruling in U.S. v. Booker, 543 U.S. 220 (2005).123 InBooker, which addressed the application of federalsentencing guidelines, the Court held that, under theSixth Amendment, no fact other than a prior convic-tion could be used to support a sentence exceedingthe maximum one authorized by the offense ele-ments established by a guilty finding, unless that factwas admitted by the defendant or was proved to ajury beyond a reasonable doubt.

The appeals court disagreed with Binion’s claim,however. Although the appeals court believed thatthe sentencing error under Booker was clear, Binionhad not cited relevant Supreme Court decisions orthe Sixth Amendment when objecting to his sen-tence. He therefore had failed to preserve his claimunder Booker, and he could not show that the sen-tencing error affected his substantial rights, becausehe could not show a reasonable probability that hewould have received a more favorable sentence hadthe trial court followed Booker.

The appeals court also held that the facts in Bin-ion’s case supported the trial court’s conclusion that,by faking a mental illness, Binion had knowinglyobstructed justice to affect his case favorably. Binionfiled a pro se motion requesting an evaluation forcompetency to stand trial, and the examining psychi-atrist told him that the evaluation was to determinewhether he was competent to proceed with adjudi-cation. Binion clearly knew why he was undergoingevaluation, and the appeals court concluded that thetrial court did not err in finding that Binion had triedto hinder his prosecution by malingering and in en-hancing his sentence accordingly.

Like Greer, Binion raises concerns for psychiatristsabout how courts may use their findings. Ordinarily,a psychiatrist who undertakes an evaluation of adju-dicative competence does so in the belief that infor-

mation obtained during the evaluation will not beused for purposes unrelated to fitness for trial, unlessthe defendant places his mental condition at issueduring his defense or during sentencing. Binionpleaded guilty without claiming a mental illness de-fense, yet the court used psychiatrists’ findings andopinions to enhance his sentence. As Darani124

points out, the Binion ruling raises important ques-tions of ethics for psychiatrist:

[I]s it necessary to inform the defendant that informationgathered as part of the evaluation may be used for purposesoutside of the competency evaluation? Would it also followthat the defendant should be advised that uncooperative-ness or feigning of symptoms could lead to a finding ofobstruction of justice and, therefore, a harsher sentence?[Ref. 124, p 128].

III. Agency Relationships

Defense attorneys, prosecutors, and trial courtsmay all request that a criminal defendant undergo anevaluation of his competence to stand trial. Beforebeginning a competence evaluation, the psychiatristshould know who requested it, because the source ofthe referral may affect how the psychiatrist will reportfindings and the psychiatrist’s obligation to maintainconfidentiality.

Every state has some mechanism that allows crim-inal courts to obtain an evaluation of a defendant’scompetence to stand trial.125 When performingcourt-ordered evaluations, psychiatrists should an-ticipate that they will report their findings and opin-ions to the court and that their reports will be avail-able to the defendant’s lawyer and the prosecutor. Inall U.S. jurisdictions, statutes or case law prohibitusing information obtained during a competenceevaluation to prove criminal culpability, unless thedefendant places his mental state at issue.23,126 If thedefendant later testifies, however, some courts maypermit the prosecution to use contents of a compe-tence report for impeachment purposes if the reportaffords evidence of the defendant’s prior inconsistentstatements.127–129 For this reason, whenever possi-ble, a competence report should not mention poten-tially incriminating information obtained from in-terviewing a defendant.

Courts may request a competence evaluation forreasons other than wanting to obtain an expert opin-ion about a defendant’s ability to proceed with adju-dication. For example, requests for competence eval-uations occasionally reflect the court’s desire tofacilitate prompt treatment of a severely impaired



defendant. Rather than arrange for inpatient treat-ment of a mentally ill defendant by using civil com-mitment procedures, courts may arrange for inpa-tient treatment based on incompetence to stand trial.Sometimes courts confuse questions of criminal re-sponsibility with questions of competence to standtrial.130,131 In such cases, the psychiatrist can clarifywith the court the specific assessment question andcan recommend additional (or different types of)evaluations, if indicated.

When retained by the defense, the psychiatristshould communicate data and opinions completelyand honestly to the retaining attorney. In many ju-risdictions, verbally communicated opinions of de-fense experts are covered under attorney work-prod-uct doctrine,132,133 which means that if the expert’sopinions are not helpful to the defense, they are notdiscoverable by the prosecution or the court, thougha subsequent defense decision to retain other expertsand have them testify may obviate this protection.134

The psychiatrist may want to clarify with the retain-ing defense attorney whether privilege protects theinformation obtained during the forensic evaluationand whether the attorney has discussed this matterwith the defendant. The defense-retained psychia-trist should know whether information obtainedduring a competence evaluation would later be dis-coverable by the prosecution. In cases in which thedefense desires mental health expertise related tomatters besides competence (e.g., information thatmight address criminal responsibility or aid in pleabargaining) and believes that these other matters arecovered in competence evaluations, the psychiatristcan educate the defense attorney about the limitedscope of competence examinations and recommendadditional types of evaluations. The defense-retainedpsychiatrist also may actively consult with and advisethe defense attorney, a role explicitly countenancedby the U.S. Supreme Court in Ake v. Oklahoma, 470U.S. 68 (1985).135 Some attorneys prefer to engageconsultants who are not psychiatrists, and some ex-perts feel that consultants should not testify becauseof the risk that the consultant’s identification withthe defense would lead to excessive advocacy.136

In unusual circumstances, prosecution-retainedexperts may face special ethics-related concerns. Apsychiatrist’s duty to be honest and to strive for ob-jectivity requires communicating findings and opin-ions completely and honestly to the retaining attor-ney. But in cases in which only the defendant’s

adjudicative competence has been questioned (thatis, in cases in which the defendant will not enter orhas not yet entered an insanity defense), an examin-ing psychiatrist should not tell prosecutors the defen-dant’s detailed account of the offense, incriminatinginformation obtained from collateral sources, or in-formation about the defendant’s trial strategy. Insuch situations, the examining psychiatrist shouldcomment only on the defendant’s functional capac-ities without disclosing the detailed information thatthe defendant or collateral sources revealed duringinterviews. For example, the psychiatrist would com-ment on whether a defendant could give a rationaland coherent account of the events that led to hisarrest or could formulate a realistic defense plan. Thepsychiatrist would not disclose specific information,however, such as what the defendant said concerninghis actions on the day of the alleged offense. (Furtherconsideration of incriminating collateral data ap-pears later, in Section VI.B.)

From time to time, psychiatrists may sense thatcourts or attorneys are using their expertise orfindings for reasons other than establishingwhether a defendant is competent to stand trial.For example, the prosecution sometimes questionsa defendant’s adjudicative competence, seeking todelay proceedings and get additional time to pre-pare the state’s case, to avoid a possible insanityacquittal, or to bring about confinement of a men-tally impaired defendant when there is insufficientevidence to convict him.137,138 Judges may ordercompetence evaluations to avoid having to releasedefendants on bail or as a way of confining defen-dants accused of minor charges who do not meetcriteria for civil commitment.139 Defense attor-neys may invoke the incompetence evaluation pro-cess to get more time for trial preparation, to allowthe passage of time to weaken the prosecution’scase, or to seek psychiatric data that may help withplea negotiations or with obtaining a dispositionmore favorable than imprisonment.138,139 Al-though addressing such matters is properly theconcern of the judicial system, psychiatrists mayprefer to decline referrals or withdraw from casesin which they sense potential misuse of theirexpertise.

Evaluating a defendant in a case in which the pros-ecution plans to seek the death penalty raises addi-tional concerns regarding ethical behavior for court-appointed, defense-retained, and prosecution-



retained psychiatrists. When there is a bona fidedoubt about a defendant’s competence to stand trial,a criminal court is constitutionally obligated to ar-range for a hearing, which frequently requires inputfrom mental health experts. These experts must real-ize that, under Buchanan v. Kentucky (discussed inSection I),24 if the defendant later raises his psychi-atric status during trial or sentencing, the prosecu-tion may use mental state findings and detailed be-havioral data that psychiatrists obtained during acompetence evaluation to persuade jurors to imposethe death penalty.140

The psychiatrist has a duty to pursue objectivity,regardless of the identity of the retaining party. Pros-ecution or court-retained psychiatrists should be par-ticularly careful to follow the standards of ethics andlegal guidelines that protect the defendant’srights.141,142

The American Psychiatric Association’s EthicalPrinciples (§ 4, Annotation 13)143 and the AAPL Eth-ics Guidelines (Ref. 144, Section III) preclude evalu-ation of a defendant before he is afforded access todefense counsel. While it is not necessary that thedefendant have actually conferred with counsel be-fore the evaluation, appointed counsel must be avail-able for the defendant to have a consultation, eitherdirectly or by telephone, before or during the com-petence evaluation. As is the case with evaluations ofcriminal responsibility,145 it is best that the defenseattorney know about an upcoming competence eval-uation before the psychiatrist initiates the evaluation.A nondefense psychiatrist should not evaluate acriminal defendant’s adjudicative competence untilthe trial court has issued an order for the evaluation.If a defendant needs emergency medical or psychiat-ric evaluation or treatment, however, a psychiatristmay ethically provide such services before the defen-dant has had access to counsel.

Section 7-4.4(b) of the America Bar Association’sCriminal Justice Mental Health Standards138 recom-mends that the defendant’s mental condition at thetime of the alleged offense not be combined in anyevaluation to determine adjudicative competenceunless the defense requests it or unless good cause isshown. The Standards also recommend that judicialorders make a clear distinction between these twolegal issues and the reasons for evaluation.130 Not alljurisdictions follow this practice, however. Manystates have psychiatrists conduct joint evaluations ofcompetence to stand trial and criminal responsibil-

ity, and some states permit combining evaluations ofcompetence and criminal responsibility in the samedocument. This practice may create ethics-relatedproblems for a prosecution-retained or court-ap-pointed psychiatrist when it appears that an evalueeis incompetent to stand trial and is revealing poten-tially incriminating information. Some jurisdictionsprovide legal protection concerning potentially in-criminating information obtained from incompetentdefendants. In the absence of such protections, how-ever, we recommend that the psychiatrist completeonly an evaluation that informs the retaining party ofthe defendant’s incompetence, not of the defendant’smental condition at the time of the alleged offense.

IV. Ethics

A. The Ethics Framework

The ethics framework that guides forensic psychi-atric evaluations has several sources. The Hippocratictradition in medical ethics informs physicians thattheir primary duties are beneficence and nonmalefi-cence, which implies that clinical efforts should be tohelp patients and, above all, to do no harm (primumnon nocere).146 Within the Hippocratic framework,one might regard competence evaluations as benefit-ing defendants by protecting them from being triedand convicted when they cannot assist counsel orparticipate rationally in their defense. In addition,determinations that defendants are competent tostand trial may allow them to proceed to trial andgain an acquittal.

In many instances, however, undertaking a com-petence evaluation appears to conflict with tradi-tional Hippocratic obligations because findings sup-porting competence to stand trial may enable thecriminal court to try, convict, and impose punish-ment on the defendant. Moreover, the lack of a phy-sician-patient relationship during most evaluationsof trial competence suggests that Hippocratic obliga-tions may not be relevant or should not apply in theway that they do in contexts in which an evaluationtakes place solely for purposes of treatment. Indeed,the psychiatrist is not the patient’s caregiver; the psy-chiatrist’s goal is not to treat or diminish the sufferingof a patient, but to provide the court or retainingattorney with psychiatric expertise that will assist in alegal determination. For this reason, many psychiatristsregard evaluating trial competence as a task for whichthe physician’s traditional concerns about helping pa-



tients and alleviating their pain are not paramount.When psychiatrists function as medicolegal experts, thevalues that assume primacy include truth-telling, objec-tivity, and respect for the humanity of the eval-uee.142,147,148 The physician’s responsibility to “assistin the administration of justice” receives endorsementin guideline E-9.07 of the American Medical Associa-tion’s Code of Ethics.149

Though they are not functioning as treating phy-sicians when they assess adjudicative competence,psychiatrists still should act responsibly concerningtheir evaluees’ health needs, in a manner analogousto ethics guidelines for work-related independentmedical examinations set out by the American Med-ical Association. That is, psychiatrists should con-duct objective psychiatric evaluations, even thoughthey will not be monitoring evaluees’ health overtime or providing treatment. AMA opinionE10.03150 states, “a limited patient-physician rela-tionship should be considered to exist during isolatedassessments” of a defendant’s competence to standtrial. Within this limited relationship, a psychiatristmay elect to tell an evaluee about important healthinformation or problems discovered during an exam-ination or to recommend that an evaluee seek treat-ment from a qualified caregiver. If necessary (e.g., ifthe evaluee is confined in jail and needs treatmenturgently or poses a high risk of harming himself orsomeone else), a psychiatrist should facilitate theevaluee’s receiving further evaluation and follow-upcare. In such cases, the psychiatrist should also notifythe defendant’s attorney and, if the evaluation wasinitiated by the court or prosecution, the court.138 Intaking such health-related actions for a defendant-evaluee, the psychiatrist should disclose the mini-mum information necessary to permit appropriatemanagement.

Since 1987, AAPL has promulgated ethics guide-lines for psychiatrists that are applicable to evalua-tions of adjudicative competence. The Principles ofMedical Ethics With Annotations Especially Applicableto Psychiatry published by the American PsychiatricAssociation (APA)143 also contains guidelines thatare of particular importance to psychiatrists conduct-ing assessments of competence to stand trial. Theseinclude:

the obligation to practice within the bounds ofone’s professional competence (§ 2, No. 3);

the obligation to release information only underproper legal compulsion (§ 4, No. 2);

the obligation to disclose only the informationthat is relevant to a given situation and to avoidoffering speculation as fact (§ 4, No. 5);

the obligation not to evaluate (for purposes otherthan providing treatment) a person charged withcriminal acts before that person has had access tocounsel (§ 4, No. 13); and

the obligation to refrain from offering a profes-sional opinion about an individual without con-ducting or attempting to conduct a personal ex-amination (§ 7, No. 3).

B. Conflicting Roles

When conducting evaluations of adjudicativecompetence, psychiatrists apply their skills to satisfylegal needs rather than clinical goals. Psychiatristswho function in forensic roles therefore have a pri-mary duty to serve the criminal justice system prop-erly rather than to serve the interest of defendants.142

In general, treating psychiatrists should try to avoidconducting forensic evaluations on their own patients;ideally, independent, nontreating psychiatrists shouldperform such evaluations.144,151 In the context of eval-uations of competence to stand trial, role conflicts canarise when a psychiatrist who has been treating a patientserves as the forensic psychiatrist, because the responsi-bility to “do no harm” within a physician-patient rela-tionship may not be consonant with the forensic psy-chiatrist’s obligation to be objective and truthful,regardless of the effect on the ultimate legal outcome forthe defendant. Performance of these evaluations by apsychiatrist who has been treating a patient can alsoadversely affect the therapeutic relationship, especially ifthe defendant-patient disagrees with the psychiatrist’sopinion. In addition, a treating psychiatrist may beaware of a great deal of potentially damaging, incrimi-nating, or embarrassing information that he or shecould elicit in the role of psychiatrist. Finally, evaluatingadjudicative competence may require a psychiatrist tointerview persons outside of the treatment relationship,and reporting a defendant’s competence may involvedisclosure of information obtained in the course of psy-chiatric treatment. If the psychiatrist were also the treat-ing physician, such collateral contact or disclosure ofpersonal health information might raise concerns aboutbreaching doctor-patient confidentiality.152



The problem of having treating psychiatrists serveas psychiatrists arises most often in public (govern-ment-operated) psychiatric hospitals. Indeed, stat-utes in many states require public institutions andtheir clinicians to function simultaneously as treat-ment providers, competence restorers, and compe-tence assessors. Trying to fulfill these multiple rolesmay require psychiatrists to satisfy conflicting obli-gations. As treating physicians, psychiatrists have fi-duciary relationships to act in their patients’ bestmedical interests, yet at the same time, psychiatrists’statutorily prescribed duty to provide data and opin-ions to courts may run counter to the patient’s per-ception of his or her best interest. If sufficient foren-sic mental health expertise is available, it may bepossible to eliminate (or at least mitigate the impactof) these role conflicts by assigning the evaluatingand treating roles to different clinicians at a mentalhealth facility, and the authors recommend doing so.

In some settings and situations, however, psychi-atrists cannot avoid acting as both treatment provid-ers and psychiatrists. In inpatient settings to whichpatients have been referred under court order forcompetence restoration and where the principal goalof treatment is to render patients competent to standtrial, treatment is guided by assessments of whetherpatients are moving toward competence. Underthese circumstances, treating psychiatrists cannotand should not ignore the impact of their treatmenton patients’ competence-related mental capacities.In addition, records created to document treatmentfrequently are relevant to and used in formulating anassessment of an inpatient’s adjudicative compe-tence. Finally, statutes sometimes specify that theindividual (or institution) who provides treatmentmust submit a report concerning the patient’s com-petence, and courts sometimes require the testimonyof the treating psychiatrist. When the separation ofevaluating and treating roles is impractical or is pre-cluded by courts’ expectations, psychiatrists shoulddisclose their potential dual roles at the beginning oftreatment and should remind defendant-patients oftheir dual functions at key points (e.g., before anupcoming court hearing) during the course of clini-cal care.

In most states, a legal finding of adjudicative in-competence may lead to court-ordered treatment(and usually, psychiatric hospitalization) to restorethe defendant’s competence.153 As noted in SectionI, recent court decisions have approved the use of

involuntary medications for competence restorationunder certain circumstances.28,154 The use of psycho-tropic drugs to bring about trial competence nonethe-less remains a controversial subject. Some critics arguethat so-called chemical competence is artificial, that in-voluntary psychotropic medication may not be effec-tive, and that side effects of psychotropic medicationmay prevent an involuntarily treated defendant fromreceiving a fair trial.155–157 Although most psychiatristssupport providing appropriate treatment to psychoticdefendants (involuntarily, if necessary), forced treat-ment for competence restoration confronts treatingphysicians with the potential problem in ethics of “dualloyalty.”158 On the one hand, a treating physician’s eth-ical duty is to act in ways that benefit the patient. On theother hand, when medication is forced on a defendant-patient to make him fit for prosecution, the govern-ment is seeking to have the patient medicated irrespec-tive of his wishes, with the goal of making the patienteligible for prosecution and the possibility of punish-ment, and doctors are participating in this process.159

The American Psychiatric Association nonetheless ad-vocates the forced use of medications when they aremedically appropriate and represent the best hope ofrestoring adjudicative competence.160

C. Scope of Participation

The American Medical Association’s Code of Eth-ics (Opinion 9.07)161 states, “As a citizen and as aprofessional with special training and experience, thephysician has an ethical obligation to assist in theadministration of justice.” The legal basis for expertparticipation in legal proceedings is articulated inFederal Evidence Rule 702 (“Testimony by Ex-perts”), which states:

If scientific, technical, or other specialized knowledge willassist the trier of fact to understand the evidence or todetermine a fact in issue, a witness qualified as an expert byknowledge, skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise, if (1)the testimony is based upon sufficient facts or data, (2) thetestimony is the product of reliable principles and methods,and (3) the witness has applied the principles and methodsreliably to the facts of the case.162

Most states and other jurisdictions have a compa-rable rule governing expert testimony in general.Concerning expert psychiatric testimony, the Crim-inal Justice Mental Health Standards of the AmericanBar Association state that:

. . . expert testimony, in the form of an opinion or other-wise, concerning a person’s present mental condition ormental condition in the past should be admissible whenever



the testimony is based on and is within the specializedknowledge of the witness and will assist the trier of fact[Ref. 138, § 7-3.9, p 117].

Psychiatrists with specialized training and experiencein the forensic setting may consult, and indeed areencouraged to consult, within the criminal justicesystem regarding competence to stand trial. By serv-ing as experts, psychiatrists can help legal decision-makers understand how mental illness affects a de-fendant’s ability to assist an attorney and negotiatethe adversarial process of a criminal trial.

Psychiatrists who undertake examinations of ad-judicative competence should conduct these evalua-tions properly. They should know the legal defini-tions of competence to stand trial in the jurisdictionswhere they practice. They should understand the es-sential elements of a competence evaluation andshould have sufficient professional education, train-ing, and experience to acquire the clinical data rele-vant to an evaluation of competence to stand trial.They should know how to apply their specializedknowledge in a way that permits them to address thespecific legal issues related to adjudicative compe-tence (Ref. 138, § 7-3.10, p 130). At the same time,psychiatrists are ethically obliged to refrain fromtestifying about matters that lie outside theirexpertise.152,161

D. Honesty and Objectivity

Psychiatrists should strive to provide courts withopinions and testimony that are honest and as objec-tive as possible (Ref. 144, § IV). When retained byone side in a criminal matter, experts may feel oractually experience pressure to arrive at an opinionthat is useful to the retaining party. The pressure maymanifest itself in several ways, including the retainingparty’s assuming what the expert’s opinion will be,withholding of information by the retaining party,excessive flattery of the retained expert, subtle orovert bribery, or extortion.149 Psychiatrists shouldguard against the potential for bias or distortions oftheir opinions that may arise unintentionally out of adesire to satisfy the retaining attorney. The U.S. Su-preme Court decision in Ake v. Oklahoma135 en-dorses a psychiatric expert’s acting as a consultant tothe defendant’s attorney. Advocacy for one’s opinionis ethical if the opinion is based on careful, thought-ful, disinterested examination of available data Psy-chiatrists should not knowingly give false or mislead-ing testimony.

Psychiatrists should make sure that they have ad-equately considered sufficient relevant data in for-mulating their opinions on competence. Theyshould arrange with courts or retaining attorneys toobtain any additional information needed to arrive atan accurate opinion. They should note in their re-ports if they have requested but have not receivedinformation (e.g., hospital records or informationfrom defense counsel) that may be relevant to theirconclusions.

Despite their best efforts to remain objective, fo-rensic experts are human and cannot avoid develop-ing biases. One source of highly significant bias thatforensic experts have identified in criminal cases isworking exclusively for either the defense or the pros-ecution.163 This source of bias may be avoided byaccepting referrals for competence evaluations fromboth defense and prosecuting attorneys. Counter-transference can also represent a significant source ofbias.164 Techniques for addressing possible counter-transference include discussion of cases with col-leagues or supervisors, presenting one’s work topeers, and taking time to think about potential coun-tertransference reactions before reaching a finalopinion.

E. Confidentiality, Notice, and Assent

When beginning an examination of competenceto stand trial, the psychiatrist should attempt to com-municate the following to the evaluee:

the reason for the evaluation;

the party who has appointed or retained thepsychiatrist;

the lack of confidentiality of the interview andfindings;

the persons who will receive the psychiatrist’sreport;

the possibility of the psychiatrist’s testifyingabout the results of the evaluation; and

the right of the evaluee to decline to answer par-ticular questions, with a warning that the psychi-atrist may have to report noncooperation or re-fusal to answer questions to the retainingattorney or to the court.

In addition to the verbal warning, the psychiatristmay also provide evaluees with a written documentsummarizing these points and ask the interviewee to



sign it. Psychiatrists who are “covered entities” oremployees of covered entities (as defined in 45 CFR160.103, the section of the federal regulations gov-erning the Health Insurance Portability and Ac-countability Act of 1996 (HIPAA))165 should alsoconsider whether they must offer the evaluee a copyof the covered entity’s privacy statement.

When a psychiatrist serves strictly as an psychia-trist, he or she should also tell the defendant-evalueethat he or she is not the defendant’s treating physi-cian—that is, the psychiatrist is not there to “help”the evaluee. Despite hearing such warnings, even acompetent evaluee may come to view the psychiatristas a therapists during the course of an examination. Ifthis occurs to a significant degree during a forensicexamination, the psychiatrist should remind theevaluee that the psychiatrist is functioning only as apsychiatrist, not as the evaluee’s therapist or treat-ment provider.

According to the AAPL Ethics Guidelines for thePractice of Forensic Psychiatry,144 absent a court order,psychiatrists should not perform forensic evaluationsfor the prosecution or the government of criminaldefendants who have not consulted with legal coun-sel. This principle would apply to evaluations of ad-judicative competence. Many defendants referred forcompetence evaluations are too impaired to under-stand why the evaluation is taking place or otherwiselack the capacity to consent to the examination. Inthese circumstances, a court order or the expressedpermission of the defendant’s attorney make it ethi-cally acceptable for the psychiatrist to proceed withthe evaluation.

Occasionally, defendants engage in little or noconversation with psychiatrists. In some of thesecases, the psychiatric expert still obtains enough in-formation about adjudicative competence to renderan opinion with reasonable medical certainty. How-ever, experts’ reports or testimony should clearly de-scribe any paucity or lack of direct communicationwith the defendant and should state how limited in-teraction with the defendant may have affected theopinion.

Competence evaluations require a personal ex-amination of the defendant. If the defendant re-fuses a court-ordered competence evaluation, thepsychiatrist should try to explain to the defendantthat the court has ordered the evaluation and thatthe defendant’s refusal to participate will be com-municated to the court. Before so informing the

court, however, the psychiatrist may choose to askdefense counsel to encourage the defendant’s par-ticipation. Psychiatrists who have not been re-tained by the defense may also want to tell theevaluee that noncooperation may have legal con-sequences.166 For example, in many states, a de-fendant’s refusal to undergo a competence evalua-tion may lead to psychiatric hospitalization forprolonged observation, to allow psychiatrists to at-tempt to reach an opinion regarding competence.

If retained by the defense attorney, psychiatristsare ethically obliged to safeguard the contents of theopinion within the constraints of the law (Ref. 143, §4). Defense-retained experts should not discuss theirevaluations with opposing experts or opposing coun-sel unless the defense attorney approves such a dis-cussion or the expert is legally compelled to reveal theresults.

F. Knowledge of the Jurisdiction’s Standard

Though most jurisdictions have standards forcompetence to stand trial that are consonant withDusky,16 there are minor jurisdictional differences.An evaluating psychiatrist should know the legal def-inition of competence in the jurisdiction where thedefendant is facing prosecution.

G. Interaction with Other Professions

Psychiatric expert witnesses should be polite andrespectful in their dealings with opposing counseland opposing experts. Experts should generally avoiddisclosure of personal information about opposingexperts, as such revelations do little to advance theinterests of ascertaining truth in the courtroom.167

Experts may share with retaining attorneys informa-tion about opposing experts that is relevant to thematter at hand and that could arise in cross-exami-nation. Before doing so, however, experts shouldconsider the relevance of the information andwhether the potential disclosure would constitute alapse in objectivity or unreasonable advocacy.

H. Fees

A psychiatrist may charge a different fee for workin the forensic setting than for clinical work. It isethical and often desirable for a psychiatrist to re-quest payment of a retainer fee or to receive paymentbefore conducting a forensic evaluation. A psychia-trist who serves as an expert witness should clarify thefee arrangement with the retaining attorney before



beginning the forensic evaluation. If psychologicalconsultation, imaging studies, or laboratory tests areneeded to support an opinion, the psychiatristshould discuss the need for the examinations with theretaining attorney before arranging for them to beperformed.

Some jurisdictions or courts pay a fixed fee forforensic evaluations. The amount is often insuffi-cient to cover the costs of tests such as MRI or psy-chological testing that may be necessary for a compe-tent evaluation. If fixed fees represent inadequatecompensation for one’s time and expertise, the psy-chiatrist may (consciously or unconsciously) be re-sentful or have other reactions that would result infailure to perform an adequate evaluation. Clarifyingcompensation before accepting the referral may helpthe psychiatrist to decide whether to undertake theevaluation.145

Psychiatrists should not perform evaluations ofadjudicative competence (or for that matter, any typeof forensic evaluation) on a contingency-fee basis—that is, with the fee conditional on the outcome ofthe evaluation or of the litigant’s legal case (Ref. 144,§ IV). Though contingency payments may be appro-priate for attorneys, such fee arrangements may under-mine the psychiatrist’s objectivity and are unethical.

I. Acknowledging Limitations of the Evaluation

Any limitations of an opinion should be expressedin the written report and, when possible, during tes-timony. When the psychiatrist has requested materi-als (e.g., records of past treatment) that are not re-ceived in time to be considered in writing the report,he or she may still render an opinion if one can berendered with reasonable medical certainty. The psy-chiatrist may also tell the courts or retaining attor-neys that he or she reserves the right to alter an opin-ion should the additional materials become available.If the requested materials are necessary to reach aconclusion about competence, however, the psychi-atrist should not offer opinions until the materials arereceived and examined. If the required data are ulti-mately not accessible, the psychiatrist may informthe referral source that the evaluation is incomplete.

Psychiatrists should be willing to disclose limita-tions in their training or experience and to subjecttheir testimony to scrutiny and critique by peers.AAPL has a standing committee established for thepurpose of peer review.

When providing expert testimony, psychiatristsmay, and often should, act as advocates for theiropinions. However, experts should not overstate thecertainty of their findings and should acknowledgethe limitations of their opinions. Evaluations of com-petence to stand trial involve assessments of defen-dants’ capacities for logical communication and fac-tual and rational understanding of the proceedingsagainst them. These capacities typically are present tovarious degrees, rather than being completely un-compromised or missing. Thus, many defendantsdisplay relative strengths and weaknesses in the men-tal capacities needed for adjudicative competence.Ideally, an expert should describe the strengths andweaknesses of the defendant, regardless of whetherthe jurisdiction allows or requires an opinion on theultimate issue. In so doing, the expert provides theinformation needed for the trial court to make anindependent ruling on a defendant’s competence.

J. Complaints of Ethics Violations

The AAPL refers complaints of unethical behaviorby its members to the American Psychiatric Associa-tion for resolution. Usually, the APA district branchwhere the accused individual is a member reviewssuch complaints. Those regarding nonmembers ofthe AAPL or APA are usually filed with the medicalboard where the psychiatrist practices.

Although expert witnesses have traditionally re-ceived quasi-legal immunity for their testimony, afew physician experts have been held accountablethrough sanctions by professional organizations andthrough tort liability actions.168 In recent appellatecases, courts have ruled that psychiatrists practicingin a forensic capacity can be found negligent for re-vealing confidential information to nonparties169

and for inappropriate conduct during an evalua-tion,170 though the psychiatrists had no doctor-patient treatment relationship with the evaluees.

V. Cultural Considerations

A. The Cultural Context of AdjudicativeCompetence

When psychiatrists consider competence to standtrial, they usually think the phrase refers to a legalconcept or to a mental capacity that a criminal de-fendant may have or lack. Competence to stand trialis also a cultural notion, however, or at least a notionthat reflects a set of cultural values.



Notwithstanding awareness of and sensitivity tothe situations of criminal defendants (who typicallyare much less fortunate than most persons), mostNorth American psychiatrists share and identify withthe dominant culture’s view of criminal proceedings.In the dominant culture’s view, criminal proceedingsare adequately fair (though far from perfectly fair)efforts at rendering just decisions about the guilt ofaccused criminals. These efforts come about throughan adversarial process that gives the accused manyrights, among which is the right to confront andchallenge one’s accusers. Firmly embedded in Anglo-American legal tradition, the right to confront wouldbe meaningless were the defendant not physicallyand mentally present in court, aware of the proceed-ings against him, and capable of responding ratio-nally. Competence to stand trial thus embodies acultural notion that the legal system is reasonablyfair, that accused persons will get fair treatmentand a reasonable chance to defend themselves, andthat the dignity and fairness of criminal proceed-ings are vindicated when an accused person is a ca-pable adversary of the prosecution.171

A message implicit in popular television programsfrom Perry Mason to Law and Order is that criminaldefendants may be bad because of the crimes theycommit, but not because they retain attorneys andchallenge the state’s evidence against them. In Anglo-American legal tradition and in mainstream NorthAmerican culture, the act of raising a criminal de-fense is not a challenge to dominant social mores, butan affirmation of them. By raising a defense, an ac-cused criminal reinforces cultural values that encour-age innovation and individual expression, that en-dorse speaking one’s mind and verbally challengingone’s opponents, and that treat the state as havinglimited power that must be kept in check.

Things that North American psychiatrists take forgranted as essential features of fair criminal proceed-ings may puzzle and seem strange to individuals whocome from social backgrounds that endorse confor-mity or deference to authority. When such individ-uals become criminal defendants in North America,they may have difficulty saying things that disagreewith authority, or they may be reluctant to ask forclarification of explanations and procedures that theydo not understand.172 Individuals who come fromcountries or cultures where governmental systems areall-powerful or corrupt may believe that persons in orappointed by authority do not have their interests at

heart. For reasons other than psychopathology,therefore, such persons may be wary or suspicious ofdefense attorneys who purport to be on their side andsay that they are trying to help them. Even defen-dants who have always lived in North America maycome from social, class, religious, or ethnic contextsthat give them attitudes and perspectives that differfrom the well-educated, predominantly upper-mid-dle-class attorneys and judges who control legal pro-ceedings—contexts that also differ from the fortu-nate, upper-middle-class backgrounds and lives ofmost psychiatrists.

Though North American criminal courts honortheir roots in English common law, the histories ofthe United States and Canada are those of nationsforged from ongoing multicultural diversification.Much of North America’s recent population growthhas come from immigrants, whose arrival insuresthat cultural diversity will not diminish. Shifts inethnic diversity are not just about the number ofpersons and the cultures from which they come, butthe impact of cultural differences, too. An increas-ingly multicultural America is generating new de-mands, challenges, and stresses for many areas of hu-man endeavor, including psychiatric assessment andthe law.

Judges, attorneys, and legislators must understandthe interplay between social, political, and culturalforces that shape the development and implementa-tion of the law. In providing forensic services, psy-chiatrists must recognize and understand the nu-ances of the multicultural population with whomthey interact in the criminal justice system. To dothis, psychiatrists must have available and use a rep-ertoire of behavior, attitudes, procedures, and poli-cies that allow them to work effectively in cross-cultural situations. By developing culturally sensitiveclinical and evaluative practices, psychiatrists can im-prove their evaluative skills and awareness of theirpersonal assumptions, while reducing barriers to ac-curate psycholegal determinations.

B. Cultural Competence

In the clinical area, cultural competence is a req-uisite for sensitive, effective delivery of service. Cul-tural competence includes acceptance and respect forpersons’ differences, continuous self-assessment re-garding one’s own cultural assumptions, attention tohow cultural differences affect the dynamics of ther-apeutic encounters, ongoing development of cultural



knowledge, and development of resources and flexi-bility to provide services to minority populations.173

According to Davis,174 a culturally competent clini-cian integrates knowledge and information about in-dividuals and groups of people into clinical encoun-ters, service approaches, and techniques that fit anindividual’s cultural background, thereby enhancingthe quality and appropriateness of health care. Thenotion of a culturally competent clinician expressesthe hope that better knowledge of folkways, tradi-tions, customs, helping networks, and rituals can al-low clinicians and organizations to provide servicesthat better meet patients’ needs.175

C. Culturally Competent Evaluations

Psychiatrists can find several articles176–179 and anentire text172 that describe the effect of cultural dif-ferences on forensic practice and that discuss waysthat experts can improve the cultural competence oftheir assessments. The general mental health litera-ture contains hundreds of articles on delivering cul-turally sensitive care. It is beyond the scope of thisGuideline to summarize this ever-developing body ofliterature. The following points illustrate how recog-nizing the potential impact of cultural backgroundand social differences may allow psychiatrists to pro-vide more accurate descriptions of defendants’ adju-dicative competence and, in turn, more useful infor-mation for courts.

1. Common Interview Situations

In North America, the most commonly occurringcross-cultural interview situation involves an evalueefrom an ethnic minority group and a psychiatristfrom mainstream U.S. culture. As earlier discussionin the section suggests, the cross-cultural componentadds complexity to the forensic psychiatric evalua-tion if the evaluee evinces a cultural value systemconcerning legal proceedings that differs from thevalue system of the examining clinician. Suspectingthat this is the case may require the psychiatrist tobecome acquainted with the evaluee’s social back-ground and specific cultural assumptions.

Culture does not exist in a vacuum; it manifestsitself in specific environments and is actuated by psy-chological factors and specific circumstances. Under-standing rules of moral conduct within the evaluee’sculture may help the psychiatrist interpret the eval-uee’s behavior, attitudes, or choices concerning hisdefense. To return to an earlier example, an evaluee’s

reluctance to speak openly with defense counsel maynot reflect paranoia, but an expectation that disclos-ing information would be pointless or would makematters worse for the evaluee and loved ones.

2. Acceptance of Cultural Identity

Psychiatrists must strive to feel comfortable withand accepting of an evaluee’s cultural identity. Theyneed not jettison their own values and ideas in thisprocess. Yet if the psychiatrist approaches an inter-view with prejudicial and hostile ideas regarding theevaluee’s ethnic membership, the forensic assessmentand conclusions may be jeopardized. A psychiatrist’sunexplored or unconscious fears about an evaluee’sculture may interfere with data gathering and objec-tivity and ultimately may affect conclusions. Preju-dice-based difficulties in establishing cultural respectmay contribute to the evaluee’s conclusion that heshould not trust or be honest with the psychiatrist.Such conclusions may be reinforced by those whoseem (or are) resentful, ignorant, or uncomfortablewhen interacting with persons from cultures differ-ent from their own.

3. Knowledge, Skills, and Attributes

Saldana175 has identified several areas of knowl-edge that can improve clinicians’ efforts to work withpersons from difference cultures. Adapted for the fo-rensic context, these include:

knowledge of the patient’s culture, including his-tory, traditions, values, and family systems;

awareness of how experiencing racism and pov-erty may affect behavior, attitudes, and values;

knowledge of how ethnically different evalueesmay seek help and express mental distress;

awareness of how language, speech patterns, andcommunication styles differ among culturalcommunities;

recognition of how professional values may con-flict with or accommodate the emotional andlegal needs of evaluees from different cultures;and

awareness of how community and institutionalpower relationships affect persons in differentcultures.

4. Communication Styles

Cultures differ in their nonverbal communicationstyles as well as the type of contact deemed accept-



able. Common cultural differences in nonverbalcommunication styles include:

Personal space: how far away to stand whentalking.

Tone and volume: how loudly to speak in ordi-nary conversation.

Making eye contact: whereas in the UnitedStates, middle-class individuals are taught tolook at each other and provide feedback (e.g.,smiling or nodding), in other cultures not mak-ing eye contact is a way of showing deference orrespect.

Gesturing: hand and arm movements that mayseem excessive to North Americans may be ordi-nary for persons of other backgrounds.

Physical contact: North Americans touch inter-locutors less than do persons of many other cul-tures. As a result, we may come across as aloof toothers; to us, persons from other cultures mayappear intrusive or uninhibited.

5. Transference and Countertransference

Though we usually regarded transference andcountertransference as clinical, psychodynamic phe-nomena, they affect all types of human interactions,including forensic evaluations.164 Acknowledgingthe potential cultural contributions to transferenceand countertransference may help psychiatrists rec-ognize how these phenomena arise and their possibleinfluence on the evaluation. Here are some examplesof how transference and countertransference may oc-cur in forensic assessments:

When the both the psychiatrist and the defen-dant belong to the same racially or culturallydefined minority, some defendants may over-identify with the psychiatrist and disclose in-criminating information or information notrelevant to the assessment. Some psychiatristsmay overidentify with defendants at the ex-pense of objectivity.

Culture-bound syndromes may go unrecog-nized, may be misread, or may be devalued.

Racial and ethnic differences influence the pre-sentation of psychiatric disorders, but uncon-scious processes may interfere with the commu-nication needed to sort through such matters.

6. Language and Testing

Although it might be ideal for defendants to beassessed in their native languages, it is often impossi-ble to do so. Moreover, given the way that criminaljustice proceedings are conducted in North America,it may be important to assess how a defendant who isnot a native English speaker can communicate andunderstand criminal proceedings conducted in En-glish. Interpreters can help bridge the language gapfor defendants who do not speak English well or arenot comfortable or confident about their Englishskills. However, psychiatrists should recognize thatthe interaction between psychiatrist and evaluee isaltered by involving a third party in the evaluativedialogue. Interpreters may introduce other forms ofbias related to their own perspectives. Such bias maybe introduced through translation choices that omit,add, condense, or replace some of the content ex-pressed by the interviewer or the evaluee.

Section VIII of the Guideline describes variousinstruments for conducting structured interviews ofcompetence evaluees. It is often the case that theseinstruments have been neither translated nor normedin languages other than standard American English.Individuals from other cultures vary in their use oflocal or idiomatic terms that may not correspondwell with a particular way of translating an instru-ment, making it important to be sure that an evalueeactually understands the concepts and knowledge ar-eas being assessed. Also, it may be misleading to in-terpret test results from evaluees of other culturesaccording to norms established by administering thetests to North Americans.

7. The Examination Context

Finally, the backgrounds of some individuals fromother cultures may leave them unfamiliar with whatpsychiatrists do or with the basic idea of a medicalinterview that explores thoughts, feelings, and be-liefs. Some individuals may not previously have un-dergone formal testing and may not understand itspurpose or uses. In such cases, psychiatrists may haveto make special efforts to explain the purpose of in-terviewing and testing, along with the potential rel-evance of these procedures to the evaluee’s situation.

VI. The Interview

Evaluations of adjudicative competence are clini-cal assessments of a defendant’s ability to participate



in criminal proceedings. Competence evaluations areneither retrospective (as are evaluations of criminalresponsibility) nor prospective (as are postconvictionevaluations); they focus on the defendant’s presentfunctional level, and they emphasize the evaluee’smental functioning and capacities rather than thepsychiatric diagnosis.

A. Preparing for the Interview

Before interviewing a defendant, the psychiatristshould learn about the state’s allegations and the rea-sons or actions that led the referring attorney or courtto question the defendant’s competence. He or sheshould review copies of relevant court orders, avail-able discovery materials (including the arrest reportsprepared by police), criminal court filings, and in-dictments. When available, transcripts or recordingsof hearings, depositions, or interrogations may con-tain information relevant to understanding a defen-dant’s current mental condition and competence.Collateral records, including medical and psychiatrictreatment records, can provide a longitudinal view ofa defendant’s mental illness and can thereby sheddiagnostic light on current symptoms. Reviewingthese materials may also help the psychiatrist to de-cide whether collateral interviews will be necessary. Adefendant’s attorney will often have information thatis not otherwise available, such as what has happenedduring previous attorney-client contacts and the rea-sons that the attorney believes the defendant may beincompetent to stand trial. Information about thequality of the attorney-client relationship may be es-pecially valuable, as is information about behavioraldisturbances that the attorney has observed.

B. General Considerations

The psychiatrist should interview the defendantfor enough time and with enough thoroughness topermit assessment of the functional characteristicsrelevant to the jurisdiction’s legal criteria for adjudi-cative competence. If reasonable attempts to examinethe defendant fail because of lack of cooperation orother factors, the he or she should report such limi-tations to the referral source, recognizing that poorperformance or lack of participation are not, bythemselves, determinative of incapacity. In cases inwhich the psychiatrist anticipates that language bar-riers, religious beliefs, sensory impairments (e.g.,hearing impairments), or other communication fac-tors will create impediments to accurate assessment,

he or she should arrange (with the prior agreement ofthe referring attorney or court) to use interpreters orother individuals who can facilitate communication.The interview should always be conducted in a securelocation.

Although the primary purpose of a competenceevaluation is neither diagnosis nor treatment, the ex-amination should follow the American Psychiatric As-sociation Practice Guideline for the Psychiatric Evalu-ation of Adults.180 The goal is to learn whether andhow mental symptoms impair competence-relatedabilities. The relevance of even severe symptoms tothe question of competence varies from case to case.Nevertheless, it is still valuable to obtain enough in-formation about a defendant’s condition to allowidentification of the diagnoses that are relevant to theexpert’s opinion. In cases in which the psychiatristbelieves that the defendant lacks adjudicative compe-tence, diagnostic information will inform the judg-ments about the defendant’s restorability and theproper setting for restoration.

C. Providing Notice

The psychiatrist should begin the interview withthe notifications described in Section IV.E. of theGuideline. If the clinical examination is taking placefor multiple purposes (i.e., to evaluate criminal re-sponsibility), the psychiatrist should tell the defen-dant of these additional uses of information obtainedduring the interview. To find out whether evalueeshave understood this information, many psychia-trists ask evaluees to paraphrase what they have toldthem about the nature, purpose, and conditions ofthe interview. The defendant’s repeating the infor-mation tells the psychiatrist whether the defendanthas understood what the examination is about andsimultaneously provides an initial indication of howwell the defendant can assimilate verbally communi-cated information.

D. Obtaining Background Information

After hearing about the reason for the examina-tion, some defendants immediately begin telling thepsychiatrist about their legal situations and how theyincurred their criminal charges. However, in manyinterviews, focusing initial questions on the defen-dant’s background, including personal and familyhistory, current living arrangements, academic his-tory, and occupational history, accomplishes severalthings:



It helps the psychiatrist establish rapport whilesimultaneously providing a helpful perspectiveon the defendant’s intelligence and socialfunctioning.

While gathering this information, the psychia-trist can also assess the defendant’s behavior andverbalizations, which may permit inferencesabout mood, self-control, thought content, men-tal organization, and concentration.

The psychiatrist can compare the defendant’sversion of events with information available fromindependent, verifiable sources. Such a compar-ison may help the psychiatrist to assess the defen-dant’s willingness and ability to report back-ground information accurately.

Taking a social history may provide insight intohow the defendant establishes or sustains rela-tionships, which may help the psychiatrist gaugethe defendant’s capacity to relate to the defenseattorney.

Inquiry into the defendant’s medical, psychiat-ric, and substance use history may aid the psychi-atrist in reaching a diagnosis and may direct thepsychiatrist to additional sources of collateraldata about the defendant.

The defendant’s psychiatric history helps thepsychiatrist compare how the defendant reportscurrent symptoms with symptoms reported inpast episodes of illness.

Asking the defendant about earlier experienceswith the criminal justice system (including pre-vious arrests, charges, and convictions) providesthe psychiatrist with clues about the defendant’sfirst-hand experience with and knowledge ofcriminal proceedings.

E. Mental Status Examination

A systematic mental status examination providesthe psychiatrist with specific information about psy-chiatric symptoms, thought content, mood, mem-ory, information processing, and concentration thatmay not be apparent in more conversational portionsof the interview. Typically, a psychiatrist’s mentalstatus examination supplements clinical observationsand the evaluee’s spontaneous reports, by includingquestions about several types of symptoms (e.g., cur-rent mood, possible delusional beliefs, and percep-tual disturbances) and brief tests (e.g., arithmetic,

repeating and recalling items, and assessment of ori-entation). Although these inquiries yield data helpfulin reaching a psychiatric diagnosis, they may alsohelp the psychiatrist to assess the defendant’s mentalstrengths, along with any vulnerabilities that stemfrom cognitive limitations or psychiatric syn-dromes—the objective being to identify, character-ize, and quantify the severity of any substantive psy-chopathology that might impair trial participation orcourtroom demeanor.

In evaluating defendants suspected of malinger-ing, the psychiatrist may focus the interview, askingfor more details about symptoms and looking forinconsistencies between reporting and behavior.181

Collateral information may help guide the psychia-trist’s inquiries and place in perspective any responsesthat suggest deception.

F. Questions Specific to AdjudicativeCompetence

The distinguishing feature of a competenceevaluation is the assessment of the functional abil-ities needed to proceed with criminal adjudica-tion. To make such an assessment, the psychiatristasks questions that will lead to a determination ofwhether competence-related abilities are “suffi-ciently present.” Bonnie182 has characterized theseabilities as falling into two key functional do-mains: “competence to assist counsel” and “deci-sional competence.”

Competence to assist counsel encompasses thedefendant’s abilities to understand criminalcharges, the implications of being a defendant,the adversarial nature of criminal proceedings,and the role of defense counsel. Competence toassist also includes the defendant’s ability to workwith and relate pertinent information to defensecounsel.

Decisional competence refers to the ability forthe defendant to participate autonomously inmaking important decisions that arise in thecourse of adjudication. Among these decisionsare whether to testify, whether to plead guilty,and, if the case goes to trial, what strategy shouldbe used.

Examinations of adjudicative competence are con-cerned with defendants’ case-specific capacity to pro-ceed with criminal adjudication, as distinguishedfrom their general legal knowledge, actual current



knowledge about the case, or willingness to proceedwith adjudication. A defendant’s ignorance of someaspects of how the legal system works, the chargesfaced, or possible penalties does not necessarily implyincompetence. The defendant may simply not havebeen provided this information, but may be able toincorporate and use information in making decisionsafter being told these things. To distinguish mereignorance from incapacity to learn, the psychiatristmay use structured interviews (discussed later) orother teaching and retesting approaches that involveinstruction on factual legal matters. In cases in whichthe psychiatrist has learned that a defendant has hadproblems in collaborating with defense counsel, thepsychiatrist should try to learn whether the defen-dant could work with an attorney and participate indefense planning, but has chosen not to do so forreasons not related to mental illness, mental retarda-tion, or developmental limitations.

Assessing and documenting a defendant’s func-tional status usually requires asking specific questionsthat systematically explore the defendant’s generalknowledge about criminal proceedings, his under-standing of matters specific to his legal case, and hisability to relate to defense counsel. Areas that thepsychiatrist typically assesses during an interview in-clude the defendant’s:

knowledge about the roles of principal court-room personnel (the judge, jury, witnesses, de-fense attorney, and prosecutor) and of the eval-uee’s role as a defendant;

awareness of being charged with a crime and fac-ing prosecution;

knowledge of specific charges, the meanings ofthose charges, and potential penalties ifconvicted;

knowledge about what specific actions the statealleges (“what the police say you did” to generatethe charges);

ability to behave properly during court proceed-ings and at trial;

capacity to appraise the impact of evidence (e.g.,adverse witness testimony) that could beadduced;

understanding of available pleas and their impli-cations, including plea bargaining;

perceptions and expectations of defense counsel;and

description of the quality and quantity of previ-ous interactions with defense counsel.

Along with gathering specific information aboutthe defendant’s grasp of factual knowledge, the psy-chiatrist can make inquiries and observations thatwill help elucidate:

the defendant’s capacity for and willingness toengage in appropriate, self-protective behavior;

if present, the extent and impact of the defen-dant’s self-defeating behavior, and the reasonsfor the behavior;

the defendant’s ability to retain and apply newinformation effectively;

the defendant’s capacity to pay attention at trialand remember what has occurred;

the defendant’s capacity to use information tomake reasonable decisions related to his defense;and

whether the defendant has sufficient impulsecontrol to maintain proper courtroom decorum.

Questions should be open-ended and not assumeinvolvement in the alleged offense. Often, however, de-fendants may do better at displaying their understand-ing of and capacities to manipulate information whendiscussing concrete matters arising in their own cases.For example, they may not be able to provide gooddefinitions of legal terms, but they may demonstratetheir understanding of key legal concepts by describinghow they anticipate that events will unfold as the caseproceeds. Having defendants recount past experiencesin the courtroom may also reveal details about how wellthey understand their current legal circumstances.

Competence interviews should reach beyond de-fendants’ factual understanding of legal terms andprocedures to examine the ability to reason about thecases and appreciate the legal situation.183,184 Evalu-ating reasoning ability may include questions thatassess how well the defendant distinguishes betweeninformation with more or less legal relevance, and thedefendant’s capacity to weigh advantages and disad-vantages of available legal options. In assessing thedefendants’ appreciation of their circumstances, psy-chiatrists should analyze the rationality of the defen-dants’ beliefs about how they expect the case to pro-



ceed, how they perceive their relationship with theirattorneys, and how they anticipate being treated bythe legal system. Psychiatrists should keep in mindthat delusional beliefs may seriously influence a de-fendant’s reasoning or appreciation of the situation,while leaving factual understanding and knowledgeof the legal system unimpaired.185

Although this Guideline cannot anticipate all thesituations that psychiatrists may encounter, the fol-lowing comments address some of the special cir-cumstances that they encounter:

Competence to stand trial relates to a defendant’scapacity to proceed with adjudication on a specificcriminal charge. Defendants who might not becompetent to undergo trial in a complex tax casemight be competent to proceed with adjudicationof a misdemeanor assault.

Occasionally, psychiatrists may encounter defen-dants with multiple charges who are incompe-tent to proceed on some charges but are compe-tent to proceed on others. Thus, for an evalueefacing multiple charges, a psychiatrist should an-ticipate what behavioral and cognitive abilitieswill be necessary for a defense on each charge andshould formulate questions to assess the evaluee’scapacity to accomplish these tasks.

Individually tailored interview techniques mayhelp with certain types of evaluees. For example,using illustrations of a courtroom or sketches ofcrime scenes may help defendants who have lim-ited verbal capacity to convey what they know,understand, and appreciate.

In evaluating individuals with mental retarda-tion, psychiatrists may want to devote extra timeto explaining concepts and testing defendants’knowledge later, to find out how well these indi-viduals can retain information and apply it totheir specific legal circumstances.

As explained in Section II, amnesia for the periodsurrounding an alleged offense does not precludethe defendant’s being competent to stand trial onthat offense. In some cases, a defendant’s com-ments or collateral information signal the psychi-atrist that a claim of amnesia is not genuine. Insuch cases, the psychiatrist can record and lateradduce the information concerning the defen-dant’s actual capacity to recall and relate eventsthat led to his arrest. In other cases, psychiatrists

discover clinical information that supports a de-fendant’s claim of amnesia. The psychiatrist canstill assess the defendant’s capacity to consultwith the attorney and understand the criminalprocess (which may remain well intact), alongwith the defendant’s ability to evaluate the pros-ecution’s evidence depicting alleged conduct atthe time of the offense. The psychiatrist shouldalso attempt to obtain information from the de-fendant and collateral sources that will delineatethe scope and likely cause of the defendant’samnesia.

G. Eliciting the Defendant’s Account of EventsThat Led to the Charge

A key factor in many defendant-attorney interac-tions is the defendant’s ability to provide a rational,consistent, and coherent account of the offense to hisattorney. Most of the members of this PracticeGuideline committee, along with others,139 recom-mend that psychiatrists assess this ability by askingevaluees to describe their versions of events before,during, and after the alleged offense. Psychiatristsshould also ask defendants to describe how their ac-tivities have been or will be described by victims orwitnesses and (especially) by the police. Having adefendant relate his or her recollection of the eventsthat led to the arrest helps the psychiatrist assess(among other things) the defendant’s understandingof the reasons for the charges and his or her ability tocommunicate key information to defense counsel.The defendant’s description of events often providesinformation about whether he or she rationally per-ceives the reasons for the prosecution and can realis-tically appraise available defenses (including the in-sanity defense). Hearing the defendant’s descriptionof events leading to the allegations may also help thepsychiatrist to assess the defendant’s memory andability to identify others who might testify on thedefendant’s behalf.

If a psychiatrist is barred from a direct inquiryabout the offense or does not want to make such aninquiry (discussed later), an alternative action wouldbe to contact the defense attorney to ask how well thedefendant has been able to communicate details re-lated to the alleged offense. When seeking such in-formation, however, psychiatrists should rememberthat attorneys owe their allegiance to their clients andshould have this in mind when formulating theirresponses.



When asked by psychiatrists to describe the eventsthat led to their arrest, some defendants decline toanswer because they fear that what they say will beused against them or because their attorneys haveinstructed them not to discuss the matter. In suchcases, the psychiatrist can ask about a defendant’sreason for withholding information. The psychiatristalso can ask whether the defendant recalls and canrelate this information to defense counsel. The de-fendant’s responses, coupled with other informationfrom the interview, may help the psychiatrist decidewhether the defendant has the capacity to communi-cate satisfactorily with defense counsel. For example,if a defendant calmly explains that he recalls arrest-related events clearly and that counsel has forbiddenhim from discussing his actions, and if the defendantalso gives a logical, reality-based description of whatthe police allege against him, that defendant hasdemonstrated satisfactory ability to communicatewith defense counsel (not to mention good capacityto follow his attorney’s instructions).

Though many psychiatrists follow the practice ofasking defendants for their account of events, someexperts believe that, when conducting an evaluationof adjudicative competence only, an psychiatristshould assess whether an evaluee understands whatthe police and witnesses say he did, but should notask the defendant to give his own version of arrest-related events. One reason is that, even if the reportomits what the defendant said about the alleged of-fense, some jurisdictions allow a testifying psychia-trist to be asked in court about what the defendantsaid. Even if the psychiatrist’s testimony is barredfrom being used later as direct evidence to convict thedefendant, some jurisdictions may still allow thetestimony to be adduced as a “prior inconsistentstatement” to impeach a defendant who testifies athis trial.128,186,187 Also, testifying about a defendant’sstatements concerning events that led to the arrestcould undermine the defense by revealing infor-mation about potential legal tactics to theprosecution.188

Obviously, one way to avoid these potential prob-lems is not to ask the defendant what he recalls aboutwhy the police arrested him. In many cases, however,this approach is not practicable because (for exam-ple), a court has ordered examinations of competenceand criminal responsibility, which psychiatrists usu-ally perform during the same interview or set of in-terviews. Except in those unusual circumstances in

which the psychiatrist can determine quickly that adefendant is not competent, the psychiatrist oftenhas elicited or been told the defendant’s version ofthe events that led to his arrest before realizing thatthe defendant may not be competent. Also, getting adefendant’s version of arrest-related events as close aspossible to the time those events occurred is the bestway to learn what a defendant did and why. Defen-dants’ memories (like those of everyone else) mayfade with time, are reconstructive, and reflect thecurrent state of mind. For many psychotic defen-dants—that is, those most likely to merit the insanitydefense—obtaining their version of events beforethey receive competence-restoring treatment can ad-dress the possibility that, once their rationality im-proves, they will recast their actions and motives intobehavior and reasons that seem more plausible, butthat are also less exculpatory.

If a psychiatrist believes that asking the defendantabout his or her version of events is important, thepsychiatrist can deal with concerns about having totestify about the defendant’s statements by preparinga response that will alert the court to the matters thatare at stake. For example, if the prosecution asks thepsychiatrist to testify at a competence hearing aboutwhat the defendant said concerning the alleged of-fense, the psychiatrist may wish to respond, “Before Ianswer that question, I must ask whether the defenseattorney or the court objects, because if I do answer,I may reveal information that will incriminate thedefendant or that might compromise his defensestrategy.”

H. Psychological Testing

Melton and colleagues believe that “[r]outine ad-ministration of conventional psychological tests (i.e.,measures of intelligence and personality) is unlikelyto be a cost-efficient means of gathering informationin most competency cases” (Ref. 1, p 153). Althoughsome psychologists regard conventional psychologi-cal testing as an essential element of a competenceevaluation,189 and although most forensic psycholo-gists recommend IQ testing,190 this Guideline takesthe same position as do Melton and colleagues.1 Psy-chiatrists can usually ascertain the crucial psycholog-ical data relevant to functioning as a competent crim-inal defendant directly from interviewing defendantsand evaluating information provided by collateralsources.



Psychological testing can play an important rolein clarifying some diagnostic questions or in evaluat-ing cognitive disability, however, especially whenrecords are scant and interview findings are ambigu-ous. Other circumstances in which testing may proveuseful include those in which there is a question ofneuropsychological impairment or mental retarda-tion. Neuropsychological testing often can help themental health professional to sort out and character-ize subtle cognitive impairments—for example,problems in a defendant’s abilities to consider alter-natives or process complex verbal information.

Because a substantial fraction of competence eval-uees feign or exaggerate emotional or cognitive im-pairment, psychiatrists may find that the MMPI-2and tests specifically designed to detect malingeringare frequently useful. Although interpretation ofMMPI results is beyond the knowledge and skills ofmost psychiatrists, psychiatrists can learn to admin-ister and score several of the available measures de-signed specifically to assess malingering.

I. Instruments Specifically Designed to AidAssessment of Adjudicative Competence

Over the past four decades several instruments forassessing adjudicative competence have been devel-oped, including structured interviews with standard-ized instructions for scoring and interpreting a defen-dant’s responses. A discussion of several currentlyavailable assessment instruments appears in SectionVIII. Use of these instruments is not mandatory. Insome cases, attempting to use a structured compe-tence-assessment tool will be impossible (e.g., whenthe evaluee is catatonically mute or has a manic psy-chosis) or pointless (e.g., when examining a defen-dant who is also an attorney). Psychiatrists should befamiliar with the strengths and weaknesses of theseinstruments in various evaluation contexts (Pinals etal.191). Some potential advantages of structured in-struments include the following:

Using a structured instrument assures that thepsychiatrist will consistently cover relevant topicareas.

Some defendants who are reluctant to discusstheir personal situation may respond to hypo-thetical inquiries such as those used in the assess-ment tool developed by the MacArthurgroup.184

Some competence-assessment instruments usestandardized scoring systems that make possiblecomparisons between a specific defendant’s per-formance and the performances of groups of pre-viously evaluated defendants.

When using a structured instrument, the psychia-trist should be familiar with the instrument’s instruc-tions for administration and should follow those in-structions as closely as possible. Although a flexibleapproach to administration may seem desirable, toomuch deviation from proper test procedure may re-duce the instrument’s reliability and validity and maymake it difficult to assess the evaluee’s performancein relation to the instrument’s published norms.

The designers of structured instruments do notintend that the instruments be used as diagnostictests that decide whether an individual is capable ofproceeding with adjudication. Rather, the instru-ments’ designers recommend that psychiatrists treattest results as one source of information, interpretingthose results in light of the full clinical interview andother available data. A discussion of several currentlyavailable assessment instruments appears later in theGuideline.

VII. Collateral Data

A. Value and Scope

In most competence evaluations, collateral datacan help psychiatrist formulate and support theiropinions. By providing additional perspectives onthe defendant, collateral sources help the evaluatingpsychiatrist gain a more comprehensive understand-ing of the information about the defendant’s currentmental state and mental abilities than was derivedfrom the interview. Often, defendants’ accounts ofsymptoms, past treatment, and other relevant eventsdiffer substantially from the reports of witnesses orother informants. Defendants may deny or not wantto discuss their participation in an offense, or theymay claim to have amnesia for events related to theoffense. Collateral sources may corroborate or fail toconfirm elements of the defendant’s account of hissymptoms and functioning, which may help in as-sessing the defendant’s accuracy and truthfulnessabout his mental condition.

Because the competence evaluation focuses on thedefendant’s current mental state and ability, it gen-erally requires less evaluation of collateral data than



does a retrospective evaluation (e.g., evaluations ofcriminal responsibility). At a minimum, however,the psychiatrist should review police records whenthey are available and the indictment concerning al-leged incidents leading to the criminal charges.

B. Incriminating Information

Psychiatrists must recognize that the collateraldata that they obtain may occasionally include in-criminating information that was previously un-known to the prosecution. The prosecution and thetrial court can initiate an evaluation of adjudicativecompetence, and the defendant may not invoke hisor her right against compelled incrimination to avoidsubmitting to a competence examination.188 Al-though most states prohibit introduction of informa-tion from the competence evaluation into the trialitself, in other states this protection extends only tostatements made by defendants. Attorneys in statesthat do not have protective provisions may insertlanguage in a court order to limit the use of reportinformation from a competence assessment. Despitethese safeguards, concerns about the possibly incrim-inating effect of collateral data lead some psychia-trists to favor focused assessments of adjudicativecompetence in which only limited collateral infor-mation is presented. If an psychiatrist chooses to usecollateral sources in conducting an evaluation of ad-judicative competence, such sources serve primarilyfor obtaining or supplementing information aboutpast or current psychiatric symptoms, but not forgaining information that might facilitate prosecutionand criminal conviction.

C. Obtaining Collateral Information

In many cases, the referring attorney or court willobtain documents containing collateral informationand will provide these to the examining psychiatrist.When retained by either the prosecuting or defenseattorney, the psychiatrist may include a statement inthe retainer agreement that the attorney will give thepsychiatrist access to all relevant information avail-able and that the attorney will make reasonable ef-forts to obtain any additional information requestedby the psychiatrist. Sometimes a court order is nec-essary to compel opposing counsel to produce infor-mation deemed relevant by the psychiatrist.

When retained by the defense or directly by thecourt, the psychiatrist may obtain written consentdirectly from the defendant for the release of the

defendant’s medical records, provided that the de-fendant is competent to authorize the release. Thosewho have been retained by the defense or prosecutionshould not contact opposing counsel or other per-sons who could provide collateral data before con-sulting with the retaining attorney. After obtainingapproval of retaining counsel, defense- or prosecu-tion-retained psychiatrists may then interview collat-eral sources. Court-appointed psychiatrists may wantto speak with both the prosecution and defenseattorneys.

Ideally, when using collateral sources of informa-tion, the psychiatrist should personally review anycritical information that is summarized or referred toin other documents and should not simply acceptanother clinician’s summary of original documents.Besides obtaining original sources when appropriate,the psychiatrist may identify missing informationthat may help formulate the forensic opinion. Forexample, the psychiatrist may realize that educationalrecords would serve to verify mental retardationwhen it appears that cognitive limitations affect adefendant’s competence to stand trial.

If requested information did not arrive before sub-mission of the report, the psychiatrist should notethis in the report, along with the reason that thepsychiatrist did not have access to the information.In some cases, the psychiatrist may want to include inthe report a statement reserving the right to changean opinion, should any conflicting information sub-sequently become available.

D. Managing Collateral Information

All material reviewed by the psychiatrist is consid-ered confidential and under the control of the courtor the attorney providing it, and it should not bedisclosed or discussed without the consent of thereferring party. The psychiatrist should realize thatnotations made on this material may be subject todirect and cross-examination if referred to duringtestimony. Material generated by the psychiatristduring an evaluation (e.g., interview notes, video-tapes) is initially considered the work product of thereferring attorney. As such, it should not be disclosedor discussed without the defendant’s, attorney’s, orcourt’s consent. The psychiatrist should furnish cop-ies of this material to the referring attorney or court,however, if requested to do so.



E. Common Types of Collateral Information

1. Written Records

Police reports and the indictment describing theinstant offense (or equivalent information that for-mally document the allegations and charges), shouldbe reviewed, paying particular attention to policedocumentation of underlying facts and the corre-spondence between this documentation and anystatements by the defendant about events that led tothe charges. Statements made by the defendant, vic-tim, and witnesses can provide valuable backgroundinformation to facilitate discussion with the defen-dant about his understanding of the charges and ev-idence against him. When provided, a defendant’sarrest and plea history can be helpful in learningabout his experiences with the legal system.

Psychiatric, substance abuse, and medical recordsmay help the psychiatrist understand the defendant’spsychiatric symptoms and diagnosis, past responsesto treatment, and previous levels of psychiatric im-pairment. These records may also help clarify ele-ments of the family history that may prove useful inarriving at a diagnosis.

School records may shed light on when psychiatricsymptoms (especially cognitive impairment) first de-veloped or were identified and can help the psychia-trist evaluate a defendant’s reports concerning possi-ble mental retardation or borderline intellectualfunction. Special education records, including psy-chological testing, are specifically helpful in evaluat-ing claims of mental retardation.

Employment records may corroborate or contra-dict a defendant’s account of impairment from psy-chiatric disability and level of work performance.Disciplinary actions and improvement plans mayprovide additional insights into a defendant’s pastproblems and functioning.

Military records may also corroborate or contra-dict a defendant’s account concerning past levels offunctioning and the time of onset and the severity ofpsychiatric symptoms. The data found in militaryrecords include descriptions of medals received, hon-ors earned, promotions, disciplinary actions, and thetype of military discharge.

Other expert evaluations and testimony by othermental health experts can help in assessing the con-sistency of the defendant’s reports and scores on psy-chometric testing. Expert evaluations and testimonyrelating to previous crimes may also be considered.

Jail and prison records may document behavioralproblems, medical treatment, and mental health in-terventions during incarceration. These records alsowill describe total length of incarceration and com-pliance with custodial requirements (e.g., disciplin-ary actions or time spent in administrative segrega-tion). When available, prison work and schoolrecords may provide further information about pastfunctioning.

Personal records can also help a psychiatrist cor-roborate or disprove statements made during the in-terview. For example, records of sophisticated finan-cial transactions would argue against the presence ofmental retardation. Diaries or journals may provideinsights into a defendant’s prearrest level of cognitivefunctioning.

2. Collateral Interviews

Useful information may be obtainable in inter-views with several persons other than the defendant.

The psychiatrist retained by the court or the de-fense attorney may speak directly with the defenseattorney to obtain information about counsel’s rea-sons for the referral and experiences relevant to thedefendant’s ability to assist in the defense.1,192 If re-tained by the prosecution, the psychiatrist can re-quest permission through the prosecutor to speakwith the defense attorney. A brief interview with thedefense attorney may provide valuable informationabout the attorney’s specific concerns about the de-fendant’s competence and examples of the defen-dant’s limitations related to trial proceedings.

Other sources such as family members, friends,and employers can provide information about a de-fendant’s level of functioning and visible symptoms.Though the potential for self-incrimination is notgenerally at issue, it may be important to inform theinterviewee of the intended use and nonconfidentialnature of the information. Interviewees should re-ceive an explanation similar to the one that the de-fendant receives (see Section IV.E.), with the addedwarning that providing information to the psychia-trist may lead to his or her being called to testify incourt. Besides providing a verbal warning, the psy-chiatrist may also ask an interviewee to sign a writtennonconfidentiality statement.

VIII. Assessment Instruments

One of the first instruments specifically designedfor assessing adjudicative competence was Robey’s



Checklist for Psychiatrists.193 When Robey’s check-list appeared in 1965, psychiatrists who were evalu-ating defendants often rendered opinions based onthe presence of symptoms, without reference to legalcriteria for adjudicative competence.194–196 In sub-sequent years, forensic experts have developed a va-riety of instruments that range from screening toolsand checklists to elaborate guides for conducting en-tire evaluations. Descriptions of several of these in-struments, all amenable to use by psychiatrists, ap-pear in the following sections.

The Competency to Stand Trial Screening Test(CST) is a 22-item, sentence-completion test devel-oped as part of a research project conducted by theNational Institute of Mental Health.2,197 Each itemof the CST is scored from 0 to 2, with higher scoresindicating higher levels of legal comprehension. TheCST has standardized administration (completiontakes about 25 minutes) and standardized scoring.Examples of test items include, “When I go to court,my lawyer will . . .” and “When they say a man isinnocent until proven guilty, I . . ..“The CST is ascreening test; if the total CST score is less than 20,further evaluation with the Competency AssessmentInstrument (described in the next section) is recom-mended. Strengths of the CST include ease of ad-ministration and a high true-negative rate. Weak-nesses include low validity due to a high rate of falsepositives, difficulty assessing defendants who have ahigh degree of cynicism about the system,198 andlimited and unproven reliability of the test. Also, thetest provides a numerical result rather than a detaileddescription of a defendant’s abilities. A subsequentversion of this measure, the Competency to StandTrial Assessment Instrument (CAI), appeared in1980.

The Competency to Stand Trial Assessment Instru-ment (CAI) is a semistructured comprehensive inter-view developed by McGarry and colleagues199 thatyields five-point Likert scale scores (1, total incapac-ity, to 5, no incapacity) on 13 areas of competence-related functioning (e.g., capacity to testify rele-vantly, appraisal of available legal defense). The CAIcame from the same National Institute of MentalHealth study as the CST. When a majority of scoresare 3 or lower, inpatient hospitalization for restora-tion or observation is potentially helpful. Thestrengths of the instrument include its usefulness instructuring an interview200 and its provision of sam-ple interview questions and case examples. Its weak-

nesses include nonstandardized administration, non-standardized scoring, limited empirical validation,and no norms.

The Georgia Court Competency Test (GCCT) is apopular screening instrument originally developedfor rapid identification of defendants who are obvi-ously competent. The GCCT evaluates a defendant’sfactual knowledge about general criminal court pro-cedure and factual knowledge related to the defen-dant’s specific case.201,202 The original version of theGCCT had 17 questions grouped as follows:

7 questions about an illustration of the layout ofa courtroom (e.g., “Where does the judge sit?”); 5questions about functions of courtroom person-nel (e.g., “What does a witness do?”);

2 questions about the defendant’s currentcharges;

1 question about helping the defense attorney;

1 question about the alleged crime; and

1 question about the consequences about beingfound guilty of the alleged crime.

The test’s instructions allow the examining clinicianto assign scores to the defendant’s responses which,added together, yield a sum between 0 and 50. Thesum is then doubled to obtain a final score between 0and 100.

A 1992 modification of the GCCT by the Missis-sippi State Hospital (GCCT-MSH) has 21 ques-tions. The GCCT-MSH includes questions aboutability to assist counsel (“What is your attorney’sname?”), and expectations of appropriate courtroombehavior in addition to questions contained in theoriginal GCCT. A score of 70 or higher on theGCCT (or GCCT-MSH) suggests that a defendanthas adequate factual knowledge of courtroom pro-ceedings, but does not necessarily imply that the de-fendant is competent to stand trial.

Strengths of the GCCT include its ease of admin-istration, which takes about 10 minutes, and abilityto make a rapid assessment of the defendant’s factualknowledge about how courtroom personnel functionand why he was charged. The GCCT’s weaknessesinclude questionable content validity (a full one-third of the questions are about the drawing of thecourtroom) and lack of meaningful assessment of adefendant’s ability to assist in his defense. Users ofthe GCCT-MSH should also recognize that it is fo-cused on factual understanding and offers limited



insight into a defendant’s rationality or appreciationof his legal situation.

Although the GCCT was never officially pub-lished, it has become one of the more commonlyused screening tools for competency to stand trial.203

Many currently circulated versions of the GCCT-MSH include the Atypical Presentation Scale (APS)by Gothard and colleagues,118 an eight-item screen-ing tool for detection of feigned psychosis. Althoughintended only as a screening instrument for malin-gering, the APS has acceptable sensitivity and speci-ficity (more than 80% when a score of 6 is used as thecutoff).118

The Interdisciplinary Fitness Interview (IFI) andthe IFR-Revised (IFI-R) are semistructured inter-views designed for joint administration by an attor-ney and a mental health professional,204,205 althoughthey may be administered by a mental health profes-sional alone.206 The IFI contains questions that spe-cifically address capacity to assist in one’s defense andone’s factual and rational understanding of the pro-ceedings. It examines current psychopathology re-lated to six types of symptoms (rated as present orabsent) and psycholegal abilities in the followingareas:

ability to appreciate charges;

ability to disclose relevant information;

courtroom demeanor;

ability to understand the adversarial nature ofproceedings;

quality of the relationship between defendantand attorney;

appreciation of legal options and consequences;and

ability to make reasoned choices concerning legaloptions and consequences.

Psychiatrists score aspects of these psycholegal abili-ties on a scale of 0 (no or minimal incapacity) to 2(substantial incapacity). The Influence of DecisionScale is used to record a rating (also 0, 1, or 2) of theimportance that the psychiatrist accorded each di-mension in forming the opinion. The rationale forthe Influence of Decision Scale is that the signifi-cance of a given factor should vary depending on thefacts specific to the defendant’s case. Thus, for exam-ple, a defendant’s courtroom demeanor is viewed asmore important in cases in which testimony is nec-

essary for a proper defense than in cases in which thedefendant is unlikely to testify. The IFI-R scoringmanual205 is available online.

Limited research on the IFI suggests that its resultscorrelate strongly with experts’ and judges’ ultimateconclusions about adjudicative competence.207,208

Additional strengths of the IFI include its interdisci-plinary nature and relatively short administrationtime (45 minutes). Its weaknesses include the prac-tical difficulty of having an attorney present at eachevaluation and the limited amount of research on itsvalidity and reliability.

The Computer-Assisted Determination of Compe-tency to Stand Trial (CADCOMP) is a 272-item ob-jective test that assesses social history, psychologicalfunctioning, and legal knowledge.209 The test takesabout 90 minutes to complete and produces a com-puter-generated narrative report. The report is notmeant to be conclusory but to form the basis forsubsequent clinical interviews. Weaknesses of theCADCOMP include administration time (completetesting includes assessment of reading level with theWide Range Achievement Test, orientation to thecomputer, and the clinical interview after the test),reliance on the defendant’s self report, and unfeasi-bility of administration in certain settings (e.g., ajail).

The Competence Assessment for Standing Trial forDefendants With Mental Retardation (CAST*MR)was developed specifically for evaluating adjudicativecompetence in defendants with mental retarda-tion.210,211 The developers of the CAST*MR be-lieved that the open-ended questions used in otherinstruments (e.g., the CAI) might not properly assessmentally retarded individuals with limited ability toexpress themselves. The developers also thought thatthe vocabulary of other tests might be too advancedfor mentally retarded defendants and that the em-phasis on psychiatric symptoms might not be appro-priate for such defendants.

The CAST*MR has 50 items divided into threesections and takes 30 to 45 minutes to administer.The majority of questions are multiple choice. Thefirst two sections require a fourth-grade reading level.The first section includes 25 questions assessing basiclegal knowledge (“What does the judge do?”) and thesecond section uses the same format to assess thedefendant’s ability to assist in his or her defense. Thelast section has 10 items designed to assess the defen-dant’s account of events surrounding the charges



(e.g., “What were you doing that caused you to getarrested?”). A weakness of the CAST*MR is that itdoes not assess the defendant’s understanding of legalproceedings in depth. Also, the recognition format ofthe test may result in overestimation of a defendant’sabilities.

In 1989, the MacArthur Research Network onMental Health and the Law began the MacArthurAdjudicative Competence Project, the purpose ofwhich was to measure psychological abilities relevantto competence to proceed to adjudication (ratherthan just competence to stand trial).212 The projectemphasized appreciation and rationality as impor-tant features of adjudicative competence and favoredassessment of the defendant’s abstract as well as case-specific knowledge base.

The ultimate product of the MacArthur Adjudi-cative Competence Project was the MacArthur Com-petence Assessment Tool-Criminal Adjudication (Mac-CAT–CA), a 22-item test that takes 30 to 45 minutesto administer. It has three sections:

Items 1 through 8 assess the defendant’s under-standing (e.g., role of the defense attorney, ele-ments of the offense, pleading guilty). Theseitems include educational components that allowevaluation of a defendant’s ability to grasp basic,orally presented information about legalproceedings.

Items 9 through 16 assess the defendant’s reason-ing (e.g., concepts such as self-defense, possibleprovocation, and ability to seek information thatinforms a choice).

Items 17 through 22 address the defendant’s ap-preciation of his specific circumstances (e.g., hisbeliefs about the likelihood of being treated fairlyand his rationale for these beliefs).

In administering the MacCAT–CA, the psychia-trist has the evaluee listen to and answer questionsabout a hypothetical criminal case in which two menget into an argument at a bar, one man hits the otherwith a pool cue, and an aggravated assault chargeresults. The MacCAT–CA uses the bar fight vignettefor the first 16 test items (i.e., those items dealingwith understanding and reasoning); the third sec-tion, appreciation, concerns the defendant’s beliefsabout his case, rather than the vignette.

Each MacCAT–CA item is scored 0, 1, or 2, usinginstructions and examples of responses from the

test’s Professional Manual. The total scores for items1 through 8, 9 through 16, and 17 through 22 pro-vide indices of a defendant’s understanding, reason-ing, and appreciation, respectively. Tables in theMacCAT–CA Professional Manual and the test ad-ministration booklet help the psychiatrist to see howan evaluee’s performance on these indices compareswith large groups of competent and incompetent de-fendants who underwent evaluation during the de-sign of the MacCAT–CA. Scores from the under-standing, appreciation, and reasoning scales are notcombined for a total score, however.

Results of research using the MacCAT–CA sug-gest that it compares favorably with other measuresof competence to stand trial with regard to validity,reliability, and ease of administration.213 Thestrengths of the MacCAT-CA include its derivationfrom a psycholegal theory of competence, assessmentof multiple psycholegal abilities, assessment of thecapacity to assimilate new information, standardizedadministration, objective criterion-referenced scor-ing, and availability of normed data for the purposeof comparison. Also, an emerging body of literatureon MacCAT–CA performance by adolescents maypermit meaningful assessment of minors’ compe-tence to proceed with adjudication in juvenilecourt.214,215

Weaknesses of the MacCAT–CA include its lim-ited focus on the complexity of the defendant’s case,the defendant’s memory of events, and legal de-mands such as appropriate behavior in court. Al-though the MacCAT–CA was designed for and eval-uated in individuals with low-average intelligence, itsverbal demands may exceed the expressive capabili-ties of mentally retarded defendants who nonethelessunderstand their charges and can converse satisfacto-rily with counsel. Evaluees with severe thought dis-orders, memory impairment, or problems with con-centration may not be able to complete assessmentswith the instrument. The MacCAT–CA also doesnot formally address dubious claims of amnesia ormalingering. Pinals and colleagues191 provide a valu-able discussion of the practical advantages of usingthe MacCAT-CA, along with the problems that psy-chiatrists may encounter if they try to administer theinstrument to all competence evaluees.

As with all other instruments for evaluation ofadjudicative competence, the MacCAT–CA is notsupposed to function as a stand-alone assessment ofcompetency to stand trial. Rather the test’s creators



intend that the MacCAT–CA be regarded as an as-sessment tool that “should enhance the thoroughnessand quality of clinical investigations of adjudicativecompetence” (Ref. 212, p 143).

The Evaluation of Competency to Stand Trial-Revised (ECST-R) is a recently developed compe-tence-assessment instrument that became availablefor purchase in 2005. Eighteen items and three scalesof the ECST-R address the defendant’s factual andrational understanding of legal proceedings and abil-ity to consult with counsel, which are the criteria foradjudicative competence propounded in Dusky.16

Another 28 test items address various “atypical”styles of symptom presentation, including feigningof psychosis, nonpsychotic disorders, and cognitiveimpairment.

The ECST-R is intended for use with adults facingcharges in criminal court, including individuals withIQs in the 60 to 69 range. The designers of theECST-R believe that their instrument is superior toother structured assessment tools because they struc-tured the ECST-R to track the three elements ofadjudicative competence described in Dusky, ratherthan a theoretical, nonjudicial conceptualization ofadjudicative competence. Unlike other assessmentinstruments, the ECST-R includes scales that screenfor feigned or exaggerated mental problems. TheECST-R designers believe that their studies of theECST-R provide error rates relevant to test admissi-bility under evidentiary rules laid out in the U.S.Supreme Court’s decision in Daubert v. Merrell Dow,509 U.S. 579 (1993).216

Data supporting the design, use, and accuracy ofthe ECST-R appear in the test’s instruction manual.As of late 2006, four articles217–220 that evaluate theECST-R had appeared in peer-reviewed academicjournals.

Whether to use structured assessment instrumentsfor adjudicative competence remains a matter of per-sonal choice for psychiatrists. When psychiatrists usethese instruments, however, they should be aware oftheir responsibility to maintain the security of thetext’s contents. The value of many psychological testsand assessment instruments rests in part on the pub-lic’s ignorance of their specific contents. If, for exam-ple, test items from intelligence scales were publiclyavailable, evaluees could obtain and study the ques-tions, and those scales would no longer be indicatorsof individuals’ native intelligence. For this reason,psychologists’ ethics guidelines prescribe that test us-

ers safeguard “the integrity and security of test mate-rials” (Ref. 221, No. 9.11), by, for example, prevent-ing persons who are not authorized to administertests from obtaining the content of specific test itemsand instruction manuals. Also, psychologists oftenare urged not to release raw test data—an individualevaluee’s responses—if doing so would create a riskthat the data would be misused or misrepresented(Ref. 221, No. 9.04). It is permissible, however, torelease raw data in response to a court order. Psychi-atrists’ official ethics guidelines do not discuss thisquestion. If psychiatrists choose to use competence-assessment instruments, they should take appropri-ate precautions to preserve the instruments’ valueand integrity.148

Instruments designed specifically for assessingcompetence to stand trial have variable reliability,validity, and usefulness. Designers of these instru-ments intend that they be used in concert with,rather than as a substitute for, a more comprehensiveclinical examination. When the results of clinical ex-amination appear discordant with the results of acompetence-assessment measure, the evaluating cli-nician must resolve the conflict, which may involveobtaining additional information necessary to renderan opinion with a reasonable degree of medicalcertainty.

Psychiatrists should recognize that most compe-tence assessments give little or no consideration tothe commonly encountered question of malingering.Assessment of problems such as reported amnesia,neurocognitive impairment, and mental retardationmay require additional testing.

Ideally, regular use of assessment instrumentswould enhance clinical evaluations by giving psychi-atrists reliable, valid data. Given the limitations ofexisting instruments and their potential for being at-tacked as inadequate in Daubert-type hearings, how-ever (see, e.g., State v. Griffin, 869 A.2d (Conn.2005),222 psychiatrists should not overvalue the in-formation that they provide. Instead, psychiatristsshould interpret results of testing in light of all otherdata obtained from clinical interviews and collateralsources.

IX. Formulating the Forensic Opinion

In formulating an opinion about adjudicativecompetence, the psychiatrist usually considers threequestions:



What symptoms does the defendant have, andwhat is the defendant’s psychiatric diagnosis?

What is the relationship, if any, between thesymptoms or diagnosis and the mental capabili-ties required under the jurisdiction’s standard forcompetence to stand trial?

If the defendant appears incompetent to proceedwith adjudication, how likely is it that appropri-ate restoration services would restore his compe-tence, and what is the appropriate, least restric-tive setting for such services?

A. Psychiatric Symptoms or Diagnosis

1. General Considerations

As explained in Section I, the substantive consti-tutional standard for adjudicative competence (as ar-ticulated in Dusky16) does not make having a mentaldisorder a requirement for finding a defendant in-competent. With minor variations in language orterminology, every U.S. jurisdiction uses the Duskystandard. Though several jurisdictions do not requirea predicate mental illness, federal courts and moststates require the establishment of a formal diagnosis.

Therefore, psychiatrists working in jurisdictionswith statutes that require a predicate diagnosisshould indicate such a diagnosis in individuals whomthey believe are not competent.

Most adult defendants found incompetent tostand trial meet criteria for a mental disorder as de-fined in the recent editions of the American Psychi-atric Association’s DSM (DSM). Psychotic disordersare the most common diagnoses among criminal de-fendants referred for competence evaluations andsubsequently found incompetent to stand trial. Stud-ies have shown that among defendants who undergoevaluations of adjudicative competence, 45 to 65percent of those with schizophrenia or other psy-chotic illnesses,207,223–226 23 to 41 percent of thosewith affective or organic disorders,223,226 and 12.5 to36 percent of individuals with mental retarda-tion223,224,227 are found incompetent.

Also, in a study by the MacArthur FoundationResearch Network on Mental Health and the Law 65percent of defendants hospitalized for restoration tocompetence were found to have a diagnosis of schizo-phrenia, and 28 percent had an affective disorder.184

In many jurisdictions, insanity statutes require thepresence of a severe mental disorder and exclude di-agnoses of substance abuse or personality disorders as

potential bases for insanity defenses.145 However,mental disorders that are not severe are still permis-sible bases for findings of incompetence to standtrial. While the U.S. Supreme Court does not regardthe insanity plea as a constitutional right that statesmust make available to defendants,228 A criminal de-fendant has a constitutional right to be tried only whilecompetent.22,229 It thus makes sense not to have anabsolute lower limit on “seriousness” of disorders thatcould constitute the basis of a finding that a defendant isincompetent to stand trial.

In theory, therefore, any diagnosis or symptomcluster could be the cause of a defendant’s incompe-tence. In practice, however, few defendants who haveneither an Axis I diagnosis nor a diagnosis of mentalretardation are incompetent. Though some person-ality disorders may affect a defendant’s competenceabilities (e.g., magical thinking in an individual withschizotypal personality disorder), any psychiatristwho believes that a defendant is not competentshould carefully consider whether an Axis I diagnosisis present. In all cases, psychiatrists should recordobservations about symptoms and render opinionsabout diagnoses with a view toward how those symp-toms affect the defendant’s functioning. The partic-ular diagnoses or symptoms that affect the defen-dant’s trial-related abilities should receive furtherexplanation in the opinion section of the psychia-trist’s report. It may not be possible to make a defin-itive diagnosis if there is not a clear history or thereare new ambiguous symptoms.

2. Special Diagnostic Consideration

When a defendant claims amnesia for an allegedcrime, questions about competence to stand trial arelikely to arise. From a practical and theoretical stand-point, true inability to remember circumstances sur-rounding an alleged offense certainly impairs the de-fendant’s ability to assist in his defense. For example,a defendant may be the only person who has knowl-edge of an alibi that could form the basis of an ac-quittal. In the previous section, Wilson v. U.S.67 andother case law surrounding the criminal courts’ han-dling of amnesic defendants was reviewed. Courtsgenerally have held that a defendant’s amnesia is nota bar, per se, to understanding criminal proceedingsor standing trial.

In evaluating claims of amnesia, the psychiatristshould consider the purported genesis of the mem-ory deficit and collateral information (e.g., hospi-



tal records or reliable witness statements from thetime surrounding the alleged offense) in attempt-ing to determine the plausibility and genuinenessof the amnesia. Medical records may also providethe psychiatrist with data that help determinewhether the defendant’s presenting symptoms arecompatible with his medical history. Findingsfrom psychological testing (including assessmentsof malingering) may also help the psychiatrist toevaluate a defendant’s assertions about amnesia.

Mental retardation is a diagnosis commonly asso-ciated with a finding of incompetence to stand tri-al.223,224,227 Before making that diagnosis, the psy-chiatrist should be familiar with relevant definitionsof mental retardation. For example, in the DSM-IV-TR,230 the criteria for a diagnosis of mental retarda-tion include:

an IQ of approximately 70 or below;

deficits or impairments in at least two areas ofpresent adaptive functioning; and

an onset before age 18 years.

With respect to adjudicative competence, how-ever, the psychiatrist should remember that, theoret-ically at least, an isolated low IQ score—without anydeficits in adaptive functioning—may form the basisof an opinion that a particular defendant is not com-petent to stand trial.

Evaluation of juvenile defendants with respect tocompetence to stand trial presents several compli-cated problems, as described in Section XI.

The diagnostic rules of DSM-IV-TR allow en-try of a diagnosis of malingering as a V code onAxis I. A substantial fraction of defendants malin-ger incompetence to avoid prosecution. For exam-ple, Gothard and colleagues231 report a 12.7 per-cent rate of feigned mental disorder among theircompetence referrals.

Malingering has very negative connotations, andan opinion that a defendant is feigning or exaggerat-ing can adversely affect the defendant’s treatment inensuing criminal proceedings. Because of this, oneshould not offer a diagnosis of malingering lightly.Psychiatrists should base diagnoses of malingering onsolid evidence rather than mere clinical suspicion.Potential sources of confirmatory evidence include:

psychological testing or specialized instrumentsfor detecting malingering;

medical, psychological, and/or custodial records;

interviews with family, friends, police, custodialofficers, and others who have had contact withthe defendant; and

a previous history with the criminal justice sys-tem without any evidence or suspicion of incom-petence.

If the psychiatrist suspects that a defendant is ma-lingering but cannot confirm it with a high level ofconfidence, the psychiatrist may conclude (and statein the forensic report) that the defendant should un-dergo a psychiatric hospitalization, where around-the-clock professional observation may help clarifywhether reported symptoms are genuine or feigned.

B. Relationship Between Psychiatric Impairmentand Trial-Related Abilities

Once the presence of indicia of mental disorder isestablished, the psychiatrist focuses on any relation-ship between signs or symptoms of any mental con-dition and the defendant’s trial-related abilities.Knowing a defendant’s psychiatric history may helpto substantiate noted symptoms or to clarify theirdiagnostic significance, but a history of impairmentdoes not imply that a defendant currently is incom-petent to stand trial. The psychiatrist must decidewhether any current mental symptoms are causingimpairment in the defendant’s trial-related abilities.

Because U.S. jurisdictions use competence stan-dards that closely follow the Dusky decision,16 foren-sic clinicians can use Dusky’s three prongs—factualunderstanding of the proceedings, rational under-standing of the proceedings, and ability to consultwith counsel—as a guide for thinking about how adefendant’s psychiatric impairments affect adjudica-tive competence.

1. Factual Understanding

To evaluate factual understanding of the legal pro-ceedings, the psychiatrist assesses a defendant’sknowledge about the charges, the roles of variouscourtroom participants, possible penalties, the con-cept of plea bargaining, the adversarial nature of thelegal process, and legal rights during the trial process.Defendants who lack some factual knowledge re-garding aspects of the trial process may still be com-petent if the psychiatrist can show that the defendantcould learn the necessary information and that anynoted deficits are not due to psychiatric impairment.

As an illustration, consider a defendant who doesnot know the maximum number of years attached to



a possible sentence. Once provided the information,however, the defendant accurately states the poten-tial length of imprisonment that might follow con-viction. In this situation, the defendant’s initial def-icits only indicate a lack of information rather thanany impairment stemming from a mental disorder.Conditions that can result in a defendant’s having acompetence-impairing lack of factual understandinginclude cognitive deficits from mental retardation,head trauma, medical illnesses, severe depression,and thought disorders, such as those experienced bypersons with schizophrenia.

Psychiatrists should also recognize those situationsin which defendants appear to have a factual under-standing of the trial process but actually do not. Forexample, some individuals with mental retardationwho have undergone competence training may pro-vide memorized answers to questions about trial factswithout developing an understanding of the issues. Adefendant’s ability to answer questions about hypo-thetical courtroom scenarios that differ from his casemay tell the psychiatrist whether the defendant hasan actual factual understanding of the legal process oris simply parroting words learned by rote.

2. Rational Understanding

Some defendants may have an adequate factualgrasp of trial-related matters yet have irrational be-liefs about the legal process that render them incom-petent to stand trial. Consider, for example, a defen-dant who has grandiose religious delusions and whotherefore believes that no earthly court can punishhim. This defendant may have an accurate factualunderstanding of the legal process as it applies to“ordinary” humans but cannot recognize that hefaces potential imprisonment if found guilty. In thissituation, the psychiatrist should describe how thedelusions affect the defendant’s ability to participaterationally in the legal process.

By contrast, a defendant may display indicia ofmental illness (including signs or symptoms of a psy-chosis) that do not impair rational understanding ofthe trial process. For example, a defendant’s persis-tent delusional belief that his ex-wife had an affair 10years ago may cause no impairment in his ability tounderstand and proceed with adjudication on a bur-glary charge.

3. Ability to Assist Counsel

In many evaluations of adjudicative competence,the psychiatrist should contact the defendant’s attor-

ney to assess the defendant’s ability to assist counsel.Potentially useful information provided by defensecounsel may include the defendant’s behavior withthe attorney, the defendant’s ability to follow in-structions provided by the attorney, the defendant’sbehavior during any prior courtroom proceedings,and other effects of psychiatric symptoms on the de-fendant’s interactions with counsel. A defendantwho refuses to speak with his attorney because hedelusionally believes his attorney is an undercoverFBI agent working for the prosecution provides anexample of how a psychiatric symptom can impedecollaboration with defense counsel. The psychiatristmay have to determine whether a defendant’s refusalto assist counsel is a result of voluntary noncoopera-tion or an impaired ability to cooperate caused by amental disorder.

The psychiatrist should also assess the defendant’scapacity to make legal decisions in collaboration withdefense counsel and to participate in other activitiesthat counsel may require. Examples of such activitiesinclude the defendant’s ability to plea bargain, towaive a jury trial, and to testify. The psychiatristshould focus on how well the defendant can appre-ciate the situation, manipulate information related tothe trial process, and work with counsel in makingrational decisions.

In conducting this three-prong analysis, psychia-trists should be familiar with and should keep inmind the exact statutory language in their jurisdic-tions. In general, a finding of competence to standtrial requires only that the defendant have sufficientpresent ability rather than perfect ability to satisfy therequirement of Dusky. The psychiatrist can best aidthe court by synthesizing specific information aboutand providing clear examples of the nature and sever-ity of a defendant’s deficits and by showing how thesedeficits relate to the prongs of the Dusky test.

C. Potential for Restoration: Least RestrictiveAlternative

Although not required by the Dusky standard,most statutes (following Jackson v. Indiana26; see Sec-tion I) explicitly require that the psychiatrist formu-late an opinion about whether restoration of compe-tence is likely within some statutorily designatedtime frame (usually linked to the severity of the po-tential penalty for the alleged crime) and whetherrestoration services should take place in an inpatientor outpatient setting.



In addressing the probability of restoration in aspecific case, the psychiatrist should consider severalfactors, including:

whether the defendant’s incompetence resultsfrom a “treatable” deficit such as lack of priorexposure to information about the trial processor psychiatric symptoms caused by an illness thattypically responds to medication, as opposed to astatic and relatively irremediable condition suchas mental retardation;

the defendant’s previous psychiatric treatmentand responses to treatment; and

the character of presenting symptoms and cur-rent scientific knowledge about how well thosesymptoms respond to treatment.

When assessing restorability, psychiatrists shouldbear in mind that research on competence restora-tion shows that most individuals referred for treat-ment after being found incompetent do in fact be-come competent to stand trial.232–236 Summarizingprevious research findings in the mid-1990s, Nichol-son and colleagues concluded that “the ability of cli-nicians to predict competency restoration is poor, atleast when compared with the base rate of failed res-toration” (Ref. 209, p 373). Studies of defendantsfrom Los Angeles,232 Michigan,233 Ohio,234,235 andOklahoma236 have shown that most defendants hos-pitalized for competence restoration regain theircompetence. Because of the high base rate of success-ful restoration, it is difficult to determine which de-fendants have very low likelihoods of achieving com-petence if provided with treatment.237–239

An Illinois study found that clinicians were wrongin predicting the treatment outcomes of 85 percentof the defendants who ultimately were not restoredto competence,238 and Florida researchers concludedthat a discriminant function they developed had “lit-tle or no better than chance utility in predicting”restorability (Ref. 239, p 73). A retrospective Okla-homa study209 found that having a previous criminalrecord and alcohol use at the time of the offensemodestly increased the likelihood of competence res-toration; impairment in psycholegal ability, havingpsychotic symptoms, and aggression toward othersafter arrest correlated with failure to attain compe-tence. Nonetheless, the study’s authors concludedthat their results were “consistent with prior research

in suggesting that psychiatrists should exercise cau-tion in providing feedback to courts concerning [thelikely success of] competency restoration” (Ref. 209,p 377). A recent Alabama study226 found few differ-ences between defendants who the psychiatrist pre-dicted were restorable or nonrestorable. Those differ-ences that did exist reflected mainly nonpsychiatricvariables such as criminal record, current criminalcharge, and understanding of the legal process. Themost recent study of this topic, from Ohio,240

showed that two types of incompetent evaluees hadprobabilities of being restored that were well belowaverage: chronically psychotic defendants with histo-ries of lengthy inpatient hospitalizations and defen-dants whose incompetence stems from irremediablecognitive disorders (such as mental retardation). Psy-chiatrists should recognize, however, that courts mayregard a “low” but greater-than-zero probability ofsuccess to be “substantial” enough to warrant a trialof restoration.

If successful restoration appears likely, psychia-trists in some jurisdictions must also render an opin-ion about the range of services that will be necessaryto restore the defendant to competence. Restorationusually involves two simultaneous processes: educa-tion about the court process and treatment (usually,with psychotropic medication241) of psychiatricsymptoms that are interfering with the defendant’scompetence-related abilities. The potential sites forrestoration treatment services may vary dependingon local customs, state law, court (juvenile versusadult), and jurisdiction (e.g., federal versus state) andmay be available in inpatient facilities, outpatientsettings, or jails. In states that allow both inpatientand outpatient restoration services, the psychiatristmay have to form an opinion about which treatmentsetting represents the least-restrictive alternative—that is, which setting is necessary to maximize thechances of restoration while preserving the defen-dant’s liberty rights to the greatest extent possible. Inmost jurisdictions, the psychiatrist may recommendinpatient treatment, even for defendants who do notmeet statutory criteria for inpatient commitment.For example, in the case of a psychotic defendantwho has a history of a good response to treatment inthe hospital followed by repeated episodes of sub-stance abuse and noncompliance with medicationwhile living in the community, a recommendationfor inpatient restoration services may be appropriate.



X. Preparing the Written Report

A. General Considerations

Because competence evaluations often do not re-sult in courtroom testimony, a written report usuallyis the chief product of the psychiatrist’s evaluativeefforts. The report provides the referring party withthe psychiatrist’s opinions relevant to adjudicativecompetence and the basis for those opinions. Thereport must provide a meaningful response to thecompetence inquiry and direct the response to theparticular problems that led to the evaluation. Be-cause the report’s principal users are attorneys, thepsychiatrist should describe data and express opin-ions in jargon-free language that a layperson canunderstand.192 When the report must includeclinical or technical terms that a well-informednonclinician might not understand, the reportwriter should provide parenthetical or other formsof explanatory language (e.g., “haloperidol, an an-tipsychotic medication”).

The psychiatrist’s report should serve an organiz-ing function that helps readers grasp the significanceof information gathered from the clinical interviewand collateral sources. Whatever format the writerchooses, the written presentation should convey allrelevant information concisely, allowing the readerto apprehend the facts and reasoning the expert usedin formulating the opinion. The report should be astand-alone document, that is, a document that pro-vides or reproduces the data needed to support theopinions that the psychiatrist expresses. The reportshould also state clearly any limitations or qualifica-tions of which the psychiatrist is aware. For example,if a defendant’s poor cooperation leaves the psychia-trist with some doubt about the defendant’s diagno-sis, if the psychiatrist had limited access to importantcollateral information, or if the psychiatrist requestedbut did receive records that might alter the opinion,the report should describe these limitations.

B. Report Formats

There is no single correct style or format for thereport. Available examples include the Group for theAdvancement of Psychiatry report format242 and theoutline suggested by Melton and colleagues.1 Manystate forensic mental health systems have manualsdescribing a preferred style for reporting the results ofa competence evaluation. Jurisdictions vary inwhether the psychiatrist’s report should provide an

explicit opinion on the ultimate legal issue (i.e.,whether the defendant is competent to stand trial). Asuggested report outline appears at the end of thissection.

C. Introductory Material

Besides providing the defendant’s name and thelegal identification of the case, the report shouldidentify the referring or requesting party, and statethe purpose of the evaluation. The report may refer-ence the jurisdiction’s legal standard for adjudicativecompetence. It should provide the date, location,and length of any interview(s) conducted. (For ex-ample: “I examined the defendant at the GevaltCounty Jail on June 30, 2006, for three hours.”) Theintroduction should include descriptions of how thedefendant received information about the interview’spurpose and lack of confidentiality and how well thedefendant understood that information. The reportalso should list all data sources used for the evalua-tion, including records and other materials that thepsychiatrist has read, the names of collateral infor-mants (besides the principal examinee), the psycho-logical tests or assessments administered, and anyother sources of information.

D. Background Material

The background sections typically need not be asdetailed or extensive as the background section ofreports on criminal responsibility or nonforensicevaluations completed for treatment purposes. In-stead, background sections should include just thosefacts that are pertinent to adjudicative competenceand (in the case of incompetent defendants) restora-tion. In the background section and subsequent por-tions of the report, the psychiatrist should not revealincriminating information gleaned from what thedefendant said about the alleged offense, becauseprosecuting attorneys often receive a copy of the re-port. Even if the law prohibits the use of the compe-tence report at trial or sentencing, courts may permitits entrance if the defendant later testifies and hisprior statements are inconsistent with his testimony.

Findings from a physical examination, imagingstudies, or laboratory tests should be included whenthey play a role in guiding the psychiatrist’s opinion.If the psychiatrist has used psychological testing orassessment instruments, the report should includedates of administration of the initial and repeated



tests, along with comments about nonstandard in-structions or administration.

E. Description of Mental Status

The report should contain clinical data regardingthe nature of the defendant’s mental and emotionalcondition that are specifically relevant to the compe-tency analysis.243 All findings relevant to adjudica-tive competence should appear in the report, irre-spective of the weight or priority that the clinicianaccords to any specific finding. The psychiatristshould also comment on any contradictions or in-consistencies. A mental status examination is an im-portant component of a competence report, but itdoes not by itself provide a description of those func-tional abilities and limitations that are relevant toadjudicative competence. A defendant who is psy-chotic or has amnesia for events is not necessarilyincompetent to stand trial.184

F. Description of Functioning Related toAdjudicative Competence

Competence reports should go beyond describingsigns and symptoms of mental impairment andshould discuss how those signs and symptoms affectfunctional abilities relevant to the legal construct ofcompetence. The heart of a competence report is adescription of the defendant’s abilities and deficitsconcerning the tasks that the defendant must per-form during a criminal defense.189 Using compe-tence-assessment instruments during the interviewcan facilitate enumeration and description of thesekey abilities and deficits,212 because those instru-ments help focus the psychiatrist’s attention on whatthe defendant knows and can do related to workingwith counsel in preparation for or participation incriminal proceedings. Psychiatrists should not basetheir opinions on the results of these instrumentsalone, however. Information obtained from the useof competence-assessment instruments may not beautomatically admissible in court191 and may affectadmissibility of other information. Often, the bestuse of information from assessment instruments is toprovide specific examples that illustrate the defen-dant’s strengths or weaknesses with respect to reason-ing and understanding, along with other types ofdata that allow the psychiatrist to convey key infor-mation about the defendant.

G. Diagnosis

A few psychiatrists (e.g., Ref. 244) argue that psy-chiatric diagnoses generally should not appear in fo-rensic reports. In the context of adjudicative compe-tence, they argue that the legal issue is not whether anindividual has a recognized mental disorder. Rather,the question is whether a mental condition (whichneed not be an officially recognized disorder) pre-vents the individual from functioning properly as adefendant.

This guideline disagrees with the position ofthose who are against including psychiatric diag-noses in forensic reports. Although we acknowl-edge that the position has some merit in that itencourages appropriate circumspection, psychiat-ric diagnoses serve valuable purposes in reports onadjudicative competence.

First, the federal standard and standards in manyjurisdictions require that the psychiatrist statewhether the defendant has a mental disorder (some-times using the phrase “mental disease or defect”).Providing a diagnosis assures that the psychiatristsatisfies the statutory guidelines for competence eval-uations. Specifying the diagnosis identifies a defen-dant’s symptom pattern as matching the profession’srecognized definition of a mental disorder, thoughthe psychiatrist may have to explain this to the court.

Second, including diagnoses helps the psychiatristtell nonclinicians what kinds of problems a defen-dant has and why those problems affect the defen-dant’s competence-related function. If, for example,a defendant does not cooperate with his attorneybecause he irrationally perceives the attorney as plot-ting against him, informing the reader that the de-fendant has paranoid schizophrenia helps the readerunderstand that the defendant’s fears stem from awell-known form of mental illness and not fromquirkiness or unwillingness to cooperate.

Third, for defendants who appear incompetent,the specification of a diagnosis and communicating itin the forensic report helps to support an psychia-trist’s opinion about whether the defendant is restor-able. To return to the example in the previous para-graph, knowledge that a defendant’s fears about hisattorney are signs of paranoid schizophrenia, coupledwith knowledge of that disorder’s typical response topharmacotherapy, would support the psychiatrist’sopinion that the defendant is likely to become com-petent if provided with a course of treatment.



Psychiatrists take different approaches in relatingclinical diagnoses to competence to stand trial. Someexperts believe that a formally recognized diagnosis isnot necessary when a description of a defendant’smental condition reflects symptom clusters or syn-dromes that meet the relevant jurisdictional require-ments for the presence of a mental disorder. ThisGuideline recommends, however, that when possi-ble, psychiatrists should offer officially recognizeddiagnoses in one of the formats described in the cur-rent edition of the DSM. A report should include thefindings that support the psychiatrist’s diagnosis,perhaps referring to criteria in the DSM. If the psy-chiatrist uses a diagnosis that does not appear in thecurrent DSM or International Classification of Dis-eases, the psychiatrist should support the diagnosiswith citations to relevant publications. After render-ing a less-specific diagnosis (e.g., “psychotic disordernot otherwise specified”), psychiatrists may want toinclude a differential diagnosis of more specific dis-orders, explaining the reasons why each disorder is apossibility. If the diagnosis turns on a fact in dispute(for example, whether the defendant’s symptomswere induced by intoxication), the psychiatristshould provide an explanation of how the disputedfact affects the differential diagnosis.

In jurisdictions where a diagnosis is not required, adescription of symptoms that affect the defendant’scompetence to stand trial may suffice. Acceptablepractices include, at a minimum, providing a narra-tive description of a scientifically based disorder,symptom cluster, or syndrome. Psychiatrists shouldalways keep in mind that “official” DSM diagnosesare often more than a decade old and do not includenewly recognized syndromes or illnesses. Yet refer-ence to specific, recognized diagnoses helps the ex-pert organize patterns of symptoms and explain theconclusions drawn. (For further discussion of themethodological value of psychiatric diagnoses in tes-timony, see the APA’s Task Force Report on the Use ofPsychiatric Diagnoses in the Legal Process.245)

Comprehensive psychiatric evaluations producedfor clinical purposes usually include a five-axis DSMdiagnosis. But a report concerning adjudicative com-petence is often delivered to nonclinicians—typicallya judge, defense attorney, and prosecutor. Althoughdefendants are told at the outset of the examinationthat the interview is not confidential, it is still impor-tant to respect a possibly incompetent defendant’sprivacy rights. A competence report should contain

only information necessary and relevant to the legalquestion at issue. Therefore, it may not be necessaryor appropriate to provide a full multiaxial diagnosisin the opinion section. The report should define andexplain the diagnosis to the extent that it is relevantto the defendant’s presentation and affects the defen-dant’s trial-related capacities.

H. The Opinion

After presenting the relevant history, examinationfindings, and diagnostic assessment, the psychiatristmust offer an opinion and carefully explain the rea-soning process used to formulate the opinion.246

In several publications, the authors have recom-mended that mental health professionals confinetheir reports or testimony on adjudicative compe-tence to a description of the evaluee’s functional ca-pacities and refrain from giving an explicit opinionon the ultimate issue of whether a defendant is com-petent to stand trial. They believe that the ultimatequestion of a defendant’s legal competence calls for acourt’s interpretation of a legal matter and is there-fore beyond the special expertise of the forensic cli-nician.1,247,248 Because one cannot give a clinical oroperational definition of what is fair or unfair in aparticular case, the psychiatrist has no clear guidancein making the judgment.139 Moreover, it is the re-sponsibility of courts, not mental health profession-als, to decide whether the degree of disability mani-fested by a defendant is severe enough that it wouldbe unfair to subject the defendant to criminalproceedings.

In some jurisdictions, psychiatrists are barredfrom expressing ultimate-issue opinions, or they aredirected to offer only opinions about the defendants’competence-specific capacities in language from thejurisdiction’s competence statute. For example, stat-utes in Ohio249 and South Carolina250 instruct psy-chiatrists to state whether a defendant understandsthe nature and objective of the proceedings againsthim or her and can assist counsel in preparing a de-fense, but do not ask psychiatrists to provide theiropinion on the ultimate issue of whether the defen-dant is competent to stand trial. In other jurisdic-tions (e.g., Rhode Island,251 South Dakota,252 andTexas253), however, statutes or case law allow or di-rect psychiatrists to address the ultimate issue ex-plicitly. Irrespective of statutory requirements,some courts and attorneys prefer ultimate-issuetestimony.254,255



Given the preceding considerations, many psychi-atrists refrain from expressing their opinions on theultimate issue unless the jurisdiction requires it (see,e.g., 18 U.S.C. § 4247(c)(4)(A)(2007 Supp.)).(Adopting this practice may require some prior dis-cussion with the judges in the jurisdiction where thepsychiatrist works who may otherwise question whypsychiatrists have stopped addressing the ultimateissue in their reports.) However, the forensic reportshould describe how diagnostic conclusions arisefrom clinical findings and how the clinical findingsarise from the defendant’s mental disorder (if any),thereby delineating the factual basis for the conclu-sions relevant to adjudicative competence.256 Psychi-atrists also should explain how their findings affectthe defendant’s competence-related abilities by link-ing those findings to elements of the jurisdiction’scompetence standard. Whatever form the psychia-trist’s opinion takes, the written report should ex-plain the psychiatrist’s reasoning and the connec-tions between clinical findings and the behavioralcomponents of adjudicative competence. In somecases in which a defendant faces more than onecharge, the psychiatrist may have to determine com-petence for each alleged offense.

Psychiatrists should generally state their opinionswith a “reasonable degree of medical certainty” or a“reasonable degree of medical probability,” depend-ing on the language used in the jurisdiction. Some-times, the psychiatrist may not be able to render anopinion with a reasonable degree of medical certaintyor probability. When no opinion is reached, the re-port should clearly communicate this result alongwith any suggestions for additional data that couldallow the psychiatrist or the court to reach an opin-ion. On some occasions, the psychiatrist may want topoint out that more information would increase thelevel of confidence in the opinion. When this is thecase, the report should specify the types or sources ofinformation that would help.

When the opinion suggests lack of adjudicativecompetence, the report should provide an opinionconcerning restorability and the appropriate settingfor such restoration. It should also identify any addi-tional requirements for reports in the jurisdictionwhere the evaluation is conducted. For example, insome jurisdictions (e.g., Massachusetts257), a psychi-atrist is required to discuss the defendant’s eligibilityfor civil commitment proceedings, along with thebasis for the opinions concerning these matters. Even

when the opinion does not suggest incompetence,the report may include a discussion of restorabilityand commitment status if the psychiatrist believesthe court might conclude that the defendant isincompetent.

I. Other Considerations

Reports should be free of gratuitous commentsabout defendants’ behavior, need for incapacitation,dangerousness, or lack of remorse. In general, reportson adjudicative competence should not take up otherlegal matters (such as future dangerousness or con-siderations that may make up a presentencing evalu-ation) unless that jurisdiction’s case law or statutesrequire comments about these matters. In cases inwhich the court has requested an opinion about an-other psycholegal matter (e.g., criminal responsibil-ity) and where it is appropriate to provide such anopinion (e.g., the psychiatrist believes the evaluee iscompetent and can validly consent to an evaluationof criminal responsibility), a separate report aboutthat other matter should be submitted.

J. Signature

All the professionals involved in preparing the re-port should sign the document. Such individualsmay include supervisors and reviewers, as well as theprincipal psychiatrist. Under the psychiatrist’s signa-ture, the report may summarize special qualificationsthat characterize the psychiatrist’s professional status(e.g., academic degrees, board and society member-ships, and academic degrees in related subspecialties)(Table 1).

XI. The Adjudicative Competenceof Minors

A. Minors Facing Prosecution in Adult Court

Juvenile defendants may face proceedings in bothadult and juvenile courts. In almost all states, statu-torily defined procedures—variously called waiver,bind-over, certification, or transfer—permit prose-cution of minors in adult criminal court under cer-tain circumstances. A minor facing prosecution as anadult receives all the due process protections enjoyedby adult criminal defendants and therefore is evalu-ated under the same competence standard used foradults in the jurisdiction. Many states have manda-tory waiver statutes that require that all minors



charged with certain offenses (e.g., homicides) un-dergo prosecution as adults if they are older than aspecified minimum age. Youths transferred pursuantto such statutes may well be candidates for compe-tence assessment. For youths who undergo evalua-tion before a waiver hearing, a finding of incompe-tence will probably forestall transfer to adult court.

B. Minors Facing Juvenile DelinquencyProceedings

The question of the trial competence of juvenilesin the court system is complex. Juvenile courts werefounded in the early 20th century on a rehabilitationmodel, with the intent that proceedings would betherapeutic rather than punitive. In a series of casesbeginning with In re Gault, 387 U.S. 1 (1967),258

however, the U.S. Supreme Court recognized a clearpunitive impact of juvenile courts and required thatminors in juvenile delinquency proceedings receivemany of the due process protections afforded to adultcriminal defendants. Yet the Court has never explic-itly held that juveniles must be competent to proceedwith adjudication in juvenile court.

When a rapid increase in juvenile violent crime inthe 1980s and early 1990s led to even more punitive

approaches, more states began addressing compe-tence in juvenile court. Currently, more than two-thirds of states have either statutes or appellate deci-sions on competence to stand trial in juvenilecourt.259 Just one state (Oklahoma) has explicitlydecided that minors need not be competent to faceadjudication in juvenile court.260 Even in stateswithout statutes or clear case law requiring compe-tence to proceed in juvenile court, some juvenilecourt judges have begun asking for competenceassessments.

Most jurisdictions apply a variant of the Dusky16

standard to the assessment of juveniles’ competence,but there is considerable variation in other details.Some states require that the incompetence stem frommental illness or mental retardation and not fromsimple immaturity alone. Others states envisagemodifications of juvenile court procedures to aid im-paired defendants. Many legal questions have yet tobe resolved:

Should courts recognize or allow different levelsof competence for different types of cases?4 Needa minor who faces a shoplifting charge (and only

Table 1 Competence to Stand Trial Report: Sample Format

1. Identifying information2. Source of referral, reason for referral, and statement of the charges3. Relevant legal standards and criteria4. Informed consent/statement of nonconfidentiality5. Dates and durations of examinations6. Sources of information: third-party information including records reviewed, collaterals sources interviewed7. Relevant background information

(a) Family history(b) Personal history(c) Education history(d) Employment history(e) Religious history(f) Military history(g) Sexual, marital, and relationship history(h) Medical history(i) Drug and alcohol history(j) Legal history (juvenile and adult crimes and civil matters)(k) Psychiatric history

8. Relevant physical examination, imaging studies, and laboratory tests9. Psychological testing and assessment instruments administered; dates completed as well as any repeated testing, including notation regard-

ing any nonstandard instruction or administration10. Current mental status examination (during the evaluation)11. Competency examination data12. Clinical conclusions and diagnoses that are relevant to competency13. Medicolegal conclusions including expert opinion competency if formulated14. Opinion on restorability and commitability, if formulated15. Formulation and basis for the expert opinion(s)



a stern warning from a judge) be as capable as aminor who faces several months of detention?

Should competence assessments factor in theavailability and use of surrogate decision-makers(such as parents) who could assist the minor inpreparing a defense?

What time limits should apply in cases requiring“restoration” of competence for immature defen-dants? What should the juvenile court to do if ayouth is incompetent because of immaturity?May the juvenile court detain or commit theyouth and wait for years until he matures?

C. Factors Affecting the Competence of Minors

Cognitively and emotionally, adolescents are notsimply smaller, younger versions of adults. Factorsthat may affect a minor’s competence to stand trialinclude the following.

One of the most robust research findings has beenthat age less than 14 years is a strong indicator oflikely incompetence.214,261–265 A large percentage ofdelinquents under that age (up to about half, de-pending on definition of impairment) are either clin-ically incompetent or have impairments in function-ing that are likely to have a serious affect oncompetence. A somewhat smaller fraction of 14- and15-year-olds is impaired, and 16- and 17-year-oldstend to perform comparably to adults.

In minors younger than 16 years, low IQ is a sec-ond robust indicator risk factor for incompe-tence.214,262,263,265 Below-average intelligence am-plifies the effect of young age, which is particularlysignificant, given that delinquents on average scorelower on IQ tests than do their nondelinquent peers.Learning disabilities also contribute to limited cog-nitive capacities.

Younger adolescents may exhibit developmentalimmaturity hold naıve views seldom heard from ma-ture adult defendants. An example would be a 10-year-old who believes, “The judge always finds thetruth, so I don’t have anything to worry about.”

Even when a young adolescent has age-appropri-ate intellectual capacities, developmental factors canadversely affect maturity of judgment, such as risk-taking, impulsiveness, immature time perspectives,and attitudes toward authority.214,266,267 For exam-ple, a 13-year-old who has internalized his parents’dictum to “always admit when you’ve done wrong”may have trouble appreciating and using appropriate

safeguards when faced with a decision about whetherto plead guilty.

Studies consistently show that juvenile delin-quents have high rates of diagnosable mental ill-ness.268,269 However, compared with adults, psy-chopathology is less common in adolescents, bothin the delinquent population and in those adoles-cents found incompetent to proceed with adjudi-cation.270 Research is mixed with regard to thestrength of psychopathology as a risk factor forincompetence.214,265,271

Although one might suppose that a youth wouldhave learned about legal processes from previous con-tacts with the juvenile court, research suggests thatadolescents are not necessarily well informed aboutthe process.214,264

Of course, many never-arrested juveniles have lit-tle or no experience with police, lawyers, or juvenilecourts. Most never-arrested adults gain some knowl-edge of how the legal system works from movies andtelevision programs, but many preadolescent or earlyadolescent children have not seen these types of me-dia depictions, or if they have seen them, they havenot understood them well. Thus, many juveniles willnot have adult-like capacities or the types of vicariousexperiences that would allow them to understandplea bargaining and possible defense strategies or torecognize the significance of certain types of evidenceor testimony.

A final factor is the competence standard pertinentto a particular case and whether the court may mod-ify its procedures to take into account the juveniledefendant’s limitations.

D. Assessment

The evaluation of a juvenile encompasses many ofthe same areas of inquiry and procedures as the eval-uation of an adult. The following paragraphs high-light some of the salient differences in and specialfeatures of assessments of minors.

1. Breadth of the Referral Question

As with any forensic evaluation, the psychiatristmust know the specific forensic question and legalstandard at issue. Because of jurisdictional differ-ences, an evaluation for competence to proceed injuvenile court or an evaluation conducted before awaiver hearing may involve not just an assessment ofcompetence per se. Such evaluations may also involverecommending alterations in procedures to respond



to a youth’s limitations, to improve deficiencies incompetence, or to respond to other considerationsrelated to how to deal with the case. To make suchsuggestions, the psychiatrist should be aware of thealternatives, such as the types of altered court proce-dures available for borderline competent youth, theavailability of treatment, and access to educationalservices.

2. Consent: Presence of an Attorney

Although obtaining consent from a minor mayraise complex problems, consent is generally not re-quired for court-ordered evaluations, and assent isgenerally sufficient for evaluations conducted at therequest of a defense attorney. Providing notice of thenature of the evaluation is similar to providing noticeto an adult defendant.

Attorneys may ask to be present during the evalu-ation. Although their right to be present variesamong jurisdictions, allowing the attorney to bepresent gives the psychiatrist an opportunity to ob-serve defendant-attorney interaction. Having the at-torney present may also help the attorney understandthe areas in which his client needs remediation, morecareful explanation, or other informational interven-tions. The psychiatrist should not let the attorneyinterfere with the conduct of the evaluation, how-ever, and should stop the evaluation if preventingattorney interference becomes difficult.

3. Interview

In some publications, the authors have provideddetailed suggestions for conducting evaluations ofjuvenile defendants.272,273 Interviews of older ado-lescents of normal intelligence tend to be similar tointerviews of adults. With younger adolescents andpreadolescents, interviewing techniques may have tobe adapted to the defendant’s developmental level,and psychiatrists who lack training in interviewingchildren should not accept such cases.

The psychiatrist should use vocabulary appropri-ate to the minor’s cognitive capacity. In some cases,nonverbal techniques (e.g., touring the juvenile courtwith the minor and utilizing charts and photographs)may be helpful. Developmental limitations, such asimmature judgment, concrete thinking, naıve con-ceptions of the legal process, a shortened sense of thefuture, and dependence on authority all may inter-fere with a minor’s competence. The psychiatristmust also assess the evaluee for disorders with con-siderably higher prevalence rates than are found in

adults, such as learning disabilities, attention deficithyperactivity disorder, and pervasive developmentaldisorders. If deficiencies in competence are present,the psychiatrist must determine whether appropriatecompetence-restoring interventions are available.Because few minors are incompetent as a result ofpsychotic disorders, nonpharmacologic interven-tions that include educational efforts or courtroomaccommodations for learning disabilities or limita-tions of attention are often recommended.

4. Structured Interviews

In cases in which the juvenile’s intelligence ap-pears to be a limiting factor, structured compe-tence assessments may be very useful for delineat-ing how the minor’s limitations impair specifictrial-related knowledge and capacities. The Mac-CAT–CA (discussed in Section VIII.G.) is begin-ning to receive research attention in adolescentpopulations214,215,265 and may be helpful in illu-minating competence capacities. Other structuredscales have weaker research support in the adoles-cent population. Formal IQ testing can provideimportant data in cases in which a clinical evalua-tion is not sufficient for assessing a juvenile’s func-tional intellectual capacity.

5. Collateral Data

In addition to the collateral data used in evaluatingan adult, school records (including IndividualizedEducational Plans, or IEPs), pediatrician records,and treatment records can illuminate the causes ofpresent difficulties in complex juvenile cases. An in-terview of the youth’s attorney, parents, guardian,and case worker may not only provide useful historyabout the minor but also help inform the psychiatristof complex social arrangements or other backgroundinformation that an immature youth has troubleexplaining.

6. Reports

Reports of evaluations of juveniles follow the samegeneral principles as reports about adults. Reportsregarding juveniles may be more extensive when therequest for evaluation goes beyond a simple determi-nation of competence to include suggestions for re-mediation, altered legal procedures, or treatment. Insuch cases, the report should provide relevant dataand explain the psychiatrist’s reasoning for the con-clusions and recommendations.



E. Restoration

As is true of adults who are incompetent to standtrial, adjudication of juveniles who are incompetentpauses while their competence is restored. For thoseyouth who are incompetent because of a treatablecondition, such as psychosis or a knowledge deficitthat can be remedied with education, competence-restoration procedures are similar to those employedwith adults (discussed in Section XII). In one studyof incompetent juveniles in Florida, most were foundto be mentally retarded, and over half the incompe-tent juveniles were ultimately returned for trial.270

A juvenile court that finds a youth incompetentbecause of factors associated with immaturity, whenthere is an expectation that the child or adolescentwill “grow into” competence with the passage oftime, faces a difficult choice. Courts are reluctant todetain a youth simply to wait for him to grow up.With some minors, intensive educational approachescan accelerate improving judgment for the specificdecisions at issue, such as weighing whether to accepta plea bargain. Juveniles considered dangerous be-cause of a mental illness may meet the jurisdiction’scivil commitment standard. However, although na-tional statistics are currently unavailable, clinical ex-perience suggests that many nondangerous youthwho are found incompetent based on immaturity arereleased with referrals for outpatient services.

XII. Restoration of Competence toStand Trial

A. Number and Description of CompetenceRestorees

As noted in the introduction, the number of com-petence evaluations performed in the United Statesappears to have increased over the past few decades.Not surprisingly, the increase has led to a corre-sponding increase in the number of defendantsadjudicated incompetent to stand trial. In 1973,McGarry2 estimated that approximately 9,000 de-fendants were found incompetent. If recent esti-mates concerning frequency of competence evalu-ations (60,000 a year) are correct and if aroundone-fifth of evaluees are deemed incompe-tent,1,223,274,275 it implies that around 12,000U.S. defendants are found incompetent to standtrial each year.

Psychoses and mental retardation are the most fre-quent causes of adjudicative incompetence.207,246,274

A smaller number of defendants are rendered incom-

petent by mood disorders. Courts send most crimi-nal defendants found incompetent to psychiatrichospitals for restoration, that is, for psychiatric treat-ment and/or education aimed at enabling the defen-dants to proceed with adjudication. At any point,roughly 4,000 U.S. defendants are hospitalized forthis purpose.139,159

A brief explanation may be necessary regarding theuse of the word restoration in this context. Courtstypically apply this term to the potential treatment ofany defendant who is not competent, and to simplifyexposition, the Guideline follows this practice. How-ever, some incompetent defendants (e.g., some per-sons with intellectual deficits or limited education)have never been competent and are therefore nothaving any previous condition restored. In theircases, competence-creating services might better betermed education or habilitation.

B. Timely and Effective Restoration

In Jackson v. Indiana, 406 U.S. 715 (1972),26 theU.S. Supreme Court held that a defendant foundincompetent to stand trial may not be held indefi-nitely for treatment. There must be a prospect for thedefendant’s successful restoration within a reason-able time, and “his continued commitment must bejustified by progress toward that goal” (Ref. 26, p738). One can therefore interpret Jackson as placingon forensic hospitals some responsibility for develop-ing efficient and effective treatment programs tocomply with the limited periods allowed forrestoration.

Studies examining the variables that lead to suc-cessful restoration have yielded mixed findings.Some studies have suggested that factors associatedwith failure of efforts at competence restoration andgreater lengths of hospital stay include severe impair-ment in psycholegal ability, aggression toward othersafter arrest, and more severe psychopathology. A his-tory of criminality and substance abuse at the time ofthe offense are associated with successful restora-tion.209,238,276 Other research suggests that the use ofpsychotropic medications to treat psychotic symp-toms is the only reliable correlate of competencerestoration.239

C. Setting

In most jurisdictions, competence restorationtakes place in inpatient settings. In 2003, Miller153

reported that in 18 states, judges were required tohospitalize defendants adjudicated as incompetent to



stand trial, and an additional 21 states permitted hos-pitalization of incompetent defendants. Only fivestates required that incompetent defendants meetcivil commitment criteria to be hospitalized for com-petence restoration. Despite the availability of out-patient restoration programs, few states regularlyused outpatient restoration.

D. Methods of Restoration

Restoration of competence to stand trial involvestwo simultaneous processes. First, clinicians mustaddress treatable underlying mental disorder. Thisprocess does not differ from the treatment of mentaldisorders in nonforensic patients. It involves accurateassessment, appropriate medication when indicated,and psychosocial rehabilitation. Second, incompe-tent defendants may need instruction in the legalconcepts and details of the trial process. Often, de-fendants’ cognitive problems limit their capacities tobenefit from instruction. For example, many men-tally retarded defendants have difficulty learning andretaining new information. Persons with schizophre-nia may have cognitive impairments along with theirpsychotic symptoms that interfere with their abilityto benefit from educational efforts.

A few articles have provided descriptions of non-pharmacologic aspects of successful competence-restoration programs. (Defendants in most of theseprograms were also exhibiting symptoms of majormental illness and were probably receiving psycho-tropic medication in addition to the educationalcomponents of the program.) The following is asummary of these reports.

In 1980, Pendleton277 described the competence-restoration program at Atascadero State Hospital(California), which had restored 90 percent of the205 criminal defendants admitted in 1978. Uponarrival, defendants underwent evaluation with theCompetency to Stand Trial Assessment Instru-ment199 (discussed in Section VIII.B.). This instru-ment identified specific deficits in each defendant’scompetence, and clinicians developed an individual-ized treatment plan to address each deficit. Defen-dants attended a competence education class andtook a written competence test for which the passingscore was 70 percent. Defendants then underwentmock trial proceedings with real judges and attor-neys. After a passing the written competence test andsuccessfully completing the mock trial exercise, de-

fendants underwent formal clinical competence as-sessments by mental health professionals.

In 1985, Davis278 described the competence-res-toration program at a maximum-security forensichospital in Columbus, Ohio. The hospital usedproblem-oriented individualized treatment plans forincompetent patients that followed the format usedfor most other psychiatric problems. Incompetenceto stand trial was the first priority of the defendant-patient’s treatment and took priority over other psy-chosocial problems such as poor job skills, lack ofeducation or housing, or residual psychosis. Accord-ingly, each patient’s treatments plan listed the fol-lowing items that became a focus of treatment:

knowledge of the charge;

knowledge of the possible consequences of thecharge;

ability to communicate rationally with defensecounsel;

knowledge of courtroom procedures; and

capacity to integrate and efficiently use theknowledge and abilities outlined herein in eithera trial or a plea bargain.

The incompetent defendant-patients becamemembers of one of five groups, with specific treat-ment programs designed for each group. For exam-ple, patients placed in the “psychotic confused”group were those whose thought disturbances inter-fered with their grasp of the legal process or theirability to communicate. Their treatment programingfocused on reality-testing skills and other standardtreatment approaches of psychosis. Treatment teamsmonitored defendants’ progress in these groups, anda mock trial took place at the conclusion of theprograming.

Brown279 described competence restoration at theAlton (Illinois) Mental Health and DevelopmentalCenter. This program consisted of psychologist-leddidactic groups that met daily for 30 to 45 minutesper session. The programing included discrete edu-cational modules that lasted several days each andthat addressed topics such as the elements of criminalcharges, potential sentences, roles of courtroom par-ticipants, sequence of trial events, and consequencesof pleas. Each module used handouts, videotapes,and a mock trial, and participants took written testsat the end of each module.



Noffsinger235 described educational modules usedin the competence-restoration curriculum at North-coast Behavioral Health care in Cleveland, Ohio.The following table describes the program’s use oflearning formats for various subject areas (Table 2).

Wall and colleagues280 at the Rhode Island De-partment of Mental Health designed a program forrestoring adjudicative competence of individualswith mental retardation. The program included thefollowing five modules presented in sequential orderover a variable period: charges, pleas, and potentialconsequences; the role of courtroom personnel;courtroom proceedings, trial and plea bargaining;communicating with one’s attorney, giving testi-mony, and assisting in one’s defense; and toleratingthe stress of court proceedings.

Trainers met with defendants one to five days perweek in sessions lasting for a few minutes to an hourand reviewed each module a minimum of threetimes. In the first phase of the program, defendantsreceived basic information about the legal system forthem to learn by rote. In the second phase, trainersagain presented each module in sequential order, butasked defendants understanding-based questions inaddition to knowledge-based questions.

The program was not intended to guarantee thatevery defendant with mental retardation would be-

come competent. Instead, the goal was to provideconsistent education toward competence restoration,to communicate that effort to the courts, and tomake accurate competence assessments. An indepen-dent psychiatrist assessed each defendant’s progresstoward competence, applying the same evaluationcriteria as were used to evaluate persons with normalintelligence.

E. Proposed Elements of a Model CompetenceRestoration Program1. Systematic Competence Assessment

Various factors can lead to trial incompetence,such as psychosis, mood symptoms, mental retar-dation, or lack of information. Not all defendantsare incompetent for the same reason. Therefore,upon admission to a competence-restoration pro-gram, defendants should undergo evaluation toidentify the specific deficits or problems that resultin incompetence.

2. Individualized Treatment Program

Defendants should have treatment regimens tai-lored to their specific problems. Deficits identifiedin the admission competence assessment shouldappear in a defendant’s individual treatment planand should be addressed by specific treatmentinterventions.

3. Multimodal, Experiential Competence RestorationEducational Experiences

Defendants are best able to learn when teacherspresent the material in multiple learning formats. Forthis reason, learning experiences should involve lec-tures, discussions, readings, and videos. Participationin activities such as a mock trials and role-playing alsoenhance learning.4. Education

For most defendant-patients, competence restora-tion should include education regarding:

charges and their severity,sentencing,pleas and plea bargaining,roles of courtroom personnel,adversarial nature of the trial process, andunderstanding and evaluating evidence.

5. Anxiety ReductionLearning anxiety-reduction techniques can help

defendants deal with pretrial anxiety and the anxietythat they may experience while in court.

Table 2 Learning Formats in a Competence Restoration Curriculum

Education Basic knowledge of the trial process,including the roles of the courtroompersonnel, pleas, plea bargaining,charges, sentencing, and how to assistone’s attorney

Anxiety reduction Two one-hour sessions per week with apsychologist to teach defendantsanxiety management techniquessuitable for use in court

Guest lectures Weekly meetings with court personnel(judges, defense attorneys,prosecutors, and probation officers)who speak to the defendants andanswer questions

Mock trials Role-playing by defendants of variouscourtroom personnel in a scriptedmock trial, with discussions led byclinical staff

Video module Videotapes of actual courtroomproceedings watched by defendants,with discussions led by clinical staff

Post-restorationmodule

Discussion of court experiences betweenincompetent defendants anddefendants who have been to court

Current legal events Review and discussion of news storiesinvolving criminal trials



6. Additional Education Components for Defendants WithLow Intelligence

Defendants whose incompetence stems from lowintelligence can often become competent, but mayrequire additional exposure to the educational mate-rial. Their knowledge deficits can be remedied byadditional learning experiences, including repeatedexposure to information and individual instructionrelated in simplified terminology.

7. Periodic Reassessment of Competence

Clinicians should periodically reassess defendants’progress toward restoration to competence. Periodicassessment helps treatment teams know whethertheir interventions are working and whether addi-tional treatment elements should be added to pa-tients’ treatment plans.

8. Medication

Because psychotic and mood disorders are fre-quent causes of incompetence, patients with thesedisorders should receive conscientious treatmentwith appropriate biological therapy. For many in-competent defendants, attempting restoration with-out providing proper antipsychotic or mood-stabiliz-ing medication is an exercise in futility.

9. Capacity Assessments and Involuntary Treatment

Defendants adjudicated incompetent to standtrial may also lack the capacity to give informed con-sent for medication and other treatments. Becausepharmacotherapy often is a necessary component oftreatment to restore competence, clinicians must as-sess possible incompetence to make treatment deci-sions in accordance with the policies of their localhospitals and jurisdictions. Defendants who refusemedication should undergo evaluation of their com-petence to make treatment decisions. Procedures foroverriding patients’ refusals vary from state to state,and clinicians must be knowledgeable or have appro-priate legal advice, usually from the attorney gener-al’s office in the state. Defendants who assent to tak-ing medication but appear incompetent to makesuch decisions should also undergo evaluation forcompetence to make treatment decisions.

XIII. Summary

Competence to stand trial is a legal construct usedto identify those criminal defendants who have therequisite mental capacity to understand the nature

and objective of the proceedings against them and toparticipate rationally in preparing their defense. ThisPractice Guideline has described how psychiatristsshould evaluate individuals concerning their compe-tence to stand trial. The Guideline describes accept-able forensic psychiatric practice for such evalua-tions. Where possible, it specifies standards ofpractice and principles of ethics and also emphasizesthe importance of analyzing an individual defen-dant’s case in the context of statutes and case lawapplicable in the jurisdiction where the evaluationtakes place.

The recommendations in the Guideline both re-flect and are limited by evolving case law, statutoryrequirements, legal publications, and the currentstate of psychiatric knowledge. The authors havetaken note of nationally applicable case law, federalconstitutional standards, statutory language, andfederal and state interpretations of the rights or stat-utes, recognizing that jurisdictions may differ in theirspecific interpretation or application of statutes orgeneral constitutional standards. The review of casesconcerning specific psychiatric diagnoses illustratesgeneral U.S. trends, and psychiatrists must remaincognizant of their jurisdictions’ interpretations ofstatutes or constitutional requirements. By surveyinga variety of practices and approaches to data gather-ing and case analysis, the authors believe that thisGuideline will stimulate additional collegial discus-sion about what is necessary and sufficient for ade-quate evaluations of adjudicative competence.

The notion that psychiatrists should apply exper-tise to competence assessments stems from the prin-cipal that, before allowing a defendant to face crim-inal prosecution and possible punishment, courtsneed reasonable assurance—based, if necessary, on acareful, individualized evaluation—that the defen-dant has adequate mental capacity to make a defense.At a minimum, a psychiatrist’s opinion about adju-dicative competence should reflect an understandingof the jurisdictional standard and of how the defen-dant’s mental condition affects competence as de-fined with the jurisdiction. The psychiatrist’s reportshould clearly describe the opinion and the reasoningthat leads to it. Psychiatrists who provide mentalhealth expertise concerning adjudicative competencegive trial courts information needed to assure thatdefendants can appropriately protect themselves andthat criminal proceedings will be accurate, dignified,and just.



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are

ason

able

time

Not

spec

ified

Cus

tody

ofth

eC

omm

issi

oner

ofH

ealth

and

Soci

alSe

rvic

es

180

days

;36

0da

ysif

defe

ndan

tis

char

ged

with

viol

ent

crim

ean

dis

pres

ently

dang

erou

sA

rizo

naA

riz.

Rev

.St

at.

§13

-45

01to

17

Can

not

unde

rsta

ndth

ena

ture

and

obje

ctof

proc

eedi

ngs

oras

sist

with

defe

nse

Two

orm

ore

men

tal

heal

thex

pert

s,in

clud

ing

atle

ast

one

psyc

hiat

rist

Subs

tant

ial

prob

abili

tyde

fend

ant

will

rega

inco

mpe

tenc

ew

ithin

21m

onth

sof

orig

inal

findi

ngof

inco

mpe

tenc

e

Def

enda

ntis

inco

mpe

tent

tore

fuse

trea

tmen

tan

dsh

ould

besu

bjec

tto

invo

lunt

ary

trea

tmen

t

Prog

ram

desi

gnat

edby

coun

tybo

ard

ofsu

perv

isor

s;A

rizo

naSt

ate

Hos

pita

l;ja

il;ou

tpat

ient

prog

ram

;an

yco

urt-

appr

oved

faci

lity

The

less

erof

21m

onth

sor

the

max

imum

sent

ence

for

the

offe

nse

Ark

ansa

sA

rk.

Cod

eA

nn.

§5-

2-30

1to

311

Can

not

unde

rsta

ndpr

ocee

ding

sor

assi

stef

fect

ivel

yin

own

defe

nse

Qua

lifie

dps

ychi

atri

stor

psyc

holo

gist

Not

spec

ified

Not

spec

ified

Cus

tody

ofD

irec

tor

ofD

ept.

ofH

uman

Serv

ices

One

year

Cal

iforn

iaC

a.Pe

nal

Cod

e§

1367

to13

76

Can

not

unde

rsta

ndth

ena

ture

ofcr

imin

alpr

ocee

ding

sor

ratio

nally

assi

stco

unse

lin

cond

uctin

gde

fens

e

Psyc

hiat

rist

,lic

ense

dps

ycho

logi

st,

oran

yex

pert

the

cour

tde

ems

appr

opri

ate

Subs

tant

ial

likel

ihoo

dth

atde

fend

ant

will

rega

inm

enta

lco

mpe

tenc

ein

the

fore

seea

ble

futu

re

Def

enda

ntla

cks

capa

city

and

need

str

eatm

ent;

with

out

med

icat

ion,

seri

ous

harm

will

resu

lt

Stat

eho

spita

l;pu

blic

orpr

ivat

efa

cilit

y;ou

tpat

ient

prog

ram

Felo

ny:

less

erof

3ye

ars

orth

em

axim

umse

nten

cefo

rth

em

ost

seri

ous

offe

nse.

Mis

dem

eano

r:le

sser

of1

year

orth

em

axim

umse

nten

cefo

rth

em

ost

seri

ous

offe

nse

Col

orad

oC

olo.

Rev

.St

at.

§16

-8-

110

to11

5

Can

not

unde

rsta

ndth

ena

ture

and

cour

seof

proc

eedi

ngs;

orpa

rtic

ipat

eor

assi

stin

defe

nse;

orco

oper

ate

with

defe

nse

coun

sel

Not

spec

ified

Subs

tant

ial

prob

abili

tyth

atde

fend

ant

will

bere

stor

edto

com

pete

ncy

with

inth

efo

rese

eabl

efu

ture

Not

spec

ified

Cus

tody

ofD

ept.

ofH

uman

Serv

ices

;ou

tpat

ient

trea

tmen

tat

orun

der

the

supe

rvis

ion

ofa

faci

lity

Max

imum

term

ofco

nfin

emen

tfo

rof

fens

esch

arge

d



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Con

nect

icut

Con

n.G

enSt

at.

§54

-54

to56

d

Can

not

unde

rsta

ndpr

ocee

ding

sor

assi

stin

defe

nse

Psyc

hiat

rist

orcl

inic

alte

am(p

sych

iatr

ist,

psyc

holo

gist

,an

dei

ther

soci

alw

orke

ror

nurs

e)

Subs

tant

ial

prob

abili

tyth

atth

ede

fend

ant,

ifpr

ovid

edw

ithtr

eatm

ent,

will

rega

inco

mpe

tenc

ew

ithin

max

imum

peri

odof

any

plac

emen

tor

der

perm

itted

Invo

lunt

ary

med

icat

ion

will

rend

erde

fend

ant

com

pete

nt;

nole

ssin

trus

ive

mea

nsto

achi

eve

adju

dica

tion;

prop

osed

trea

tmen

tis

narr

owly

tailo

red

tom

inim

ize

intr

usio

non

liber

tyan

dpr

ivac

yin

tere

sts

and

will

not

caus

eun

nece

ssar

yri

skto

defe

ndan

t’she

alth

;se

riou

snes

sof

alle

ged

crim

eis

such

that

stat

ein

tere

stin

achi

evin

gad

judi

catio

nov

erri

des

defe

ndan

t’sin

tere

stin

self-

dete

rmin

atio

n

Cus

tody

ofth

eC

omm

issi

oner

ofM

enta

lH

ealth

and

Add

ictio

nSe

rvic

es,

Com

mis

sion

erof

Chi

ldre

nan

dFa

mili

esor

Com

mis

sion

erof

Men

tal

Ret

arda

tion,

oran

yap

prop

riat

em

enta

lhe

alth

faci

lity

ortr

eatm

ent

prog

ram

Max

imum

sent

ence

that

defe

ndan

tco

uld

rece

ive

ifco

nvic

ted,

or18

mon

ths,

whi

chev

eris

less

Del

awar

eD

el.

Cod

e.A

nn.

tit.

11,

§40

4C

anno

tun

ders

tand

the

natu

reof

proc

eedi

ngs,

give

evid

ence

,or

inst

ruct

coun

sel

Not

spec

ified

Not

spec

ified

Not

spec

ified

Del

awar

ePs

ychi

atri

cC

ente

rN

otsp

ecifi

ed

Flor

ida

Fla.

Stat

.A

nn.

§91

6.12

-145

;Fl

a.R

.C

rim

.P.

3.21

0to

215

Doe

sno

tm

eet

Dus

kycr

iteri

aA

tle

ast

two

men

tal

heal

thpr

ofes

sion

als,

unle

sson

eop

ines

that

the

defe

ndan

tis

inco

mpe

tent

and

findi

ngs

are

stip

ulat

edto

Subs

tant

ial

prob

abili

tyth

atde

fend

ant’s

illne

ssw

illre

spon

dto

trea

tmen

tan

dde

fend

ant

will

rega

inco

mpe

tenc

ein

reas

onab

lyfo

rese

eabl

efu

ture

Not

spec

ified

Def

enda

nts

are

com

mitt

edfo

rre

stor

atio

non

lyif

inco

mpe

tent

and

civi

llyco

mm

ittab

le.

Oth

erw

ise,

rest

orat

ion

occu

rsin

com

mun

ity,

corr

ectio

nal

faci

lity,

oran

othe

rfa

cilit

y.

Felo

ny:

5ye

ars;

mis

dem

eano

r:1

year

Geo

rgia

Ga.

Cod

eA

nn.

§17

-7-1

30;

Echo

lsv.

Stat

e,25

5S.

E.2d

.92

(Ga.

Ct.

App

.19

79)

Can

not

part

icip

ate

inte

llige

ntly

inde

fend

ant’s

tria

l

Not

spec

ified

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

eto

stan

dtr

ial

info

rese

eabl

efu

ture

Not

spec

ified

Dep

t.of

Hum

anR

esou

rces

One

year

Haw

aii

Haw

.R

ev.

Stat

.§

700-

403

to40

6;St

ate

v.K

otis

,98

4P.

2d78

(Haw

.19

99)

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

assi

stin

defe

nse

Thre

equ

alifi

edps

ychi

atri

sts

infe

lony

case

san

d1

qual

ified

psyc

hiat

rist

inno

nfel

ony

case

s

Subs

tant

ial

likel

ihoo

dof

beco

min

gfit

topr

ocee

din

the

futu

re

“Det

entio

n,ca

re,

and

trea

tmen

t”m

ayin

clud

eea

cour

tor

der

auth

oriz

ing

invo

lunt

ary

adm

inis

trat

ion

ofan

tipsy

chot

icdr

ugs

Cus

tody

ofth

eD

irec

tor

ofH

ealth

Not

spec

ified



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Idah

oId

aho

Cod

eA

nn.

§18

-21

0to

212

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

toas

sist

with

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

defe

ndan

tw

illbe

fitto

prod

ceed

with

info

rese

eabl

efu

ture

Def

enda

ntla

cks

capa

city

togi

vein

form

edco

nsen

t

Stat

eho

spita

l,in

stitu

tion,

men

tal

heal

thce

nter

orD

ept.

ofC

orre

ctio

ns

Two

hund

red

seve

nty

days

Illin

ois

725

Ill.

Com

p.St

at.

5/10

4-11

to10

4-23

Can

not

unde

rsta

ndna

ture

and

purp

ose

ofpr

ocee

ding

sor

assi

stin

defe

nse

One

orm

ore

licen

sed

phys

icia

ns,

clin

ical

psyc

holo

gist

s,or

psyc

hiat

rist

s

Like

lihoo

dof

atta

inin

gfit

ness

with

in1

year

ifpr

ovid

edw

ithtr

eatm

ent

Not

spec

ified

Dep

t.of

Hum

anSe

rvic

es,

orot

her

appr

opri

ate

publ

icor

priv

ate

faci

lity

ortr

eatm

ent

prog

ram

One

year

Indi

ana

Ind.

Cod

e§

35-3

6-3

to4

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

inpr

epar

atio

nof

defe

nse

Two

or3

disi

nter

este

dps

ychi

atri

sts

orps

ycho

logi

sts;

atle

ast

1m

ust

beps

ycho

logi

st

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

ein

fore

seea

ble

futu

re

Not

spec

ified

Div

isio

nof

Men

tal

Hea

lthan

dA

ddic

tion

Six

mon

ths

Iow

aIo

wa

Cod

e§

812.

3to

812.

9

Can

not

appr

ecia

tech

arge

,un

ders

tand

proc

eedi

ngs,

oras

sist

effe

ctiv

ely

inde

fens

e

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

accu

sed

will

rega

inca

paci

tyw

ithin

are

ason

able

time

Som

atic

trea

tmen

tis

nece

ssar

yan

dap

prop

riat

eto

rest

ore

defe

ndan

tan

dde

fend

ant

will

not

cons

ent;

dire

ctor

offa

cilit

ym

ayre

ques

tor

der

auth

oriz

ing

trea

tmen

t

Dan

gero

usde

fend

ants

:D

ept.

ofH

uman

Serv

ices

orD

ept.

ofC

orre

ctio

nsfo

rpl

acem

ent

atIo

wa

Med

ical

and

Cla

ssifi

catio

nC

ente

r.O

ther

s:ou

tpat

ient

trea

tmen

t

Less

erof

max

imum

term

ofco

nfin

emen

tfo

ral

lege

dcr

imin

alof

fens

e,or

18m

onth

s

Kan

sas

Kan

.C

rim

.Pr

oc.

Cod

eA

nn.

§22

-33

01to

3306

Can

not

unde

rsta

ndna

ture

and

purp

ose

ofpr

ocee

ding

s,or

cann

otm

ake

oras

sist

inm

akin

ga

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

ofat

tain

ing

com

pete

nce

info

rese

eabl

efu

ture

Not

spec

ified

Stat

ese

curi

tyho

spita

l;an

yap

prop

riat

eco

unty

orpr

ivat

ein

stitu

tion

Six

mon

ths

Ken

tuck

yK

y.R

ev.

Stat

.A

nn.

§50

4.06

0,50

4.09

0to

110

Can

not

appr

ecia

tena

ture

and

cons

eque

nces

ofpr

ocee

ding

sor

part

icip

ate

ratio

nally

inde

fens

e

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

ofat

tain

ing

com

pete

ncy

in36

0da

ys

Not

spec

ified

Trea

tmen

tfa

cilit

y;fo

rens

icps

ychi

atri

cfa

cilit

y;C

abin

etfo

rH

ealth

and

Fam

ilySe

rvic

esfa

cilit

y

Mis

dem

eano

r:60

days

;fe

lony

:no

tsp

ecifi

ed

Loui

sian

aLa

.C

ode

Cri

m.

Proc

.A

nn.

art.

641-

649

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

toas

sist

inde

fens

e

Sani

tyco

mm

issi

onM

enta

lca

paci

tyis

likel

yto

bere

stor

edw

ithin

90da

ysas

are

sult

oftr

eatm

ent

Not

spec

ified

Jail;

Felic

iana

Fore

nsic

Faci

lity

Max

imum

sent

ence

defe

ndan

tco

uld

rece

ive

ifco

nvic

ted

Mai

neM

e.R

ev.

Stat

.A

nn.

tit.

15,

§10

1-B

;St

ate

v.Le

wis

,58

4A

.2d

622

(Me.

1990

)

Can

not

unde

rsta

ndna

ture

and

obje

ctof

char

ges,

com

preh

end

cond

ition

inre

fere

nce

ther

eto,

orco

oper

ate

with

coun

sel

toco

nduc

ta

ratio

nal,

reas

onab

lede

fens

e

Stat

eFo

rens

icSe

rvic

e;in

depe

nden

tps

ychi

atri

stor

psyc

holo

gist

Subs

tant

ial

prob

abili

tyde

fend

ant

will

beco

mpe

tent

info

rese

eabl

efu

ture

Not

spec

ified

Cus

tody

ofD

ept.

ofH

ealth

and

Hum

anSe

rvic

es

One

year



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Mar

ylan

dM

d.C

ode

Ann

.,C

rim

.pr

oc.

§3-

101

to3-

108;

Sang

ster

v.St

ate,

541

A.2

d63

7(M

d.C

t.A

pp.

1988

)

Can

not

unde

rsta

ndth

ena

ture

ofpr

ocee

ding

san

das

sist

inde

fens

e

Hea

lthD

ept.

orco

mm

unity

fore

nsic

scre

enin

gpr

ogra

m

Not

spec

ified

Not

spec

ified

Faci

lity

that

Hea

lthD

epar

tmen

tde

sign

ates

Ten

year

sfo

rca

pita

lca

se,

5ye

ars

for

felo

ny

Mas

sach

uset

tsM

ass.

Gen

.La

ws

ch.

123,

§15

-17;

Com

mon

wea

lthv.

Vai

les,

275

N.E

.2d

893

(Mas

s.19

71)

Doe

sno

tm

eet

Dus

kycr

iteri

aO

neor

mor

equ

alifi

edph

ysic

ians

psyc

holo

gist

sfo

rin

itial

eval

uatio

n

Not

spec

ified

Not

spec

ified

Ifci

villy

com

mita

ble,

hosp

italiz

atio

nfo

rtr

eatm

ent

Max

imum

time

ofim

pris

onm

ent

that

pers

onw

ould

serv

ebe

fore

beco

min

gel

igib

lefo

rpa

role

for

mos

tse

riou

sch

arge

Mic

higa

nM

ich.

Com

p.La

ws

§33

0.20

20to

330.

2044

Can

not

unde

rsta

ndna

ture

and

obje

ctof

proc

eedi

ngs

oras

sist

ratio

nally

inde

fens

e

Cen

ter

for

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nsic

Psyc

hiat

ry;

faci

lity

cert

ified

byD

ept.

ofM

enta

lH

ealth

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lihoo

dof

Def

enda

nt’s

atta

inin

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mpe

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rst

atut

ory

time

fram

e

Tom

aint

ain

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com

pete

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and

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Men

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inpa

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men

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yif

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ary

for

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ctiv

etr

eatm

ent

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erof

15m

onth

sor

one-

thir

dof

max

imum

sent

ence

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neso

taM

inn.

R.

Cri

m.

P.R

ule

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anno

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nsul

tw

ithde

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ason

able

degr

eeof

ratio

nal

unde

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gor

cann

otun

ders

tand

proc

eedi

ngs

and

part

icip

ate

inde

fens

e

Lice

nsed

phys

icia

nor

cons

ultin

gps

ycho

logi

st,

know

ledg

eabl

e,tr

aine

d,an

dpr

actic

ing

inth

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sis/

trea

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irm

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ial

prob

abili

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atw

ithtr

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ent

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herw

ise

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defe

ndan

tw

illev

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tain

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nce

Not

spec

ified

Def

enda

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civi

llyco

mm

itted

;pl

ace

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tsp

ecifi

ed

Thre

eye

ars,

exce

ptfo

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rw

hich

time

fram

eis

not

spec

ified

Mis

siss

ippi

Mis

s.U

nifo

rmR

ules

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ourt

prac

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e9.

06;

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mag

ev.

Stat

e,51

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.2d

802

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s.19

87)

Can

not

cons

ult

with

law

yer

with

reas

onab

lede

gree

ofra

tiona

lun

ders

tand

ing;

lack

sra

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lan

dfa

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ing

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s

Psyc

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logi

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obab

ility

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com

ing

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the

fore

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ense

atto

rney

may

auth

oriz

etr

eatm

ent

Mis

siss

ippi

Stat

eH

ospi

tal

orot

her

appr

opri

ate

men

tal

heal

thfa

cilit

y

With

ina

reas

onab

letim

e

Mis

sour

iM

o.R

ev.

Stat

.§

552.

020

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

inde

fens

e

Psyc

hiat

rist

s,ps

ycho

logi

sts,

orph

ysic

ians

with

�1

year

’str

aini

ngor

expe

rien

cein

trea

ting

the

men

tally

reta

rded

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enta

llyill

Subs

tant

ial

prob

abili

tyof

atta

inin

gfit

ness

topr

ocee

din

fors

eeab

lefu

ture

Not

spec

ified

Com

mitm

ent

toth

eD

irec

tor

ofth

eD

ept.

ofM

enta

lH

ealth

Not

spec

ified



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

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tmen

tfo

rC

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esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Mon

tana

Mon

t.C

ode

Ann

.§

46-

14-1

03,

202,

206,

221,

and

222

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

inde

fens

e

At

leas

t1

qual

ified

psyc

hiat

rist

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ense

dcl

inic

alps

ycho

logi

st,

orad

vanc

ed-p

ract

ice

RN

App

ears

that

defe

ndan

tw

illbe

com

efit

topr

ocee

din

reas

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lyfo

rese

eabl

efu

ture

Ove

rrid

ing

just

ifica

tion

for

med

ical

lyap

prop

riat

etr

eatm

ent

Dep

t.of

Publ

icH

ealth

and

Hum

anSe

rvic

es,

for

plac

emen

tin

appr

opri

ate

men

tal

heal

thor

resi

dent

ial

faci

lity

Ifco

urt

dete

rmin

esth

atso

muc

htim

eha

sel

apse

dsi

nce

the

com

mitm

ent

ofth

ede

fend

ant

that

itw

ould

beun

just

tore

sum

eth

ecr

imin

alpr

ocee

ding

s,th

eco

urt

may

dism

iss

the

char

geN

ebra

ska

Neb

.R

ev.

Stat

.§

29-

1823

Can

not

unde

rsta

ndna

ture

and

obje

ctof

the

proc

eedi

ngs,

com

preh

end

own

cond

ition

inre

fere

nce

tosu

chpr

ocee

ding

s,an

dm

ake

ara

tiona

lde

fens

e

Phys

icia

n,ps

ychi

atri

st,

orps

ycho

logi

st

Subs

tant

ial

prob

abili

tyof

beco

min

gco

mpe

tent

inth

efo

rese

eabl

efu

ture

Not

spec

ified

Stat

eho

spita

lfo

rth

em

enta

llyill

orot

her

appr

opri

ate

stat

e-ow

ned

or-o

pera

ted

faci

lity

Six

mon

ths

initi

al,

max

imum

leng

thno

tsp

ecifi

ed

Nev

ada

Nev

Rev

.St

at.

§17

8.39

9to

178.

460

Doe

sno

tm

eet

Dus

kycr

iteri

aTw

ops

ychi

atri

sts,

2ps

ycho

logi

sts,

or1

psyc

hiat

rist

and

1ps

ycho

logi

st,

cert

ified

byD

ivis

ion

ofM

enta

lH

ealth

and

Dev

elop

men

tal

Serv

ices

ofth

eD

epar

tmen

tof

HH

S

Subs

tant

ial

prob

abili

tyth

attr

eatm

ent

can

rest

ore

com

pete

nce

and

that

defe

ndan

tw

illat

tain

com

pete

nce

orre

ceiv

epr

onou

ncem

ent

ofju

dgm

ent

info

rsee

able

futu

re

Invo

lunt

ary

adm

inis

trat

ion

ofm

edic

atio

nif

appr

opri

ate

for

trea

tmen

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rest

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com

pete

nce

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mitt

edto

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inis

trat

orof

Div

isio

nof

Men

tal

Hea

lthan

dD

evel

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enta

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rvic

es,

orou

tpat

ient

trea

tmen

t

Less

erof

10ye

ars

orlo

nges

tpe

riod

ofin

carc

erat

ion

prov

ided

for

alle

ged

crim

e

New H

amps

hire

N.H

.R

ev.

Stat

.A

nn.

§13

5:17

Doe

sno

tm

eet

Dus

kycr

iteri

aPs

ychi

atri

ston

staf

fof

any

publ

icin

stitu

tion,

orpr

ivat

eps

ychi

atri

st

Rea

sona

ble

likel

ihoo

dth

atde

fend

ant

can

bere

stor

edto

com

pete

nce

thro

ugh

appr

opri

ate

trea

tmen

tw

ithin

12m

onth

s

Not

spec

ified

Stat

em

enta

lhe

alth

syst

em;

secu

reps

ychi

atri

cun

it;or

outp

atie

nttr

eatm

ent

Twel

vem

onth

s

New

Jers

eyN

.J.St

at.

Ann

.§

2C:4

-5,

4-6

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

with

defe

nse

At

leas

t1

qual

ified

psyc

hiat

rist

orlic

ense

dps

ycho

logi

st

Subs

tant

ially

prob

able

that

defe

ndan

tco

uld

rega

inco

mpe

tenc

ew

ithin

fore

seea

ble

futu

re

Not

spec

ified

Cus

tody

ofC

omm

issi

oner

ofH

uman

Serv

ices

for

inpa

tient

trea

tmen

tif

defe

ndan

tis

dang

erou

s,or

outp

atie

nttr

eatm

ent

Initi

al3

mon

ths,

max

imum

time

fram

eno

tin

dica

ted



Tabl

e3

Con

tinue

d

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

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eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

New

Mex

ico

N.M

.St

at.

§31

-9-1

to31

-9-1

.5

Doe

sno

tm

eet

Dus

kycr

iteri

aPs

ycho

logi

st,

psyc

hiat

rist

,or

othe

rpr

ofes

sion

alre

cogn

ized

bydi

stri

ctco

urt

asan

expe

rt

Prob

abili

tyof

defe

ndan

t’sat

tain

ing

com

pete

nce

with

in9

mon

ths

ofor

igin

alfin

ding

ofin

com

pete

nce

Not

spec

ified

Dep

t.of

Hea

lthin

ase

cure

,lo

cked

faci

lity

Max

imum

sent

ence

defe

ndan

tw

ould

have

rece

ived

ifco

nvic

ted

New

Yor

kN

.Y.

Cri

m.

Proc

.La

w§

730.

10to

730.

70

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

with

defe

nse

Two

qual

ified

psyc

hiat

rist

s(p

sych

iatr

ist

orps

ycho

logi

st);

if2

psyc

hiat

rist

sdi

sagr

ee,

a3r

dps

ychi

atri

stis

appo

inte

d

Not

spec

ified

Not

spec

ified

Faci

lity

desi

gned

byC

omm

issi

oner

ofM

enta

lH

ealth

orM

R/D

D

Two-

thir

dsof

max

imum

term

for

high

est-

clas

sfe

lony

char

ged

Nor

thC

arol

ina

N.C

.G

en.

Stat

.§

15A

1001

-100

9

Can

not

unde

rsta

ndna

ture

and

obje

ctof

proc

eedi

ngs,

com

preh

end

situ

atio

nin

refe

renc

eto

the

proc

eedi

ngs,

and

assi

stw

ithde

fens

ein

ara

tiona

lor

reas

onab

lem

anne

r

Impa

rtia

lm

edic

alex

pert

s,in

clud

ing

fore

nsic

psyc

hiat

rist

sap

prov

edun

der

rule

sof

the

Com

mis

sion

for

Men

tal

Hea

lth,

Dev

elop

men

tal

Dis

abili

ties,

and

Subs

tanc

eA

buse

Serv

ices

Like

lihoo

dof

defe

ndan

t’sga

inin

gca

paci

tyto

proc

eed,

toth

eex

tent

that

the

hosp

ital,

inst

itutio

n,or

indi

vidu

alca

nm

ake

such

aju

dgm

ent

Not

spec

ified

Civ

ilco

mm

itmen

tto

hosp

ital

orot

her

inst

itutio

n;if

give

nba

il,cu

stod

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desi

gnat

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reei

ngto

supe

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fend

ant

Max

imum

term

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nfin

emen

tfo

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char

ged

or5

year

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isde

mea

nor)

or10

year

s(fe

lony

)fr

omda

teof

inca

paci

tyto

proc

eed

Nor

thD

akot

aN

.D.

Cen

t.C

ode

§12

.1-0

4-04

to04

-09

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

with

defe

nse

Psyc

hiat

rist

orlic

ense

dps

ycho

logi

st

Whe

ther

defe

ndan

tw

illat

tain

fitne

ssto

proc

eed

orab

ility

toef

fect

ivel

yco

mm

unic

ate

with

coun

sel

inth

efo

rese

eabl

efu

ture

Not

spec

ified

Civ

ilco

mm

itmen

tM

axim

umpe

riod

for

whi

chth

ede

fend

ant

coul

dbe

sent

ence

d

Ohi

oO

hio

Rev

.C

ode

Ann

§29

45.3

7-39

Can

not

unde

rsta

ndna

ture

and

obje

ctiv

eof

proc

eedi

ngs

and

assi

stw

ithde

fens

e

Psyc

hiat

rist

,or

licen

sed

clin

ical

psyc

holo

gist

who

satis

fies

the

satu

tory

crite

ria

orw

orks

for

ace

rtifi

edfo

rens

icce

nter

Like

lihoo

dof

bein

gre

stor

edto

com

pete

nce

with

in1

year

iftr

eate

d

Med

icat

ion

isne

cess

ary

tore

stor

eco

mpe

tenc

e;de

fend

ant

lack

sca

paci

tyto

give

info

rmed

cons

ent

orre

fuse

sm

edic

atio

n

Stat

eho

spita

l;M

R/D

Dfa

cilit

y;co

mm

unity

men

tal

heal

thor

Men

tal

reta

rdat

ion

faci

lity;

psyc

hiat

rist

orot

her

MI/M

Rpr

ofes

sion

al

Thir

tyor

60da

ysfo

rm

isde

mea

nors

;6

mon

ths

for

less

erfe

loni

es;

12m

onth

sfo

rm

ajor

felo

nies



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Okl

ahom

aO

kla.

Stat

.tit

.22

,§

1175

.1to

1175

.8

Can

not

unde

rsta

ndna

ture

ofch

arge

san

dpr

ocee

ding

s,an

def

fect

ivel

yan

dra

tiona

llyas

sist

with

defe

nse

Psyc

hiat

rist

,ps

ycho

logi

st,

orlic

ense

dm

enta

lhe

alth

prof

essi

onal

with

fore

nsic

trai

ning

Whe

ther

pers

onca

nat

tain

com

pete

nce

with

inre

ason

able

peri

odof

time

ifgi

ven

trea

tmen

t,th

erap

y,or

trai

ning

Cou

rtsh

all

orde

rde

fend

ant

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derg

otr

eatm

ent,

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apy,

orgi

vetr

aini

ngth

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illre

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eco

mpe

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e

Dep

t.of

Men

tal

Hea

lthan

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bsta

nce

Abu

seSe

rvic

es

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erof

max

imum

sent

ence

for

mos

tse

riou

sof

fens

ech

arge

d,or

2ye

ars

Ore

gon

Or.

Rev

.St

at.

§16

1.36

0to

161.

370

Can

not

unde

rsta

ndna

ture

ofpr

ocee

ding

s,as

sist

and

coop

erat

ew

ithco

unse

l,an

dpa

rtic

ipat

ein

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

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lpr

obab

ility

info

rese

eabl

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ture

that

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ndan

tw

illha

veca

paci

tyto

stan

dtr

ial

Not

spec

ified

Stat

eho

spita

l;ou

tpat

ient

trea

tmen

t;se

cure

inte

nsiv

eco

mm

unity

inpa

tient

faci

lity

for

juve

nile

s

Som

uch

time

has

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sed

that

itw

ould

beun

just

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sum

ecr

imin

alpr

ocee

ding

s

Penn

sylv

ania

Pa.

Stat

.A

nn.

§74

02-

7406

Can

not

unde

rsta

ndth

ena

ture

orob

ject

ofpr

ocee

ding

san

dpa

rtic

ipat

ean

das

sist

inde

fens

e

At

leas

t1

psyc

hiat

rist

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

ein

the

fore

seea

ble

futu

re

Cou

rtis

reas

onab

lyce

rtai

nth

atin

volu

ntar

ytr

eatm

ent

will

rest

ore

com

pete

nce

Not

spec

ified

Less

erof

max

imum

sent

ence

impo

sed

for

the

crim

ech

arge

dor

10ye

ars.

For

mur

der,

nolim

iton

rest

orat

ion

peri

odR

hode

Isla

ndR

.I.G

en.

Law

s§

40.1

-5.3

-3

Can

not

unde

rsta

ndch

arac

ter

and

cons

eque

nces

ofpr

ocee

ding

s,or

cann

otpr

oper

lyas

sist

with

defe

nse

Phys

icia

nW

heth

erde

fend

ant

will

rega

inco

mpe

tenc

ew

ithin

max

imum

peri

odof

plac

emen

t

Not

spec

ified

Dan

gero

usde

fend

ants

:fa

cilit

yes

tabl

ishe

dpu

rsua

ntto

§40

.1-

5.3-

1,or

toge

nera

lw

ards

ofth

eIn

stitu

teof

Men

tal

Hea

lth;

outp

atie

nttr

eatm

ent

Two-

thir

dsof

max

imum

sent

ence

for

mos

tse

riou

sof

fens

ech

arge

d

Sout

hC

arol

ina

S.C

.C

ode

Ann

.§

44-

23-4

10to

460

Can

not

unde

rsta

ndpr

ocee

ding

sor

assi

stde

fens

e

Two

psyc

hiat

rist

sde

sign

ated

byth

eD

ept.

ofM

enta

lH

ealth

orD

ept.

ofD

isab

ilitie

san

dSp

ecia

lN

eeds

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

ein

fors

eeab

lefu

ture

Not

spec

ified

App

ropr

iate

faci

lity

ofD

ept.

ofM

enta

lH

ealth

orD

ept.

ofD

isab

ilitie

san

dSp

ecia

lN

eeds

Max

imum

peri

odto

whi

chth

epe

rson

coul

dha

vebe

ense

nten

ced

ifco

nvic

ted

asch

arge

dSo

uth

Dak

ota

S.D

.C

odifi

edLa

ws

§23

A-

10A

-1to

16

Can

not

unde

rsta

ndna

ture

and

cons

eque

nces

ofpr

ocee

ding

san

das

sist

prop

erly

inde

fens

e

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

that

inth

efo

rese

eabl

efu

ture

defe

ndan

tw

illat

tain

capa

city

tope

rmit

the

tria

lto

proc

eed

Not

spec

ified

Hum

anSe

rvic

esC

ente

r;st

ate

deve

lopm

enta

lce

nter

s;ad

just

men

ttr

aini

ngce

nter

men

tal

heal

thce

nter

;or

othe

rfa

cilit

yap

prov

edby

Dep

t.of

Hum

anSe

rvic

es

Max

imum

pena

ltyal

low

able

for

mos

tse

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sch

arge



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

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tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Tenn

esse

eTe

nn.

Cod

eA

nn.

§33

-7-

301

to30

2

Doe

sno

tm

eet

Dus

kycr

iteri

aC

omm

unity

men

tal

heal

thce

nter

,lic

ense

dpr

ivat

epr

actit

ione

r,or

outp

atie

ntev

alua

tion

byst

ate

hosp

ital

Not

spec

ified

Not

spec

ified

Fore

nsic

serv

ices

unit

orco

mm

unity

-bas

edse

rvic

e

Not

spec

ified

Texa

sTe

x.C

ode

Cri

m.

Proc

.A

nn.

art.

46B

.001

to17

1

Doe

sno

tm

eet

Dus

kycr

iteri

aPs

ychi

atri

stor

psyc

holo

gist

Whe

ther

defe

ndan

tw

illob

tain

com

pete

nce

info

rese

eabl

efu

ture

Med

icat

ion

ism

edic

ally

appr

opri

ate

and

inde

fend

ant’s

best

inte

rest

;st

ate

has

com

pelli

ngin

tere

stin

defe

ndan

t’sbe

ing

com

pete

nt;

nole

ssin

vasi

vem

eans

ofob

tain

ing

com

pete

nce;

med

icat

ion

will

not

undu

lypr

ejud

ice

the

defe

ndan

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ghts

orde

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eth

eori

esat

tria

l

Com

mun

ity,

men

tal

heal

thor

MR

faci

lity

Max

imum

term

for

offe

nse

onw

hich

defe

ndan

tw

ould

betr

ied

Uta

hU

tah

Cod

eA

nn.

§77

-15

-1to

6

Una

ble

toha

vera

tiona

lan

dfa

ctua

lun

ders

tand

ing

ofpr

ocee

ding

shi

mor

pote

ntia

lpu

nish

men

t,or

cann

otco

nsul

tw

ithco

unse

lan

dpa

rtic

ipat

ein

proc

eedi

ngs

with

are

ason

able

degr

eeof

ratio

nal

unde

rsta

ndin

g

At

leas

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men

tal

heal

thex

pert

sno

tin

volv

edin

the

curr

ent

trea

tmen

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the

defe

ndan

t

Subs

tant

ial

prob

abili

tyth

atth

ede

fend

ant

may

beco

me

com

pete

ntin

fors

eeab

lefu

ture

Not

spec

ified

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t.of

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anSe

rvic

esM

axim

umpe

riod

ofin

carc

erat

ion

that

defe

ndan

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uld

rece

ive

ifco

nvic

ted

Ver

mon

tV

t.St

at.

Ann

.tit

.13

,§

4814

-482

2

Doe

sno

tm

eet

Dus

kycr

iteri

aD

esig

nate

dm

enta

lhe

alth

prof

essi

onal

Not

spec

ified

Not

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ified

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tody

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omm

issi

oner

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evel

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lan

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ealth

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ices

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term

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e,as

long

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rson

isci

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com

mitt

able

Vir

gini

aV

a.C

ode

Ann

.§

19.2

-169

.1to

169.

3

Can

not

unde

rsta

ndpr

ocee

ding

sor

assi

stat

torn

eyw

ithde

fens

e

Psyc

hiat

rist

s,ps

ycho

logi

sts

orm

aste

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vel

psyc

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gist

s

Res

tora

ble

info

rese

eabl

efu

ture

Not

spec

ified

Out

paite

nt;

hosp

ital

desi

gnat

edby

the

Com

mis

sion

erof

Men

tal

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lth,

Men

tal

Ret

arda

tion

and

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buse

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es

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erof

max

imum

sent

ence

ifco

nvic

ted

ofch

arge

sor

5ye

ars



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

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rC

ompe

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eR

esto

ratio

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here

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tora

tion

May

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urM

axim

umTi

me

for

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tora

tion

Was

hing

ton

Was

h.R

ev.

Cod

e§

10.7

7.01

0to

10.7

7.09

2

Can

not

unde

rsta

ndna

ture

ofpr

ocee

ding

san

das

sist

with

defe

nse

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leas

t2

qual

ified

expe

rts

orpr

ofes

sion

alpe

rson

s

Futh

ertr

eatm

ent

islik

ely

tore

stor

eco

mpe

tenc

e

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seri

ous

offe

nses

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eho

spita

l;ot

her

faci

lity

asde

term

ined

byde

part

men

tor

unde

rgu

idan

cean

dco

ntro

lof

prof

essi

onal

pers

on

Max

imum

poss

ible

pena

lse

nten

cefo

ran

yof

fens

ech

arge

d,or

180

days

Wes

tV

irgi

nia

W.

Va.

Cod

e§

27-6

A-1

to5

Can

not

part

icip

ate

subs

tant

ially

inde

fens

ean

dun

ders

tand

natu

rean

dco

nseq

uenc

esof

tria

l

One

orm

ore

psyc

hiat

rist

s,or

psyc

hiat

rist

and

psyc

holo

gist

Subs

tant

ial

likel

ihoo

dth

atde

fend

ant

will

atta

inco

mpe

tenc

ew

ithin

6m

onth

s

Not

spec

ified

Men

tal

heal

thfa

cilit

yN

ine

mon

ths

Wis

cons

inW

is.

Stat

.§

971.

13C

anno

tun

ders

tand

the

proc

eedi

ngs

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sist

with

defe

nse

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orm

ore

psyc

hiat

rist

sha

ving

spec

ializ

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dge

and

deem

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prop

riat

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cour

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eval

uate

and

repo

rton

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t

Like

lihoo

dth

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ant,

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eate

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ored

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ew

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stat

utor

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epe

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icat

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ices

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appr

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ate

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itutio

n

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erof

12m

onth

sor

max

imum

sent

ence

for

mos

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e

Wyo

min

gW

yo.

Stat

.A

nn.

§7-

11-3

01to

303

Can

not

com

preh

end

situ

atio

n,un

ders

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the

natu

rean

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ject

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sel

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lor

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ated

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urt

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spec

ified

U.S

.Fe

dera

l18

U.S

.C.S

.§

4241

Can

not

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rsta

ndna

ture

and

cons

eque

nces

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das

sist

prop

erly

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Psyc

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inth

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.S.

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eral

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.C.S

.§

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w



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stand trial. ALR 3d. 46:544, 197285. Morrow v. State, 423 A.2d 251 (Md. Ct. Spec. App. 1980)86. State v. Kleypas, 40 P.3d 139 (Kan. 2001)87. State v. McClendon, 437 P. 2d 421 (Ariz. 1968)88. Rector v. State, 638 S.W.2d 672 (Ark. 1982), later app. 659

S.W.2d 168 (Ark. 1983), cert. den. 466 U.S. 988 (1984)89. State v. Forsyth, 547 N.W.2d 833 (Iowa Ct. App. 1996)90. State v. Leming, 3 S.W.3d 7 (Tenn. Crim. App. 1998)91. Powell v. Alabama, 287 U.S. 45, 60 (1932)92. Faretta v. California, 422 U.S. 806 (1975)93. Gideon v. Wainwright, 372 U.S. 335 (1963)94. State v. Taylor, 776 A.2d 1154 (Conn. App. Ct. 2001)95. Vanisi v. State, 22 P.3d 1164 (Nev. 2001)96. Barnes v. State, 528 S.W.2d 370 (Ark. 1975)97. Com. v. Martin, 683 N.E.2d 280 (Mass. 1997)98. State v. Vermillion, 51 P.3d 188 (Wash. Ct. App. 2002)99. Sherwood v. State, 717 N.E.2d 131 (Ind. 1999)

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