Competence to Stand Trial

By Dr. Greg Brown


One of the primary rights that an individual has within the United States is the right to stand trial and to confront one’s accusers in that process. This basic right distinguished the United States from most of Europe during the early the establishment of U.S. law. It also differed substantially from many of the trials held in the colonies, such as the Salem Witch Trials, where due process and rule of evidence was largely imagined.

Through the 20 th century, it became standard for defendants to have the opportunity to be appointed an attorney to help defend their rights over the course of the trial, especially as the trials became more specialized and more steeped in legal process.

The case of Dusky was heard by the United States Supreme Court and became law of the land. The question decided in the Dusky case led to a new national standard which defined the level of ability needed to be declared competent to proceed with trial. Historically, Mr. Dusky was ordered a new trial, and was found guilty again in the second trial. However, his case created the standard for competence to stand trial, which is still used nearly four decades later. The United States Supreme Court articulated that in order to be competent to stand trial defendants had to understand the charges against them and they had to be able to adequately communicate to assist their attorney in their defense.

Competence to stand trial evaluations are one of the most common types of evaluations that forensic psychiatrists typically perform in their usual course of work. The standard is relatively low, as elucidated by Dusky, and only requires two substantial elements, although there are several lines of questioning that can help establish both the appreciation and knowledge of the charges and the capacity to communicate effectively about them. The standard is specifically low because the right to stand trial is constitutionally based, thus individuals would need to be substantially impaired prior to having their right to stand trial abridged.

One of the most common errors in performing a competence to stand trial evaluation is the evaluator confusing the presence of psychosis with the presence of incapacity. Psychosis is a psychiatric term that suggests a lack of contact with consensual reality and often is observed in individuals who are either experiencing auditory hallucinations and/or suffering from severe delusions. Although the presence of a psychosis may affect an individual’s capacity during the trial, it does not necessarily affect capacity. Competence, or capacity, is a legal concept which relates to someone’s ability to function, which may or many not be impaired by specific symptoms. Thus, capacity and psychosis are two separate things, although it is theoretically possible the two could be related on a case by case basis.

When defendants are judicially found incompetent to proceed with trial, they are usually sent to a high security psychiatric facility and treated. The treatment is for the purpose of restoring competence to proceed. After successful treatment, the person returns to the correctional setting and participates in the trial. In the relatively rare case in which someone is determined permanently incompetent to proceed with trial, the client may be, at that point, eligible for civil involuntary commitment for treatment of their psychiatric condition.

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