“Competency to Stand Trial” in Colorado – A Legal Guide

In CRS 16-8.5-101(4), Colorado law states that defendants are competent to proceed with trial when they do not have a mental or developmental disability that would prevent them from sufficiently assisting the criminal defense attorney.

In other words, it means that the defendant is competent to stand trial for the crime(s) alleged against him or her. Incompetency, on the other hand, means a defendant cannot proceed to stand trial.

What is the importance of being competent to stand trial?

It is important to determine competency when the issue is raised because it:

• preserves the dignity of the criminal process;
• reduces the risk of erroneous convictions; and
• protects the defendant’s autonomy and ability to make decisions.

What is the difference between insanity and incompetency?

The difference between insanity and incompetency is two-fold:

1. Insanity is a substantive matter, while incompetency is a procedural matter.
2. Insanity refers to the person’s culpability (or lack thereof) at the time the alleged crime was committed. In contrast, competency refers to the defendant’s ability to understand what’s happening throughout the criminal process.

What is the process to determine competency to stand trial in Colorado?

There are many back-and-forth steps to the process of determining competency to stand trial. As a brief overview, the process can include:

• a judge, prosecutor, or defendant/defense attorney raising the issue of competency;
• a competency evaluation;
• a competency hearing;
• a determination on competency and (1) if found competent, the criminal proceeding resuming, but (2) if found incompetent, restoration treatment being ordered;
• a restoration to competency hearing if the defendant was initially found incompetent and later certified as competent by the Department of Human Services; and
• a determination on competency whereby if found competent, the proceedings resume or if found incompetent, restoration treatment may begin again.

Our Colorado criminal defense group discusses the process and answers your questions to help you better understand how competency is determined.

• 1. What is “competence to stand trial” in Colorado?
• 2. Why is it important to ensure a defendant is competent?
• 3. Is incompetency the same as insanity?
• 4. How is competency determined?
• 5. Can you appeal a competency decision?

1. What is “competence to stand trial” in Colorado?

Competency to stand trial or, as CRS 16-8.5-101(4) calls it, competency to proceed means:

that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings. ¹

In order to stand trial in Colorado — whether it is in Arapahoe County, Denver County, or any other county or jurisdiction — a person must be “competent” before being prosecuted for an alleged criminal act. A defendant’s constitutional right to due process of law is violated if he or she is actually incompetent to stand trial but is tried nonetheless. ²

What is the definition of mental incompetence?

A defendant is incompetent to proceed, according to CRS 16-8.5-101(11) when

as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.³

The question of competency falls on the defendant’s ability to consult with an attorney in a way that allows the defendant to have a practical understanding of the criminal proceedings.

What is a mental disability?

Mental disability is defined by CRS 16-8.5.101(12) as

a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. ⁴

The same section of the criminal code distinguishes mental disability from

• a condition caused by antisocial behavior,
• behavior caused by alcohol (or other substances) intoxication, or
• any substance abuse impairment caused by recent use or withdrawal.

That said, the same section of the criminal code also states it is possible that mental disability can be caused by “substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability.”

What is a developmental disability?

A developmental disability is defined by CRS 16-8.5-101(9) as a disability that:

• was present before the person turned twenty-two years old,
• is a substantial disability concerning the affected person, and
• is caused by mental retardation or other neurological condition when said condition impairs general intellectual functioning, or
• is caused by adaptive behavior similar to a person with mental retardation.⁵

2. Why is it important to ensure a defendant is competent?

Each person is constitutionally owed a fair trial, but a person’s mental health can affect the trial in different and dangerous ways. Much of the latter can be to the detriment of the defendant.

Determining competency serves three basic purposes:

1. It preserves the dignity of the criminal process.
2. It reduces the risk of erroneous convictions.
3. It protects the defendant’s autonomy and ability to make decisions.⁶

These reasons are self-explanatory, but in short, competency to stand trial is not only important for the defendant and his or her due process but for the legitimacy, integrity, and accuracy of the criminal justice system itself.

3. Is incompetency the same as insanity?

Many defendants confuse being incompetent with an insanity plea. Incompetent and insanity are two very different things. Here, competency has nothing to do with the person’s state of mind when allegedly committing a criminal act. Competency refers only to a person’s ability to understand what happens during criminal proceedings.

Insanity: What It Is

An insanity plea, on the other hand, is a specific plea usually entered at an arraignment where the defendant enters a “not guilty by reason of insanity” plea. The test for it in Colorado has two prongs, such that:

1. At the time the crime was committed, the person was so “diseased” or “defective in the mind” that he or she was unable to distinguish right from wrong regarding the crime, or
2. The person who committed the criminal act was unable to form the culpability or mental state required to convict that person of the crime because the diseased or defective mind prevented him from doing so.⁷

Care must be taken to ensure insanity is not confused with:

• moral obliquity,
• mental depravity, or
• passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions.

Any of the above three conditions is a reason for the person to be held accountable to the law.⁸

Insanity v. Competency: the Differences

The primary difference between incompetency and insanity is two-fold:

1. Incompetency temporarily suspends a person from being held accountable to the law — if guilty of the alleged crime — via a trial while an insanity plea may require the person to go through trial only to be found not guilty by reason of insanity; and
2. Incompetency is a procedural matter while insanity is a substantive one.⁹

A person can be both incompetent to stand trial and not guilty by reason of insanity, but there is a separate process for both.

4. How is competency determined?

Pretty much anyone can raise an issue of competency concerning a defendant, and after it is raised, a competency exam is required. Complex hearings involving lay witnesses and experts may follow so that it can be determined if the defendant is competent or incompetent to proceed. The latter finding will dictate what happens afterward.

Who raises the issue of competency?

Generally speaking, anyone can raise the issue of competency. If you are a family member and you believe your loved one is not competent to stand trial, say so to his or her attorney. Typically speaking, however, it will be the judge, the prosecutor, or the defense attorney who suspects the defendant is incompetent to proceed and takes action according to CRS 16-8.5.102.¹⁰

Judge

A judge who has reason to believe a defendant is incompetent to stand trial has a duty to suspend the criminal proceedings, and the proceedings will only resume at such time the defendant has been found competent. The court has two options:

1. it can determine if it has insufficient information to make a preliminary finding and thereby order a competency evaluation, or
2. it can make a preliminary finding of competency or incompetency.

Prosecutor or Defense Attorney

When an attorney — either the State or the defense attorney — has reason to believe the defendant is incompetent to proceed, the attorney must file a motion to determine competency. This motion must be filed in advance of the criminal proceeding. On the other hand, if there is good cause showing a potential mental disability is present but that it was not immediately known before the proceeding began, a motion can be filed at the time of the proceeding.

The motion must:

• Provide the facts causing the belief the defendant is incompetent to stand trial; and
• Be sealed by the court.

What happens after competency is raised?

After competency is raised, a competency exam and hearing will usually follow after the judge or an attorney raises the question of competency.

When a judge raises the issue — as noted above — he or she may either request an evaluation or make a preliminary finding on competency. This finding is a final determination unless within 14 days a party objects to the preliminary finding.¹¹ If a party objects within 14 days, it can request either a hearing or a second evaluation:

• When a second evaluation is requested, a hearing is continued until the report from the second evaluation is filed with the court. The second evaluation report should be completed and filed within 91 days unless the court extended this time period for good cause.

• When a hearing is requested or continued, it should be held within 35 days upon request of the hearing or after the second evaluation report is filed. The party asserting incompetency has the burden to prove it at the hearing by a preponderance of the evidence.¹²

When an attorney raises the issue of competency, he or she files a motion, and the same may be requested: an evaluation or a hearing.

Competency Evaluations

A competency evaluation takes place on an outpatient basis or — if the defendant is in custody — at the place of custody. The evaluations can be either:

• a second evaluation — which is an evaluation requested by the judge, the prosecutor, or the defense attorney and performed by a competency evaluator who is not under the direction of or paid by the Department of Human Resources, or

• a court-ordered evaluation— which is an evaluation performed by a competency evaluator and conducted before, during, or after trial to either determine the defendant’s (1) competency to proceed or (2) competency for or after restoration.

After completion of either of these evaluations, a competency report is prepared and delivered to the clerk of the court as well as to the prosecutor and the defendant’s attorney. The report must include but is not limited to the following:

• the name of the physician, psychologist, or other expert examining the defendant;
• a description of the nature, content, extent, and results of the evaluation and any tests conducted
• a diagnosis and prognosis of the defendant’s mental disability or developmental disability;
• an opinion as to whether the defendant suffers from a mental disability or developmental disability; and
• an opinion as to whether the defendant is competent to proceed.¹³

Competency & Restoration Hearings

There are two basic hearings that are conducted when competency is raised: (1) a competency hearing; and (2) a restoration to a competency hearing.

• The competency hearing usually occurs at the time the question of competency is first raised but after a competency evaluation has been ordered, conducted, and filed with the court. It is usually held when one party does not agree with the determination of competency or incompetency, so the hearing is held for the initiating party to argue and prove the defendant is incompetent to proceed.

• The restoration to competency hearing is held when the court, the prosecutor, or the defendant’s attorney moves the court to hold such a hearing within 14 days after the Department of Human Resources (or other court-approved providers of restoration services) certifies that the defendant is competent to proceed.¹⁴ The burden of proof by a preponderance of the evidence is on the party who asserted that the defendant is competent. The court will determine at this hearing whether or not the defendant is restored to competency.

Depending on the circumstances of the case and the nature and extent of the defendant’s mental or developmental disability, there could be multiple hearings until the defendant has successfully completed restoration services and is finally found to be restored to competency.

What evidence is needed to prove incompetency to proceed?

Any evidence that proves that more than likely the defendant has a mental or developmental disability that makes standing for trial with that disability a violation of due process. Examples of evidence include:

• communications of the defendant
• expert testimony, and
• lay witness testimony.

What happens if the defendant is found competent to stand trial?

When a defendant is found competent to proceed, he or she is competent to stand trial for any crime alleged against him or her. This finding — as noted above — can be made:

• by the court initially,
• as a result of a competency evaluation, and/or
• at a competency or restoration to competency hearing.

Being found competent to stand trial can mean one of three basic things follows:

1. If the judge had suspended the criminal proceedings, then those proceedings will be ordered to resume.
2. If the defendant had already been sentenced, then the sentence will be carried out.
3. If there was a mistrial, then the judge will reset the case for a new trial.¹⁵

As such, a defendant will continue through the criminal process until he or she is either found (1) not guilty; or (2) guilty and sentenced or ordered into an alternative program.

What happens if the defendant is found incompetent to stand trial?

When a defendant is found incompetent to proceed, he or she is incompetent to stand trial for any crime alleged against him or her. This does not mean the alleged offenses are dismissed or you are not guilty by reason of insanity.

The court will likely suspend the criminal proceedings when incompetence is determined pursuant to section 16-8.5-103. After such court-ordered suspension, the court must decide if the defendant is eligible for release from custody while undergoing restoration treatment. Determining the latter will dictate how the restoration process materializes.

• If the defendant is in custody, the court can determine the defendant is eligible for release on bond so long as the defendant stays in compliance with the standards and procedures established specifically for his or her release. Conditions of bond include inpatient or outpatient treatment or habilitation services. One key issue the court must consider is if the defendant’s incompetency will affect his or her appearance at required hearings or trial — it is presumed the defendant’s incompetency will inhibit his or her appearance at hearings and trial. Also worth noting: a person who has been determined to be incompetent and who has also been charged with a violent crime (e.g., kidnapping and rape / sexual assault) cannot be released on bail.¹⁶

• Suppose the defendant is in custody but not eligible for release. In that case, the court may commit the defendant to the custody of the Department of Human Services or the Colorado Mental Health Institute at Pueblo (CMHIP). The defendant will undergo restoration treatment in the custody of the CMHIP until such time the Department certifies the defendant is restored to competency. At that time, the defendant will be returned to the county jail or released on bond status. Ineligibility for release may fall on one of the following questions regarding whether or not:

• • the defendant is a danger to him or herself or others;
  • an observation period is necessary;
  • previous evaluations were inconclusive;
  • the defendant has been uncooperative; or
  • the defendant has clinical needs that justify custody by CMHIP.

• If the defendant is on bond or summons, the court must determine whether or not the defendant can successfully undertake restoration to competency as an outpatient.¹⁷

What are a defendant’s rights if committed for restoration treatment?

If the defendant is committed to the Department of Human Service, he or she has rights. These rights include:

• the right not to be confined for a commitment period that exceeds the maximum term of confinement that could be imposed for the offense the defendant allegedly committed.

• the right to have his or her case reviewed every three weeks to determine whether or not the defendant will eventually be restored to competency and to justify the continued commitment.

• the right to be released in the event the evidence suggests the defendant will not be restored to competency within the foreseeable future — but the release would be under certain strict terms according to the circumstances and could include either the termination or resumption of the criminal proceedings.

• the right to appeal a competency determination.

5. Can you appeal a competency decision?

You can appeal a competency decision, but it is generally not done during commitment and not until you stand trial and a final judgment is filed.¹⁸

Law in Other States:

For cases in California or Nevada, please see our pages on competency to stand trial in California and competency to stand trial in Nevada.

Legal References

1. CRS 16-8.5-101(4). Competency to Proceed. Definitions. HB22-1386.
2. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).
3. CRS 16-8.5-101(11). Competency to Proceed. Definitions.
4. CRS 16-8.5-101(12). Competency to Proceed. Definitions.
5. CRS 16-8.5-101(9). Competency to Proceed. Definitions.
6. Poythress NG, Bonnie RJ, Monahan JT, Otto R, Hoge SK. Adjudicative Competence: The MacArthur Studies. New York: Kluwer Academic; 2002.
7. CRS 16-8-101.5. Insanity defined – offenses committed on and after July 1, 1995.
8. Ibid.
9. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).
10. CRS 16-8.5.102. Mental incompetency to proceed – how and when raised.
11. CRS 16-8.5-103. Determination of competency to proceed.
12. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev’d on other grounds, 355 F.2d 470 (10th Cir. 1966).
13. CRS 16-8.5-105. Evaluations and report.
14. CRS 16-8.5-113. Restoration to competency.
15. CRS 16-8.5-111. Procedure after determination of competency or incompetency. See also House Bill 23-1138.
16. People v. White, 819 P.2d 1096 (Colo. App. 1991).
17. Supra note 15. CRS 16-8.5-111.
18. Rupert v. People, 156 Colo. 277, 398 P.2d 434 (1965).