Competency to Stand Trial / Competency to Proceed

As per the federal court standard set forth in Dusky v. United States, 362 U.S. 402 (1960) and as adopted by most state jurisdictions, a defendant must possess a reasonable capacity to understand the criminal process (e.g., his/ her charges, the role of court personnel, etc.) and be able to function in that process (i.e., be able to consult with his/ her attorney) in order to be competent to proceed to trial.

Such evaluations may be requested by the court, the prosecution, or the defense. The primary focus of such an evaluation is the defendant's current mental status and capacity (rather than willingness) to understand the legal proceedings and to consult with counsel. In such evaluations malingering is a concern and should be investigated.

Although each case is unique and may require additional testing or evaluation, most evaluations may include the following:

  • Review of records related to the specific offense (e.g., police records, witness statements)
  • Review of background records and history (e.g., academic records, psychiatric/ psychological treatment records)
  • Background information: social history, psychiatric/ psychological history, medical history, substance abuse history
  • Clinical interview(s) of defendant
  • Mental status exam
  • Psychological testing (e.g., intellectual, measures designed to assess competence to proceed)
  • Malingering assessment*
  • Assessment of the defendant's ability to understand the criminal process and his/ her ability to assist in his/ her defense relative to the appropriate legal statute/ case law in the defendant's legal jurisdiction
  • Conclusions / opinions

* Malingering is routinely investigated by the evaluator and additional objective testing may be conducted at the discretion of the evaluator to confirm/ disconfirm a diagnosis of malingering.