Sanity & Trial Competency Expert Witness

Overview

About Sanity & Trial Competency Expert Witnesses

A sanity and competency expert answers two different questions, and they are often confused. Competency asks about the defendant's mind now: can this person understand the proceedings and work with counsel? Sanity asks about the defendant's mind at the time of the offense. One person can be competent and legally insane, or the reverse. The clinician's forensic evaluation is covered on the forensic psychiatry and forensic psychology pages. This page covers the legal standards those evaluations must answer.

Competency to Stand Trial

The constitutional test is short. Dusky v. United States asks whether the defendant has sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding, and whether the defendant has a rational as well as factual understanding of the proceedings ¹. Knowing the date and the charge is not enough, as the Court made clear ¹.

Federal procedure follows that test. A competency motion may be made at any time after a prosecution begins and before sentencing ². If the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him unable to understand the nature and consequences of the proceedings or to assist properly in his defense, the defendant is committed for treatment ². So the burden and the standard are low compared with insanity. The evaluator's task is functional. A diagnosis alone does not answer the question, because the issue is what the person can actually do in this case: follow testimony, weigh a plea, and tell counsel the facts.

Competency to stand trial does not settle every related right. Indiana v. Edwards held that the Constitution does not forbid states from insisting on representation by counsel for those competent enough to stand trial who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves ³. An expert may therefore be asked a narrower question about self-representation.

Restoration and Involuntary Medication

When a defendant is found incompetent, the state usually tries to restore competence. Medication raises its own constitutional issue. Sell v. United States allows the government to involuntarily administer antipsychotic drugs to render a defendant competent only in limited circumstances, including where treatment is medically appropriate and substantially unlikely to have side effects undermining trial fairness, and is necessary significantly to further important governmental trial-related interests ⁴. Expert testimony on likely effect, side effects and less intrusive alternatives is central to a Sell hearing.

Insanity

The law here varies more than many clients expect. In federal court, insanity is an affirmative defense: at the time of the acts, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts ⁵. Mental disease or defect does not otherwise constitute a defense, and the defendant must prove insanity by clear and convincing evidence ⁵.

States have wide room. Clark v. Arizona held that due process does not prohibit an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong, and it described the two parts of M'Naghten's Case, cognitive and moral capacity ⁶. Clark also upheld limits on using mental illness evidence on the element of mens rea ⁶. Kahler v. Kansas then held that due process does not require a state to adopt an insanity test that turns on a defendant's ability to recognize that the crime was morally wrong ⁷. So the same defendant may have a defense in one state and not in another, and the expert must work from the forum's exact words.

The Limits on the Testimony

Federal Rule of Evidence 704(b) says that in a criminal case an expert must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense ⁸. Those matters are for the trier of fact ⁸. An expert in federal court may describe the illness, symptoms and how they affected function, but stops short of the conclusion. Reports should be written with that in mind.

An indigent defendant may need help obtaining an expert. Ake v. Oklahoma held that when a defendant has made a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a state provide access to a psychiatrist's assistance ⁹.

Who Is Qualified, and Who Does What

Look for a forensic psychiatrist or forensic psychologist with specific training in competency and criminal responsibility evaluations, who knows the forum's standard. Records matter as much as the interview: jail and hospital records, prior evaluations, and video from arrest. Testing for feigning is a routine part of a careful evaluation. Ask the expert how many of these evaluations were done and for whom. A neuropsychologist may address cognitive limits, and an intellectual disability specialist may address developmental conditions.

Qualifications

Qualifications to Look For

• ✓Licensure as a psychiatrist or psychologist with forensic training
• ✓Board certification or fellowship training in forensic work where available
• ✓Direct experience with competency and criminal responsibility evaluations
• ✓Working knowledge of Dusky and of the forum's insanity test
• ✓Use of structured tools and tests for feigning where appropriate
• ✓Skill in writing reports that respect Rule 704(b)
• ✓Prior testimony at competency hearings and trial

FAQ

Frequently Asked Questions