Defendants who are incompetent may not be tried or convicted of a crime in Nevada. Defendants are incompetent if they
- do not comprehend the nature of their criminal case or
- cannot assist their attorney in their own defense with a reasonable degree of rational understanding.
Courts determine whether a person is competent by
- having medical professionals examine the person and
- holding a court hearing where both the defense attorney and prosecutor present evidence.
If the court determines that the person is competent, the case will proceed. Otherwise, the judge may be able to commit the person to an inpatient facility for treatment.
In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions about incompetence to stand trial in Nevada. Click on a topic to jump to that section:
- 1. What is competency to stand trial in Las Vegas, Nevada?
- 2. Who determines competency?
- 3. Can an incompetent person be tried for or convicted of a crime in Nevada?
- 4. What happens if an incompetent defendant becomes competent?
- 5. How is competency different from mental illness?
1. What is competency to stand trial in Las Vegas, Nevada?
A defendant in a criminal case is competent to stand trial if they have the present ability to:
- Understand the nature of the criminal charges against the defendant;
- Understand the nature and purpose of the court proceedings; or
- Aid and assist the defendant’s attorney in the defense at any time during the proceedings with a reasonable degree of rational understanding.
A defendant may not be tried or adjudged to punishment for a public offense while incompetent.1
2. Who determines competency?
The court with jurisdiction over the defendant’s criminal case determines competency based on the findings of medical professionals and a court hearing.
- two psychiatrists,
- two psychologists, or
- one psychiatrist and one psychologist,
to examine the defendant.
For defendants accused of only misdemeanors, the court shall appoint a psychiatric social worker or another person who is especially qualified. The court then conducts a hearing, where both the prosecution and defense may examine the medical professionals and introduce other relevant evidence.2
3. Can an incompetent person be tried for or convicted of a crime in Nevada?
No. If doubt arises as to the competence of the defendant, the court must suspend
- the criminal proceedings,
- the trial, or
- the pronouncing of the judgment
until the question of competence is determined. If the court determines that the defendant is incompetent, the charges may be dismissed.3
Prosecuting attorneys may not seek an indictment of the defendant for any offense during the period in which the court is considering whether the defendant is competent or incompetent except upon the prosecuting attorney’s application for leave of the court. The prosecuting attorney would have to:
- demonstrate to the court that an objective factor significantly impacts the ability of the State to prosecute the matter in the absence of such leave of the court, and
- give at least 24 hours’ notice of the application to the defendant’s attorney.
If a court dismisses the proceedings against a defendant who is charged with a category A felony or certain category B felonies because the defendant is incompetent with no substantial probability of attaining competence in the foreseeable future, the D.A. will ask for a hearing to determine whether to commit the person to the Division of Public and Behavioral Health of the Department of Health and Human Services.
The maximum length of such commitment is ten (10) years; however, the Administrator may file a motion to request an extension of the length of commitment for not more than five (5) additional years of a person charged with murder or sexual assault under certain circumstances.4
4. What happens if an incompetent defendant becomes competent?
If the judge already dismissed the criminal charges, the prosecutor may refile the charges if the court finds that:
- the State has a good faith belief, based on articulable facts, that the defendant has regained competency;
- the State has a compelling interest in bringing charges again; and
- the period for commencing the criminal action has not lapsed.
The prosecutor must give at least 24 hours’ notice of the application to refile the charges to the defendant’s attorney.5
5. How is competency different from mental illness?
Mentally ill people may still be competent. Not all incompetent people are mentally ill–they may have another condition that prohibits them from being able to participate in a trial.
Learn more about involuntary commitment for mentally ill defendants.
Call a Nevada criminal defense attorney…
Is your loved one charged with a crime but may be legally incompetent? Call our Las Vegas criminal defense attorneys for a consultation. We may be able to get the charge dismissed while getting your loved one the treatment they need.
For cases in Colorado, please see our page on Colorado laws re competency to stand trial.