Defining Competency to Stand Trial

By Dr. David Dixon, Forensic Psychologist

The issue of competency to stand trial may be raised at anytime during a criminal trial. The court must formally determine if a bona fide doubt exists as to the defendant’s competency, usually this entails ordering a forensic psychological evaluation.

The courts have given forensic psychologists a large share of responsibility for defining and evaluating competency on a case-by-case basis. Psychological testing batteries were traditionally used to establish and determine a presence or absence of psychosis. However, as time progressed, it may become clear to the forensic psychologist, that although the defendant may be psychotic, delusional or totally out of touch with reality, they may still be deemed legally competent by the court.

The Dusky Standard in Dusky v. United States (1960) was established to define competency. The standard suggested it was not enough for a judge to find “that a defendant is oriented to time and place and has some recollections of the events, but that the test must be whether he has sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

What unfortunately was never explicit was “sufficient present ability” and how does one define “rational,” as well as “factual” understanding? Does that mean a defendant has at least a full scale IQ of 70, 75, or 80? Where is that line of having a good factual understanding vs. not having an understanding? As might be expected, there have been a wide range of inconsistent interpretations.

In assessing psychosis or any serious mental disorder, it appears to boil down to functional impairment. Specifically, the impairment in their ability to consult with the attorney and participate in the trial defense. This is determined not only by intellectual functioning but also the role of any underlying psychiatric disorder. How do they impair abilities?

Florida’s “Rule of Criminal Procedure” (1960) developed the following conditions an examiner might relate to diagnosed mental conditions:

    1) The defendant’s appreciation of the charge
    2) The defendant’s appreciation of the range and nature of the possible legal penalties
    3) Understand the adversarial nature of the legal process
    4) Capacity to disclose to the attorney pertinent facts surrounding the alleged offense
    5) Ability to relate to and trust the attorney
    6) Ability to assist the attorney in defense planning
    7) Capacity to challenge the prosecution witness
    8) Manifest appropriate courtroom behavior
    9) Capacity to testify relevantly
    10) Motivation to help self in trial
    11) Cope with the stressors of trial

Wilson v. United States (1968) reviewed some additional functional approaches for consideration. This case looked at the extent to which the disorder affected the defendant’s ability to consult, and assist the attorney and testify on his or her own behalf. It also considered the extent to which the evidence in the lawsuit could extrinsically be reconstructed in view of the mental disorder. Could the accused, but for their mental disorder, have established an alibi or other defense?

Research suggests most jurisdictions find approximately seventy to eighty percent of all referred defendant’s competent to stand trial. It is important to note that those referred defendant’s represent less than ten percent of those newly charged with felonies awaiting trial. Thus, they represent a very small pool of the most psychiatrically impaired.

It has been this evaluator’s experience that the court often does not have adequate data to understand a defendants ability. Thus, after the defense attorney has ethically raised the issue of competency, it becomes the forensic psychologists responsibility to make the court aware of all mental disorders. Most important is not only clarifying diagnosis of mental disorder, level of intellectual functioning, and/or memory loss, but how these specifically functionally impair an individual’s ability with some of the criterion above.

It is my belief that if these areas of functioning are effectively reviewed in the courtroom, decisions ultimately determined about competency will be more accurate.