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Competency Frequently Asked Questions

My family member is charged with a crime, but I’m concerned that they don't know what's happening because they have a mental health issue. Should a person who has a significant mental health issue be in court at all?

It depends on the extent that that person can understand and participate in the criminal justice system. A person can be of such limited understanding of the court system itself, or unable to assist their attorney in defending themselves against criminal charges that a court can make a determination that the person is Incompetent to Stand Trial and the criminal charges against the person should not proceed.

What exactly does Incompetent to Stand Trial mean?

In Maryland, the laws related to competency are in the Criminal Procedure statute, Section 3-101 and the sections that follow. “Incompetent to Stand Trial” means that the person is (1) not able to understand the nature or object of the proceeding, or (2) the person is not able to assist in one’s defense. The Maryland standard is the Dusky standard, meaning that to be competent a person must not just be oriented to time and place and have some recollection of events, but a determination must be made as to whether the person has sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether that person has a rational as well as factual understanding of the proceedings against him.

How does a person tell the court that they might be “Incompetent to Stand Trial”?

The person can file a pleading called a “Suggestion of Incompetence to Stand Trial” which is described in CP Section 3-104(a). The pleading can be made before or during a trial, and it can be oral or in writing. When a suggestion is made, the court requires an evidentiary hearing, and the court can reconsider competency at any time prior to a final judgment, pursuant to CP Section 3-104(c).

How does a court decide whether a person is “Incompetent to Stand Trial”?

If the Court finds a valid basis for the suggestion of incompetence, the Court usually orders the Department of Health to complete an examination of the person’s competency, which is authorized by CP Section 3-105. Prior to the examination, the Court needs to find good cause that the examination should be made, and give the person who is being evaluated the opportunity to be heard. The court then sets the conditions of the examination, although the court can change the conditions at any time. The Department of Health, if it finds that a person is incompetent, makes a supplemental finding as to whether that person is a danger to himself or others.

When it comes to “conditions of the examination”, what do you mean? What type of competency evaluations are there?

Generally, a competency evaluation can take place in one of three venues. First, it a person is confined in jail for a criminal charge, the evaluation can be at the facility where the person is held. If the court is concerned about the safety or well being of the person being evaluation, the person can be moved to the medical wing or into isolation at that facility while awaiting the evaluation. Second, the court can order that the person be committed to the Department of Health, meaning that the person would be moved from a jail (or the community ) to a Department of Health facility, a state hospital that is tasked with completed the evaluation and caring for the person while the matter is pending. Lastly, the evaluation can be in the community, in an evaluation arranged between the Department of Health and the client, client's family, or attorney.

Wait, what if the person being evaluated says something about his charges? Can it be used against him if the person is found competent?

No, unless the person testifies. A Defendant's statement made during the course of a competency evaluation is not admissible for the purpose of proving the commission of the offense and any statements cannot be used to enhance sentencing, under CP Section 3-105(4) an (5). The report itself is likewise no admissible for purposes of proving the commission of an offense or to enhance sentencing, but it may be used to impeach the testimony of a person if they testify.

If a person is found "Incompetent to Stand Trial", what happens to the person?

It depends on whether the person is found to be dangerous or not, and the court usually relies on the opinion on dangerousness supplement of the Department of Health. Under CP Section 3-106, if a person is found Incompetent to Stand Trial and not a danger, the Court may set bail and release that person. If the court finds that person dangerous, it may commit (hold that person) to a Department of Health facility (usually a hospital setting) until the person regains competency, is deemed no longer a danger, or there is not a substantial likelihood that the person will be restored to competency in the foreseeable future. In the last instance, where it is likely the person will not be restored and yet is considered dangerous, the court is mandated to civilly commit a person at the Department of Health or a DDA facility.

What happens to the charges after a person is found incompetent?

The court is required to bring the case back to court every year to determine if the person is still not competent. The State or the person can request a hearing at any time, and the court can set a hearing anytime as well. In addition, the Department of Health can issue a report that suggests a hearing outside of the annual review. Whether the person is confined or not, under CP Section 3-107, if the person is not found competent within a certain time period, generally the maximum sentence of the most serious offense but no longer than 3 years for a misdemeanor or 5 years for a felony, the court should dismiss the charge without prejudice. The court can extend this time period for �extraordinary cause�. After a case is dismissed, the State can charge the case again, but has to overcome a presumption of non-restorability.

What if it is a bogus case and should not have been charged in the first place? Can anything be done at all since the person was deemed not competent to participate in the criminal case?

Anything requiring the personal participation of the individual cannot be addressed while a person is deemed to be Incompetent to Stand Trial. However, under CP Section 3-106(g), that person�s attorney as defense counsel may make any legal objection to the prosecution that may be determined fairly before trial and without the personal participation of the incompetent party, such as a defective charging document, lack of jurisdiction, and any other issue that may cause a criminal charge to be dismissed.