Incompetence in a criminal trial goes beyond the definition you may use to describe that crazy driver who cut you off, the person at the ATM who is taking a million years, etc. In criminal law, the two concepts are like night and day.
The legal definition of incompetence describes a person who is unfit to stand trial. Protection from prosecution while incompetent stems from the Fifth Amendment, specifically Due Process, a person’s right to a fundamentally fair trial.
What Is Incompetence?
In Dusky v. United States, the Supreme Court determined that a defendant who is oriented in time and space, and has some recollection of the facts, is not sufficient in determining whether a person is competent. Instead, the Court determined that a person is incompetent when he lacks the capacity to:
—Understand the nature and object of the proceedings against him
—Consult with counsel
—Assist in preparing his defense
This test is codified in a federal statute, 18 USC ß4241. The Court’s holding relates to a person’s ability to actively participate in his trial and his defense. Competency comes down to whether a defendant can provide his counsel with adequate information for his defense, follow the proceedings, and make critical decisions, like whether to accept a plea deal or appeal his case. A defendant must understand that he is going before a court and that he could face serious consequences for the alleged crime.
Competency does not depend on:
—A person’s ability to distinguish right from wrong
—A person’s intelligence
—A person’s decision NOT to cooperate with his counsel
—Whether someone fully understands the sophistication of the legal justice system
—Whether someone is guilty of the underlying crime
—Whether someone is mentally ill, delusional, insane, or has amnesia.
For example, in Hernandez v. Martel, a California defendant suffered from bipolar disorder and suffered organic brain damage; however, the court determined that because the defendant had the capacity to understand that he was on trial for capital murder and may face the death penalty, he was competent for trial.
It is important to note that one of the above factors may affect a person’s ability to interact with counsel or understand the proceedings against him, in which case that person will likely not be competent to stand trial.
Competency is decided by a judge and determined before trial begins, during a special proceeding. A motion for incompetency can be raised by the court, defense counsel, or the prosecutor; however, it is up to the defense to prove that the defendant is incompetent. The defense must prove incompetence by a preponderance of the evidence. As far as evidence standards go, this standard is relatively low to prevent mistaken decisions of competency.
The Scope of Incompetence
Incompetency is not a defense, but a temporary state of being (in most cases) that prevents a defendant from participating in legal proceedings.
Incompetency Is Not A Defense
Incompetency is different from an insanity defense. Both are similar in that they are related to the human mind and mental state, and both are evaluated by mental health professionals. Aside from that, incompetency and insanity do not have much in common.
Insanity as a defense is brought up during trial, whereas incompetency is brought up before the trial. When a person claims insanity, he is stating that he cannot be held criminally responsible, because at the time of the crime, he did not have the capacity or culpability to understand the nature of his actions. That is to say, that yes, he completed the underlying crime; however, he did it because he was insane.
It is also different from the diminished capacity defense. Diminished capacity means that a person did not have the specific intent required by many crimes, and thus mitigates a more serious crime to a lesser crime. For example, if a person had diminished capacity during a murder, and experienced hallucinations and other elements of psychosis which rendered him incapable of premeditating and plotting the murder, he may be convicted of voluntary manslaughter (1-10 yrs), rather than first degree murder. (20 to life)
Incompetence is not necessarily a permanent state of being. For this reason, it is important for counsel to note the exact time that a defendant becomes incompetent. If important trial decisions are made during a time when a defendant is incompetent, for example, waiving a right to a jury trial, counsel will certainly want to raise this issue to the court. If counsel does not raise these issues, then the defendant is at risk of being stuck with his prior decisions. The Supreme Court has not addressed this issue.
A person who may have been competent at first, can become incompetent in the time leading up to trial. In Drope v. Missouri, the Supreme Court stated that although a defendant may be competent at the commencement of trial, a court should always be “alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”
A person who was previously incompetent can later be deemed competent, whether of his own accord, therapy, treatment, or due to forced medication. Which I wrote about in a previous article.
In People v. Smith, a California Court of Appeal case, the defendant was deemed incompetent after incoherent communication with counsel, testimony from jail staff, and several expert opinions. After four months of treatment, the defendant received a certificate of restoration of competency, under California state law (NOTE: this is specific to California and does not apply in all states or under federal law). At that point, the defendant was again under the control of the court, and faced further proceedings, aka his trial.
The Effect of Incompetence
If a person is deemed incompetent, there are several legal consequences. The defendant will also be treated for his condition in hopes that he can later face trial.
The basic consequences are that an incompetent person cannot participate in legal proceedings; he cannot be tried, convicted, or sentenced. An incompetent person cannot accept a plea deal or plead guilty, nor can he be executed.
There are also limitations regarding some procedural decisions. An incompetent person cannot waive his right to a competence hearing. An incompetent person cannot waive his right to counsel.
This is because someone who may be incompetent cannot “knowingly” waive these rights… as that would be contradictory. The logic is similar to that of preventing an incompetent person from entering a contract… what good is a person’s word if he has no understanding of the consequences?
What Happens Next?
Once a person is deemed incompetent, he is committed to care for treatment at a suitable facility. He is treated for a reasonable period, not exceeding four months. After four months, the court will again determine whether the defendant is competent. Once competent, he can stand trial; however, if he is not, then the government must release him or begin civil commitment proceedings.
If the government wishes to continue to treat the defendant for an extended period, the government must prove that the defendant’s condition is expected to improve.
Problems with Incompetence
Although incompetency seems like a wonderful way to protect defendants from unintentionally harming their case, the system is not without its flaws. To begin with, there is no “set” standard for determining incompetency. Because incompetency involves two very complicated industries — the legal and psychology industries— there are issues of communication and understanding in developing a single standard.
What Is The Appropriate Standard?
Some of the complication in proving incompetence is that the standard is a fact specific test, rather than a bright line test where the court merely checks the boxes, “Oh, he passed all three requirements; he’s competent folks!”
Because the standard depends on the facts, the facts in one case may not be determinative in another case. Also, courts may weigh a defendant’s ability to communicate highly in one case, and other courts may focus more on whether the defendant understands the nature of the proceedings.
In Rohan ex rel. Gates v. Woodford, the Ninth Circuit discussed the importance of communication, citing to “capacity for rational communication” as the key to determining competence.
In determine competence, there is not a single psychological “test.” Some mental health professionals have used the MacArthur, a competency screening test that presents scenarios in which the defendant responds. The MacArthur is more of a situational test. States have many, many tests, for example, in United States v. Duhon, the Louisiana District Court named five different standardized tests that were performed on a defendant. Other tests include basic interviews, where the psychologist asks questions, for example, “What does a judge do?”
Lawyers use historical evidence, like a defendant’s past medical records to demonstrate a history of mental illness. As stated before, this factor alone is not determinative in proving incompetence. Nevertheless, such evidence can help support a claim of incompetence.
Testimony from friends and family, court staff, prison or jail staff, may be useful in demonstrating incompetence. Because part of the legal test for competence is whether a person can communicate with counsel, the people who regularly interact with the defendant can be most valuable. Some even have other attorneys act as experts, to interview the defendant and determine whether he understood the legal process and could assist in his defense.
Bridging the Gap Between Psychology and the Legal World
A problem that is not often addressed, is the fact that the test used to determine competency was created by a court, whereas the people who end up providing the facts to prove the test, usually work in psychology.
The underlying question here is, how is a person who specializes in psychology, supposed to know which facts are important in the legal test? Bottom line, a legal standard, not a medical or psychiatric diagnosis, determines whether someone is competent. How is a psychologist going to know the facts most important to determine whether someone can participate in his defense or communicate with his lawyer? The psychologist does not know the facts of the case, the possible defense strategies, or the past communications between the lawyer and the defendant. At the same time, how is a lawyer supposed to know the relevant psychological tests to prove the necessary facts?
This problem raises an important issue — the key for effective communication between a person’s lawyer, and the psychologist conducting the test — and will likely testify or submit evidence at the competence hearing. Lawyers and psychologists must somehow bridge the gap between the two fields; of course, this is easier said than done. The Supreme Court has yet to endorse literature or standards, like the ABA standards, like the ABA National Benchbook on Psychiatric and Psychological Evidence and Testimony, for example, that are best used to determine competency.
In the meantime, many mental health experts and legal professions have joined together to publish helpful texts, including, Evaluating Competencies: Forensic Assessments and Instruments, and Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers.
Although competency is a relatively undeveloped area of the law, it has a major effect on the outcome of a case. Competency, in theory, protects a defendant from unfair circumstances. In considering the challenges between lawyers and mental health professionals, and the inconclusive tests by the courts, however, this area of the law has much room for improvement.
As discussed previously, the situation gets much stickier when the government, as it is permitted to do, insists on forcing medication upon a defendant to render them competent.
But as I always say, if they can’t try you, they can’t convict you!
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For more information regarding Nevada laws, or if you feel your rights have been violated, please call Mace Yampolsky & Associates. Call or text us at (702) 385-9777. We are available 24/7 for emergencies. If you need help, CALL NOW before it is too late. We can help!