3.12 Competence to Stand Trial

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.12 COMPETENCE TO STAND TRIAL

A criminal defendant cannot be tried if he or she is incompetent. ²¹⁸ The Fourth Circuit noted that competency claims can raise issues of both procedural and substantive due process. For example, procedural due process concerns arise if the trial court fails to hold a competency hearing after the defendant's mental competency is put in issue, whereas substantive due process prohibits trial and conviction of a mentally incompetent defendant. ²¹⁹

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The standard of competency seeks "to assure that one charged with a crime will not be tried or punished unless he has the mental capacity to understand the situation that confronts him and the ability to consult rationally with his counsel about his defense." ²²⁰ The same constitutional standard applies to determining competency to stand trial, competency to waive counsel, and competency to plead guilty. ²²¹ However, the tests for incompetence to testify and incompetence to stand trial are not equivalent. Defendant's "incompetence to stand trial does not, per se, render him incompetent to be a witness or render his statements inadmissible." ²²²

Subsection (A) of section 19.2-169.1 of the Virginia Code permits either defense counsel or the commonwealth's attorney to raise the competency question any time before the end of the trial. ²²³ Even if a defendant

is mentally competent at the beginning of the trial, the trial court must continually be alert for changes which would suggest that he is no longer competent. Although there are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed, evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant. ²²⁴

Lack of competence is not waivable by the defendant or his or her counsel, and counsel has an affirmative obligation to raise the competency issue when there is any reason to believe that the defendant is not competent. ²²⁵

Once the competency issue is raised and the trial court finds probable cause to believe that the defendant is not competent, the court must order a

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competency evaluation. ²²⁶ The evaluation must be performed by at least one qualified mental health expert as defined by statute. ²²⁷ A report of the competency evaluation is furnished to defense counsel, the commonwealth's attorney, and the court. ²²⁸ The Virginia Code specifically provides that no statements of the defendant relating to the time period of the alleged offense may be included in the competency report. ²²⁹ Statements not directly related to the offense may be admissible at trial for impeachment purposes. ²³⁰

When it receives the competency report, the court must determine whether the defendant lacks substantial capacity to understand the proceedings or to assist the attorney in his or her own defense. ²³¹ A hearing on competency must be held either upon request of counsel or when the court has reasonable cause to believe the defendant will be hospitalized for treatment. The defendant has the right to notice of the hearing, the right to counsel, and the right to personally participate in and introduce evidence at the hearing. ²³² The party alleging incompetency has the burden to prove by a preponderance of the evidence that the defendant is incompetent. ²³³ A finding

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of incompetency does not preclude the adjudication of a motion objecting to the sufficiency of the indictment or similar objections that may be undertaken without the personal participation of the defendant. ²³⁴

When it finds the defendant incompetent, the court must order that the defendant receive treatment to restore his or her competency. ²³⁵ Treatment may occur on an outpatient basis or at a hospital designated by the Commissioner of Behavioral Health and Developmental Services. If the defendant is ordered to undergo treatment at a hospital, the court must hold a hearing after six months from the initial commitment for treatment and at subsequent six-month intervals to determine if the defendant (i) has become competent; (ii) is incompetent but restorable to competency in the...