Criminal Law Newsletter
| Publication year | 1981 |
| Pages | 85 |
1981, January, Pg. 85. Criminal Law Newsletter
The primary purpose of this column is to assist defense counsel in determining if, when, and to what extent a client's mental incapacity should be brought to the attention of the trial court. The recent Colorado Supreme Court opinion by Justice Quinn in Jones v. District Court,(fn1) to which further references are made below, includes helpful guidelines in considering whether or not to raise the issue of a client's competency to proceed.
The right of the accused to effective assistance of counsel obviously requires that he be mentally competent. An accused is incompetent to proceed if he is "incapable of understanding the nature and course of the proceedings against him or participating or assisting in his defense or cooperating with his defense counsel."(fn2) If a client is incapable of making decisions in his own behalf, additional responsibilities are cast upon his lawyer; however, professional standards preclude defense counsel from performing any act or making any decision which the law requires his client to perform or make.(fn3)
A client's competency must be assessed "with specific reference to the gravity of the decisions with which he is faced."(fn4) Some courts have applied a different standard of competency in waiving constitutional rights than in determining competency to stand trial.(fn5) However, the Fifth Circuit applies the same standard of competency for pleading guilty and standing trial.(fn6) It logically follows that the level of comprehension generally required for competency in misdemeanor proceedings would be less than the degree of comprehension required for more serious charges.
It is the duty of defense counsel, the prosecution and the court to raise the issue of a defendant's incompetency "when facts dictate that such a hearing should be held,"(fn7) even though it frequently may not be to the advantage of the accused. In federal courts, § 4244 of Title 18(fn8) essentially mandates a psychiatric examination whenever competency is raised.(fn9)
To minimize the ethical dilemma confronting defense counsel in raising the issue of a client's incompetency, and to protect the rights of the accused, the trial court has the affirmative duty to obtain adequate information through a competency examination or other investigation before making a preliminary finding on competency.(fn10) Under the ABA standards,(fn11) the trial court has the duty to respect the confidentiality of attorney-client communications.
If a defendant independently decides to attack his competency to proceed, then the potential conflict requiring his lawyer to act as both witness and advocate is easier to resolve. When a client challenges his prior competency in a post-conviction proceeding, he may well have waived the attorney-client privilege and paved the road for testimony by his lawyer.
Generally, the issue of competency can be raised at any time. The failure to raise the competency issue prior to conviction does not preclude the issue from being addressed later, since the incompetent client cannot knowingly and intelligently waive his right to have his mental capacity properly determined.(fn12)
The real dilemma occurs when defense counsel deems it necessary to raise the issue of incompetency over the objection of his client. At this stage, the defense advocate must now assume his role as officer of the court and is potentially a witness to his client's mental condition.
The dual responsibilities of advocate and officer of the court are more easily carried out when the trial court takes control of the situation and seeks a reliable determination of competency while honoring the attorney-client privilege. If the trial judge flatly rejects defense counsel's request for help in this situation, it would be an abuse of discretion:
The respondent court abused its discretion in summarily rejecting the defense counsel's request for a competency examination which was supported by the statement of counsel describing his client's inability to assist in his defense due to a deteriorating mental condition.(fn13)
Jones characterized defense counsel's request for a competency examination as "a bona fide solicitation of judicial assistance" made "in good faith."(fn14) Jones stresses the significance of a good faith representation by defense counsel and does not place him in the precarious role of witness:
Allowing the accused's attorney, as an officer of the court, to make a good-faith representation regarding his client's competency obviates the danger of intruding on any privileged communication. Of course, evidence on the competency issue may be presented through the testimony of other witnesses when the matter is first raised.(fn15)
As officers of the court, attorneys' representations to the judge should be construed as "under oath."(fn16)
Some courts have approved a limited scope of testimony by defense counsel on the issue of competency while excluding confidential communications from the range of inquiry.(fn17) Therefore, the substance of communications, and not the fact that they took place, would still allegedly be protected. Under this rationale, however, a client's demeanor, bearing and behavior might be dangerously open to inquiry.
The Fourth Circuit takes the opposite view in understandably condemning defense counsel's testimony on any opinion which would be vulnerable to a cross-examination into confidential facts in violation of the...
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