Mock Competency Hearings and Assessment

This page contains presentations in three different parts: first, a series of competency hearings conducted in the context of a competency docket with practices and protocols more commonly seen in less serious (i.e., low-level felony and misdemeanor) cases in a high-volume court; second, a mock hearing that portrays a more traditional contested competency hearing with protocols more applicable to serious (i.e., felony) cases; and, third, a mock competency assessment. We utilized the same fact pattern for all of the hearings and the competency assessment—a summary of facts is set forth below.

The mock hearings are designed to be used for individual viewing or in a seminar setting. For the series of competency hearings and the assessment (Parts One and Three), each video has an introduction, including a description of the hearing or assessment and salient points for the viewer to observe. At the end of each video are concluding remarks with a summation of issues for further consideration or discussion. Summary of Facts

The defendant, Robert Barnes, was under arrest and charged with three criminal offenses: one count of Felony Harassment—Threat to Kill; one count of Felony Stalking; and one count of Criminal Trespass—Second Degree. The charges stemmed from an alleged series of behavior by Mr. Barnes, including climbing a fence and knocking on the neighbor’s sliding-glass door; exhibiting anger toward her and her visiting companion when Mr. Barnes was asked to leave; yelling deadly threats at the neighbor and her companion; displaying signs in his window with threatening language directed at the neighbor; and yelling threatening and other remarks at the neighbor through the fence.

At the time, Mr. Barnes was 26; a cement mason, Christian rapper, and high school drop-out. When evaluated for his mental competency, he denied suffering from, or ever being treated for, any mental or physical problems; he also denied ever being prescribed psychotropic or any other medications. However, he was diagnosed with ADHD as a child. He stated that he occasionally used alcohol or marijuana but no other illicit drugs. He stated that he had never served in the military, been married, or fathered children.

Mr. Barnes admitted being arrested for the first time at the age of 16 for a “gun charge,” but denied a history of assaultive or aggressive behavior.

Part One—Series of Competency Hearings

The following videos are of mock competency hearings at the various stages of the competency continuum: (1) the arraignment, or initial competency hearing, at which the issue of the defendant’s competency to proceed is first raised; (2) contested competency hearing at which the court considers evidence and testimony after the competency evaluation and determines whether the defendant is mentally competent to proceed; (3) Sell hearing at which the court determines whether to order the forced administration of medication to restore the defendant to competency, or to maintain his or her competency, to stand trial or plead; and, (4) a post-restoration competency hearing at which the court determines whether a defendant, previously determined to be incompetent to proceed and ordered to undergo competency restoration, is presently competent to proceed.

We want to thank the Honorable Michael J. Finkle, Judge of the King County District Court in Redmond, Washington, for his contributions and participation in these mock hearings and assessment. Judge Finkle provides the introductory and concluding comments; he also stepped out of his current position as a judge and back into his former role as a prosecutor to participate in these mock hearings. We also want to thank Russell Kurth, Esq., with the Associate Counsel for the Accused in Seattle, Washington, who served as the public defender; Karen Bailey-Smith, Ph. D., State Forensic Services Director for the State of Georgia, who served as the competency evaluator for the competency assessment and the expert witness for the contested competency hearing; Melissa Piasecki, M.D., Professor of Psychiatry and Associate Dean at the University of Nevada School of Medicine, who served as the expert witness for the Sell and post-restoration hearings; and Cody Herbst, who acted the part of the defendant. We are delighted that the Honorable William F. Dressel, former judge and current President of the National Judicial College, presided over the hearings.

Finally, note that any statutory references during the hearings are to Washington state law. Judge Mike Finkle, who serves the role of the prosecutor in the mock hearings, and Russell Kurth, Esq., who serves the role of defense counsel, served in those roles before the Seattle Mental Health Court/Competency Court; we utilized a fact pattern from their jurisdiction.

 

Initial Competency Hearing (11:47)

At the initial competency hearing, the judge determines whether to refer the defendant for a competency evaluation. The standard for a competency referral is relatively low—the court need only find there is a reasonable basis to believe competency is at issue. Pate v. Robinson, 383 U.S. 375 (1966); Drope v. Missouri, 420 U.S. 162 (1975). Note that if there is a bona fide doubt as to whether the defendant is competent to proceed, the court has an absolute duty to order an evaluation. Pate v. Robinson, id. Also note that courts are not required to accept, without question, a lawyer’s representations concerning the competency of his or her client, although the U.S. Supreme Court holds it is “unquestionably a factor which should be considered.” Drope v. Missouri, 420 U.S. 162, 178 n.13 (1975).

This video demonstrates two colloquies with the defendant: first, a colloquy conducted by defense counsel to demonstrate to the court that the defendant’s mental condition is such that he lacks the capacity to understand the nature of the proceedings against him, consult with counsel, and assist in preparing his defense ; and second, by the court, to substantiate its findings—thus, avoiding a competency referral where there is no reasonable basis to believe competency is at issue.

Note that before the court (or counsel) conducts a colloquy with the defendant on the issue of competency, the court will want to determine whether there is an immunity statute in the jurisdiction or whether the parties have entered into an immunity agreement to protect the defendant’s Fifth Amendment rights. 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, it is a best practice for there to be a standing immunity agreement between the prosecution and defense to protect the defendants’ Fifth Amendment rights. The latter may be best achieved with a competency court or docket.

VIDEO TRANSCRIPT

For best practices relative to an initial competency hearing, see “Initial Competency Hearing and Order for Evaluation” in the Mental Competency—Best Practices Model.

 

Contested Competency Hearing (38:11)

At a contested competency hearing, the party asserting that the defendant is incompetent to stand trial or plead has the burden of proving incompetence by a preponderance of the evidence, Medina v. California, 505 U.S. 437 (1992)—a higher standard than for a competency referral. Because competency to stand trial or plead is a dynamic issue which changes over time, Drope v. Missouri, 420 U.S. 162, 181-82 (1975), it is a best practice for the court to advance the date for the competency hearing once the competency report is filed. Drope at 176-77 ([T]he “resolution of the issue of competence to stand trial at an early date best serves both the interests of fairness . . . and of sound administration” (citations omitted).). The court is not bound by the opinion of the forensic evaluator; instead, it is a best practice for the court to conduct a colloquy with the defendant to substantiate its findings.

Note that before the court (or counsel) conducts a colloquy with the defendant on the issue of competency, the court will want to determine whether there is an immunity statute in the jurisdiction or whether the parties have entered into an immunity agreement to protect the defendant’s Fifth Amendment rights. 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, it is a best practice for there to be a standing immunity agreement between the prosecution and defense to protect the defendants’ Fifth Amendment rights. The latter may be best achieved with a competency court or docket.

Finally, also note how the stress of the hearing negatively impacts the defendant compared to how he appears in a one-on-one interview with the psychologist during the competency assessment.

VIDEO TRANSCRIPT

In this contested competency hearing, defense counsel disagrees with the evaluator’s report and testimony that the defendant is presently competent to proceed. This case presents a close call; it also illustrates the difficulty in determining whether an individual is mentally ill but competent to proceed, or whether the individual is mentally ill and incompetent to proceed.

As mentioned at the top, the defendant was portrayed by a student actor. For the record, Judge Dressel would have found him competent based on the evidence and what he observed at the mock hearing; for the sake of these presentations, he found him incompetent. In real life, the hearing was held at a Competency Court, and the defendant was found incompetent to proceed.

For other best practices relative to a contested competency hearing, see “Hearing for Competency Determination” in the Mental Competency—Best Practices Model. For more information on Competency Courts, seeCompetency Court or Docket” in the Mental Competency—Best Practices Model.

Note that because the defendant was played by an actor, we did not utilize the services of law enforcement personnel for the mock hearing.

 

Sell or Involuntary Administration of Medications Hearing (47:11)

In Sell v. United States, 539 U.S. 166 (2003), the U.S. Supreme Court held that the Fifth Amendment Due Process Clause permits the government to involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking into account less intrusive alternatives, necessary to further important governmental trial-related interests.

The Supreme Court in Sell did not enunciate what should be considered a serious crime; the Second Circuit holds that whether a crime is "serious" is a legal decision to be made by the court. U.S. v. Gomes, 387 F.3d 157, 159-60 (2nd Cir. 2004), cert. denied, 543 U.S. 1128 (2005). This video demonstrates a Sell hearing (without the court first determining the charges are serious, in the interest of time).

VIDEO TRANSCRIPT

For best practices relative to a Sell hearing, see “Maintaining Competency and Preventing Decompensation—Involuntary Administration of Medication” in the Mental Competency—Best Practices Model.

Note that because the defendant was played by an actor, we did not utilize the services of law enforcement personnel for the mock hearing.

 

Post-Restoration Competency Hearing (11:15)

If an individual is restored to competency, according to the opinion of the psychiatrist or psychologist who performs an evaluation after treatment, the court holds a hearing to make its findings as to whether the defendant is competent to proceed. If the prosecution and defense agree with the mental health professional’s opinion, it is still a best practice to hold a hearing and for the court to set forth its findings on the record.

In this video, the court conducts a colloquy with the defendant. As with any other hearing in the competency process, the court will want to determine whether there is an immunity statute in the jurisdiction or whether the parties have entered into an immunity agreement to protect the defendant’s Fifth Amendment rights. 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, it is a best practice for there to be a standing immunity agreement between the prosecution and defense to protect the defendants’ Fifth Amendment rights. Note that as a general rule, once the court finds the defendant competent to proceed, an immunity statute or agreement is no longer in effect.

VIDEO TRANSCRIPT

For best practices relative to a Post-Restoration Competency Hearing, see “Maintaining Competency and Preventing Decompensation—Involuntary Administration of Medication” in the Mental Competency—Best Practices Model.

Part Two—Contested Competency Hearing—NJC Course

Contested Competency Hearing—NJC Course (39:17)

This mock competency hearing was presented to judge-participants of the Co-Occurring Mental and Substance Abuse Disorders course at the National Judicial College in 2011. It begins with a summary of the case by Melissa Piasecki, M.D., then continues with direct and cross-examination and closing arguments by the Honorable Michael J. Sage as the prosecutor, and the Honorable Michael J. Finkle as defense counsel. The video concludes with a question-and-answer session between the faculty and judge-participants.

We want to thank the Honorable Michael J. Sage, Presiding Judge, Court of Common Pleas, Butler County, Ohio; the Honorable Michael J. Finkle, Judge, King County District Court, Redmond, Washington; Melissa Piasecki, M.D., Professor of Psychiatry and Associate Dean at the University of Nevada School of Medicine—all of whom are on the faculty for the Co-Occurring Mental and Substance Abuse Disorders course; and Cody Herbst, an actor, for taking part in this mock hearing.  We also want to thank Fredrick J. Frese, III, Ph.D., who is also on the faculty for the course and participated in the question-and-answer session.

VIDEO TRANSCRIPT

Part Three—Competency Assessment

Competency Assessment (15:19)

This video demonstrates part of the interview aspect of a competency assessment between a psychologist and the defendant. This assessment takes place after the defendant has been referred for a competency evaluation and before he has been adjudged competent or incompetent.

We want to thank Karen Bailey-Smith, Ph.D., State Forensic Services Director for the State of Georgia, who served as the evaluator, and Cody Herbst, who portrayed the role of the defendant, in this mock competency assessment.

VIDEO TRANSCRIPT

 

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