BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

    1.12 Mental Competency In Criminal Matters (18 USC 4241–4248; FRCP 12.2)

        1.12.1 Mental Competency: General Principles
        1.12.2 Mental Competency: Competency To Stand Trial
        1.12.3 Mental Competency: Competency To Plead Guilty
        1.12.4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged
        1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity
        1.12.6 Mental Competency: Competency To Be Sentenced
        1.12.7 Mental Competency: Mental Condition As It Bears On Sentence Imposed
        1.12.8 Mental Competency: Civil Commitment Of Convicted Offender In Need Of Care Or Treatment For Mental Condition
        1.12.9 [Reserved]
        1.12.10 Mental Competency: Other Sources

[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them.]

The Insanity Defense Reform Act of 1984, 18 USC 4241–4248, is now controlling with respect to most situations involving the mental competency of a defendant. It is a complex enactment, the provisions of which are spelled out in great detail. Its provisions must be read with care and complied with meticulously.

2. Prior to the hearing the court may (and probably should) order that a psychiatric or psychological examination be conducted and that a report be filed with the court. 18 USC 4241(b).

(a) The examiner should be asked for his or her opinion as to whether the defendant is suffering from a mental disease or defect rendering the defendant mentally incompetent to understand the nature and consequences of the proceedings against him or her or to assist properly in his or her defense. The examiner’s report must include all of the information required by 18 USC 4247(c)(1) through (c)(4).

(b) The psychiatrist or psychologist should not be asked to determine the defendant’s mental competency at the time the alleged offense was committed.

(c) To secure a § 4241 examination, the court may, if necessary, order the defendant committed to a suitable hospital or facility for a reasonable period not to exceed thirty days, even if the defendant is not otherwise confined. For just cause this commitment may be extended by fifteen days. 18 USC 4247(b).

3. The court shall then hold an evidentiary hearing, to be conducted pursuant to the provisions of 18 USC 4247(d). The defendant "shall be represented by counsel." Id.

4. At the conclusion of the evidentiary hearing, the court shall make a finding by a preponderance of the evidence as to the accused’s mental competency to stand trial. 18 USC 4241(d).

(a) A finding of mental competency to stand trial does not prejudice a plea of not guilty by reason of insanity, because the court’s finding is not admissible in evidence on the issue of guilt or innocence. 18 USC 4241(f).

(b) If the defendant is found to be incompetent to stand trial, the court shall commit the defendant to the custody of the Attorney General. 18 USC 4241(d). The trial court should receive periodic reports as to the defendant’s mental condition.

(c) The Attorney General shall hospitalize the defendant for a reasonable period not to exceed four months, to determine whether there is a substantial probability that the defendant will in the foreseeable future become competent to stand trial. 18 USC 4241(d)(l).

(d) The Attorney General may hospitalize the defendant for an additional reasonable period of time if the court finds that within that additional period there is a substantial probability that the defendant will become competent to stand trial. 18 USC 4241(d)(2).

(e) If, at the end of the time provided for by 18 USC 4241(d), the defendant is still not competent to be tried, he or she is subject to further commitment under the provisions of § 4246 if the court finds by clear and convincing evidence that releasing the defendant would create a substantial risk of bodily injury to another or of serious damage to another’s property. The provisions of § 4246 are detailed and complex. To avoid error the court must refer to those provisions and follow them with great care. The report of any § 4246 psychiatric or psychological examination must comply with the requirements of § 4247(c). Any hearing must be held pursuant to the provisions of § 4247(d).

(f) When the director of the facility certifies to the court that the defendant is competent to stand trial, the court must hold a hearing, conducted pursuant to the requirements of 18 USC 4247(d). If the court determines that the defendant is competent to stand trial, it shall order the defendant’s discharge from the facility and set the matter for trial. 18 USC 4241(e).

Because a defendant is required to make a knowing and voluntary waiver of certain constitutional rights in entering a guilty plea, the court must, in accepting a FRCP 11 plea, be satisfied that the defendant has sufficient mental competency to waive those rights, to make a reasoned choice among the alternatives presented to him or her, and to understand the nature and consequences of the guilty plea (see the plea colloquy infra section 2.01: Taking pleas of guilty or nolo contendere).

If there is any question as to the defendant’s mental competency to enter a guilty plea, an 18 USC 4241 examination should be ordered and a hearing held prior to acceptance of the plea. In requesting such an examination, the court should spell out for the examiner the criteria that the examiner is to apply in determining whether the defendant is competent to enter a guilty plea. The examiner should be requested to furnish the information required by § 4247(c), along with an opinion as to the defendant’s competency to enter a guilty plea.

1. If the defendant intends to rely on the insanity defense or to introduce expert testimony relating to his or her mental condition, the defendant must notify the government attorney in writing of that intention within the time provided for filing pretrial motions or at a later time if so ordered by the court. The court may allow late filing of the notice if good cause is shown. FRCP 12.2(a) and (b).

2. The court may order the defendant to submit to a competency examination under 18 USC 4241. If the defendant has provided notice of a defense of insanity under FRCP 12(a), the court must order an examination under 18 USC 4242 upon motion of the government. If the defendant provides notice of an intent to introduce expert evidence relating to the defendant’s mental condition under FRCP 12(b), the court may, upon motion of the government, order the defendant examined under procedures ordered by the court. FRCP 12.2(c)(1).

The examiner should be asked to give his or her opinion as to whether, at the time of the acts constituting the offense, the defendant was unable to appreciate the nature and quality or the wrongfulness of his or her acts as a result of a severe mental disease or defect. See 18 USC 17(a). The examiner should be requested to include in his or her report all of the information required by § 4247(c).

Note: Serious due process and compulsory process issues may arise if the court excludes expert testimony concerning an insanity defense when a continuance of the trial would be feasible. See Taliaferro v. Maryland, 456 A.2d 29, cert. denied, 461 U.S. 948 (1983) (White, J., dissenting).

3. The defendant bears the burden of proving the defense of insanity by clear and convincing evidence. 18 USC 17(b).

4. No statement made by the defendant during a court-ordered mental examination (whether the examination was with or without the defendant’s consent), no testimony by the expert based on that statement, and no fruit of that statement may be admitted against the defendant in any criminal proceeding except with regard to an issue concerning mental condition on which the defendant has introduced testimony or, in a capital sentencing proceeding, has introduced expert evidence. FRCP 12.2(b)(2) and (c)(4).

Results and reports of any examination conducted for a capital sentencing hearing after notice under FRCP 12.2(b)(2) must be sealed and not disclosed to either party unless the defendant is found guilty of a capital crime and intends to offer at sentencing expert evidence on mental condition. Once the results and reports of the government’s examination have been disclosed, the defendant must disclose to the government the results and reports of any examination on mental condition conducted by the defendant’s expert about which the defendant intends to introduce expert evidence. FRCP 12.2(c)(2) and (3).

If the defendant fails to provide timely notice to the government attorney of his or her intent to introduce expert testimony relating to an insanity defense, or if he or she fails to submit to an examination, the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant’s mental condition at the time of the alleged criminal offense or on the issue of punishment in a capital case. FRCP 12.2(d).

If a defendant is found not guilty only by reason of insanity, he or she shall be committed to a suitable facility until such time as he or she is eligible for release under 18 USC 4243(f). The provisions of § 4243(e) relating to the confinement and release of a defendant acquitted by reason of insanity are detailed and complex. Those provisions must be followed with meticulous care. Any hearing must comply with the provisions of § 4247(d). Any report of a psychiatric or psychological examination must comply with the requirements of § 4247(c).

If there is any question as to the defendant’s mental competency to be sentenced, an 18 USC 4241 examination should be ordered and a hearing held before sentencing. The court should provide the examiner with the criteria the examiner is to apply in determining whether the defendant is competent to be sentenced. The court should request the examiner to include in his or her report all of the information required by § 4247(c). Any hearing must be held pursuant to the requirements of § 4247(d).

l. Adult offenders (18 USC 3552(b)) [FOOTNOTE 1]

(a) If the court determines that it needs more detailed information about the defendant’s mental condition as a basis for determining the sentence to be imposed, the court may order a study of the defendant.

(b) The study should be conducted by a qualified consultant in the local community, unless the court finds that there is a compelling reason to have the study done by the Bureau of Prisons or that there are no adequate professional resources in the local community to perform the study.

(i) If the study is to be done in the local community, the court should designate a consultant, usually a psychiatrist or psychologist, to conduct the study and order the defendant to submit to the examination. The probation office will assist in identifying people who are qualified and willing to perform such studies; the probation office can also provide funds for this purpose.

(ii) If the study is to be done by the Bureau of Prisons, the defendant should be committed under 18 USC 3552(b) to the custody of the bureau to be studied. Imposing a provisional sentence is not necessary.

(c) The court order should specify the additional information the court needs before determining the sentence to be imposed and should inform the examiner of any guideline or policy statement that should be addressed by the study.

(d) The court order should specify a period for the study, not to exceed sixty days. The period may be extended, at the discretion of the court, for up to sixty more days. [FOOTNOTE 2]

(e) To minimize delay if the study is to be done by the Bureau of Prisons, the court should consider directing the probation officer to secure immediate designation of the institution at which the study will be performed, and directing the marshal to transport the defendant to that institution by the most expeditious means available.

(f) After receiving the report of the study, the court should proceed to sentencing. The report must be included in the presentence report. See FRCP 32(d)(2)(E).

(g) See also U.S.S.G. §§ 5H1.3 and 5K2.13, which delineate the extent to which a defendant’s mental or emotional condition may be taken into account under the Sentencing Guidelines.

2. Juvenile offenders (18 USC 5037(d))

(a) If the court determines that it needs additional information concerning an alleged or adjudicated juvenile delinquent’s mental condition, the court may commit the juvenile to the Attorney General’s custody for observation and study after notice and a hearing at which the juvenile is represented by counsel.

(b) The observation and study of the juvenile must be performed on an outpatient basis, unless the court determines that inpatient observation is necessary to obtain the desired information. If the juvenile has not been adjudicated delinquent, inpatient study can be ordered only with the consent of the juvenile and his or her attorney.

(c) The agency selected by the Attorney General shall make a complete study of the juvenile’s mental health.

(d) The Attorney General shall submit to the court and to the juvenile’s attorney the results of the study. That report shall be submitted within thirty days of the juvenile’s commitment, unless the time for reporting is extended by the court.

FOOTNOTES:

Footnote 1:    Subsections (b) and (c) of § 3552 both authorize studies in aid of sentencing. Subsection (c) specifically authorizes a psychiatric or psychological exam, but it appears preferable to rely on the more flexible general authority of § 3552(b).

Footnote 2:    A court may also have to consider that, if there are victims of the offense, they have a right “to proceedings free from unreasonable delay.” 18 USC 3771(a)(7).

1. Upon motion of the defendant or the government or on its own motion, the court may, before sentencing, determine that there is reasonable cause to believe that the defendant may be suffering from a mental disease or defect that requires custody for treatment in a suitable facility. In that event the court shall order a hearing. 18 USC 4244(a).

2. Before the hearing the court may order that a psychiatric or psychological examination of the defendant be conducted and that a report be filed with the court, pursuant to § 4247(b) and (c). If it is the opinion of the examiner that the defendant is suffering from a mental disease or defect but that the condition is not such as to require the defendant’s custody for care or treatment, the examiner shall give his or her opinion concerning the sentencing alternatives that could best accord the defendant the kind of treatment he or she does need. 18 USC 4244(b).

4. If, after the hearing, the court finds by a preponderance of the evidence that the defendant is suffering from a mental disease or defect and that, in lieu of being sentenced to imprisonment, he or she should be committed to a suitable facility for care or treatment, the court shall commit the defendant to the custody of the Attorney General for care or treatment in a suitable facility. Such commitment shall constitute a provisional sentence of imprisonment to the maximum term authorized by law for the offense of which the defendant was found guilty. 18 USC 4244(d).

5. When the director of the facility to which the defendant is sent certifies that the defendant is no longer in need of custody for care or treatment, the court shall proceed to sentencing, provided that the provisional sentence has not yet expired. 18 USC 4244(e).

FOOTNOTES:

Footnote 3:    If the civil commitment hearing is considered a “public proceeding in the district court involving . . . sentencing,” any victims of the offense have the rights to notification and attendance, plus the right “to be reasonably heard.” 18 USC 3771(a)(2)–(4).