I. INITIAL COMPETENCY HEARING AND ORDER FOR EVALUATION

A. Initial Competency Hearing

Best Practice: When the issue as to whether a defendant is mentally competent to proceed is raised, it is a best practice for the court to conduct an initial hearing to determine whether there is a reasonable basis to refer the defendant for a competency evaluation.

If there is a likelihood that the defendant’s presentation or current status is being influenced by the recent use or withdrawal from substances, it is a best practice to allow enough time for the defendant to withdraw from the effects of any substance use or abuse before determining whether to refer him or her for a competency evaluation. 

Discussion: When the issue of competency is raised—whether by a party or based on the judge's observations of the defendant—and there is a reasonable basis to believe competency is at issue, the court has an absolute duty to order an evaluation. Pate v. Robinson, 383 U.S. 375 (1966); Drope v. Missouri, 420 U.S. 162 (1975). However, the courts are not required to accept, without question, a lawyer’s representations concerning the competence of his or her client, although it is “unquestionably a factor which should be considered.” Drope, 420 U.S. 162, 178 n.13.

In Dusky v. United States, 362 U.S. 402 (1960) (per curiam), the Supreme Court set forth a two-part standard for determining competency to stand trial: first, a person must have the sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding; and, second, he or she must have a rational as well as a factual understanding of the proceeding against him or her. Id. In other words, as the Court held, it is not enough that the defendant is oriented to time and place and has some recollection of events. Id. Otherwise said, “a person whose mental condition is such that he [or she] lacks the capacity to understand the nature of the proceedings against him [or her], to consult with counsel, and to assist in preparing his [or her] defense may not be subject to a trial” or plead. Drope v. Missouri, 420 U.S. 162, 171 (1975); Godinez v. Moran, 509 U.S. 389, 401-02 (1993).

As to the first aspect of the competency standard—whether the defendant’s mental condition is such that he or she lacks the capacity to understand the nature of the proceedings against him or her—it is a best practice for the court to consider the nature of the proceedings in which the defendant will be involved, and whether the defendant has a reasonable degree of understanding. As to the second aspect—whether the defendant’s mental condition is such that he or she lacks the present ability to consult with his or her lawyer and assist in his or her defense—it is a best practice for the court to consider the defendant's capacity versus the defendant's willingness to assist counsel, and whether the defendant's unwillingness is based on free choice or irrational factors.

When making the initial decision as to whether to order an evaluation, it is a best practice for the court to rule out issues such as:

• intoxication on alcohol or drugs (and acting out due to the effects of the substance);
• voluntary choice to act inappropriately in court;
• culture (government/system is bad);
• language barrier; and/or
• lack of education (illiterate, or does not otherwise understand the proceedings, and/or defense counsel has not discussed the proceedings with the defendant).

Holding a hearing on the issue of whether to refer a defendant for a competency evaluation protects the due process rights of the defendant. It is especially important for the court to conduct a hearing in the rare cases where the prosecution raises the competency issue because a court-ordered competency evaluation compromises the privileges that would otherwise apply to a defendant's disclosures to a physician, psychologist, or attorney.

Allowing the defendant time to stabilize from the effects of any substance use or abuse may provide a more accurate assessment of the need for a competency referral. It is a best practice to encourage information gathering as a key component of the stabilization process, including ascertaining the extent of any substance use or abuse.

B. Court Protocol

Best Practice: It is a best practice for the court to conduct a colloquy with the defendant to determine whether there is a reasonable basis to believe competency is at issue.

Discussion: At this stage of the competency process, the court need only find a reasonable basis to believe competency may be at issue. Drope v. Missouri, 420 U.S. 162, 179-80 (1975). To ascertain whether there is a reasonable basis to believe competency is at issue, it is a best practice for the court to conduct a colloquy with the defendant. However, before doing so, the court will want to determine whether the jurisdiction has an immunity statute to protect the Fifth Amendment rights of the defendant. If there is no immunity statute in place, the court will want to determine whether the prosecution and defense have entered into an immunity agreement in the subject case, or whether there is a standing agreement between the prosecution and defense as to the admissibility of statements made by the defendant during a competency evaluation and related proceedings to protect the defendant’s Fifth Amendment rights. In all cases, it is a best practice for the court to protect the Fifth Amendment rights of the defendant. See Estelle v. Smith, 451 U.S. 454 (1981) (The “Fifth Amendment prevents a[n individual] from being made ‘the deluded instrument of his own conviction’”(citations omitted)).

Absent an immunity statute in the state, it is a best practice for there to be a standing agreement between the prosecution and defense as to the admissibility of statements made by the defendant during a competency evaluation and related proceedings to protect the defendant’s Fifth Amendment rights. This may be best achieved in a Competency Court or docket.

 

1. Colloquy—Rational and Factual Understanding of Proceedings

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

• Do you know where you are? Can you tell me?
• Did your attorney explain to you what will happen with your case today?
• Did he or she tell you how criminal cases proceed?
• Did you know why you are here? Can you tell me?
• Do you know what my job is as a judge? Can you tell me?
• Do you know what the prosecutor's job is? Can you tell me?
• Do you know what your attorney's job is? Can you tell me?
• Do you know what the jury's job is? Can you tell me?
• Can you tell me the difference between pleading guilty or not guilty?

 

2. Colloquy—Present Ability to Consult with Lawyer and Assist in Defense

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

• Do you think your attorney is on your side or on the prosecution's side? Why?
• I'd like you to remember these three objects: (e.g., square, apple, triangle, ball, pencil, etc.).
• What would you do if your attorney said you should plead guilty but you didn't want to?
• What would you do if you wanted to plead guilty but your attorney said you shouldn't?
• Can you repeat the names of the three objects I asked you to remember?
• Do you know whether the prosecution could make you testify at trial? What do you think?

C. Appointment of Neutral Evaluator

Best Practice: When the court finds there is a reasonable basis to believe competency may be at issue, it is a best practice for the court to appoint an independent, neutral evaluator to perform the competency evaluation. If a statute or rule requires that there be more than one evaluation and report, it is a best practice for the parties to have the option to waive that requirement. It is a best practice for the court to appoint an evaluator who is a licensed psychologist or psychiatrist with forensic training and certification in performing competency evaluations. Additionally, it is a best practice for the jurisdiction to compensate the mental health professional at a rate which encourages an in-depth evaluation and report.

Discussion: If the court appoints a neutral evaluator it lessens the likelihood that the parties will request additional, competing evaluations. However, it is a best practice for the parties to have the option to hire a private expert, or to request that a second evaluator be appointed at that party’s cost, in addition to the court-appointed evaluator if a party is not satisfied with the report of the court-appointed evaluator. It is not uncommon for the defense, or the prosecution in some instances, to hire private experts in addition to the court-appointed evaluator in high-profile, death penalty or other cases.

Additionally, it is a best practice for the jurisdiction to compensate the mental health professional at a rate which encourages an in-depth evaluation and report—ideally, taking into consideration preparation and travel time, document review, collateral interviews, competency examination, report preparation, and time in court.

D. When to Order a Competency Evaluation Be Performed

Best Practice: It is a best practice for the court to establish a deadline for performance of the competency evaluation. With limited exceptions, for a misdemeanor charge(s), it is a best practice for the court to order the competency evaluation to be performed, and the report to be filed, within 15 days of the court order; for a felony charge(s), it is a best practice for the court to order the competency evaluation to be performed, and the report to be filed, within 21-30 days of the court order. Limited exceptions include when the defendant appears to be acutely psychotic, or seriously disturbed, or under the influence of substance use or abuse.

Discussion: The Supreme Court set forth in Drope v. Missouri, 420 U.S. 162, 176-77 (1975), that the "resolution of the issue of competence to stand trial at an early date best serves both the interests of fairness, see Peyton v. Rowe, 391 U.S. 54, 62 (1968), and of sound judicial administration. See Panel on Recognizing and Determining Mental Competency to Stand Trial—Insanity as a Defense, in Institutes on Sentencing, 37 F.R.D. 111, 155, 161 (D.C. 1964)." Performing a competency evaluation within the best practices timeframes serves to prevent a person from languishing in jail and protect the individual's constitutional right to a speedy trial relative to the charges. Jackson v. Indiana, 406 U.S. 715 (1972).

However, if the evaluation is performed too close in time to when the defendant is taken into custody, it may pose a difficulty for the examiner to rule out the possibility that the defendant’s mental state is impaired due to the effects of any potential substance use or abuse. Depending upon the circumstances, it is a best practice for the mental health professional to allow enough time for the defendant to withdraw or recover from the effects of any substance use or abuse; or, if the defendant has a history of major mental illness, to be stabilized on a regimen of psychotropic medications before performing the competency evaluation—both may affect a determination as to whether the defendant is competent.

E. Where to Order a Competency Evaluation Be Performed

Best Practice: It is a best practice for the court to order the competency examination to be performed in the least-restrictive environment for the level of risk the defendant presents, and for the facility to have security available and special provisions for holding mentally ill defendants according to the level of risk.

Discussion:  The court’s determination as to the least-restrictive setting for a competency evaluation is a bond decision that should be made using the same factors as in any other case—taking into account both public safety issues and the needs of the potentially mentally ill defendant.

F. Status of Competency Evaluation

Best Practice: It is a best practice for the court to stay apprised of the progress and deadline for the competency evaluation and report.

Discussion: The deadlines serve one of the overall purposes of these best practices, which is to establish a framework and timeline within which cases are referred for competency evaluations; assessments are performed; defendants are referred for restoration; and cases are resolved by plea, trial, discharge, or civil commitment. Avoiding a logjam in any of these areas will assist the jurisdiction and mental health system in processing cases, providing restoration and treatment, and protecting the individuals' constitutional rights.