2006 Winter, 48. COMPETENCY TO STAND TRIAL EVALUATIONS IN NEW HAMPSHIRE Who is evaluated What are the findings.

AuthorBar Journal Author - By James J. Adams, MD

New Hampshire Bar Journal


2006 Winter, 48.


New Hampshire Bar Journal Volume 46, No. 4, Pg. 48Winter 2006COMPETENCY TO STAND TRIAL EVALUATIONS IN NEW HAMPSHIRE Who is evaluated What are the findings Bar Journal Author - By James J. Adams, MDThis article presents recent statistical data regarding the competency to stand trial (CST) evaluations done in New Hampshire and offers some observations on the conduct of the process as well as and suggestions for criminal justice planning, mental health planning, and legislative efforts directed at process improvements.

The Database: The New Hampshire Department of Corrections (DOC) has traditionally provided the bulk of psychiatric services used in determining CST. DOC adopted this role when the Secure Psychiatric Unit was moved from the New Hampshire State Psychiatric Hospital to the State Prison in the mid-1980s. In 2000, a contract between the state and Dartmouth College was implemented to provide psychiatric services to the DOC including the Chief Forensic Examiner role. Additionally, this contract provides for Dartmouth Forensic Fellowship participation at DOC, including CST evaluations.

Over the past decade the demand for competency evaluation services has risen rapidly (see figure 1) from a fairly stable rate of about 70 evaluations per year to 191 evaluations in 2003, and 210 in 2004. The reasons for this change are unclear.

The information presented in this was extracted through the use of text-search algorithms applied to approximately 700 New Hampshire court-ordered adult competency evaluations performed between 1998 and 2002 by the DOC. A sample of 196 cases was supplemented via court file review to obtain judicial findings. This sample size was limited primarily by data availability, which varied from court to court both because of absence of clear documentation and because of varying decisions by courts to support the data gathering process.


The laws of the United States and the state of New Hampshire require that criminal defendants not be tried unless they are competent. Competency is defined by the federal Dusky standard (Dusky v. United States,

362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960)) and articulated in New Hampshire's RSA 135-17 as:

"Whether the defendant has a rational and factual understanding of the proceedings against him or her, and sufficient present ability to consult with and assist his or her lawyer on the case with a reasonable degree of rational understanding."

The state of New Hampshire recently elaborated a process for addressing issues of CST. To do so, RSA 137:17 was substantially revised so as to provide specific guidance regarding the:

Process of evaluation

The standard to be used

The process to be used for restoration

The standard and duration for restoration orders

The courts of New Hampshire are now attempting to develop workable means of implementing this law in the context of New Hampshire resources and mental health practices. Moreover, new guidance has been provided by the US Supreme Court in Sell v. U.S.,

539 U.S. 166 and, to a degree, by the New Hampshire Supreme Court In re Bahmer, 2003 N.H. LEXIS 82, regarding the options for treatment to restore competency.


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