United States courtroom

Federal and state laws require a defendant to be competent to stand trial while going through criminal justice proceedings. This is called due process and is protected by the fifth and fourteenth amendment. A competency concern can be brought up at any point during the trial.

Incompetent to Stand Trial: Trying a person who is not competent to stand trial undermines that individual’s constitutional rights and the dignity of the court. In criminal cases, competency refers to a defendant’s capacity to participate meaningfully and make decisions during the criminal justice process. Specifically, in California, under PC 1367(a), a defendant is mentally incompetent, if due to a mental disorder, he/she does not (1) understand the nature of the criminal proceedings or (2) assist counsel in the conduct of a defense in a rational manner.

A qualified mental health professional must evaluate the defendant for a mental disorder and then opine to the standards set in PC 1367(a). Such an evaluation is typically guided by The Dusky Standard. Dusky v. United States, 271 F.2d 385, 395 (8th Cir. Mo. 1959) essentially lays out a two-prong approach to competency to stand trial. First, the defendant must have a rational and factual understanding of the charges against him or her and the consequences associated with them. Second, the defendant must have the rational ability to cooperate with an attorney in his or her own defense.

It is important to note that incompetence to stand trial is not a legal defense to the crime. A competency evaluation assesses the defendant’s current mental state (at the time of the evaluation), NOT the mental state at the time of committing the alleged offense. That would be an insanity evaluation.

A question of competency can be raised by the defense, prosecution, or the judge at any point during the criminal justice process.

Competence to Waive Counsel (Faretta Issues): According to the sixth amendment, a defendant has the right to represent himself or herself at trial. However, he or she must be found mentally competent. In addition, he or she must make the request knowingly and intelligently, having been told the dangers of self-representation, and makes this request within a reasonable time before trial.

Our evaluation focuses on the defendant’s mental capacity regarding the ability to understand the nature of the proceeding and to waive the right to counsel with an understanding of what is being waived. The defendant must understand the importance and consequences of such a decision in order to proceed. Also, the decision to waive counsel must not be forced.

Competence to Waive Miranda Rights: Similar to above, an individual must knowingly, intelligently, and voluntarily waive his or her rights. This means that they must have an understanding and appreciation of Miranda rights and the decisional capacities to reason and waiver these decisions.

Our evaluation involves a retrospective assessment of the defendant’s mental state at the time of the interrogation. We evaluate whether the defendant understood the Miranda warning and appreciated the significance of waiving such rights in their situation. In addition, we evaluate whether the interactions with law enforcement were overly coercive (i.e., whether the defendant made his or her decision independently, free of coercion from the police).


Our Approach

Our evaluation will assess for psychological and neuropsychological factors that can impact the defendant’s competencies to proceed. It typically involves:

  • Consultation with the defendant’s attorney to gather more information on reasons why the competency is being called into question or which competencies need to be evaluated.
  • A clinical interview with the defendant.
  • A collateral interview with a family member, treatment provider, or other support system member. The interview will help us gather additional information about the individual’s general and psychological background, behavior, and response to prior treatment.
  • A review of medical and mental health treatment records, as well as legal documents such as discovery, help us have a better understanding of the client’s history of psychological functioning.
  • If necessary, we will administer psychological tests to objectively assess for mental health or neuropsychological symptoms and disorders.

Last, we will write a legally defensible report that integrates our findings and give it to the defendant’s attorney or court.

For more information on our approach to Criminal Competencies Evaluation, contact our office in Glendora at (626) 709-3494.