Competency to Stand Trial: What Attorneys Need to Know
By David Lombard, PhD
Competency to stand trial is one of the most frequently raised issues in criminal proceedings and one of the most frequently misunderstood by defendants, families, and sometimes by counsel encountering it for the first time. Having conducted competency evaluations for adult and juvenile courts throughout my career, I want to clearly lay out what the evaluation assesses, what it doesn't, and what attorneys can expect from the process.
The Legal Standard
The governing standard comes from the U.S. Supreme Court's 1960 decision in Dusky v. United States, which held that orientation to time and place, or a bare recollection of events, isn't enough to establish competency. The Court set a two-part test: a defendant must have a rational and factual understanding of the proceedings against them, and sufficient present ability to consult with their attorney with a reasonable degree of rational understanding. Most states have adopted this standard directly or incorporated it into statute. A later decision, Drope v. Missouri (1975), reinforced that this includes the practical ability to assist in preparing a defense, not merely a passive understanding of the charges.
Competency Is Not the Same Question as Sanity
This is the single most common point of confusion I encounter, including among experienced attorneys unfamiliar with forensic evaluation. Competency asks whether a defendant can presently understand and participate in the proceedings against them. Sanity, or criminal responsibility, asks a completely different question: what the defendant's mental state was at the time of the alleged offense. A defendant can be found competent to stand trial while also raising an insanity defense regarding the offense itself — the two evaluations examine different points in time and different legal questions, and a finding on one doesn't determine the other.
What the Evaluation Actually Involves
A competency evaluation typically integrates a clinical interview focused on the defendant's understanding of the charges, the roles of courtroom participants, and the adversarial process; review of relevant records, including psychiatric and legal history; and, frequently, a standardized competency assessment instrument alongside clinical judgment — an approach the forensic literature has increasingly favored over relying on either method alone. The evaluation focuses on the defendant's current mental state and functional abilities, not solely on a psychiatric diagnosis; a defendant can have a serious mental illness and still be competent, or lack a diagnosis and still fail to meet the standard, depending on how the underlying condition affects the specific abilities Dusky requires.
Juvenile Competency Has Its Own Considerations
For juvenile courts, competency evaluation accounts for developmental factors beyond mental illness alone — a young person's competency-relevant abilities may be limited by cognitive immaturity or developmental stage rather than a diagnosable disorder, and evaluators need training specific to adolescent development to assess this accurately. Courts increasingly recognize that the adult competency framework doesn't transfer directly to juvenile proceedings without this developmental lens.
When a Defendant Is Found Incompetent
A finding of incompetency doesn't resolve the case; it typically triggers a restoration process, often involving treatment to restore the defendant's competency so proceedings can resume. The Supreme Court's decision in Jackson v. Indiana (1972) limits the duration a defendant may be held for this purpose, holding that indefinite commitment solely on the basis of incompetency is impermissible. Restoration commitments must be tied to a reasonable likelihood that the defendant will regain competency in the foreseeable future. Attorneys should factor these timelines into case planning rather than treating a competency finding as an open-ended pause.
A Closing Thought
Every competency evaluation I conduct involves someone at a genuinely vulnerable point — facing serious legal jeopardy, often in the midst of significant mental health struggles, and rarely in a position to advocate well for themselves. Getting the clinical question right matters because a person's fundamental rights in the proceedings depend on it. That's the standard I hold myself to in every case, regardless of the charge or the defendant's circumstances.
If you have a competency question on a current case, I'm glad to discuss it. [Contact / Schedule a Call]
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