Unlike the insanity defense, which is rarely raised and even more rarely successful, the issue of competency to stand trial comes up frequently—in an estimated 60,000 criminal cases a year, Grant Morris noted Nov. 10 in delivering the sixth annual Mark A. Nordenberg Lecture in Law and Psychiatry.

“In theory, the requirement that a criminal defendant be mentally competent before trial can proceed assures that the defendant will receive a fair trial. In reality, however, an adjudication that a defendant is incompetent to stand trial deprives the defendant of any trial, assuring that the person will remain in the in-limbo status of an accused until he or she has been restored to competency,” said Morris, professor of law at the University of San Diego and clinical professor in the Department of Psychiatry at the University of California, San Diego.

“For some defendants, especially mentally retarded defendants and others whose incapacity is permanent, that day will never come,” Morris said. “They will never stand trial.

“In theory, a mentally incompetent defendant has not been convicted of a crime of which he has been accused and is presumed to be innocent of that crime,” he added. “In reality, however, unlike other presumed-innocent defendants, who are released on bail until they stand trial, incompetent criminal defendants are routinely confined to mental hospitals until they become competent. Unlike others in our society whose involuntary detention is permitted only if their mental condition meets civil-commitment standards of dangerousness or inability to provide for their basic needs, incompetent criminal defendants are detained simply because they have been adjudicated to be incompetent to stand trial.”

While civilly committed patients have the right to refuse taking psychotropic medications unless they lack the ability to understand the risks and benefits of those medications, the U.S. Supreme Court has ruled that doctors, under certain circumstances, may forcibly medicate an incompetent criminal defendant to restore his or her competence to stand trial, even if that person does have the capacity to understand the risks and benefits of the medication in question, said Morris.

“Given the severe consequences that can result to a defendant found to be incompetent, one would expect that lawyers would fiercely dispute the issue whenever it is raised in court,” he suggested. “But the reality is quite to the contrary. Competency to stand trial is not considered to be an adversarial issue. In fact, to assure that a defendant is not deprived of his constitutional right to stand trial and to have a fair trial, the prosecutor, the defense attorney, as well as the trial judge all have an obligation to raise the issue of the person’s competence whenever reasonable cause exists to believe that the accused is incompetent.”

Once the competency issue has been raised, the defendant’s attorney typically does not testify at the competency hearing—despite the fact that the U.S. Supreme Court has recognized that defense attorneys generally are the best-qualified people to judge whether defendants are competent.

“The defense attorney may be concerned that his or her testimony may violate an ethical responsibility not to disclose confidential communications with the client,” Morris observed. “Or, the attorney may be concerned that his or her testimony on the client’s competency may jeopardize the attorney-client relationship, especially if the attorney believes that the client is incompetent and the client believes to the contrary.”

Even if the defense attorney does testify, that testimony is “far more likely” to be discounted as self-interested or biased than is the testimony of the psychiatrist or psychologist who evaluated the defendant, said Morris.

Although competency to stand trial is a legal, not a clinical, issue—it’s the judge who is responsible for determining a defendant’s competence, not lawyers or the forensic psychiatrists and psychologists called upon to evaluate defendants—judges typically defer to mental-health experts’ opinions.

“In fact, one recent study found that the judge agreed with the forensic evaluator’s judgment in 327 of the 328 cases that were studied,” Morris said. “When interviewed for the study, judges said that mental-health professionals are more qualified by training to answer competency questions than are judges or other legal professionals.”