A defendant can be found incompetent to stand trial, under provisions in criminal law, if he or she is unable to understand or participate adequately in his or her defense. If the defendant is found incompetent, further judicial proceedings are suspended until his or her competency is restored. The purpose behind this procedure is to ensure that a defendant receives a fair trial and, in addition, to preserve the dignity of the adversarial process (Melton, Petrila, Poythress, & Slogobin, 1997). The competency standard that is currently recognized by the courts was established in Dusky v. United States (362 U.S. 402, 1960), which holds that defendants must be able to consult with an attorney and have a rational and factual understanding of the proceedings.
Competency and criminal responsibility are often confused. However, while competency is concerned with a defendant's present ability to participate in the defense, criminal responsibility refers to a defendant's mental state at the time of the alleged crime. It is quite possible that a defendant could be found to be competent to stand trial and then later successfully raise the insanity defense. Indeed, if the competency issue were to be raised, a defendant would have to be considered competent before being allowed to proceed with an insanity defense.
Based on a thorough review of case law, Bonnie (1992) outlines two types of competence, competency to assist counsel and decisional competency. Competency to assist counsel refers to the minimum capacities a defendant would need to assist in his or her defense, such as the capacity to understand the criminal charges and the role of defense counsel. These capacities are different from those capacities that may be needed to make decisions that arise in a particular case. Decisional competency refers to the ability to understand and choose among alternative courses of action. In Bonnie's view, it is possible that some defendants could be considered competent to assist their attorney but incompetent to make certain decisions that arise during the course of the defense, such as whether to enter a guilty plea, to waive constitutional rights, or to employ an insanity defense.
Both defense and prosecution can raise the issue of competence. The courts have historically used mental health professionals, including psychologists and psychiatrists, to evaluate competency. Since competency is a legal issue, a judge makes the final determination, but evaluators have considerable influence (Roesch & Golding, 1980). Only a small proportion of defendants referred for fitness evaluations is found incompetent, usually about 10-25%.
Competency evaluations may be intentionally misused by attorneys to delay the trial, investigate the feasibility of an insanity plea, or discover new information about the defendant (Roesch & Golding, 1980). Competency evaluations may also be used as a "back door" to the hospital when a mentally ill individual does not meet the dangerousness criteria for civil commitment.
Robey's (1965) competency checklist is considered to be the first formalized measure of competency. Following this, the National Institute of Mental Health funded a research project that enabled the development of both the Competency Screening Test (Laboratory of Community Psychiatry, 1973), a 22-item screening test, and the Competency Assessment Instrument (Laboratory of Community Psychiatry, 1973), a more thorough semistructured interview. Other structured and semistructured interviews include the Georgia Court Competency Test-R (Johnson & Mullett, 1987), the Interdisciplinary Fitness Interview (Golding, Roesch, & Schreiber, 1984), the Fitness Interview Test (Roesch, Zapf, Eaves, & Webster, 1998), and the MacArthur Competency Assessment Tool—Criminal Adjudication (Poythress, Bonnie, Monahan, Otto, & Hoge, 2002). Psychosis and, to a lesser extent, mental retardation are the basis for an incompetency determination.
Treatment of competency is, in general, successful. Nicholson and McNulty (1992) found that competency could not be restored for only 10% of defendants. In such cases alternative dispositions, including dismissal of charges or civil commitment, are considered. The most common form of treatment is psychotropic medication (Roesch, Hart, & Zapf, 1996). However, while psychotropic medication may affect a defendant's mental disorder, it does not address his or her psycholegal impairments (Siegel & Elwork, 1992). In contrast, psycholegal education programs do address psycholegal impairments, focusing on topics such as the roles of key players and courtroom procedures (e.g., Pendleton, 1980).
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