Criminal Competencies and Evaluations

Criminal competency is the ability and capacity to accept a decision or make a decision. Individuals are considered to be competent unless proven otherwise. Only a court of law can determine a person to be incompetent.

Competency capacity indicates that the individual might not be competent initially, but is capable of becoming competent with education. The individual can then be retested or reassessed by a forensic expert in a mental health examination. The results of the forensic mental health examination are then submitted to the Court in the form of a mental health report or via the forensic expert’s testimony at trial. The Court will then incorporate the forensic expert’s findings, opinions, and evaluation in its decision as to whether the individual is competent to accept or make a decision in a given criminal legal situation.

In criminal competencies, an individual must be competent to understand all aspects of the entire criminal process. This begins from the time they are read the Miranda rights and continues through the process to various courtroom proceedings, including competency to stand trial to competency to be sentenced.  In the most severe of circumstances, competency to be put to death can also be determined by the Courts. Throughout the court proceedings, other types of competencies can be raised.

Questions of competency can be raised by any member of the court during any part of the criminal proceeding and are determined by two means: laws/statutes or case law/precedent. Forensic mental health evaluations assist the court in both of these types of competency determinations.

Some statutes clearly define the criteria to be met for certain competencies.  One example, a statute defines what criteria must be met to be found competent to stand trial. The mental health competency evaluation provided by the forensic expert is then considered by the court in its determination as to whether the individual is competent to stand trial.

However, in many cases specific competencies such as competency to waive appeals are not identified by statute or law. In this situation, a Court will utilize case law to guide its competency determination. Case law contains legal precedents set forth by other, usually higher, courts in making competency decisions in specific situation. The criteria identified in the higher Court’s decision then become the precedent for stating the criteria to be satisfied when questions arise in the future about that particular competency.

Please note that in some states the forensic expert must be certified by the state to perform the forensic mental health competency examination.

I had the privilege of participating as a forensic expert witness in a mental health case in which the Supreme Court decided whether an individual was competent to be put to death. There were no laws or statutes that dictated the necessary criteria to be met in order to be found competent to be put to death. The Supreme Court established competency criteria for an individual to be put to death as (1) the individual must know that he is being put to death and (2) the individual must know the correct reason that he is being put to death. My forensic mental health competency assessment was required to specifically address the two criteria set out by the Supreme Court, and all subsequent cases that questioned competency to be put to death have to include those two criteria.

Forensic psychiatrists have unique training and experience in performing criminal forensic mental health evaluations and providing testimony that assist the courts in their determinations of different criminal competencies. Dr. Seth Silverman has provided consultation, competency evaluations and expert witness testimony for many years.  Sample of cases may be viewed on his Career Milestone page.