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In the United States criminal justice system, a competency evaluation is an assessment of the ability of a defendant to understand and rationally participate in a court process.

Competency was originally established by the Supreme Court of the United States as the evaluation of a defendant's competence to proceed to trial.[1] In a subsequent ruling, the Court held that any prisoner facing the death penalty must be evaluated as competent to be executed, meaning that he must be capable of understanding why he has received the death penalty and the effect that the penalty will have.[2] In further rulings, competence was also enlarged to include evaluation of the defendant's competence to plead guilty and competence to waive the right to counsel.[3]

The American Bar Association's Criminal Justice Mental Health Standards stated in 1994 that the issue of a defendant's current mental incompetence is the single most important issue in the criminal mental health field, noting that an estimated 24,000 to 60,000 forensic evaluations of a criminal defendant's competency to stand trial were performed every year in the United States.[4] A 1973 estimate put the number of competence evaluations at 25,000 to 36,000 each year. There are indications that the number of evaluations of criminal defendants is rising. One comparison of estimates between 1983 and 2004 suggest the annual number rose from 50,000 to 60,000 criminal competency evaluations respectively.[5]


The standard for competency evaluation applied in US courts is based on the Supreme Court decision Dusky v. United States[6] in which the Court affirmed a defendant's right to have a competency evaluation before proceeding to trial. Competence to stand trial was defined by the court as the defendant's ability to consult rationally with an attorney to aid in his own defense and to have a rational and factual understanding of the charges.[6] Dusky presented a petition of writ of certiorari to the Supreme Court requesting that his conviction be reversed on the grounds that he was not competent to stand trial at the time of the proceeding. The court decided to grant the writ, based on a lack of recent evidence that the petitioner was competent at the time of the trial. The case was remanded to the district court for a new hearing to evaluate Dusky's competence to stand trial, and for a new trial if he was found competent.[6]

The case set the current standard for adjudicative competency in the United States. In Godinez v. Moran (1993) the Supreme Court enforced the Dusky standard as the Federal Standard for competence to stand trial.[7] Although the statutes addressing competency vary from state to state in the United States, the two elements outlined in the Dusky v. United States decision are held in common as the minimum federal requirement to be deemed competent. The defendant must understand the charges and have the ability to aid his attorney in his own defense.[8]


Within the US criminal justice system, competence may be raised as an issue before trial, before a guilty plea, or in relation to whether a person convicted of a capital offense may be executed.

Competence to stand trial

A defendant is deemed competent to stand trial if they are found to have a sufficient present ability to understand and participate in legal proceedings. Every year just over 5% of all felony defendants, over 60,000 people are evaluated for competency to stand trial(CST). Of those evaluated, only around 11-30% are deemed incompetent.[9] Competency to stand trial depends only on the defendants current mental state and is entirely separate from their mental state at the time of the crime. CST does not necessarily certify that a defendant is of sound mental state, only that they are capable of understanding what is happening. Even severe mental disorders such as psychosis and amnesia do not automatically make a defendant incompetent. Studies found that about 2/3 of defendants suffering from severe mental disorders were found competent.[10]

Competence to be executed

In determining competence to be executed, the Supreme Court of the United States relied on the argument that execution's purpose is to provide retribution to the aggrieved party and to act as a deterrent against similar acts.[11] Using this foundation, the court found that there are some people for whom execution is not appropriate and would not be able to serve either its retributive or deterrent purposes. There are three ways in which one can be considered incompetent for execution: being deemed insane, having an intellectual disability, or have committed the crime subject to capital punishment while a minor.

The Supreme Court of the United States in Ford v. Wainwright (1986) determined that the Eighth Amendment protects people deemed insane from being executed because execution of an insane individual would be a cruel and unusual punishment. In this decision, Justice Powell more clearly stated that to be considered sane, and therefore fit to be executed, a person must firstly be aware that they are about to be executed and secondly know why they are being executed.[12] This requirement was extended by the Supreme Court's Panetti v. Quarterman (2007) decision, to include that a person needs to rationally understand why they are being executed. To rationally understand the reason for execution, a death row inmate must believe that they are being executed because of the crime they are charged with. In the Panetti v. Quarterman case, Scott Louis Panetti had schizophrenia and was under the delusional belief that he was being executed due to religious persecution rather than because he committed murder. While he may have understood that he was to receive capital punishment due to his murder conviction, his extreme delusions prevented him from rationally understanding why he was to be executed.

The court ruled that a forensic professional must make the competence evaluation and, if the inmate is found incompetent, provide treatment to aid in the inmate gaining competency in order that the execution can take place.[2][13] Providing treatment to an individual to enable that person to become competent to be executed places mental health professionals in an ethical dilemma.[14] The National Medical Association takes the position that ethically it is a physician's duty to provide treatment, regardless of the patient's legal situation. Others feel that it is unethical to treat a person in order to execute them. Most restorations of competency are accomplished through psychiatric medication.[15]

The Supreme Court of the United States in the Atkins v. Virginia (2002) case used the Eighth Amendment’s cruel and unusual punishment clause to determine that those with intellectual disabilities are not competent to be executed due to diminished culpability.[16][17] Otherwise put, those with intellectual disabilities are exempt from execution because they are insufficiently responsible for their crimes. The Supreme Court of the United States in Roper v. Simmons (2005) decided that it was unconstitutional to execute individuals for crimes committed under the age of majority using the same reasoning in Atkins v. Virginia (2002).[18]

Competence to plead guilty

It has been estimated that approximately 90 percent of all criminal cases in the United States are settled through guilty pleas, rather than a trial.[19]

In Godinez v. Moran, 1993, the Supreme Court held that the competency standard for pleading guilty or waiving the right to counsel is the same as the competency standard for proceeding to trial as established in Dusky v. United States. A higher standard of competency is not required.[3]

Legal issues

Although Dusky v. United States[6] affirmed the right to a competency evaluation, the specifics of the evaluation remain ambiguous. Each evaluator must decide what is meant by "sufficient present ability" and "has a rational as well as a factual understanding" as set forth in the Dusky decision. One common principle is clear in forensic evaluations, however. Forensic evaluators cannot reach a finding independent of the facts of the case at hand.[20]

Presumption of competence

Later cases including Cooper v. Oklahoma (1996) and Medina v. California (1992) established a presumption of competency.[7] Much like a presumption of innocence, a defendant is presumed competent to stand trial unless it is proven otherwise. Unlike a presumption of innocence, where the defendant must be proven guilty beyond a reasonable doubt, CST is determined only by a preponderance of the evidence.[21] The defense must only prove that the defendant is more likely than not incompetent. In other words, the judge must only be convinced that more than 50% of the evidence indicates the defendant is incompetent.

Feigning incompetence

In United States v. Binion malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an increased sentence.[22]

Waiver of challenge to competency

Where a defendant does not raise the issue of mental competence before trial, the issue of competence may be deemed waived in the event of a conviction and appeal. For example, in United States v. Morin[23] the United States Court of Appeals, Eighth Circuit upheld the defendant's conviction. The court rejected Mr. Morin’s argument, among others, that the district court violated his due process rights by refusing to allow him to waive competency at trial. The court held that since his competency to stand trial was never challenged, the issue of whether he was entitled to waive competency to stand trial was properly not considered.[24]

Restoration of competence

A defendant who has been deemed incompetent to stand trial may be required to undergo mental health treatment, including court-ordered hospitalization and the administration of treatment against the defendant's wishes, in an effort to render the defendant competent to stand trial.[25] A majority of defendants who are initially deemed incompetent are eventually restored to competency. Various studies report 60% to 90% of defendants have their competency restored.[26]

Methods of evaluation

Competency to stand trial is generally determined via a pretrial evaluation of the defendant's overall mental status and mental state at the time of the examination. While CST is typically raised as a pretrial matter, a CST evaluation may be requested by the judge or either attorney at any point if a bona fide doubt is raised. While a judge has the power to overrule the conclusion of a competency test, this power is rarely exercised. Judges agree with evaluator conclusions over 80% of the time. In some states they agree up to 99% of the time. Generally, the decision of whether a defendant is competent is left to psychological evaluators.[27]

Who is deemed qualified to conduct a competency evaluation varies from state to state. Evaluators are typically psychiatrists, clinical psychologists, or social workers.[7] While there are several widely used tests for CST, there is no one standardized examination.

While not formally part of the Dusky standard, evaluators commonly consider the defendant's ability to perform the following 10 trial related tasks when deciding competency:[26]

  1. understand their current legal situation
  2. understand the charges against them
  3. understand the pleas available
  4. understand the possible penalties if they are convicted
  5. understand the roles of the judge, defense counsel, and prosecutor
  6. trust and communicate with defense counsel
  7. help locate witnesses
  8. aid in developing a strategy for cross-examining witnesses
  9. act appropriately during the trial
  10. make appropriate decisions about trial strategy


One widely used test for competency is the Minnesota Multi-phasic Personality Inventory 2nd Edition (MMPI-2). The MMPI-2 uses 567 true-false questions to determine a defendants levels of psychopathology. While the MMPI-2 is generally quite good at detecting psychological distress, it has been criticized for not adequately focusing on the core issues of CST, an understanding of the legal system.[7]

Harvard Laboratory Competency Screening Test

The Competency Screening Test was developed by researchers at the Harvard Laboratory of Community Psychiatry in 1971. The test uses 22 fill in the blank style questions such as "If the jury finds me guilty, I will _______." Each answer is given a score of 0 (incompetent), 1 (uncertain competence), or 2 (competent). This test revolves around key elements of legal understanding. However, it elicits more extensive and varied responses than the yes or no format of the MMPI-2. Critics of the Competency Screening test argue that this makes it more difficult for evaluators to objectively score and harder test to teach evaluators how to conduct.[7]

Notable cases

In 1989, Kenneth Curtis of Stratford, Connecticut was initially found mentally incompetent to stand trial following the murder of his estranged girlfriend. But years later, as he had attended college and received good grades, this ruling was reversed, and he was ordered to stand trial.

Some other notable cases include:

See also


  1. ^ "Competency to stand trial" (PDF). Archived from the original (PDF) on 2007-08-20. Retrieved 2007-10-05.
  2. ^ a b "Ford v. Wainwright 477 U.S. 399". Cornell Law School. Retrieved 2007-10-03.
  3. ^ a b "Godinez, Warden v. Moran". Cornell Law School. Retrieved 2007-10-05.
  4. ^ "The MacArthur Adjudicative Competence Study". MacArthur Research Network for Mental Health and the Law. 2001. Retrieved 2008-02-16.
  5. ^ Douglas Mossman, MD; Stephen G.; Noffsinger, MD; Peter Ash, MD; et al. (2007). "AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial". Journal of the American Academy of Psychiatry and the Law. 35 (4 Suppl): S3–72. PMID 18083992. Retrieved 2008-02-17.
  6. ^ a b c d "Dusky v. United States, 362 U.S. 402 (1960)". Google Scholar. Retrieved 11 August 2017.
  7. ^ a b c d e Costanzo, Mark; Krauss, Daniel A. (2021). Forensic and legal psychology : psychological science applied to law. New York. ISBN 978-1-319-24488-0. OCLC 1232175804.((cite book)): CS1 maint: location missing publisher (link)
  8. ^ Grisso, Thomas (1988). Competency to Stand Trial Evaluations: A Manual for Practice (1988 ed.). Sarasota FL: Professional Resource Exchange. pp. 1–23. ISBN 0-943158-51-6.
  9. ^ Bonnie, R. J., & Grisso, T. (2000). Adjudicative competence and youthful offenders. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 73–103). University of Chicago Press.
  10. ^ Cooper, Virginia G.; Zapf, Patricia A. (2003). "Predictor variables in competency to stand trial decisions". Law and Human Behavior. American Psychological Association (APA). 27 (4): 423–436. doi:10.1023/a:1024089117535. ISSN 1573-661X. PMID 12916229. S2CID 8164964.
  11. ^ Melton, Gary B.; Petrila, John; Poythress, Norman G.; Slobogin, Christopher; Otto, Randy K.; Mossman, Douglas; Condie, Lois O. (2017-12-22). Psychological Evaluations for the Courts, Fourth Edition: A Handbook for Mental Health Professionals and Lawyers. Guilford Publications. ISBN 978-1-4625-3266-7.
  12. ^ "U.S. Reports: Ford v. Wainwright, 477 U.S. 399 (1986)". Library of Congress, Washington, D.C. 20540 USA. Retrieved 2022-12-08.
  13. ^ "Executing the Mentally Ill". Sage. April 22, 1986. Retrieved 2007-10-03.
  14. ^ Heilbrun, K; Radelet, ML; Dvoskin, J (1 May 1992). "The debate on treating individuals incompetent for execution". The American Journal of Psychiatry. 149 (5): 596–605. doi:10.1176/ajp.149.5.596. PMID 1349457. Retrieved 2007-10-09.
  15. ^ Gary, Melton (1997). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2nd ed.). New York: The Guilford Press. pp. 184. ISBN 1-57230-236-4.
  16. ^ "U.S. Reports: Atkins v. Virginia, 536 U.S. 304 (2002)". Library of Congress, Washington, D.C. 20540 USA. Retrieved 2022-12-08.
  17. ^ "ATKINS v. VIRGINIA". LII / Legal Information Institute. Retrieved 2022-12-08.
  18. ^ "U.S. Reports: Roper v. Simmons, 543 U.S. 551 (2005)". Library of Congress, Washington, D.C. 20540 USA. Retrieved 2022-12-08.
  19. ^ "The MacArthur Adjudicative Competence Study". The MacArthur Research Network on Mental Health and the Law. Retrieved 2007-11-25.
  20. ^ "Mental Competency Evaluations: Guidelines for Judges and Attorneys" (PDF). American Judges Association. 2002. Retrieved 2007-10-10.
  21. ^ Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. L. (1999). Defining and assessing competency to stand trial. In A. K. Hess & I. B. Weiner (Eds.), The handbook of forensic psychology (pp. 327–349). John Wiley & Sons, Inc.
  22. ^ Darani, Shaheen (3 January 2006). "Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing". Journal of the American Academy of Psychiatry and the Law. 34 (1): 126. Retrieved 2007-10-10.
  23. ^ United States v. Morin 338 F.3d 838 (8th Cir. 2003)
  24. ^ Mueller, Theodore (2005). "Right to Waive Competency to Stand Trial". Journal of the American Academy of Psychiatry and the Law. 33 (1): 112. Retrieved 2007-10-11.
  25. ^ "Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003)". Google Scholar. Retrieved 7 May 2017.
  26. ^ a b Pirelli, Gianni; Zapf, Patricia A. (2020-01-23). "An Attempted Meta-Analysis of the Competency Restoration Research: Important Findings for Future Directions". Journal of Forensic Psychology Research and Practice. Informa UK Limited. 20 (2): 134–162. doi:10.1080/24732850.2020.1714398. ISSN 2473-2850. S2CID 213793930.
  27. ^ Kois, L. E., Chauhan, P., & Warren, J. I. (2019). Competence to stand trial and criminal responsibility. In N. Brewer & A. B. Douglass, Psychological science and the law (pp. 293–317). The Guilford Press.