The requirement that a defendant be competent to stand trial is mandated by the Due Process Clause of the United States Constitution.1,2 The right not to be tried while incompetent and the Fifth Amendment privilege against self-incrimination3 are coequal constitutional protections, each essential to the fairness of criminal proceedings. At times, however, these safeguards come into tension in the context of competency evaluations, where clinicians must decide whether to include potentially incriminating statements that may also be critical to demonstrating incompetence.
Forensic evaluators are routinely trained to avoid including in reports any incriminating statements made by the defendant.4,5 This guidance is intended to protect the Fifth Amendment privilege and, in the majority of cases, is appropriate. But in practice, it can sometimes result in the omission of the very evidence that most clearly reveals how defendants understand the case, interpret the evidence, and reason about their actions. In some cases, incriminating statements can be the clearest, and only, evidence of impaired reasoning bearing on competency. When excluded, evaluators may be left with generalized or conclusory descriptions of symptoms that fail to demonstrate how delusional thinking disrupts the defendant’s ability to participate meaningfully in the proceedings and rationally assist counsel. Although evaluators should always strive to minimize any unnecessary inclusion of incriminating statements, the risk of a successful prosecution hinging on such information alone is limited. Evidence that is used to support a successful prosecution typically includes sources such as interrogation evidence, witness testimony, video evidence, and police reports, which are available to the prosecution prior to the defendant communicating with a forensic evaluator. It would be the extraordinarily rare case in which a defendant’s statements to a forensic evaluator on their own would provide the basis for a successful prosecution.
The challenge is not to elevate one constitutional right over the other but to balance both. Protecting the Fifth Amendment should not come at the expense of the equally fundamental right not to be tried while incompetent. Nor does due process require wholesale disclosure of incriminating information. Instead, evaluators must take a narrower approach, limiting the analysis to what is necessary to explain the nexus between the defendant’s psychotic symptoms and resulting functional impairments while avoiding unnecessary or purely evidentiary detail.
Importantly, not all statements reflecting psychosis are self-incriminating. In the majority of cases, when an evaluator concludes that a defendant with a psychotic disorder is not trial competent, that opinion can be adequately supported without including any incriminating statements the defendant offers to the evaluator. Many defendants express delusional beliefs unrelated to the charged offense that nonetheless demonstrate incompetence. For example, a defendant may believe his attorney is part of a conspiracy or is secretly aligned with the prosecution. Others may insist the court lacks authority based on fixed, false legal or hyper-religious beliefs. These delusions can impair the defendant’s ability to understand proceedings, trust counsel, weigh advice, and make reasoned decisions. Where such nonincriminating material adequately establishes incompetence, there is no justification for including statements that directly implicate the defendant in the charged conduct.
But in a narrower subset of cases, the defendant’s description of the alleged offense is the clearest, and sometimes the only, evidence of impaired reasoning. In these cases, evaluators can balance both constitutional interests through selective inclusion. Statements should be included only when necessary to demonstrate how the defendant reasons about the case, not to prove that the act occurred or provide investigative leads. The focus must be on defendants’ state of mind, how delusional beliefs shape their understanding of events, distort their interpretation of evidence, and impair their ability to participate rationally in the defense. When used in this limited and purposeful way, such statements do not undermine constitutional protections; they help ensure that both are meaningfully preserved.
When evaluators omit statements to protect the Fifth Amendment privilege against self-incrimination, the consequences are not theoretical. Those omissions can prevent the adequate demonstration of incompetence, resulting in an incompetent defendant being brought to trial, where the risk of self-incrimination is greater. Incriminating statements are occasionally the most persuasive evidence of delusional thinking, the clearest support for a psychotic diagnosis, and sometimes the only evidence that reveals defendants’ inability to rationally evaluate the case, including the rejection of viable defenses (such as not guilty by reason of insanity) or the insistence that their actions were justified by delusional beliefs. This dynamic is illustrated in People v. Tejeda.6 The problem on appeal was not the exclusion of statements during a competency evaluation leading to an erroneous finding of competency; however, the case nonetheless provides a powerful example of what can occur when a defendant is forced to trial despite being trial incompetent, particularly where the evidence of that incompetence consists of incriminating statements.
Junior Tejeda was twice found incompetent to stand trial because of persistent delusions that he was the subject of a government “mind control project.” He was later deemed trial competent based on the assumption that he could compartmentalize those beliefs for purposes of his defense. But at trial, that assumption proved illusory. Against his attorney’s advice, Mr. Tejeda took the stand and admitted to the charged offenses, explaining that although his “finger pulled the trigger,” the government had inserted “suggestional thoughts” into his mind and controlled his actions. He described committing the crimes as part of this project and expressed a desire to travel to Langley to “get to the bottom of it” (Ref. 6, p 789). At the same time, Mr. Tejeda unequivocally denied having a mental illness, claiming that he had previously lied about being schizophrenic and bipolar to qualify for disability benefits.
This testimony did not reflect a rational litigation strategy. It reflected a delusional belief system characterized by views that he was the subject of a government “mind control” project, that his actions were directed by external forces, and that his conduct was justified rather than criminal. These symptoms prevented Mr. Tejeda from evaluating the evidence against him, considering alternative explanations for his behavior, or recognizing the legal significance of his actions. His inability to distinguish between delusional beliefs and reality also likely impaired his capacity to weigh available defenses, including not guilty by reason of insanity. Although Mr. Tejeda at one point during the trial indicated a willingness to pursue an insanity defense, his subsequent testimony, denying any mental illness and attributing his actions to external control, demonstrated an inability to consistently or rationally engage with that defense. His decision to testify was not the product of reasoned judgment but of psychotic thinking detached from reality.
Defendants like Mr. Tejeda, who do not recognize their mental illness and instead view their actions as justified or externally controlled, are also the individuals most likely to reject viable insanity defenses. His statements were not merely admissions of guilt; they were the clearest evidence that he could not reason about his case in a reality-based way, the type of particularized evidence necessary for fact finders to meaningfully assess competency and avoid bringing defendants who are not trial competent to trial. Once a defendant is brought to trial, the consequences can be irreversible. A defendant has a constitutional right to testify, and neither counsel nor the court can prevent it, even when the decision is driven by delusion.7,–,10 Defendants like Mr. Tejeda, by taking the stand, expose themselves to direct, unprotected self-incrimination far more damaging than the limited and controlled disclosures that competency evaluators are urged to avoid.
Professional Guidelines
The current conventional wisdom dictates that incriminating statements should always or nearly always be excluded from competency reports. One authoritative source, the 2018 Fourth Edition of Psychological Evaluation for the Courts,4 recommends total exclusion, stating, “If the examiner does ask about what led to the arrest, we recommend that the report not include specifics of what the defendant reported, but only a summary statement about the quality of the response” (Ref. 4, p 155). This authority makes clear that the Fifth Amendment is implicated not only by outright confessions but also by any statements that furnish investigative leads, such as identifying the location of evidence or potential witnesses.4
A recent lecture sponsored by the Judicial Council of California regarding competency assessments, presented to nearly 200 state and county forensic evaluators on May 22, 2025, included a slide with large red lettering stating, “Defendants will make incriminating statements from time to time. Do not put incriminating information, or refer to specific defense strategy, in your report.”5
The 2018 American Academy of Psychiatry and the Law (AAPL) Practice Resource for the Forensic Psychiatric Evaluation of Competence to Stand Trial11 is more permissive, stating that “whenever possible, a competence report should not mention potentially self-incriminating information obtained from interviewing a defendant” (Ref. 11, p S23). It further explains that the examiner should not disclose specific information, such as what defendants said concerning their actions on the day of the alleged offense, unless such disclosure is thought to be clinically necessary to advance the evaluation (Ref. 11, p S24). Although more permissive, this standard remains vague and provides limited guidance as to when an exception to the usual exclusion rule should be made.
We argue that the categorical exclusion of incriminating statements from competency evaluations is misguided. Although intended to safeguard the Fifth Amendment privilege, such an approach can undermine the equally fundamental due process right not to be tried while incompetent. The proper inquiry is not whether such statements should be included or excluded as a rule but whether they are necessary to demonstrate impaired competency with sufficient particularity. Evaluators should apply a series of threshold inquiries before including potentially incriminating statements: whether incompetence can be demonstrated without the statement, whether the statement is necessary to support the opinion with sufficient particularity, whether the information is already reflected in discovery, and whether inclusion risks providing new investigative leads to the prosecution.
We propose a framework of selective inclusion. Under this approach, potentially incriminating statements are included only when they are the clearest available evidence of impaired reasoning and necessary to show how the defendant understands the case, interprets the evidence, or makes decisions about the defense. They are excluded when unnecessary or when they introduce new investigative information unrelated to the evaluation. When used in this limited and purposeful way, focused on the defendant’s state of mind and how symptoms impair the ability to understand the nature of the proceedings and rationally assist counsel, rather than on establishing guilt or providing investigative leads to the prosecution, such statements can illuminate competency without compromising constitutional protections.
California Law
California’s legal framework heightens the stakes in two important ways. First, under the California Supreme Court’s decision in People v. Sanchez,12 evaluators are limited in their ability to rely on collateral sources, often requiring opinions to be grounded primarily in the defendant’s own statements. In Sanchez, a gang expert testified that the defendant was a gang member based on police reports and field documentation created by other officers, despite having no personal knowledge of the underlying events. The expert relayed those out-of-court statements to the jury as true, even though the officers who made the observations did not testify. The court held that this practice violated the hearsay rule: when an expert relates case-specific, out-of-court statements and treats them as true, those statements are hearsay offered for their truth, not merely the basis of an opinion. The concern was that critical facts were being proven through untested, secondhand assertions without cross-examination.12
When this rule is applied in competency proceedings, however, the result is markedly different. Psychiatric and medical records, although technically hearsay, are generally reliable because they are created for diagnosis and treatment, not litigation. By contrast, the records of concern in Sanchez were created in the course of criminal investigation, often for the purpose of establishing facts for prosecution. Treating these categories of information identically under a strict hearsay rule ignores these fundamental differences in purpose and reliability. When Sanchez is used to limit reliance on collateral sources, evaluators are often left to rely more heavily on the defendant’s own statements to explain how symptoms of mental illness affect reasoning and judgment.
Second, Penal Code Section 1369 requires evaluators not only to assess competency but also to address statutory criteria related to involuntary medication, including the presence of a serious mental disorder, medication decision-making capacity, and potential dangerousness if untreated.13 These determinations sometimes depend on understanding how the defendant reasons about the alleged conduct. In some cases, the connection between psychosis, impaired judgment, and risk can only be demonstrated through the defendant’s own description of events. As a result, the very statements evaluators are cautioned to avoid may be central not only to competency but also to related statutory findings.
The Fifth Amendment concern is genuine, but existing constitutional safeguards largely mitigate the risk of misuse. By contrast, the due process risk of omitting critical evidence is immediate: without sufficient, particularized information, defendants who are not trial competent may be found competent and brought to trial. As illustrated in the Tejeda case, that result carries significant consequences. Although we focus on California law, the underlying tension is not unique to this jurisdiction. Competency standards are similar across jurisdictions, and the challenge of balancing constitutional protections while ensuring accurate, particularized evaluations is widely shared.
Clinical and Practical Consequences
Competency evaluations are the most frequently used assessments in criminal forensic evaluations.14 Competency referrals have steadily increased across the United States, magnifying the stakes of how competency evaluations are conducted and reported.15 A national survey found that 82 percent of states reported rising referrals for competency assessments, reflecting increased awareness and systemic pressures, such as the growing incarceration of individuals with serious mental illness.15 More recent scholarship underscores both the scale of these proceedings and the lack of precise data.16 As Morris and colleagues observe, there are no reliable national statistics on the number of competency-to-stand-trial evaluations conducted each year, with estimates ranging widely from approximately 19,000 to 94,000 annually.16 Although these figures do not quantify how often evaluators face the specific dilemma addressed here, they provide important context for the scope of competency determinations. In a system operating at this scale, even a small percentage of reports that may necessitate inclusion of incriminating statements to support a defendant’s trial incompetence has significant consequences.
Courts have developed a body of law governing the use of competency-related statements, balancing the Fifth Amendment privilege against self-incrimination with the need for reliable mental health evidence. In Estelle v. Smith,17 the U.S. Supreme Court held that statements obtained during a competency evaluation could not be used at sentencing without proper prior advisement of rights and notice to counsel. In Buchanan v. Kentucky,18 the Court clarified that such protections are not absolute, permitting use of psychiatric evidence when the defendant affirmatively places mental condition at concern. California courts have adopted similar limits. In People v. Pokovich, the California Supreme Court held that statements from competency evaluations may not be used for impeachment.19 In People v. Taylor,20 the court recognized a narrow exception, allowing use of such statements only when the defendant affirmatively places mental condition at concern, such as through an insanity defense. In practice, this exception applies in only a small fraction of felony cases.21
Taken together, these cases establish that competency statements are tightly constrained at trial. Given the frequency of competency evaluations, this framework supports a balanced approach. The best way to reconcile the due process right not to be tried while incompetent with the Fifth Amendment privilege against self-incrimination is through selective inclusion permitting use of incriminating statements only when necessary to demonstrate impaired reasoning and excluding them when they are not.
California law reinforces the need for detailed evidence. Penal Code § 1369(c)(3) presumes competence unless incompetence is proven by a preponderance of the evidence.13 The U.S. Supreme Court upheld this burden allocation in Medina v. California.22 As a result, the defense must present affirmative, persuasive evidence. The legal presumption of competence requires detailed, persuasive evidence to support trial incompetence, and in select cases, the clearest evidence is revealed in the context of incriminating statements. Courts have made clear that competency opinions must explain how mental illness affects the defendant’s functioning. In People v. Ghobrial,23 the California Supreme Court emphasized that substantial evidence requires more than a diagnosis or general description; evaluators must show how symptoms impair the defendant’s ability to understand proceedings or assist counsel.
In the majority of cases, nonincriminating evidence is sufficient, such as delusions about counsel or unrelated conspiracies. In select cases, however, the clearest evidence comes from the defendant’s description of the alleged conduct. These statements show how the defendant interprets events, assigns causation, and makes decisions about the case. Without adequate specificity, the defense risks relying on conclusory assertions that are unlikely to provide sufficient evidence to support a finding of trial incompetence. For example, a defendant who states, “I didn’t kill my sister; I killed the demon that had taken over her body that was trying to kill me; I acted in self-defense” demonstrates how he perceives the charged conduct and fails to distinguish between reality and delusion. A summary that the defendant believed a demon possessed his sister does not alone show how that belief affects his understanding of the offense. Likewise, a report stating, “The defendant expressed delusional beliefs regarding the alleged victim” is less prone to persuade a skeptical juror of the defendant’s trial incompetence. The defendant’s own words, explicitly articulating his psychosis-driven motivation, reveals that he does not recognize the act as a wrongful killing and may reject viable defenses, including insanity. This link between belief and decision-making regarding potential trial strategy is sometimes necessary to show impaired case-related reasoning. If, however, this same defendant also told the evaluator, “I put the gun in the microwave because the microwave repels demons,” this type of incriminating information would appropriately be excluded in this case, as it would provide a new investigatory lead and this additional information would not be required to adequately support trial incompetence.
California’s statutory framework further highlights the potential importance of specific statements in select cases. Penal Code Section 1369 requires evaluators to address criteria relevant to involuntary medication, including the need for antipsychotic treatment, medication decision-making capacity, dangerousness, and likelihood of restoration with treatment.13 A statement such as “I strangled the doctor because all doctors are run by the machine that steals our souls” may support findings of dangerousness, lack of insight, and impaired decision-making capacity. Without such evidence, evaluators may be unable to support meeting the criteria for an involuntary medication order, leaving defendants untreated and delaying restoration. Delays in treatment have medical consequences. Research on the duration of untreated psychosis supports that longer untreated illness is associated with poorer outcomes, including increased risk of harm, hospitalization, relapse, and treatment resistance.24,–,27
The evidentiary limits recognized in People v. Sanchez further compound this problem. In competency proceedings, courts may apply the Sanchez hearsay rule strictly, limiting experts to their own observations and the defendant’s statements. Medical records, often central to psychiatric assessment, may be excluded as hearsay. In that setting, the defendant’s own statements become essential and, in some cases, the only available evidence of impairment.
Conclusion
The conventional wisdom that incriminating statements should always be excluded must be reconsidered. When a forensic evaluator fails to provide sufficient evidence to support a defendant’s trial incompetence, the due process risks for the defendant are real. The Tejeda case highlights the risks of trial incompetent defendants with a psychotic illness being forced to trial, where they may perilously insist on testifying against their attorney’s advice. Although a forensic evaluator should always strive to minimize the inclusion of unnecessary incriminating information, when such information is deemed essential in supporting either the psychiatric diagnosis or the forensic opinion, it should be included. A rigid exclusion rule, although well intended, protects against a largely theoretical danger while creating concrete risks of injustice and untreated illness. Good intentions sometimes risk harmful outcomes. Fifth Amendment concerns, although important, are largely protected by constitutional safeguards that sharply restrict prosecutorial use of competency statements. The greater danger, one which is much more likely to be realized in the course of criminal prosecutions, lies in competency reports stripped of the very evidence most probative of irrationality. The risk of a defendant’s due process rights being compromised sometimes trumps the risks of including incriminatory information. Competency reports with insufficient clear evidence to support that a defendant is incompetent to stand trial risks inappropriately forcing a compromised defendant to trial.
California law magnifies this risk. Evidentiary limits following People v. Sanchez often leave defendant statements as the only admissible evidence of psychosis, impaired reasoning, or lack of insight. These risks can place defendants who are incompetent to stand trial in trials they cannot rationally navigate, exposing them to the very self-incrimination that was meant to be avoided. The selective inclusion of incriminatory statements when necessary to support the diagnosis or forensic opinions ultimately serves the interests of both the court and the defendant, allowing the court to determine trial competency based on a sufficient presentation of evidence and helping to ensure that defendants with genuine psychotic symptoms causing trial incompetence receive needed treatment and are not inappropriately deemed trial competent. Forensic evaluators should strive to find the balance between protecting defendants’ Fifth Amendment right against self-incrimination with their right to not be adjudicated trial competent if they are trial incompetent, and this balance will occasionally necessitate the inclusion of incriminating statements in the competency report to provide adequate detail to support a finding of trial incompetence.
Footnotes
The opinions expressed in this article are solely those of the authors and do not represent the official positions of the California Department of State Hospitals or the San Bernardino County Public Defender's Officer.
Disclosures of financial or other potential conflicts of interest: None.
- © 2026 American Academy of Psychiatry and the Law
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