Equal Justice - Chapter One

5. PRE-TRIAL

A. Competency

When there is any question about the person's "ability to assist in his/her own defense a competency evaluation should be requested.

Someone's ability to assist in his/her own defense may include the person's:

ability to remember;
ability to get to court on the proper days;
ability to differentiate between/understand right and wrong; and
ability to communicate effectively with his/her lawyer so the lawyer can present a defense.

Competency, in the criminal justice arena, is not the same as competency under any of the laws governing guardianship. It is more narrow in scope because the evaluation is supposed to assess whether or not the person is able to assist in their own defense.

A defendant to a criminal charge shag be presumed competent to stand trial He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner. The court shag determine the capacity of a defendant to assist in his defense by his ability to perform the tasks reasonably necessary for him to perform in the preparation of his defense and during his trial.³

"If the person is found to be not competent
(in Michigan), or not able to assist in his/her own defense:

· The charges may be dropped by the prosecutor, or

· a 15-month program can be put in place designed to "make the person competent" or "able to assist in his/her own defense."

Additionally, this 15-month period can also be "served" by the individual at home. But, you must advocate for this!

If the prosecutor chooses not to drop the charges, but the evaluator has determined that even a 15-month program could not make the person competent, the 15-month period will run and at its end charges will be dropped and the case closed.

B. Advocacy Challenges Regarding Competency

The issue of legal competency is often frustrating for those supporting and advocating for the accused person for several reasons. At times, it can be a lengthy process. Once the judge orders the evaluation, it may take some time before the evaluation can be scheduled, and then it will take additional time before the report is written. For many people with cognitive/communication disabilities, both the evaluation and all the waiting can be stressful, and the appropriate support should be provided.

Another difficulty with competency evaluations is the variety in evaluators and the subjectivity of the evaluator's conclusions. Many forensic evaluators are accustomed to working with persons who have psychiatric disabilities, but few have experience with persons who have cognitive/ communication disabilities. It is very possible for evaluators to wrongly determine competence because they do not understand the nature of various cognitive disabilities.

For instance, an evaluator who may have some experience with persons with mental retardation, may have never worked with someone who has incurred a brain injury (either before or after birth). Persons with brain injuries may present well socially and may have typical IQs. But, many have serious problems with judgment, impulse control, memory, focus and sensory integration. This is particularly true when the brain injury occurred prior to birth due to the consumption of alcohol by a pregnant woman.