Q: My brother is facing trial for a criminal felony. Our family told his defense attorney that he has a history of psychiatric treatment, and now they're sending him to a psychologist for a competency evaluation to see if he's fit to go to trial. What's that mean? How will it affect his case?

A: In the criminal justice system, there are actually a whole range of competencies, covering almost every step of the legal process, from the point of arrest to carrying out the sentence. For present purposes, what you seem to be referring to is competency to stand trial, sometimes referred to as competency to proceed.

While criminal competency standards vary from jurisdiction to jurisdiction, certain commonalities exist with respect to the basic mental capacities required for an individual to constructively participate in his or her own defense. For example, the Florida Statues provide that:

The defendant must be able to articulate the substance of the charges against him. "They say I used a gun to hold up the convenience store."

The defendant must be able to understand the broad range of possible penalties and consequences. "I might have gotten probation on the robbery or up to five years, but it's another mandatory five for the gun."

The defendant must show an understanding of the roles of the key personnel in the legal process. This involves a fundamental understanding of the roles of the judge: "He makes sure everybody follows the rules in court;" the jury: "They decide if I'm guilty or innocent;" the prosecutor: "She makes the case against me, she tries to prove I'm guilty;" and the defense counsel: "He stands up for my rights, he tries to show I'm innocent."

The defendant must be able to give a coherent account of the circumstances surrounding the alleged offense. Although the defendant will have his own interpretation of events, his account should be generally consistent with the known facts of the case, and he should be able to articulate his version in an understandable way.

The defendant must be able to understand the role of his attorney in representing his interests in the court proceedings, and the appropriate way of consulting with his attorney. This refers to basic matters of attorney-client communication, what the lawyer can and cannot do for the defendant, and how the defendant can best help his attorney represent him.

The defendant must be able to show understanding of the need for appropriate behavior and decorum during the court proceedings. In the context of the clinical exam, this can be assessed by asking hypothetical questions, for example, "If you objected to something that someone said about you in court, what would you do?"

The defendant must possess the cognitive and emotional capacity to give a coherent account of the events of the case and of his own impressions and interpretations. For example, "How would you answer a question in court about who held the gun during the robbery?"

Components of the psychological competency-to-stand-trial evaluation typically include a face-to-face examination of the defendant, review of relevant clinical, legal, and psychosocial background records, administration of selected intellectual, psychological, and/or neuropsychological measures, and interviews of collaterals, such as arresting officers, witnesses to the alleged offense, friends and family members, etc.

A defendant can be found (1) competent to proceed; (2) incompetent to proceed, with recommendations for measures that will restore competency (e.g. psychiatric medication); or (3) permanently incompetent to proceed (e.g. mental retardation or brain damage).

Although they address somewhat different issues, in some jurisdictions, competency to proceed evaluations are carried together with insanity evaluations (see that column for details).

Laurence Miller, PhD is a clinical, forensic, and consulting psychologist in Boca Raton, Florida. This information is for educational purposes only, and is not intended to make a clinical diagnosis or render a legal opinion. Dr. Miller can be reached at 561-392-8881, or at docmilphd@aol.com.

© 2005, Laurence Miller, PhD. All rights reserved. This article may not be reproduced in whole or in part without the express written consent of Dr. Miller.