By Steven H. Berger, MD
fpamed Forensic Psychiatrist

A person who is incompetent to stand trial cannot have a fair trial.  That is a basic tenet of our American justice system.  What is competence to stand trial?  How is it determined?  What happens if a person is found incompetent?

In general, to be competent to stand trial, a person must (1) understand the charges against him or her, (2) understand the court proceedings, and (3) be able to cooperate with his or her defense attorney.  Defendants are assumed to be competent to stand trial.  However, at any point in a legal proceeding, anyone can raise the question of competence of the defendant.  When that question is raised, the court is obligated to determine whether the defendant is competent to proceed.  Commonly, the defendant is ordered by the court to undergo a competency evaluation.

A competency evaluation is commonly conducted by a psychiatrist or psychologist.  Forensic psychiatrists and forensic psychologists are professional expert witnesses specifically trained and suited to conduct such evaluations.  Evaluations can be inpatient (for example, in a forensic hospital) or outpatient (in an office or virtually).  The evaluator (1) reviews the records of the case, (2) examines the defendant, (3) writes a report of his or her findings for the court, and (4) if needed, testifies about his or her findings.  In more detail:

1. Records Review:  The records can be minimal in a simple case, or extremely extensive in a complicated case.  Records can include records of the instant case, past cases, criminal records, legal history, school records, employment records, personal history, medical records, and particularly psychiatric records.  Personal history can include journals, diaries, other writings, videos, and social media about the defendant or media produced by the defendant.
2. Examination:  Examination of the defendant starts with interviewing the defendant similar to an examination for treatment (clinical) purposes.  Examination also includes objective observations of the defendant, for example, watching how the defendant behaves, dresses, relates, and responds.  Examination can also include psychological testing and collateral interviews.  Psychological tests are tools that objectively measure the parameters that are covered when interviewing the defendant.  Collateral interviews are interviews of people who have information about the defendant, for example, family, employers, teachers, neighbors, and friends.  Comparing the subjective data collected in the interviews with objective data collected in psychological tests is very helpful in confirming or refuting the information given by the defendant.
3. Report:  The court requires a report from the evaluator, usually written.  The purpose of the report is to delineate the examiner’s conclusion, whether he or she is competent to stand trial or not, and the basis for that finding.  The goal of the report is to provide clear guidance to the court.  Based on the evaluator’s report and other information, the court makes a determination of competent or not competent.  The expert witness evaluator produces an opinion regarding the defendant’s competence.  The court then decrees the fact of competent or not competent.
4. Testimony:  The court may require live testimony from the evaluating expert or not.  Live testimony, of course, is subject to cross-examination.

Incompetence to Stand Trial (ICST) is commonly due to psychiatric illness, neurological abnormality, or substance abuse.  Psychiatric illnesses can cause a person to be unable to think clearly, called cognitive impairment.  Neurological abnormalities can cause a person to be unable to receive, process, or express information.  Substance abuse can cause psychiatric or neurologic deficits temporarily or permanently.  The goal of the evaluation is to determine the cause of the incompetence and the prognosis.  The prognosis addresses whether incompetence can be successfully treated.  Successful treatment would restore a defendant’s competence to stand trial.

If the court determines that the defendant is competent to stand trial, then the defendant stands trial or enters a plea agreement.  Competence to enter a plea agreement is the same as competence to stand trial.  If the court determines that a defendant is not competent to stand trial, the next step is the court determining whether the defendant can likely be restored to competence.  If yes, then the defendant has court ordered treatment to restore that competence.  Once competence is restored, then the trial or plea bargaining occurs.  If the court determines that competence cannot be restored, then the defendant is either civilly committed or the charges are dropped.  Civil commitment continues until the court determines that discharge from the commitment is safe.  In some cases, the defendant remains civilly committed for the rest of his or her life.

Treatment to restore competence consists of medical treatment and legal education.  The medical treatment includes diagnosis and treatment of any health conditions that interfere with competence.  The most common illness is schizophrenia.  The most common treatment for schizophrenia is antipsychotic medication.  Other psychiatric illnesses that often interfere with competence are bipolar disorder (also called manic depressive disorder) and depressive disorder.  Physical illnesses can also cause incompetence.  Examples are infections, kidney disease, and congestive heart failure.  Such illnesses can compromise brain functioning and cause a person to look demented.  Competence is task specific.  For example, a person can be competent to balance his checkbook but not competent to stand trial.