FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257
Go to Volume 11 Table of Contents  -  Go to Chapter 257 Table of Contents

257.6 Incompetence To Stand Trial

    257.6.1 Incompetence To Stand Trial: Duty Of Counsel To Raise Competency Issue
    257.6.2 Incompetence To Stand Trial: Burden Of Proof
    257.6.3 Incompetence To Stand Trial: Allocation Of Burden When Person Other Than The Defendant, Claims Defendant Was Incompetent
    257.6.4 Incompetence To Stand Trial: Allocation Of Burden When Defendant Is Involuntarily Medicated
    257.6.5 Incompetence To Stand Trial: Specification Of Standard

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: Because due process prevents the conviction of a defendant while mentally incompetent, counsel is obligated to alert the trial court if there is an indication that the defendant may not be competent. (See Godinez v. Moran (1993) 509 US 389, 401 [113 SCt 2680; 125 LEd 321]; Drope v. Missouri (1975) 420 US 162, 172 [95 SCt 896; 43 LEd2d 103]; see also Appel v. Horn (3rd Cir. 2001) 250 F3d 203, 216 [counsel abandoned their duty to both the court and their client by not conducting any investigation into the defendant’s competency].) This obligation to raise the issue continues throughout trial and, thus, if the defendant’s condition has worsened the court must reassess the issue of competency because the critical question is the defendant’s competency at the time of trial.  (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 58:1, p. 58-2.)

    Hence, the defendant may not waive the issue of competency. Counsel has a duty to alert the trial court as to the potential incompetency of the defendant even if the defendant does not want the competency issue raised. (See U.S. v. Boigegrain (10th Cir. 1998) 155 F3d 1181, 1186; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 58:1.) This is so because the defendant may be incompetent to make such a waiver. (See Bouchillon v. Collins (5th Cir. 1990) 907 F2d 589, 592.)

See Capital Punishment Handbook [2.4a Competency To Stand Trial: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [1.12.2 Mental Competency: Competency To Stand Trial].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: The burden may be properly placed on accused to prove incompetency. (Medina v. California (1992) 505 US 437, 439-53 [112 SCt 2572; 120 LEd2d 353].) However, Cooper v. Oklahoma (1996) 517 US 348, 351-69 [116 SCt 1373; 134 LEd2d 498] held that it is unconstitutional for a state to give a defendant the burden of proof by clear and convincing evidence regarding the issue of competency to stand trial. Rather, the Federal Constitution requires that the standard be no more than a preponderance of the evidence. (Ibid.; see also McGregor v. Gibson (10th Cir. 2000) 219 F3d 1245, 1250-53 [no presumption of correctness applied to jury’s competency finding where trial court gave an unconstitutional instruction which required defendant to prove his incompetence by clear and convincing evidence].)

See Capital Punishment Handbook [2.4a Competency To Stand Trial: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [1.12. 2 Mental Competency: Competency To Stand Trial].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: People v. Skeirik (CA 1991) 229 CA3d 444, 459 [280 CR 175] cautioned trial judges not to rely uncritically on the standard instruction regarding the burden of proving incompetency in situations when the defendant is not seeking the finding of incompetency. When the prosecution, or the trial court on its own motion, is presenting evidence of incompetency, the standard instruction should be modified so that the burden of proof is not allocated to the defendant.

    In People v. Stanley (CA 1995) 10 C4th 764, 801-18 [42 CR 543], the defendant and one of his attorneys contended that defendant was competent, while cocounsel contended that he was not. A third attorney was appointed and evidence was presented from which the jury was required to determine whether the defendant was competent. Under these circumstances, the California Supreme Court held that it was correct to instruct the jury that "the one contending the defendant is mentally incompetent" bears the burden of proof. (Stanley, 10 C4th at 817-18.)

See Capital Punishment Handbook [2.4a Competency To Stand Trial: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [1.12. 2 Mental Competency: Competency To Stand Trial].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: When the state seeks to medicate the defendant involuntarily to render him or her competent to stand trial, "the state ought to shoulder this burden of proof." (State v. Garcia (CT 1995) 658 A2d 947, 968; see also Donaldson v. District Court (CO 1993) 847 P2d 632 [recognizing that petitioning party must establish factors allowing for forced medication by clear and convincing evidence]; State v. Garcia (CT 1996) 669 A2d 573, 574 [same]; In re Dorothy W. (IL 1998) 692 NE2d 388, 389.) The question of whether the burden to prove incompetence to stand trial is properly placed on the defendant when the defendant is involuntarily medicated with anti-psychotic drugs was recognized but not resolved in People v. Jones (CA 1997) 15 C4th 119, 158-59 [61 CR2d 386].

See Capital Punishment Handbook [2.4a Competency To Stand Trial: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [1.12. 2 Mental Competency: Competency To Stand Trial].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 257

RATIONALE: Without specific instruction the jury will not likely understand the necessity of finding that the defendant actually has a rational and factual understanding of the proceedings.

POINTS AND AUTHORITIES: In Dusky v. U.S. (1960) 362 US 402 [80 SCt 788; 4 LEd2d 824], the court held that "the 'test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational, as well as factual, understanding of the proceedings against him.'" (See also U.S. v. Stubblefield (E.D.Tenn. 1971) 325 FSupp 485, 486; Ex parte McKenzie (TX 1979) 582 SW2d 153, 154 [instruction on competency to stand trial should, ideally, focus on whether accused has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of proceedings against him].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

See Capital Punishment Handbook [2.4a Competency To Stand Trial: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [1.12. 2 Mental Competency: Competency To Stand Trial].

    In this proceeding you must decide whether the defendant is mentally competent to be tried for, and convicted of, a criminal offense. This is not a criminal proceeding.  Therefore, the question of whether the defendant is guilty of the alleged crime[s] is not now at issue.  [Nor is the question of [his] [her] legal insanity at the time of the commission of the offense involved.]

    A person charged is mentally competent to be tried for the crime charged against [him] [her], if:

    1.    [He] [She] is capable of, and actually has, a rational and factual understanding of the nature and purpose of the proceedings against [him] [her];

    2.    [He] [She] comprehends [his] [her] own status and condition in reference to the proceedings; and

    3.    [He] [She] is able [to assist [his] [her] attorney in conducting [his] [her] defense] [to conduct [his] [her] own defense] in a rational manner.

    The defendant is presumed to be mentally competent. The effect of this presumption is to require the defendant to prove by a preponderance of the evidence that [he] [she] is mentally incompetent as a result of [mental disorder] [or] [developmental disability].

[See Dusky v. U.S. (60) 362 US 402 [80 SCt 788; 4 LEd2d 824]; Ex parte McKenzie (TX 1979) 582 SW2d 153, 154; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.10 [Doubt of Present Mental Competence] p. 180-181 (West, 6th Ed. 1996).]

    A person is incompetent to stand trial if he does not have: (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him.

[Source: Meraz v. State (TX 1986) 714 SW2d 108, 109.]