In order to participate in criminal proceedings, a defendant must have a rational and factual appreciation of the legal proceedings against them. If it appears that a defendant lacks sufficient understanding of the above, the judge, defense attorney, or prosecutor can “raise the issue of competency” (i.e., question whether the defendant meets the required legal criteria to continue in the proceedings). When the issue of competence is raised, a forensic psychologist is appointed to evaluate the defendant, based on six criteria resulting from the Dusky v. United States decision.
Dusky v. United States:: 362 U.S. 402 (1960)
Dusky a landmark case involving Milton Richard Dusky, a defendant who was accused of the kidnapping and rape of a juvenile. The defendant underwent two competency evaluations. One doctor opined he was competent based on sufficient orientation to time, person, and place. The second examiner opined the defendant was incompetent. After being adjudicated incompetent, the defendant was tried, convicted, and sentenced. On appeal, the United States Supreme Court determined that, “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.” The Dusky case set the current standards for Competence to Stand Trial evaluations which are conducted to determine whether a defendant meets the six criteria below:
Capacity to appreciate the charges and allegations: The defendant must have the capacity to identify and define the charges against them. They must also have an understanding of what they are accused of doing (e.g., what do the police say you did, etc.?).
Capacity to appreciate the range and nature of possible penalties: The defendant must have the capacity to appreciate the consequences of being found Guilty of the charges against them. Consequences include possible sentences that could result from a conviction (e.g., probation vs. jail vs. prison). They must also have the capacity to appreciate the possibility of receiving consequences such as life imprisonment or capital punishment.
Capacity to appreciate the adversarial nature of the legal process: A defendant must have the capacity to identify various court terms and give a basic description of the roles of court personnel. Some of the terms and roles defendants should be familiar with include judge, defense attorney/public defender, prosecutor, jury, witness, and evidence. The defendant should also know the available plea options and the definition of each. They should also be familiar with their right to an attorney and the confidential nature of their communications with their attorney (attorney/client privilege).
Capacity to disclose to counsel facts pertinent to the proceedings: The defendant must evidence an ability to effectively communicate with counsel. The examiner does not always observe interactions between the defendant and defense attorney, however, we can assess this criterion based on a defendant’s ability to relay information during the evaluation. Specifically: Are their statements coherent? Are they able to relay information in a way that is logical? Are they able to engage in the conversation and provide responses that are relevant to examiner inquiries? It is also important to assess the defendant’s ability to engage in a meaningful discussion about the advantages and disadvantages of various hypothetical plea offers.
Capacity to manifest appropriate courtroom behavior: This criterion assesses whether the defendant has the capacity to behave appropriately during court proceedings. Much like the previous criterion, examiners use the defendant’s behavior outside of the courtroom (e.g., during the evaluation) to determine their capacity. For example, does the defendant exhibit bizarre or disruptive behavior? Are they smiling inappropriately or talking to themselves, etc.? The defendant should be able to identify appropriate courtroom behavior (i.e., sit quietly and listen to what’s going on, do not disrupt proceedings, etc.). They should also be able to offer appropriate solutions to various hypothetical courtroom scenarios (e.g., if a witness is lying during their testimony, who is the best person to notify?). They should also have the capacity to understand the possible consequences of inappropriate courtroom behavior.
Capacity to testify relevantly: This criterion assesses a defendant’s performance during the examination. As evaluators, we assess the defendant’s ability to engage in and follow the conversation, provide rational and relevant responses to examiner questions, and respond to redirection. A defendant must be able to engage with the examiner without becoming confused or irritated in response to questions or requests for additional information. They must also respond appropriately to redirection (e.g., stop talking when asked to do so, provide relevant and concise responses when advised to do so, etc.). Under this criterion, we also look at the examinee’s understanding of their rights as a defendant. This includes their right to choose whether or not to testify on their own behalf, should they decide to take their case to trial (as opposed to accepting a plea offer). It is also important that the defendant display an understanding of the requirement that they be truthful in any statements they offer under oath and the possible penalties of perjury.