Federal and state law require that a person must be competent in order to stand trial for a criminal charge. Competency means that a defendant understands the nature of the court process. This includes a grasp of the charges and parties involved. Competency ensures that the criminal defendant can rationally assist in their own defense.
This requirement is protected by the Sixth Amendment to the U.S. Constitution. The amendment guarantees a fair trial to everyone charged with a crime. Incompetency is deemed unfair to a defendant because an incompetent person lacks the fitness to stand trial and would not be able to help in defending charges against them.
If a defendant shows evidence of incompetency before or during trial, then the proceedings are suspended. The judge:
- calls for a competency hearing, and
- determines if the defendant’s mental state is competent or incompetent.
The trial resumes if the accused is found to be competent. A finding of incompetency means that the defendant is committed to an institute for psychiatric treatment.
A trial can begin at a later date if the accused regains adjudicative competence. If they do not, then the medical institute that they are committed to continues with its care.
Note that incompetency is not the same as insanity. The former is not a defense while insanity is a legal defense and works if the defendant was legally insane at the time of the commission of the crime.
Penal Code 1368 PC is California’s statute on competency to stand trial.
Our criminal defense attorneys will highlight the following in this article:
- 1. What does it mean to be competent to stand trial?
- 2. How is competency determined?
- 3. What happens if a defendant is found to be incompetent?
- 4. What if a defendant is later restored to competency?
- 5. How does incompetency differ from insanity?
- 6. What is the law for competency to stand trial California?
1. What does it mean to be competent to stand trial?
A defendant is deemed competent to stand trial if they understand the nature of the court process.1
Competency means the defendant must understand all of the following:
- the fact that they are in court,
- the general nature of the charges against them (“factual understanding of the proceedings” and “reasonable degree of rational understanding”),
- the parties involved (including the judge, prosecutor, defense counsel, and jury) in the criminal proceedings, and
- the fact that they have sufficient present ability to assist in the ultimate defense presented.
An accused is considered mentally incompetent if either of the following is true:
- the accused is unable to understand what is going on in trial and why, or
- the defendant is unable to assist their lawyer in a rational manner.2
The competency to stand trial requirement is protected by the Sixth Amendment. This amendment states that all people are guaranteed a fair trial. Mental incompetency results in unfairness since an accused:
- has an impairment, mental disorder, or other mental condition that precludes them from understanding the legal process, and thus,
- would be unable to adequately defend himself or herself in court.
2. How is competency determined?
The defendant’s competence is determined at a court hearing called a “competency hearing.”3 A trial court judge makes an adjudication on the issue of competency with the help of a psychiatric or psychological report.4
The goal of the hearing is to determine if the defendant is incompetent rather than competent.
This hearing is most often requested by the accused’s attorney.5 If the judge agrees that there is evidence of incompetency, then they suspend the trial.
Prior to the hearing, the court must appoint at least one of the following for a competency assessment:
- psychiatrist, or
- licensed psychologist to the case.
The mental health professional evaluator:
- examines the defendant’s mental health through a forensic evaluation and forensic psychiatry, and
- provides an opinion in a written report based on the competency evaluation on the defendant’s ability to stand trial.
At the competency hearing, the defense has the burden to prove that the accused is incompetent. Defense counsel can try and prove this using:
- medical reports and psychological evaluations,
- the defendant’s statements, and
- other applicable evidence.
Note that the defense does not have to prove incompetency beyond a reasonable doubt.
Incompetency, rather, only has to be proven by a “preponderance of the evidence.” This means that the court finds that:
- there is evidence of incompetency, and
- this evidence shows that it is “more likely than not” that the accused is incompetent.6
If a judge rules that the defense has not met this burden, then the trial resumes.
3. What happens if a defendant is found to be incompetent?
The judge temporarily suspends the trial with a finding of incompetency. Neither may the defendant plead guilty or not guilty or make a waiver of constitutional rights. Proceedings are suspended.
In addition, the incompetent defendant is given a referral to undergo mandatory psychiatric treatment.7 They may be committed to:
- a state mental hospitalization for inpatient care,
- a center for the care and treatment of people with developmental disabilities, or
- another state-approved treatment facility.
The length of the treatment is for:
- up to four months to determine if the accused can regain competency, or
- additional reasonable time for their medical condition to improve.8
In some cases, an accused may not regain competency. A state can then continue treatment of the accused for the foreseeable future if it determines that:
- they create a dangerousness risk of bodily injury to another person, or
- they pose a risk to the property damage of another.9
4. What if a defendant is later restored to competency?
A defendant’s criminal trial resumes if they regain competency.
Note that a defendant can always challenge a finding of renewed competency. If the court agrees that the defendant’s competency has not been restored, it will order a new competency hearing.
There are cases when:
- a defendant is declared incompetent,
- their trial gets suspended,
- they undergo treatment,
- they regain competency, and
- they are found guilty after the trial resumes.
In these cases, the ill defendant receives credit for the period of time that they were in treatment. This applies whether treatment was received in:
- a state hospital,
- a treatment facility, or
- an outpatient therapy setting.
The time spent in treatment will count as “time served.” This means it will be credited against any prison or jail sentence that the defendant receives.
5. How does incompetency differ from insanity?
There are three main differences between incompetency and insanity. These relate to the following:
- insanity is a defense to criminal charges,
- different tests are used to determine the two mental states, and
- different dates of determination apply.
5.1. Insanity is a defense
Insanity is a legal defense. A defendant cannot be convicted of a crime if:
- they were legally insane, and
- they were insane at the time the crime was committed.10
In short, insanity means the defendant lacked criminal responsibility.
Incompetency, on the other hand, delays a trial and does not act as a defense. A defendant who is incompetent cannot be tried or convicted while the incompetency lasts. A trial may resume once the accused is again competent.
5.2. Different tests involved
The law requires different standards for insanity versus incompetence to stand trial.
The test for insanity is the so-called “M’Naghten” or “McNaughton” test. This test asks two questions:
- Did the defendant understand what they were doing when committing the crime?
- Did the defendant know that it was wrong to commit the crime?11
In contrast, a defendant is considered incompetent if they cannot:
- understand the criminal process, or
- rationally assist their lawyer.
5.3. Different dates of determination
Insanity and incompetence are determined at different times.
Insanity is determined as of the time of the offense. It pertains to whether the accused knew what they were doing at the time of the wrongful act.
Incompetency, though, is determined as of the date of the criminal trial. It has to do with whether the accused can:
- understand the court process, and
- participate in their defense.
6. What is the law for competency to stand trial California?
California’s competency rules are set forth in Penal Code 1368 PC. As with federal law, state law requires defendants in criminal cases to be “competent” in order for them to stand trial.
In California, doubts as to a defendant’s competency can be raised by the defendant themself, their defense counsel, or the judge. If the judge questions the defendant’s competency, the defendant’s lawyer can ask for time to formulate their own opinion.12
Note that California law says that a judge can only order a competency hearing if “substantial evidence” shows that the defendant is incompetent.13
Substantial evidence is a subjective standard. Courts define it as evidence strong enough to raise a reasonable doubt in the judge’s mind.14
Example 1: During his trial for rape, Jose repeatedly curses loudly and disrupts the courtroom proceedings. He has to be removed several times. By itself, this is not substantial evidence that Jose is incompetent. It just shows that he is unwilling, but not unable, to cooperate in his defense.
Example 2: James is on trial for felony-murder. Before the trial began, a psychiatrist examined him and suggested in a report that James may need psychiatric treatment.
On the first day of trial, James shoots himself in an unsuccessful suicide attempt. He has to then miss part of his trial.
James’ wife testifies at trial that her husband is mentally unstable. Taken together, all of these facts are substantial evidence that James is not competent to participate in his own trial. Due process mandates that there be a competency hearing.
What is the burden of proof for competency to stand trial?
For a defendant to be declared incompetent at a competency hearing in California, the judge has to find by a preponderance of the evidence that they are unfit to stand trial.
In preparation for the competency hearing, a court-appointed psychiatrist or psychologist will evaluate the defendant’s ability to stand trial.15
(In Los Angeles, competency hearings occur in the Mental Health Courthouse.)
What are the consequences of being judged incompetent to stand trial?
If a defendant in California is found incompetent to stand trial, the court will either:
- commit the defendant to treatment at a state hospital or other approved facility for treatment, therapy, and medication; or
- order the defendant to attend outpatient treatment (more typical when the underlying offense was not a sex- or violent offense).
The court will expect regular reports about the defendant’s progress. If the defendant regains competency, the criminal case will go on as before.
Though when it is likely the defendant’s incompetency is permanent, a court-appointed conservator will represent the defendant. Plus the criminal charges will likely get dismissed.
If the defendant is found competent, the case will go on as before.16
Can competency determinations be appealed?
California law allows defendants to appeal a competency determination. Plus this appeal can come at different stages of a criminal case.
An accused can appeal if:
- a judge decides not to hold a competency hearing, or
- a judge or jury wrongly concludes that the defendant is competent to stand trial.
A decision that the accused was competent, though, can only be appealed after a criminal trial. Further, this appeal can only be made if:
- the defendant is found guilty, and
- they appeal the conviction generally.17
Is insanity different from incompetence in California?
California law draws a distinction between incompetency and insanity.
Incompetency refers to a defendant’s unfitness to stand trial because of their current mental state. Meanwhile, insanity is a legal defense raised during trial about the defendant’s mental state at the time of the alleged crime.
A defendant can be competent to stand trial and still raise the insanity defense, especially if the insanity was fleeting or was cured during treatment. Though in some cases, the defendant’s insanity persists and renders them incompetent to stand trial.
Similar to defendants who are found incompetent to stand trial, defendants who are found not guilty by reason of insanity may be committed to a treatment facility.18
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
- U.S. Constitution. Amendment VI. See also 18 U.S. Code § 4241.
- 18 U.S. Code § 4241. See also Dusky v. United States, 362 U.S. 402 (Supreme Court, 1960)(“Dusky standard”); see also Godinez v. Moran (1993) 509 U.S. 389.
- 18 U.S. Code § 4241.
- See same.
- Note, though, that a competency hearing can be requested by either defense counsel or the judge.
- 18 U.S. Code § 4241d.
- 18 U.S. Code § 4241, subsection b.
- 18 U.S. Code § 4241d.
- 18 U.S. Code § 4246.
- See Federal Rules of Civil Procedure, Rule 12.2.
- R v M’Naghten (1843) 8 E.R. 718. See also People v. Serravo, 823 P2d 128 (1992).
- California Penal Code 1368 PC. See also People v. Ramos, (2004) 34 Cal.4th 494; People v. Townsel (2016) 63 Cal.4th 25; People v. Parker (2022) .
- People v. Pennington, (1967) 66 Cal.2d 508.
- People v. Howard (1992) 1 Cal.4th 1132.
- California Penal Code 1369 PC. See also People v. Wycoff (2021) .
- California Penal Code 1370 PC.
- People v. Mickle (1991) 54 Cal.3d 140.
- See note 10 and 11.