Article Figures & Data
Tables
Identifying information
Source of referral, reason for referral, and statement of the charges
Relevant legal standards and criteria
Informed consent/statement of nonconfidentiality
Dates and durations of examinations
Sources of information: third-party information including records reviewed, collaterals sources interviewed
Relevant background information
(a) Family history
(b) Personal history
(c) Education history
(d) Employment history
(e) Religious history
(f) Military history
(g) Sexual, marital, and relationship history
(h) Medical history
(i) Drug and alcohol history
(j) Legal history (juvenile and adult crimes and civil matters)
(k) Psychiatric history
Relevant physical examination, imaging studies, and laboratory tests
Psychological testing and assessment instruments administered; dates completed as well as any repeated testing, including notation regarding any nonstandard instruction or administration
Current mental status examination (during the evaluation)
Competence examination data
Clinical conclusions and diagnoses that are relevant to competency
Medicolegal conclusions including expert opinion on competence if formulated
Opinion on restorability and commitability, if formulated
Formulation and basis for the expert opinion(s)
Education Basic knowledge of the trial process, including the roles of the courtroom personnel, pleas, plea bargaining, charges, sentencing, and how to assist one's attorney Anxiety reduction Two one-hour sessions per week with a psychologist to teach defendants anxiety management techniques suitable for use in court Guest lectures Weekly meetings with court personnel (judges, defense attorneys, prosecutors, and probation officers) who speak to the defendants and answer questions Mock trials Role-playing by defendants of various courtroom personnel in a scripted mock trial, with discussions led by clinical staff Video module Videotapes of actual courtroom proceedings watched by defendants, with discussions led by clinical staff Postrestoration module Discussion of court experiences between incompetent defendants and defendants who have been to court Current legal events Review and discussion of news stories involving criminal trials Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Statutory Provision for Involuntary Treatment for Competence Restoration Where Restoration May Occur Maximum Time for Restoration Alabama ARCrp § 11.1 to 11.8 Cannot consult with counsel with a reasonable degree of rational understanding of the facts and legal proceedings Psychiatrist or psychologist appointed by commissioner of Dept. of MH/MR Substantial probability of restoration in a reasonable time Not specified Dept. of MH/MR, or outpatient (if defendant is not dangerous and can consent to treatment) Indefinite, with annual review Alaska Alaska Stat. § 12.47.100 to 110 Cannot understand proceedings or assist with defense Qualified psychologist or psychiatrist Substantial probability of regaining competence in a reasonable time Not specified Custody of the Commissioner of Health and Social Services 180 days; 360 days if defendant is charged with violent crime and is presently dangerous Arizona Ariz. Rev. Stat. § 13-4501 to 17 Cannot understand the nature and object of proceedings or assist with defense Two or more mental health experts, including at least one psychiatrist Substantial probability defendant will regain competence within 21 months of original finding of incompetence Defendant is incompetent to refuse treatment and should be subject to involuntary treatment Program designated by county board of supervisors; Arizona State Hospital; jail; outpatient program; any court-approved facility The lesser of 21 months or the maximum sentence for the offense Arkansas Ark. Code Ann. § 5-2-301 to 311 Cannot understand proceedings or assist effectively in own defense Qualified psychiatrist or psychologist Not specified Not specified Custody of Director of Dept. of Human Services One year California Ca. Penal Code § 1367 to 1376 Cannot understand the nature of criminal proceedings or rationally assist counsel in conducting defense Psychiatrist, licensed psychologist, or any expert the court deems appropriate Substantial likelihood that defendant will regain mental competence in the foreseeable future Defendant lacks capacity and needs treatment; without medication, serious harm will result State hospital; public or private facility; outpatient program Felony: lesser of 3 years or the maximum sentence for the most serious offense Misdemeanor: lesser of 1 year or the maximum sentence for the most serious offense Colorado Colo. Rev. Stat. § 16-8-110 to 115 Cannot understand the nature and course of proceedings; or participate or assist in defense; or cooperate with defense counsel Not specified Substantial probability that defendant will be restored to competency within the foreseeable future Not specified Custody of Dept. of Human Services; outpatient treatment at or under the supervision of a facility Maximum term of confinement for offenses charged Connecticut Conn. Gen Stat. § 54-54 to 56d Cannot understand proceedings or assist in defense Psychiatrist or clinical team (psychiatrist, psychologist, and either social worker or nurse) Substantial probability that the defendant, if provided with treatment, will regain competence within maximum period of any placement order permitted Involuntary medication will render defendant competent; no less intrusive means to achieve adjudication; proposed treatment is narrowly tailored to minimize intrusion on liberty and privacy interests and will not cause unnecessary risk to defendant's health; seriousness of alleged crime is such that state interest in achieving adjudication overrides defendant's interest in self-determination Custody of the Commissioner of Mental Health and Addiction Services, Commissioner of Children and Families or Commissioner of Mental Retardation, or any appropriate mental health facility or treatment program Maximum sentence that defendant could receive if convicted, or 18 months, whichever is less Delaware Del. Code. Ann. tit. 11, § 404 Cannot understand the nature of proceedings, give evidence, or instruct counsel Not specified Not specified Not specified Delaware Psychiatric Center Not specified Florida Fla. Stat. Ann. § 916.12-145; Fla. R. Crim. P. 3.210 to 215 Does not meet Dusky criteria At least two mental health professionals, unless one opines that the defendant is incompetent and findings are stipulated to Substantial probability that defendant's illness will respond to treatment and defendant will regain competence in reasonably foreseeable future Not specified Defendants are committed for restoration only if incompetent and civilly committable. Otherwise, restoration occurs in community, correctional facility, or another facility Felony: 5 years; misdemeanor: 1 year Georgia Ga. Code Ann. § 17-7-130; Echols v. State, 255 S.E.2d. 92 (Ga. Ct. App. 1979) Cannot participate intelligently in defendant's Trial Not specified Substantial probability of attaining competence to stand trial in foreseeable future Not specified Dept. of Human Resources One year Hawaii Haw. Rev. Stat. § 700-403 to 406; State v. Kotis, 984 P.2d 78 (Haw. 1999) Lacks capacity to understand proceedings or assist in defense Three qualified psychiatrists in felony cases and 1 qualified psychiatrist in nonfelony cases Substantial likelihood of becoming fit to proceed in the future “Detention, care, and treatment” may include a court order authorizing involuntary administration of antipsychotic drugs Custody of the Director of Health Not specified Idaho Idaho Code Ann. § 18- 210 to 212 Lacks capacity to understand proceedings or to assist with defense Psychiatrist or psychologist Substantial probability defendant will be fit to proceed within foreseeable future Defendant lacks capacity to give informed consent State hospital, institution, mental health center or Dept. of Corrections Two hundred seventy days Illinois 725 Ill. Comp. Stat. 5/104- 11 to 104- 23 Cannot understand nature and purpose of proceedings or assist in defense One or more licensed physicians, clinical psychologists, or psychiatrists Likelihood of attaining fitness within 1 year if provided with treatment Not specified Dept. of Human Services, or other appropriate public or private facility or treatment program One year Indiana Ind. Code § 35-36-3 to 4 Cannot understand proceedings and assist in preparation of defense Two or 3 disinterested psychiatrists or psychologists; at least 1 must be psychologist Substantial probability of attaining competence in foreseeable future Not specified Division of Mental Health and Addiction Six months Iowa Iowa Code § 812.3 to 812.9 Cannot appreciate charge, understand proceedings, or assist effectively in defense Psychiatrist or psychologist Substantial probability accused will regain capacity within a reasonable time Somatic treatment is necessary and appropriate to restore defendant and defendant will not consent; director of facility may request order authorizing treatment Dangerous defendants: Dept. of Human Services or Dept. of Corrections for placement at Iowa Medical and Classification Center. Others: outpatient treatment Lesser of maximum term of confinement for alleged criminal offense, or 18 months Kansas Kan. Crim. Proc. Code Ann. § 22-3301 to 3306 Cannot understand nature and purpose of proceedings, or cannot make or assist in making a defense Psychiatrist or psychologist Substantial probability of attaining competence in foreseeable future Not specified State security hospital; any appropriate county or private institution Six months Kentucky Ky. Rev. Stat. Ann. § 504.060, 504.090 to 110 Cannot appreciate nature and consequences of proceedings or participate rationally in defense Psychiatrist or psychologist Substantial probability of attaining competency in 360 days Not specified Treatment facility; forensic psychiatric facility; Cabinet for Health and Family Services facility Misdemeanor: 60 days; felony: not specified Louisiana La. Code Crim. Proc. Ann. art. 641-649 Lacks capacity to understand proceedings or to assist in defense Sanity commission Mental capacity is likely to be restored within 90 days as a result of treatment Not specified Jail; Feliciana Forensic Facility Maximum sentence defendant could receive if convicted Maine Me. Rev. Stat. Ann. tit. 15, § 101-B; State v. Lewis, 584 A.2d 622 (Me. 1990) Cannot understand nature and object of charges, comprehend condition in reference thereto, or cooperate with counsel to conduct a rational, reasonable defense State Forensic Service; independent psychiatrist or psychologist Substantial probability defendant will be competent in foreseeable future Not specified Custody of Dept. of Health and Human Services One year Maryland Md. Code Ann., Crim. proc. § 3-101 to 3-108; Sangster v. State, 541 A.2d 637 (Md. Ct. App. 1988) Cannot understand the nature of proceedings and assist in defense Health Dept. or community forensic screening program Not specified Not specified Facility that Health Department designates Ten years for capital case, 5 years for felony Massachusetts Mass. Gen. Laws ch. 123, § 15-17; Commonwealth v. Vailes, 275 N.E.2d 893 (Mass. 1971) Does not meet Dusky criteria One or more qualified physicians psychologists for initial evaluation Not specified Not specified If civilly commitable, hospitalization for treatment Maximum time of imprisonment that person would serve before becoming eligible for parole for most serious charge Michigan Mich. Comp. Laws § 330.2020 to 330.2044 Cannot understand nature and object of proceedings or assist rationally in defense Center for Forensic Psychiatry; facility certified by Dept. of Mental Health Likelihood of Defendant's attaining competence, if treatment for statutory time frame To maintain the competence of the defendant to stand trial, pending and during trial Dept. of Mental Health or any inpatient mental health facility if commitment is necessary for effective treatment Lesser of 15 months or one-third of maximum sentence Minnesota Minn. R. Crim. P. Rule 20.01 Cannot consult with defense counsel with reasonable degree of rational understanding or cannot understand proceedings and participate in defense Licensed physician or consulting psychologist, knowledgeable, trained, and practicing in the diagnosis/treatment of the alleged impairment Substantial probability that with treatment or otherwise the defendant will ever attain competence Not specified Defendant is civilly committed; place is not specified Three years, except for murder, for which time frame is not specified Mississippi Miss. Uniform Rules of Circuit and County Court practice Rule 9.06; Gammage v. State, 510 So.2d 802 (Miss. 1987) Cannot consult with lawyer with reasonable degree of rational understanding; lacks rational and factual understanding of proceedings Psychiatrist or psychologist Substantial probability of becoming competent in the foreseeable future Defense attorney may authorize treatment Mississippi State Hospital or other appropriate mental health facility Within a reasonable time Missouri Mo. Rev. Stat. § 552.020 Cannot understand proceedings and assist in defense Psychiatrists, psychologists, or physicians with 1 year's training or experience in treating the mentally retarded or mentally ill Substantial probability of attaining fitness to proceed in forseeable future Not specified Commitment to the Director of the Dept. of Mental Health Not specified Montana Mont. Code Ann. § 46-14-103, 202, 206, 221, and 222 Cannot understand proceedings and assist in defense At least 1 qualified psychiatrist, licensed clinical psychologist, or advanced-practice RN Appears that defendant will become fit to proceed in reasonably foreseeable future Overriding justification for medically appropriate treatment Dept. of Public Health and Human Services, for placement in appropriate mental health or residential facility If court determines that so much time has elapsed since the commitment of the defendant that it would be unjust to resume the criminal proceedings, the court may dismiss the charge Nebraska Neb. Rev. Stat. § 29-1823 Cannot understand nature and object of the proceedings, comprehend own condition in reference to such proceedings, and make a rational defense Physician, psychiatrist, or psychologist Substantial probability of becoming competent in the foreseeable future Not specified State hospital for the mentally ill or other appropriate state- owned or -operated facility Six months initial, maximum length not specified Nevada Nev Rev. Stat. § 178.399 to 178.460 Does not meet Dusky criteria Two psychiatrists, 2 psychologists, or 1 psychiatrist and 1 psychologist, certified by Division of Mental Health and Developmental Services of the Department of HHS Substantial probability that treatment can restore competence and that defendant will attain competence or receive pronouncement of judgment in forseeable future Involuntary administration of medication if appropriate for treatment to restore competence Committed to Administrator of Division of Mental Health and Developmental Services, or outpatient treatment Lesser of 10 years or longest period of incarceration provided for alleged crime New Hampshire N.H. Rev. Stat. Ann. § 135:17 Does not meet Dusky criteria Psychiatrist on staff of any public institution, or private psychiatrist Reasonable likelihood that defendant can be restored to competence through appropriate treatment within 12 months Not specified State mental health system; secure psychiatric unit; or outpatient treatment Twelve months New Jersey N.J. Stat. Ann. § 2C:4-5, 4-6 Cannot understand proceedings and assist with defense At least 1 qualified psychiatrist or licensed psychologist Substantially probable that defendant could regain competence within foreseeable future Not specified Custody of Commissioner of Human Services for inpatient treatment if defendant is dangerous, or outpatient treatment Initial 3 months, maximum time frame not indicated New Mexico N.M. Stat. § 31-9-1 to 31-9-1.5 Does not meet Dusky criteria Psychologist, psychiatrist, or other professional recognized by district court as an expert Probability of defendant's attaining competence within 9 months of original finding of incompetence Not specified Dept. of Health in a secure, locked facility Maximum sentence defendant would have received if convicted New York N.Y. Crim. Proc. Law § 730.10 to 730.70 Cannot understand proceedings and assist with defense Two qualified psychiatrists (psychiatrist or psychologist); if 2 psychiatrists disagree, a 3rd psychiatrist is appointed Not specified Not specified Facility designed by Commissioner of Mental Health or MR/DD Two-thirds of maximum term for highest-class felony charged North Carolina N.C. Gen. Stat. § 15A 1001-1009 Cannot understand nature and object of proceedings, comprehend situation in reference to the proceedings, and assist with defense in a rational or reasonable manner Impartial medical experts, including forensic psychiatrists approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services Likelihood of defendant's gaining capacity to proceed, to the extent that the hospital, institution, or individual can make such a judgment Not specified Civil commitment to hospital or other institution; if given bail, custody of designated person or organization agreeing to supervise defendant Maximum term of confinement for the crime charged or 5 years (misdemeanor) or 10 years (felony) from date of incapacity to proceed North Dakota N.D. Cent. Code § 12.1-04-04 to 04-09 Cannot understand proceedings and assist with defense Psychiatrist or licensed psychologist Whether defendant will attain fitness to proceed or ability to effectively communicate with counsel in the foreseeable future Not specified Civil commitment Maximum period for which the defendant could be sentenced Ohio Ohio Rev. Code Ann § 2945.37-39 Cannot understand nature and objective of proceedings and assist with defense Psychiatrist, or licensed clinical psychologist who satisfies the satutory criteria or works for a certified forensic center Likelihood of being restored to competence within 1 year if treated Medication is necessary to restore competence; defendant lacks capacity to give informed consent or refuses medication State hospital; MR/DD facility; community mental health or Mental retardation facility; psychiatrist or other MI/MR professional Thirty or 60 days for misdemeanors; 6 months for lesser felonies; 12 months for major felonies Oklahoma Okla.Stat. tit. 22, § 1175.1 to 1175.8 Cannot understand nature of charges and proceedings, and effectively and rationally assist with defense Psychiatrist, psychologist, or licensed mental health professional with forensic training Whether person can attain competence within reasonable period of time if given treatment, therapy, or training Court shall order defendant to undergo treatment, therapy, or give training that will restore competence Dept. of Mental Health and Substance Abuse Services Lesser of maximum sentence for most serious offense charged, or 2 years Oregon Or. Rev. Stat. § 161.360 to 161.370 Cannot understand nature of proceedings, assist and cooperate with counsel, and participate in defense Psychiatrist or psychologist Substantial probability in foreseeable future that defendant will have capacity to stand trial Not specified State hospital; outpatient treatment; secure intensive community inpatient facility for juveniles So much time has elapsed that it would be unjust to resume criminal proceedings Pennsylvania Pa. Stat. Ann. § 7402-7406 Cannot understand the nature or object of proceedings and participate and assist in defense At least 1 psychiatrist Substantial probability of attaining competence in the foreseeable future Court is reasonably certain that involuntary treatment will restore competence Not specified Lesser of maximum sentence imposed for the crime charged or 10 years. For murder, no limit on restoration period Rhode Island R.I. Gen. Laws § 40.1-5.3-3 Cannot understand character and consequences of proceedings, or cannot properly assist with defense Physician Whether defendant will regain competence within maximum period of placement Not specified Dangerous defendants: facility established pursuant to § 40.1- 5.3-1, or to general wards of the Institute of Mental Health; outpatient treatment Two-thirds of maximum sentence for most serious offense charged South Carolina S.C. Code Ann. § 44-23-410 to 460 Cannot understand proceedings or assist defense Two psychiatrists designated by the Dept. of Mental Health or Dept. of Disabilities and Special Needs Substantial probability of attaining competence in forseeable future Not specified Appropriate facility of Dept. of Mental Health or Dept. of Disabilities and Special Needs Maximum period to which the person could have been sentenced if convicted as charged South Dakota S.D. Codified Laws § 23A- 10A-1 to 16 Cannot understand nature and consequences of proceedings and assist properly in defense Psychiatrist or psychologist Substantial probability that in the foreseeable future defendant will attain capacity to permit the trial to proceed Not specified Human Services Center; state developmental centers; adjustment training center mental health center; or other facility approved by Dept. of Human Services Maximum penalty allowable for most serious charge Tennessee Tenn. Code Ann. § 33-7-301 to 302 Does not meet Dusky criteria Community mental health center, licensed private practitioner, or outpatient evaluation by state hospital Not specified Not specified Forensic services unit or community-based service Not specified Texas Tex. Code Crim. Proc. Ann. art. 46B.001 to 171 Does not meet Dusky criteria Psychiatrist or psychologist Whether defendant will obtain competence in foreseeable future Medication is medically appropriate and in defendant's best interest; state has compelling interest in defendant's being competent; no less invasive means of obtaining competence; medication will not unduly prejudice the defendant's rights or defense theories at trial Community, mental health or MR facility Maximum term for offense on which defendant would be tried Utah Utah Code Ann. § 77-15-1 to 6 Unable to have rational and factual understanding of proceedings him or potential punishment, or cannot consult with counsel and participate in proceedings with a reasonable degree of rational understanding At least 2 mental health experts not involved in the current treatment of the defendant Substantial probability that the defendant may become competent in forseeable future Not specified Dept. of Human Services Maximum period of incarceration that defendant could receive if convicted Vermont Vt. Stat. Ann. tit. 13, § 4814-4822 Does not meet Dusky criteria Designated mental health professional Not specified Not specified Custody of Commissioner of Developmental and Mental Health Services Indeterminate, as long as person is civilly committable Virginia Va. Code Ann. § 19.2-169.1 to 169.3 Cannot understand proceedings or assist attorney with defense Psychiatrists, psychologists or master-level psychologists Restorable in foreseeable future Not specified Outpaitent; hospital designated by the Commissioner of Mental Health, Mental Retardation and Substance Abuses Services Lesser of maximum sentence if convicted of charges or 5 years Washington Wash. Rev. Code § 10.77.010 to 10.77.092 Cannot understand nature of proceedings and assist with defense At least 2 qualified experts or professional persons Futher treatment is likely to restore competence For serious offenses State hospital; other facility as determined by department or under guidance and control of professional person Maximum possible penal sentence for any offense charged, or 180 days West Virginia W. Va. Code § 27-6A-1 to 5 Cannot participate substantially in defense and understand nature and consequences of trial One or more psychiatrists, or psychiatrist and psychologist Substantial likelihood that defendant will attain competence within 6 months Not specified Mental health facility Nine months Wisconsin Wis. Stat. § 971.13 Cannot understand the proceedings or assist with defense One or more psychiatrists having specialized knowledge and deemed appropriate by court to evaluate and report on defendant Likelihood that defendant, if treated, may be restored to competence within statutory time period Court may order defendant to receive medication for duration of criminal proceedings Dept. of Health and Family Services for placement in appropriate institution Lesser of 12 months or maximum sentence for most serious offense Wyoming Wyo. Stat. Ann. § 7-11-301 to 303 Cannot comprehend situation, understand the nature and object of proceedings, conduct defense rationally, or cooperate with counsel to use available defenses Licensed psychiatrist, or other physician with forensic training, or licensed psychologist with forensic training Substantial probability that accused will regain fitness to proceed Not specified State hospital or other facility designated by the court Not specified U.S. Federal 18 U.S.C.S. § 4241 Cannot understand nature and consequences of proceedings and assist properly with defense Psychiatrist or psychologist Substantial probability that in the foreseeable future, defendant will become competent Sell v. United States (2003) Custody of Attorney General for treatment in a suitable facility Initial hospitalization for four months; thereafter, for “reasonable period of time” US Military U.C.M.J. § 876b; R.C.M. 706, 909; 18 U.S.C.S. § 4241 Cannot understand nature of proceedings or conduct or cooperate intelligently in defense A board of 1 or more persons; each member must be physician or psychologist; normally, at least one member is psychiatrist or psychologist Same as federal law Sell v. United States (2003) Same as federal law Same as federal law
Jump to section
- Article
- Statement of Intent and Development Process
- Overview
- Definitions
- I. Background
- II. Special Topics in Recent U.S. Case Law
- III. Agency Relationships
- IV. Ethics
- V. Cultural Considerations
- VI. The Interview
- VII. Collateral Data
- VIII. Assessment Instruments
- IX. Formulating the Forensic Opinion
- X. Preparing the Written Report
- XI. The Adjudicative Competence of Minors
- XII. Restoration of Competence to Stand Trial
- XIII. Summary
- Footnotes
- References
- Figures & Data
- Info & Metrics