Competency to Stand Trial – Meaning, Determination, and Findings of Incompetency

Updated January 9, 2021

Federal and state laws require that a defendant must be competent in order to stand trial for a criminal charge. Competency means that an accused must understand 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 his or her 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 him/her.

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 if 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 he or she does not, then the medical institute that he or she is 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?
  • 5.1. Insanity is a defense
  • 5.2. Different tests involved
  • 5.3. Different dates of determination
• 6. What is the law in California Penal Code 1368 PC?

A defendant is deemed competent to stand trial if he/she understands the nature of the court process.

1. What does it mean to be competent to stand trial?

A defendant is deemed competent to stand trial if he/she understands the nature of the court process.¹

Competency means the defendant must understand all of the following:

• the fact that he/he is in court,
• the general nature of the charges against him/her (“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 he/she has sufficient present ability to assist in the ultimate defense presented.

An accused is considered mentally incompetent if either of the following is true:

1. the accused is unable to understand what is going on in trial and why, or
2. the defendant is unable to assist his or her 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 him/her 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 he/she suspends 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:

1. there is evidence of incompetency, and
2. 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.

If a defendant is found to have mental illness rendering him/her incompetent, the defendant is then required to undergo psychiatric treatment.

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 He or she 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 his/her 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:

• he or she creates a dangerousness risk of bodily injury to another person, or
• he or she poses 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 he or she regains 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:

1. a defendant is declared incompetent,
2. his or her trial gets suspended,
3. he or she undergoes treatment,
4. he or she regains competency, and
5. he or she is found guilty after the trial resumes.

In these cases, the ill defendant receives credit for the period of time that he or she was 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:

1. insanity is a defense to criminal charges,
2. different tests are used to determine the two mental states, and
3. 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:

1. he or she was legally insane, and
2. he or she was 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:

1. Did the defendant understand what he or she was doing when committing the crime?
2. Did the defendant know that it was wrong to commit the crime?¹¹

In contrast, a defendant is considered incompetent if he or she cannot:

1. understand the criminal process, or
2. rationally assist his or her 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 he/she was 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:

1. understand the court process, and
2. participate in his/her defense.

6. What is the law in California Penal Code 1368 PC?

California’s laws regarding competency to stand trial largely fall in accordance with the above.

These rules are set forth in Penal Code 1368 PC.¹²

Note that California law says that a judge can only order a competency hearing if:

1. the defense presents “substantial evidence,” and
2. this 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.

Note also that California law does say that a defendant can:

1. appeal a competency determination, and
2. this appeal can come at different stages of a criminal case.

An accused can appeal if:

1. a judge decides not to hold a competency hearing, or
2. 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:

1. the defendant is found guilty, and
2. he or she appeals the conviction generally.¹⁵

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