What does it mean to be competent to stand trial? What happens when a defendant is truly not competent?

There are times when a defendant is, or becomes, so mentally ill that he or she cannot stand trial. Disabilities can cause incompetence. In such cases a prosecutor, defense lawyer or the court sua sponte may request that the defendant be evaluated for competence to stand trial.¹

Inpatient or Outpatient Evaluation?

The evaluation process favors local, outpatient evaluation. The statute requires the evaluation to be done by the community mental health center or designated licensed private practitioner for the jurisdiction. If the local center or private practitioner cannot do the evaluation, the evaluation should be done by the state hospital on an outpatient basis.  Only if the outpatient evaluator concludes further evaluation and treatment are needed can the court send the defendant to a state hospital for inpatient evaluation.²

Although the intent of the statute was to prevent unnecessary involuntary hospitalization, the preference for local outpatient evaluation means that most defendants only receive a cursory examination. While referred to as “outpatient,” the defendant is often in jail, so the evaluation consists of a short jail visit. The evaluator often does not obtain or review prior mental health records or conduct interviews of family members, which can lead to a declaration that a defendant is competent when he or she is severely mentally ill.

As a practical matter, defense counsel may want to seek a private expert. Although mentally ill defendants rarely have the resources to hire forensic experts, if the case is in criminal court, expert funding may be available.

In cases in which the local evaluator certifies that he or she cannot complete the evaluation and the person needs further evaluation or treatment, the court can commit the defendant to the state hospital for not more than 30 days for evaluation and treatment regarding competency.³

What is the Standard?

Tennessee’s standard for competency to stand trial is grounded in both federal constitutional law and Tennessee Supreme Court precedent. The standard is often called the Dusky standard from the 1960 U.S. Supreme Court case. The case is fascinating to read — in part because it is only two pages long and because it was the U.S. solicitor general who argued the district court hadn’t applied a standard that would more likely lead to a finding of lack of competence. The court succinctly held, “We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’”⁴ Tennessee courts have explicitly adopted this standard, referring to it as the Dusky or Mackey standard.⁵ The Tennessee Supreme Court has repeatedly articulated the standard as requiring the capacity to understand the nature and object of the proceedings, to consult with counsel and to assist in preparing a defense.

Applying the Standard

It is easy to find the standard, but what does it mean and how are mental health professionals supposed to know whether someone has these capacities? The standard doesn’t just mean that the defendant knows who the players are in court and their roles.

I can’t recommend highly enough looking at the Department of Mental Health and Substance Abuse Services Forensic Evaluation Training Manual.⁶  This resource is a gold mine for any prosecutor or defense lawyer seeking to provide guidance to, or to cross examine, an evaluator. It points out that to determine whether a defendant is competent requires and assessment of a number of factors, many of which are much more in depth that just a general awareness of what is happening.

This list is not comprehensive, but the evaluation should include:

• Appraisal of available legal defenses
• Whether the defendant shows any unmanageable behavior
• Relations with counsel
• Planning of legal strategy
• Understanding the significance of guilty plea to lesser charges where pertinent
• Understanding of court procedure including the roles of all participants
• Appreciation of charges
• Appreciation of range and nature of possible penalties
• Capacity to testify relevantly
• Appraisal of likely outcome
• Capacity to realistically challenge prosecution witnesses
• Capacity to disclose to attorney available pertinent facts surrounding the offense including the defendant’s movements, timing, mental state, actions at the time of the offense
• Self-defeating v. self-serving motivation (in the legal sense)

Counsel should try not to be put in the position of relying on an expert who has not evaluated these relevant factors. More enjoyably, counsel should be prepared to cross examine an expert who has not fulfilled this role.

What Happens When a Defendant is Deemed Incompetent?

The vast majority of the time, a defendant will be deemed competent to stand trial. In the event the defendant is not competent, the legislature has recently changed the statutes to ensure that defendants receive treatment and are not released in a way that would create danger to the public. “Jillian’s Law,” which was passed in 2024, was named after an 18-year-old who was killed by a stray bullet fired by an individual who had been released after being found incompetent. Under the revised statutes, defendants with serious charges found incompetent must go to mental health treatment.

As the Tennessee Court of Criminal Appeals recently noted:

Effective July 1, 2024, the statutes governing judicial commitment were repealed and redesignated to other code sections, retaining most of the language from the prior statutes. See Tenn. Code Ann. §§ 52-5-402-405 (Supp. 2024). Our legislature also amended the statutes to include ‘a rebuttable presumption that a person meets the standards in subdivisions (a)(1)-(4) [of Code section 52-5-404] for judicial commitment if the person was charged with a felony or Class A misdemeanor and found by a court to be incompetent to stand trial for the offense due to an intellectual disability[.]’ Tenn. Code Ann. § 52-5-404(b)(1) (Supp. 2024). HN5 This presumption ‘may only be rebutted by clear and convincing evidence that the person does not pose a substantial likelihood of serious harm.’ Tenn. Code Ann. § 52-5-404(b)(2) (Supp. 2024).⁷

The process still begins with the district attorney filing a petition for involuntary commitment to a state hospital.

One of the biggest changes is that people with intellectual disabilities found incompetent are presumed dangerous.⁸

Additionally, the time for retiring misdemeanor charges for incompetent defendants is extended to two years, with required, structured, community-based or inpatient treatment plans upon release.⁹ If a defendant is found incompetent and not restored to competency within two years of arrest, any pending misdemeanor charges must be retired. The only exception is if the defendant regains competency before the two-year mark, in which case the charges may proceed.

It is a misdemeanor for individuals deemed incompetent to stand trial to possess or purchase a firearm. 

Community-Based Services for Felony Defendants

When defendants who were charged with felonies are determined to be incompetent but not committable, but are at risk of becoming committable, there are new funds and requirements for community-based services.¹⁰ A person with a neurological disorder or head trauma might fit into the category of a person who was not competent but also not committable. There have also been strong arguments that defendants with amnesia are not competent to assist counsel but likely would not be committable. For defendants with intellectual disabilities rather than mental illness, the same criteria regarding community-based services apply.¹¹

If the defendant is committed, the hospitalization continues until either competency is restored or, if restoration is not possible, until the criminal court approves a mandatory outpatient treatment plan that addresses community safety.

It is important to keep in mind that a defendant who is deemed incompetent will be committed for much longer than would be called for after trial and conviction for the charged offense.

Conclusion

Counsel should make sure that any evaluation for competency includes the factors set forth above and an examination of prior records. In a case in which a defendant is found incompetent to stand trial, the recent amendments will mandate judicial hospitalization or community treatment. |||

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WADE DAVIES is the owner of The Davies Law Firm in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.     

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NOTES
1.Tenn. Code Ann. § 33-7-301(a).
2. Id.
3. Id.
4. Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 788-89 (1960).
5. Mackey v. State, 537 S.W.2d 704 (Tenn. Crim. App. 1975). See also State v. Black, 815 S.W.2d 166, 173-74 (Tenn. 1991);  Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 495 (Tenn. 2013); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000); State v. Reid, 213 S.W.3d 792, 808 (Tenn. 2006); State v. Kiser, 284 S.W.3d 227, 246 (Tenn. 2009); State v. Johnson, 673 S.W.2d 877, 880 (Tenn. Crim. App. 1984).
6. Available at www.tn.gov/content/dam/tn/mentalhealth/documents/Tennessee_Forensic_Evaluator_Manual.pdf. There is also an updated Regional Mental Health Institute Forensic Services Manual.
7. State v. Griggs, 719 S.W.3d 256, 265 (Tenn. Crim. App. 2025).

(1)There is a rebuttable presumption that a person meets the standards in subdivisions (a)(1)–(4) for judicial commitment if the person was charged with a felony or Class A misdemeanor and found by a court to be incompetent to stand trial for the offense due to an intellectual disability; and
(2) The presumption established by subdivision (b)(1) may only be rebutted by clear and convincing evidence that the person does not pose a substantial likelihood of serious harm.

8. Tenn. Code Ann. § 52-5-404
9. Tenn. Code Ann. § 33-7-301 and § 52-6-102.
10. Tenn. Code Ann.§ 33-7-401; Tenn Code Ann. § 52-5-501.
11. Tenn. Code Ann. § 52-5-501. The appropriate agency for a disability as opposed to mental illness would be the newly renamed the Department of Disability and Aging. See Tenn. Code Ann. § 4-3-2701 (Supp. 2024).