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  • Writer's pictureSami Farhat

Competency to Stand Trial: Complexities, Nuances, and Challenges.


Competency to stand trial Forensic Psychology

Competency to stand trial is the most commonly referred forensic evaluation. At its most basic form, it refers to the defendant's ability to understand the proceedings against them and to assist in their defense. While this seems relatively straight-forward on paper, there are nuances in the assessment of adjudicative capacities, which often results in relatively contentious battles of the experts (so to speak).


It would be a disservice to discuss competency to stand trial without at least a basic introduction to its history and implications. Although every jurisdiction may have different statutory language, the United States generally relies on the Dusky Standard. The Dusky Standard was the product of a 1960's appeals case involving Milton Dusky, an individual with schizophrenia who was found competent, convicted, and sentenced for the kidnapping and rape of a young woman.


While few (if any) tears were shed for Dusky, there was an issue concerning his adjudicative competence. Specifically, his initial competency evaluation did not actually speak towards competence, and the overall opinion relied primarily on his intact mental status. He was also observed to deteriorate while in custody, specifically espousing delusional beliefs that he had reportedly been framed. Upon review by the United States Supreme Court, the following was held:


... a federal court in which criminal proceedings are pending to make a finding regarding the mental competency of the accused to stand trial, may not make a determination that an accused is mentally competent merely because he is oriented to time and place and has some recollection of events; the test must be whether the accused 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 a factual understanding of the proceedings against him.


And thus, the standard for adjudicative competency within the United States was formally established.


Competency to stand trial is one of the most important pretrial matters. Simply put, ensuring a defendant's competency helps with:

  • Ensuring the defendant can understand and participate in proceedings.

  • Guarantees fairness in judicial matters.

  • Protects the defendant's constitutional rights, including the right to a fair trial and due process.

  • Ensures accuracy in legal outcomes, including avoiding wrongful convictions or unjust sentencing due to misunderstandings or inability to participate in a trial.

  • Promotes ethical and humanitarian considerations, such as providing opportunities for treatment and rehabilitation to those found incompetent.


While some jurisdictions specifically define the mental threshold for incompetence, others do not. Here in Michigan, there is no specific definition. Rather, the statute simply refers to a "mental condition." This raises the question: what type of psychopathology could render one incompetent? Typically, if opining a defendant incompetent, there is an expectation that the individual suffers from a psychotic, manic, or cognitive-related condition (e.g., intellectual disability, dementia). Conditions such as anxiety, PTSD, or personality disorders would rarely qualify. This distinction makes sense when considering the importance of capacity versus willingness. Courts typically require a form of psychopathology so extreme that there is little question as to the defendant's volitional control.


While all of this appears relatively straightforward, competency issues can be incredibly heated and contentious in the courtroom. At times, a defendant's competency can drag on for years with numerous hearings and expert testimony. There are several reasons for this complexity.


First, competency is a dynamic and nuanced construct. A defendant's mental status can fluctuate dramatically, especially if psychotic. In other words, a defendant found competent this week could be opined incompetent the next.


Second, it is imperative that forensic evaluators be impeccable diagnosticians. One of the most common points of contention in second-opinion competency hearings is the type of condition the defendant has. Was he psychotic? Was he intellectually disabled? Was he simply antisocial? Or was he malingering? While evaluators may not be asked to give a specific diagnosis, the diagnosis remains pivotal as competency opinions can be highly predicated on the type of condition the defendant has. For example, a personality disorder would generally not qualify as a lack of competence. A defendant who is malingering will more likely than not be presumed competent. However, what if an evaluator believes that a genuinely mentally ill defendant is malingering? Or, if a malingering defendant is opined to be mentally ill? These inaccurate opinions can result in a variety of concerns, including pushing an incompetent individual through trial, or allowing a competent individual to avoid prosecution.


Third, many jurisdictions do not do a good job defining competency. In the State of Michigan, the statute (MCL 330.2020, Sec. 1020) simply states that a defendant may be incompetent "if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner." However, understanding proceedings or rationally assisting, in my opinion, are not singular capacities. Rather, they are broad constructs built around several capacities that should all be considered.


For example, if a defendant knows their charge, that they can accept a plea bargain, and that the prosecutor is working against them, would this imply an intact capacity to understand the proceedings? Admittedly, these are important facts; however, that is all they are: facts. None of these issues speak towards the greater rational knowledge, which is at the heart of competency.


Let's say this defendant understands everything about the court system and their charges, yet also believes that their soul was invaded by a demon at the time of the crime, and therefore insists on going to trial because they believe they will be found not guilty. If this defendant was simply asked a variety of questions pertaining to the court system and whether they wanted to go to trial or accept a plea bargain, it is quite possible that they may fly under the radar. Their delusional beliefs and relevant impairments would not have been observed, and they would have been opined competent.


This leads to arguably one of the most important caveats to forensic evaluations: probe, probe, probe. By always asking to clarify, elaborate, or explain a response, the evaluator will obtain a much more rounded and reliable clinical picture. In the above example, there are a variety of questions the defendant could be asked (e.g., What is the most likely outcome of your case? How certain are you of it? Why would you go to trial instead of accepting a plea bargain? Is it possible you may lose? What would happen then?), all of which could elicit the defendant's poor rational understanding of his charges and inability to realistically participate in proceedings.


By clarifying such matters, evaluators can obtain a clear picture of the defendant's rational understanding, which is the most important component. Whereas factual knowledge speaks towards independent pieces of information, the rational prong reflects the ability to appreciate and apply factual knowledge to a situation. For example, rational considerations look at whether the defendant can appreciate the severity of their offense, whether they can understand the risks associated with declining plea bargains (e.g., that they will likely go to trial where they may lose and receive a sentence greater than the deal), and whether they can appreciate the weight of available evidence and foreshadow how it may play a role in their case.


One of the primary reasons the rational component has taken the spotlight within competency issues is that factual knowledge is, for lack of a better term, not as important. In fact, you may be hard-pressed to find, even amongst some of the most impaired defendants, an individual who legitimately could not learn, or at least parrot back basic information. Without ensuring adequate comprehension and the ability to apply this information, an opinion on competency is grossly insufficient.


One way to help avoid competency shortfalls is to reconsider what the adjudicative capacities truly are. One method I've found to be reliable and helpful is to categorize the prongs of competency and break them down into their respective parts.


For example, understanding the proceedings can easily be broken down into:

  • Understanding the nature and seriousness of alleged offenses.

  • Understanding the potential consequences of legal proceedings (e.g., sentence, sex-offender registry, etc.).

  • Understanding simple court procedures, pleas and their basic consequences, and the rights of a defendant.

  • Appreciating the adversarial nature of criminal proceedings.


The capacity to rationally assist can similarly be broken down into:

  • The ability to disclose pertinent information to their attorney (e.g., the facts, events, and states of mind experienced during the offense).

  • The ability to engage in a reasoned choice of legal strategy (e.g., evaluate and weigh evidence, reason through hypothetical plea bargains, etc.).

  • The ability to behave appropriately in court.

  • The ability to testify.


Considering all possible junctions of adjudicative understanding, we as evaluators not only ensure we are obtaining enough information, but we also strengthen the argument of our opinions. In the above example of the delusional defendant, we saw clear impairment in his rational appreciation for his charge. However, if we map out competency as outlined above, we can see how this one impairment also contaminates his ability to disclose pertinent information, engage in a reasoned choice of legal strategy, and testify. In other words, this one impairment now affects the defendant across several areas, all of which can be supported and defended in court.


One of the most important things to remember as a forensic practitioner is that our expert opinions have profound impact on the lives of the individuals we see. We must ensure accuracy and reliability in our opinions, both for the sake of the defendants we see, as well as for the accuracy and efficiency of the justice system.


Competency to stand trial remains the most commonly referred forensic evaluation, and it does not appear that this will change anytime soon. With more attorneys and judges requesting evaluations and more defendants being evaluated, it is imperative that the growing pool of expert examiners educate themselves as much as possible about the nuances and complexities of competency. As I hope was conveyed in this post, it may not always be as simple as it seems.



Sami Farhat, Ph.D.








Sami Farhat, Ph.D.

Forensic psychologist and owner of ForenPsych Evaluations

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