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What happens if someone who is charged with a crime is not competent to stand trial? What is a lawyer’s duty to a client if the lawyer has serious doubts about a client’s competency? These are questions lawyers deal with every day, but are not immediately obvious to the people they represent. Because, while we all have an instinctual understanding of what it means to be mentally ill or perhaps incompetent, we also often do not have the understanding or language to contextualize what these things are. And in the legal context, this is inevitably a legal question.
Associate Attorney Peter Vu examines competency in criminal defense, detailing the process for raising concerns, evaluation, and incompetency findings. He also addresses lawyers’ ethical duties to clients with diminished capacity, balancing client wishes with professional obligations.
What makes someone incompetent (legally speaking)?
The United States Supreme Court addressed this in the case of Dusky v. United States (1960) where they held that “the test must be whether he 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 a factual understanding of the proceedings against him.” Plainly, what this means is that a person charged with a crime needs to be able to comprehend what they are charged with, why they are charged and be able to understand what that means. If that still seems confusing, that’s because it is.
In Wisconsin, the direct statute that addresses competency is Section 971.13(1), which provides: “No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.”
Does having a mental illness, such as schizophrenia or a disabling condition such as Alzheimer’s, render someone incompetent? The answer to that is maybe. Medical diagnoses are just data points that determine someone to be competent or incompetent in the legal context. The person who makes the ultimate determination of competency, if it is raised, is the judge.
What happens if someone is found incompetent and they are charged with a crime?
In Dusky, the Supreme Court supported the idea that it would be unfair to prosecute and punish someone if they did not comprehend the proceedings against them.
In Wisconsin Statutes Section 971.14 addresses the procedure for what occurs when someone’s competency is raised and they are eventually found to be incompetent. First, any party to the proceedings may raise competency at any time during the proceedings (even during trial). This means the defense attorney, the prosecutor, and the judge may all raise a client’s competency if they are sufficiently convinced that it would be unethical not to raise competency. Next, an examiner is appointed by the court to evaluate the accused’s competency. This is a psychological examination where the examiner asks questions to probe whether a person understands the proceedings filed against them. That examiner then files a report regarding this. It is not a high bar to be found to be competent to stand trial, and complex medical diagnoses may play a factor in a judicial determination of incompetency, but are not in of themselves determinative.
If someone is found to be incompetent, a hearing is set to advise upon the accused’s competence. Traditionally, this means the examiner is subpoenaed and asked to contextualize the report they submitted. The defense attorney and the prosecuting attorney are allowed to provide evidence and argue in support of a finding of competence or incompetence. After evidence and testimony are heard, the judge makes the final determination. If someone is found competent, the proceedings against them continue. If they are found incompetent, then proceedings are suspended.
What does it mean for proceedings to be suspended?
To explain this, we have to outline that there are two kinds of incompetency. The first is incompetent, but likely to regain competence. When someone is judicially determined to be incompetent, but likely to regain competence, they are then court ordered to comply with recommendations and treatments to “restore” them to competency. This can be as simple as outpatient treatment and prescribed medications to as substantial as inpatient treatment in a locked psychiatric facility. Traditionally, how long a court is allowed to order treatment is not allowed to exceed a year. The understanding is that this is a relatively normal timeframe for the pendency of a criminal case to develop, and any extension would be unnatural. The vast majority of persons found incompetent will be restored to competency in the pendency of a year, at which point a hearing will be scheduled to review their restored competency. If deemed appropriate, the judge will find the previously incompetent individual competent, and proceedings will continue against them.
The second kind of incompetency is incompetent, unlikely to regain competence. The language there is sufficiently precise. In these cases, whether thanks to mental infirmity, psychological disorder, or any number of other potential issues, a person charged with a crime is unlikely to ever regain competence. In these unusual circumstances, an individual’s criminal charges may be suspended indefinitely or outright dismissed. Wisconsin law provides that if this occurs, the court may be allowed to direct further actions, such as a petition for a finding of involuntary commitment, where they would become supervised by the county. Other legal proceedings such as a guardianship may be litigated.
What does this mean regarding a lawyer’s representation of someone who might be incompetent?
According to the American Bar Association Model Rule of Professional Conduct 1.14: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
What this means is that a lawyer’s duty is to the client, and he must do his very best to honor and respect the client’s wishes within reason. Even if a client is incompetent or of diminished capacity, a lawyer must maintain privilege and confidentiality for their client, even if this can be arguably not in the client’s interest.
This would seem to complicate things, as a defendant might not want to be found incompetent. Regarding this, the Wisconsin Supreme Court in State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) found that “Defense counsel having reason to doubt the competency of a client must raise the issue with the court, strategic considerations notwithstanding.” What this means is that, even if it may complicate the legal relationship between the defense counsel and their client, if there are concerns about a client’s competency, the lawyer must raise it as a matter of ethics.
Competency in the legal context is about basic fairness. Attorneys have to tow a difficult balance between honoring their client’s wishes and maintaining their ethical and professional obligations. Here at West and Dunn, we are well-versed in these complicated issues and are candid about these complications while also maintaining our duties to the people who entrust us with their goals and lives.
At West & Dunn, we understand that the legal world can be complicated, and we hope this will serve as a helpful overview of what Competency is in the legal context of criminal defense. If you have questions about competency in a criminal matter, please contact the legal professionals at West & Dunn online through our Contact Us page or by telephone at (608) 535-6420 for a Consultation.
