This is a legal protection to ensure the fairness of a trial for a criminal defendant. The statute is similar in all states and in federal proceedings. It requires two elements: that a defendant must have a rational and factual understanding of the charges filed, the nature of the pending proceedings, and the possible consequences if convicted; and must have a rational ability to assist counsel and participate in his or her own defense. Questions about a defendant's competency to proceed are most often raised by the defense, but also may be raised by the prosecution or by the judge.

This is the most common type of mental evaluation in criminal trial proceedings. Some defendants are advised by “jailhouse lawyers” (other inmates) to fake mental illness and incompetency as “an easy way out” of their charges. It doesn’t work that way. Proper evaluations will be conducted by experienced mental health experts who are alert for the possibility of malingering or falsifying a mental illness. There are psychological tests specifically designed to screen for malingering. Most defendants who do make such an effort are not sufficiently aware of the symptoms of actual mental illness for them to feign a convincing portrayal of a mental illness.

If the evaluation does confirm concerns that a defendant is not competent, a second opinion may be sought. Admission to a forensic mental hospital also is possible. While an inpatient there, defendants are closely observed to verify if the symptoms they present at court and to evaluators are consistent throughout the day, such as when interacting socially with other patients. Screening for incompetency is one of the most frequent reasons for admissions to forensic hospitals. Estimates are that as many as one-third of defendants admitted for competency concerns are malingering their incapacity.

If a defendant is found incompetent it still isn’t a “get out of jail free” card. The Court may order another admission to the forensic hospital for attempts to treat the defendant to attain competency. That often is successful through a combination of educating the defendant on basic legal principles or determining how to stabilize a bona fide mental illness so it does not impair the defendant’s competency-related abilities. If successful, the defendant then returns to court for continued proceedings.

Even if the defendant is not able to attain competency through treatment it doesn’t end there. Another court hearing may be held to determine if the defendant meets that state’s legal definition of dangerousness. If the finding is that he or she is dangerous the court may order that they be held at the hospital until they no longer are dangerous, which could be for a period as long as the possible sentence on the original charges. So, as you can see, when a defendant is found to be incompetent to stand trial, it doesn’t mean they “got away with it.”