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 Table of Contents    
Year : 2016  |  Volume : 58  |  Issue : 6  |  Page : 187-190
Competence to stand trial: An overview

Department of Psychiatry, Division of Law, Ethics, and Psychiatry, Columbia University College of Physicians and Surgeons, New York, USA

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Date of Web Publication27-Dec-2016


The legal concept of competence to stand trial has ancient roots. The history of this legal construct in Anglo-Saxon law will be reviewed. A competent defendant is a requirement of the criminal justice system because it reflects interests related to the dignity of the process, the accuracy of adjudication, and respect for the autonomy of defendants. In the United States, legal decisions have established the contours of the requirements related to competent participation in adjudication. Forensic psychiatrists have operationalized the requirements for assessment purposes. Recent decisions in the United States have expanded earlier notions of competence to include decision-making during the course of adjudication. These decisions will be reviewed. The process of clinical evaluation, the use of collateral information, and other aspects of expert opinion formation will be reviewed. In addition, the special problems posed by amnesia, pro se defendants, competence to plead insanity, and unrestorable defendants will be discussed. The use of standardized assessment tools will also be reviewed. The application to the Indian criminal justice system will be discussed.

Keywords: Competence to stand trial, Process of clinical evaluation, Expert opinion

How to cite this article:
Hoge SK. Competence to stand trial: An overview. Indian J Psychiatry 2016;58, Suppl S2:187-90

How to cite this URL:
Hoge SK. Competence to stand trial: An overview. Indian J Psychiatry [serial online] 2016 [cited 2022 Dec 3];58, Suppl S2:187-90. Available from:

1 This article is based on the author′s presentation at the IALMH-Asia Pacific Conference in Bangalore, India, December 16, 2016.
2 The author was a member of the research group funded by the MacArthur Foundation Research Network on Mental Health and the Law. In this article, instruments developed by that group are discussed. The author receives compensation from the sale of those instruments.

   Introduction Top

Assessment of a defendant's Competence to stand trial is the most common forensic evaluation performed in the United States. Defense attorneys have doubts about defendants' competency in 10%-15% of cases. [1],[2] An estimated 60,000 defendants are referred for pretrial assessment of competency to stand trial each year. [3] The requirement that defendants be competent dates back to the 14 th century. Originally, based on a requirement of form - the trial could not proceed until the defendant had entered a plea - in modern times, the requirement for competency is based on the fundamental notions regarding justice.

In this article, I will provide an overview of competency to stand trial (CST), sometimes referred to as adjudicative competency. The review will cover the underlying legal theories, landmark legal decisions, and aspects of forensic assessment.

   Legal values served by competency Top

Richard Bonnie has summarized the legal requirement of adjudicative competency as serving three purposes: preserving the dignity of the criminal process, reducing the risk of erroneous convictions, and protecting defendants' decision-making autonomy. [3],[4]


To preserve the dignity of the judicial process, a defendant must have an understanding of the nature and purposes of the criminal proceedings. Absent such understanding, the defendant is not being regarded as an accountable person, but merely as an object of the prosecution's attempt to mete out punishment.

Accuracy of criminal process

The participation of a competent defendant is important to achieving reliable outcomes in the judicial process. For example, an incompetent defendant may have knowledge of facts but not understand their importance and, therefore, may not convey relevant information to counsel. The competency requirement serves society's interest in maintaining a reliable criminal justice system.


Under the law, certain decisions are to be made by the criminal defendant. These include the plea decision. If there is a trial, the defendant must decide whether it should be tried before a jury, whether to be present at the trial, and whether to testify. In the United States, these decisions involve waiver of constitutional rights and must be made knowingly, intelligently, and voluntarily. Defendants also play a role in decisions regarding the formulation of the theory of the defense.

   Landmark court cases Top

The Supreme Court of the United States has issued several key rulings regarding CST. In 1960, the Court, in Dusky v. United States, set forth the standard to be used in federal courts. The Court ruled "the test must be whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him. [5]" The Dusky "test" had widespread influence on state laws governing CST. The practitioners applied the test to clinical evaluations, as they focused on defendants' understanding of the roles of judges, prosecutors, juries, and defense counsel, and their understanding of the trial process.

In 1975, the Court made clear that the requirement of competency in the criminal process was of fundamental importance. In Drope v. Missouri, the Court held that competency was "so fundamental to an adversary system of justice." Moreover, it stated, "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." [6]

In 1993, the Court addressed the issue of decision-making capacity as it related to CST in Godinez v. Moran. [7] The Court held that decisional competency, in this case the competency to plead guilty, was to be considered as part of the previously articulated Dusky test. Before this ruling, the lower courts in the United States had been divided on the issue of whether decisions, such as pleading guilty, required a higher level of competency (see 3, at page 48).

In 2008, the Supreme Court of the United States addressed the issue of competency to waive counsel for the purposes of self-representation in Indiana v. Edwards. [8] The Court held that the states could insist upon legal representation for mentally ill defendants who were CST but were not competent to conduct trial proceedings on their own.

   Evaluation Top

The forensic evaluation of CST may arise in various ways. For example, the defense counsel may request an assessment that will be protected by privilege. However, most evaluations are compelled and reported findings are delivered to the court. Therefore, it is important to take proper measures to protect against self-incrimination. In these circumstances, the mental health professional should disclose to the defendant the nature of the evaluation, who has retained or appointed the evaluator, lack of ordinary doctor-patient confidentiality, possibility that the evaluator may be called on to testify about the evaluation, and right of the defendant not to answer questions. [9] Ideally, the defendant's treating clinician should not perform the evaluation.

The clinician conducting the evaluation should keep multiple goals in mind. First, the evaluation should determine whether the defendant has a mental disorder. A thorough mental status examination will lead to a description of signs and symptoms of mental disorder, if they present. The forensic assessment, as described below, will identify any impairment of capacities related to the required competency. In the event of a finding of incompetency, the diagnosis and related information will provide important prognostic information regarding restoration.

Preparation for the assessment

The forensic clinician should prepare for the interview by reviewing records, speaking with the defendant's attorney, and determining whether more information should be gathered. These points are summarized in [Table 1].{Table 1}

Assessment content

The assessment content should follow the legal test as outlined by Dusky. In addition, I recommend that forensic practitioners adopt the framework that was developed by the MacArthur Foundation Research Network on Mental Health and the Law. [3],[4],[10] This framework involves assessment of defendants' capacities to understand, reason, and appreciate as it related to specific content areas.

A substantial portion of the evaluation will focus on the defendant's ability to understand. Questions may be framed to assess understanding of information related to competency to assist counsel and decisional competency.

Competency to assist counsel

  • Understanding of criminal charges
  • Understanding of the implications of being a defendant
  • Understanding of the adversarial nature of the proceedings
  • Understanding of the role of defense counsel, prosecutor, judge, and jury
  • Ability to work with attorney and relate pertinent information.

Decisional competency

  • Ability to make important decisions that arise in the course of adjudication: how to plead, considering plea agreements, strategy of defense.

The clinician's questions should address each area systematically. In addition, the defendant should be asked about the specific charges being brought against him and his knowledge of the specific actions that are alleged. The defendant should have an understanding of the potential punishment that he faces.

The assessment should focus on the defendant's capacity, not on their current level of knowledge. Some defendants will have considerable experience with the legal system. Others will have an understanding of the legal process from educational experiences or exposure to media. Others will not have this knowledge but will be able to correct deficiencies with instruction.

As part of the evaluation of decisional capacities, the clinician should also assess the defendant's ability to reason, to employ the information he understands to make a decision. This is often best addressed by the use of information specific to the individual's case. Can the defendant distinguish between more and less important information with regard to his defense? How well does the defendant reason? Can he weigh the advantages and disadvantages of his legal options? One useful technique is to employ real or hypothetical plea offers as most defendants will ultimately face this choice.

Assessment of appreciate involves the application of information to one's own circumstances. For example, a person may be able to understand legal proceedings and demonstrate a capacity to reason but fail to appreciate as a result of delusions. A common example would be a delusional defendant who has intact cognitive abilities related to understanding and reasoning but have a fixed delusion that God will intervene at the climax of the trial.

In many cases, identifying delusions or frank paranoia may be straightforward. Other cases may be more challenging. For example, consider a defendant who says, "My attorney is not acting in my best interest, he works for the system. He wants me to be guilty." One technique that may be useful is to ask the defendant to compare his situation to others'. "Compared to other defendants with public defenders such as yourself, how much do you think you can rely on your attorney?" Such questions will help the clinician distinguish between delusions and those based on cynicism, ideology, or negative appraisal of systemic problems.

Attorney interactions

The defendant should be asked about the quality of their interactions with defense counsel. In some cases, the defendants or their attorneys may report that there are problems in the attorney-client relationship. In those cases, it will be necessary to explore with these problems reflect symptoms of mental disorder. In some cases, the problems will be related to interpersonal fit and may be correct by a change of attorneys.

Observations and inferences

The forensic evaluator must make inferences based on the defendant's responses. Does the defendant appear to be acting to protect himself appropriately? Is there relevant self-defeating behavior or attitudes? Does the defendant appear to be able to retain and use new information?

Account of event

The defendant's ability to provide an account of the alleged offense may be important to the defense attorney. The assessment of this capacity is problematic, however, and some clinicians believe that it should not be included in the routine evaluation.

Attorneys may instruct their clients not to answer questions about the events surrounding the offense. In theory, details of the offense relayed to the clinician should be protected from disclosure (and should not be included in the report); both defendants and their attorneys may have reasonable concerns that incriminating details will leak out.

One alternative to direct assessment is to ask the defense attorney about the defendant's ability to provide details. Another is to ask the defendant if he recalls the events and feels able to relate an account to his attorney.

   Conclusion Top

The assessment of CST is a common forensic evaluation. This article provided a brief review of the assessment process. Clinicians who undertake the responsibility for conducting these evaluations should undergo sufficient training with supervision. In addition, they will need to be familiar with the local rules regarding reports, testimony, and treatment of defendants found to be incompetent to stand trial.

Financial support and sponsorship


Conflicts of interest

There are no conflicts of interest.

   References Top

Hoge SK, Bonnie RJ, Poythress NG, Monahan JT. Attorney-client decision-making in criminal cases: Client competence and participation as perceived by their attorneys. Behav Sci Law 1992;10:385-94.  Back to cited text no. 1
Poythress NG, Bonnie RB, Hoge SK, Monahan JT, Oberlander LB. Client abilities to assist counsel and make decisions in criminal cases: Findings from three studies. Law Hum Behav 1994;2:1-23.  Back to cited text no. 2
Poythress NG, Bonnie RJ, Monahan JT, Otto R, Hoge SK. Adjudicative Competence: The MacArthur Studies. New York: Kluwer Academic; 2002.  Back to cited text no. 3
Bonnie RJ. The competence of criminal defendants: A theoretical reformulation. Behav Sci Law 1992;10:291-316.  Back to cited text no. 4
Dusky v. U.S., 362 U.S. 402; 1960.  Back to cited text no. 5
Drope v. Missouri, 420 U.S. 162; 1975.  Back to cited text no. 6
Godinez v. Moran, 509 U.S. 389; 1993.  Back to cited text no. 7
Indiana v. Edwards, 554 U.S. 164; 2008.  Back to cited text no. 8
Mossman D, Noffsinger SG, Ash P, Frierson RL, Gerbasi J, Hackett M, et al. AAPL practice guideline for the forensic psychiatric evaluation of competence to stand trial. J Am Acad Psychiatry Law 2007;35 4 Suppl:S3-72.  Back to cited text no. 9
Bonnie RJ. The competence of criminal defendants: Beyond Dusky and Drope. Univ Miami Law Rev 1993;46:539-601.  Back to cited text no. 10

Correspondence Address:
Steven K Hoge
Department of Psychiatry, Division of Law, Ethics, and Psychiatry, Columbia University College of Physicians and Surgeons,420 Madison Avenue, Suite 801, New York, NY 10017
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Source of Support: None, Conflict of Interest: None

DOI: 10.4103/0019-5545.196830

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