It is axiomatic in the administration of criminal justice that incompetency of a defendant bars adjudication. In 1975, the United States Supreme Court said, "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial."1
It is "unsporting" to try a person who lacks a rudimentary understanding of the nature and purpose of the proceedings against him. The legal standard is imprecise, but it is a low one. In 1960, the Supreme Court said, "The test [is] whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him."2
Because over 90% of defendants plead guilty, trial participation is usually hypothetical. The accused's "competence" usually involves capacity to assist counsel in making an investigation and in making whatever decisions are necessary to resolve the case without a trial.
In 1993, the Supreme Court declared that decision-making abilities are encompassed within the construct of competence to stand trial, and that a defendant's trial competence and competence to plead guilty should be assessed under a single standard.3
Who should assess the competency? Who is in the best position to assess it? The rules of evidence allow expert testimony when it will "assist" the court.4 Does the court need help in assessing triability? If so, can expert psychological testimony provide this help?
Might the assessment be left to defense counsel? After all, the defense attorney is not only in close and continuing communication with a client, but also knows the extent to which defenses may turn on the client's ability to understand them and assist counsel in advancing them. The DC Court of Appeals once observed that because of this proximity to client and case, "counsel's firsthand evaluation of a defendant's ability to consult on his case and to understand the charges against him may be as valuable as expert psychiatric opinion on his competency."5
But can the defense attorney be entrusted to make a trustworthy evaluation? That aside, important as counsel data may be bearing on client competency, they cannot be offered or demanded by a court if they rest on or are derived from confidential communications under the protective umbrella of the attorneyclient privilege. Moreover, the attorney becoming a witness may strain the attorney-client relationship if a defendant observes defense counsel apparently testifying against the client's best interests as the client perceives them.6
Then why not leave the assessment to the judge or to another attorney? Why call for the assistance of mental health practitioners? The idea of assistance by mental health practitioners in this regard seems strange, but their evaluations are sought in an estimated 2% to 8% of felony cases.7
For guidance, a number of jurisdictions by statute or by court decision have set out criteria in evaluating triability. Florida, by court rule, adopted, slightly paraphrased, a list of 13 "qualifiable clinical criteria" for assessing competence that were formulated by the Laboratory of Community Psychiatry at Harvard University.8 With greater elaboration, the Nebraska Supreme Court set out 20 factors for consideration in determining competency9:
(1) That the defendant has sufficient mental capacity to appreciate his presence in relation to time, place, and things; (2) that his elementary mental processes are such that he understands that he is in a court of law charged with a criminal offense; (3) that he realizes there is a judge on the bench; (4) that he understands that there is a prosecutor present who will try to convict him of a criminal charge; (5) that he has a lawyer who will undertake to defend him against the charge; (6) that he knows that he will be expected to tell his lawyer all he knows or remembers about the events involved in the alleged crime; (7) that he understands that there will be a jury present to pass on evidence in determining his guilt or innocence; (8) that he has sufficient memory to relate answers to questions posed to him; (9) that he has established rapport with his lawyer; (10) that he can follow the testimony reasonably well; (11) that he has the ability to meet stresses without his rationality or judgment breaking down; (12) that he has at least minimal contact with reality; (13) that he has the minimum intelligence necessary to grasp the events taking place; (14) that he can confer coherently with some appreciation of proceedings; (15) that he can both give and receive advice from his attorneys; (16) that he can divulge facts without paranoid distress; (17) that he can decide upon a plea; (18) that he can testify, if necessary; (19) that he can make simple decisions; and (20) that he has a desire for justice rather than undeserved punishment.
The compilation of numerous specific findings may lead to an overall picture of the defendant's mental state, but insofar as each separate finding is used to support a finding of competence, the list becomes counterproductive, substituting particularized judgments or superficial aspects of the defendant's mental state for the more important ultimate conclusion of competence. Moreover, the extensive criteria give the impression that what is involved is the measure of the competency of a person to be a lawyer rather than the competency of the accused to be put to trial. The US Supreme Court established a simple standard, understandably and necessarily imprecise, in order to permit individual judges to evaluate each case in the light of the individual defendant's level of functioning in relation to the complexity ofthat case.
The practice of evaluation by mental health practitioners stems from a time when the plea of incompetence was used as a ploy either to delay the trial or to achieve an indeterminate confinement that otherwise was not possible. Defense counsel have used the incompetence process for purposes other than the determination of procedural competence, because a psychiatric examination ordered in relation to triability also afforded the defense information useful in plea negotiations, mitigation of sentence, or a later proceeding to determine mental nonresponsibility.
The prosecutor or the judge may raise the issue of triability even though the defendant may wish to go to trial. Prosecutors, given the power to inject the issue, have viewed the process as a mechanism to remove from society defendants against whom they might have a weak case or as a means of curbing anticipated violent behavior. In this respect, non-triable has been a code word for dangerous. What the court really wanted to know from the mental health professional was whether the accused was dangerous or an incorrigible nuisance. To say "incompetent" was another way of saying "he should put him away." The process entailed automatic commitment, without right to pretrial release on bail (which was allowed a defendant suffering a physical disability such as a heart condition). It achieved preventive detention.10'12
That reason for engaging mental health professionals has disappeared, yet the practice persists. In 1972, in Jackson v Indiana,13 the US Supreme Court set out a durational limit for the length of commitment, although it did not specify an exact time limit. Prior to this decision, the pretrial commitment procedure was widely used as a method for final disposition of a defendant's case as commitment for incompetency was tantamount to confinement for life. Following the decision, various states, either by judicial decision or legislation, limited the term of commitment to either a "reasonable period" or a term ranging from 12 to 18 months.
What is the justification now for engaging the mental health professional? To ascertain whether the accused is suffering amnesia or is malingering? That ascertainment is unnecessary as courts give little or no weight to amnesia in support of an incompetency plea.14·15 As the Louisiana Supreme Court put it, amnesia does not make the defendant incapable of understanding the proceedings against him or of assisting in his defense even if his emotional state impairs his recollection of the crime.16
In general, the best way to detect malingering is by police investigation or surveillance of the accused. Psychiatric experts are surely not needed. The original intent of the test of triability in mental cases was to excuse only flagrantly psychotic and defective individuals. An unsophisticated layman or the custodial officer is able to apply the test; a commonsense point of view is all that is needed for a literal application of the test. Surely, in a literal application of the test, there would be no need for a diagnosis in depth, or for Rorschach protocols. Assuredly, the sort of evaluation needed for measuring triability is not the same as that needed for treatment. Anything more subtle than what a custodial officer can detect ought not to be a basis to stay a trial, and, indeed, results in injustice and perversion of the criminal process. Moreover, the custodial officer, who has much experience with the criminal element and is able to observe the accused around the clock, is especially adept at detecting malingering,
It is not the suggestion here that the custodial officer or other jail attendants, who are especially adept at detecting malingering, should serve as the "expert" on an accused's fitness to stand trial. The point is that fitness to stand trial can be and ought to be measured by an ordinary view. Psychiatric examination does not further the inquiry. For a literal application of the test, the judge can by himself make as valid a decision as anyone on the basis of a few ordinary and simple questions put to the defendant.
It is said that a key issue in the determination of triability is whether the person is incompetent because of mental illness. Joseph T. Deters, prosecuting attorney in Cincinnati, has this to say:
In order for there to be an issue of triability, the defendant must first, as a threshold issue, demonstrate a mental condition which affects his ability to understand the proceedings or aid in his defense. I am not sure whether the determination of whether a person has a mental condition is one which could be made without the aid of an expert. Once that prong is established, however, I agree that courts could rely on their own inquiry to determine the nature of the defendant's understanding. Having relied on the expert for the primary determination and not being fluent in the nature of mental conditions, however, it is no wonder that courts routinely look to the expert to make their recommendation as to triability. Psychobabble is as confusing to the jurist as to any other laymen in the field of psychiatry (personal communication, Nov. 8, 1994).
But is diagnosis really relevant as to triability? If a defendant is capable of meeting the articulated requirements for competence, the presence or absence of mental illness is irrelevant. Legal criteria, not medical or psychological diagnostic categories, govern competency. Diagnosis is relevant only as to the question of potential restorability of competency with treatment. The possibility of restorability will be different in the case of psychotic depression than of dementia.
Restorability is the question to be properly put to the mental health professional, not triability.
1. Drope v. Missouri, 420 U.S. 162, 171(1975).
2. Dusky v. United States, 362 U.S. 402 (1960).
3. Godinez v. Moran, 113 S. Ct. 2680 (1993).
4. Rule 702, Federal Rules of Evidence.
5. United States v. Davis, 511 F.2d 355, 360 (D. C. Cir. 1975).
6. American Bar Association Criminal Justice Mental Health Standards 7-4.8 (1989).
7. Bonnie RJ. The competence of criminal defendants: a theoretical reformulation. Behavioral Science & Lam 1992; 10:291.
8. Florida Rule of Criminal Procedure 3.21 (1980).
9. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
10. Szasz TS. Psychiatric Justice. New York: Macmillan; 1965.
11. Geller JL, Lister ED. The process of criminal commitment for pre trial psychiatric examination and evaluation. Am J Psychiatry. 1978; 135:53.
12. Halpern AL. Use and misuse of psychiatry in competency examination of criminal defendants. Psychiatric Annals. 1975; 5:4.
13. Gobert JJ. Competency to stand trial: a pre- and post-Jackson analysis. Tennessee Law Review. 1973; 40:659.
14. Wilson v. United States, 391 F.2d 460 (DC Cir. 1968).
15. Koson D, Robey A. Amnesia and competency to stand trial. Am J Psychiatry. 1973; 130:588.
16. State v. Pellerin, 286 So.2d 639 (La. 1973).