The Competency Evaluation and Who Conducts It

The competency hearing is usually short because the evidence at it is usually one document. The order that produced that document therefore decides most of what the court will hear. Who examines, on what question, in what setting, for how long, and what the report must contain are all set at the moment the order issues, and each of them is worth attention before it is signed.

The order and what it fixes

Federal law permits the court, before the competency hearing, to order that a psychiatric or psychological examination be conducted and a report filed. Section 4247 supplies the limits. For a competency examination the court may commit the person to be examined for a reasonable period not to exceed thirty days, and the director of the facility may apply for a reasonable extension of no more than fifteen days on a showing that additional time is necessary to observe and evaluate.

State orders carry similar terms with different numbers. Ohio requires the examiner to file a written report with the court, under seal, within thirty days after the order is entered, and permits the court to order one or more evaluations of the defendant's present mental condition. California directs the court to appoint at least one licensed psychologist or psychiatrist, and where developmental disability is suspected, the director of the regional center or a designee.

The order should also identify the question. An order that says only that the defendant be evaluated invites a report about mental health generally. An order that asks whether the defendant can understand the nature and objective of the proceedings and assist in the defense, and if not, whether there is a substantial probability of restoration in the foreseeable future, produces a report a court can use.

Who examines

Qualification requirements vary and matter more than they appear to. New York designates two qualified psychiatric examiners through the appropriate director, and where the two disagree, the director appoints a third. California accepts a licensed psychologist or a psychiatrist. Ohio uses the defined term examiner, permits evaluation by electronic means, and provides that when multiple evaluations are ordered both the prosecutor and the defendant may recommend examiners.

That last provision is unusually useful. Where a statute allows party input on the choice of examiner, the choice is a litigable decision rather than an administrative assignment, and an examiner with relevant experience in intellectual disability, traumatic brain injury or a specific psychotic disorder will produce a more usable report than a generalist working from a checklist. Where no such provision exists, the court-appointed examiner is the only examiner unless the defense obtains its own.

What the report must say

Federal law lists the required contents. The report must include the person's history and present symptoms; a description of the psychiatric, psychological and medical tests employed and their results; the examiner's findings; and the examiner's opinions as to diagnosis, prognosis, and the specific statutory question at issue. That list is the yardstick. A report that recites a diagnosis and states a conclusion, without describing the tests used or connecting the findings to the ability to understand and assist, has skipped items the statute requires.

State lists add their own elements. Ohio requires the report to state findings and the facts supporting them and, for a competency evaluation, to address whether the defendant can understand the proceedings and assist in the defense, whether mental illness or intellectual disability is present, the likelihood of restoration and a placement recommendation. California requires the expert to address the diagnosis, the ability to understand the proceedings or assist counsel, the likelihood of attaining competence, and whether treatment with antipsychotic medication is appropriate and whether the defendant lacks capacity to make medication decisions.

That medication element deserves separate notice, because a finding recorded almost in passing in an evaluation report can become the foundation for a later order. A report stating that the defendant lacks capacity to make medication decisions is doing work well beyond the competency question, and it feeds directly into the framework governing involuntary medication.

Records supplied to the examiner shape the report as much as the interview does. An examiner who receives only the charging document and a booking sheet is working from almost nothing, and will say so or, worse, will not. Prior hospital records, school records showing special education placement, earlier evaluations, medication histories and jail medical notes are all ordinarily obtainable, and providing them converts a single interview into an assessment with a history behind it. The time to assemble them is while the examination is pending rather than after the report is filed.

After the report arrives

The report is evidence, not a ruling. The hearing that follows carries the rights the statute supplies: to testify, to present evidence, to subpoena witnesses, to confront and cross-examine, and to be represented by counsel appointed if necessary. California goes further and provides that the competence question is decided by a jury unless the defendant waives and the prosecution consents, with competence presumed unless incompetence is proved by a preponderance.

Whether to contest a report is a real decision rather than a reflex. Where the report supports the position counsel would take anyway, examining the author adds risk without benefit. Where it does not, the options are cross-examination on the omitted statutory elements, a request for a supplemental report, or an independent defense examination. What the defendant said during the examination is governed by separate rules that limit its use, treated with statements made during an evaluation, and the standard the report is measured against remains the competency standard rather than the examiner's own view of the defendant.