COURT FOR THE COUNTY OF 
| Chapter 14: Competence of Defendant |
14-1 Competence To Stand Trial
MCL 330.2020-330.2044; MSA 14.800(1020)-14.800(1044) govern competence of the accused to stand trial, except as provided for by MCR 6.125.
The defendant is presumed competent to stand trial. MCL 330.2020; MSA 14.800(1020)(1); People v Snyder, 108 Mich App 754 (1981). A defendant is determined to be incompetent only if he is incapable because of mental condition of understanding the nature and object of the proceedings against him, or of assisting in his defense in a rational manner. MCL 330.2020(1); MSA 14.800(1020)(1); Cooper v Oklahoma, 517 US 348; 116 SCt 1373; 134 LEd2d 498 (1996). The court determines the defendant's capacity to assist in his own defense by his ability to perform tasks reasonably necessary for him to perform in preparation of his defense and during trial. MCL 330.2020(1); MSA 14.800(1020)(1). A defendant is not determined to be incompetent if he is taking prescribed pyschotropic drugs, even though without such medication he might be incompetent to stand trial. People v Hardesty, 139 Mich App 124 (1984); but see United States v Brandon, 158 F3d 947 (CA6, 1998). The court may require the treating physician to file a statement that such medication will not adversely affect the defendant's ability to understand the proceedings or assist in his defense. MCL 330.2020(2); MSA 14.800(1020)(2).
Defendants will not be proceeded against while they are incompetent. MCL 330.2022(1); MSA 14.800(1022)(2). The Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of defendants who are incompetent to stand trial. Drope v Missouri, 420 US 165; 65 SCt 896; 43 LEd2d 103 (1975); Medina v California, 505 US 437; 112 SCt 2572; 120 LEd2d 353 (1992); People v Newton, On Remand 179 Mich App 484 (1987) [conviction of an accused while incompetent to stand trial violates due process].
14-2 Competence To Plead Guilty
Due process does not require a higher standard of mental competency for a guilty plea than is required for competency to stand trial, Godinez v Moran, 509 US 389; 113 SCt 2680; 125 LEd2d 321 (1993), but defendants must still be competent in order to plead guilty. People v Whyte, 165 Mich App 409 (1988); People v Martin, 61 Mich App 102 (1975) [improper to accept guilty plea to probation violation where bona fide doubt was raised regarding defendant's ability to understand the nature of the charges against him]. The statutory standards for determining competence to stand trial apply to competence to plead. People v Matheson, 70 Mich App 172 (1976). Competency is an ongoing concern and the trial court should render a separate finding of competence at the time and place the plea is offered. id.
A defendant may not be sentenced if incompetent. Green v US, 365 US 301; 81 SCt 653; 5 LEd2d 670 (1961); Saddler v US, 531 F2d 83 (CA2, 1976); Wojtowicz v US, 550 F2d 786 (CA2, 1977). Lack of competency at sentencing raises serious questions as to whether the defendant is able to exercise his right of allocution meaningfully or rationally comprehend the nature of the proceedings. Green, supra.
The court, the prosecution or the defense may raise the issue of incompetence. MCL 330.2024; MSA 14.800(1024). People v McDonnell, 91 Mich App 458 (1979) [defendant, whose counsel was aware of defendant's history of psychological disorders and did not arrange for a competency hearing before defendant's guilty plea, was denied effective assistance of counsel]. The trial court has the duty of raising the issue of incompetence where facts are brought to its attention which raise a bona fide doubt as to the defendant's competence. People v Johnson, 58 Mich App 473 (1975); People v Harris, 185 Mich App 100 (1990). Even where a defendant is competent at the beginning of trial, a change in his or her condition may result in him or her becoming incompetent. People v Matheson, 70 Mich App 172 (1976). When evidence of incompetence is presented, the court cannot rely on a prior competency evaluation; it must render a separate finding of competency. People v Belanger, 73 Mich App 438 (1972).
14-5 Process for Raising Competency
The defendant has the right to remain silent in pretrial psychiatric examinations, Estelle v Smith, 451
US 454; 101 SCt 1866; 68 LEd2d 359 (1981), and in court-ordered psychiatric examinations used for
sentencing purposes, People v Wright, 431 Mich 282 (1988). Where the defendant waives his Fifth
Amendment rights and knows that the report will be used by the court, a psychiatric report may be
used at sentencing. People v Murphy, 146 Mich App 724 (1985). However, unless the defendant is
being detained while awaiting trial or is incarcerated on another matter, the defendant must be
released following the examination.
The statute is silent as to who bears the burden of proof. The Supreme Court has held that the states may place the burden on the defendant by a preponderance of the evidence without violating due process. Medina v California, 505 US 437; 112 SCt 2572; 120 LEd2d 353 (1992). The state may not require defendants to prove competency by clear and convincing evidence, as that would violate due process. Cooper v Oklahoma, 517 US 348; 116 SCt 1373; 134 LEd2d 498 (1996).
14-7 Results of Competency Examinations
The opinion concerning competence to stand trial derived from the competency examination may not be admitted as evidence for any purpose in the pending criminal proceeding. MCL 330.2028(3); MSA 14.800(1028)(3). If the defendant is determined incompetent to stand trial and if the court determines that he or she will not attain competence within the statutory period, the court may direct the prosecutor to file a petition for the defendant's civil commitment. MCL 330.2031; MSA 14.800(1031). If the defendant is determined incompetent to stand trial and the court determines that there is a substantial probability that he will attain competence within the statutory period, the court shall order him to be treated to render him competent to stand trial. MCL 330.2032(1); MSA 14.800(1032)(1). No order under MCL 330.2032 or MCL 330.2040 [redetermination of incompetency] shall have force or effect for a total period in excess of 15 months or one-third of the maximum sentence the defendant could receive if convicted of the charges against him. MCL 330.2034; MSA 14.800(1034).
The defendant's right to liberty while awaiting trial may not be impaired because the issue of incompetence has been raised, except to the extent authorized by MCL 330.2026 [period of examination] or MCL 330.2032 [course of treatment]. MCL 330.2036; MSA 14.800(1036).
The defendant gets credit for time spent in the custody of any facility pursuant to MCL 330.2026, 2032 and 2040. MCL 330.2042; MSA 14.800(1042).
The charges against a defendant determined to be incompetent to stand trial shall be dismissed if the prosecutor no longer wishes to prosecute the case or 15 months after the date on which defendant was determined incompetent to stand trial. MCL 330.2044(1); MSA 14.800(1044)(1); People v Bowman, 141 Mich App 390 (1985). This period need not be continuous. People v Miller, 186 Mich App 238 (1990); aff'd in part and rev'd in part 440 Mich App 631 (1992). However, the prosecutor can petition the court at any time for permission to refile charges if the crime charged was punishable by life imprisonment. MCL 330.2044(3); MSA 14.800(1044)(3). For other crimes the prosecutor must petition the court for permission to refile within a period equal to one-third of the maximum sentence of that offense. Id. The court shall grant permission if, after a hearing, it determines the defendant to be competent to stand trial. MCL 330.2044(4); MSA 1044(4). Failure to dismiss is merely a precedural violation which does not require reversal, unless there is a showing of prejudice to the defendant's substantive rights. People v Miller, supra.
Deciding whether to ask the court to have your client evaluated for competency is not always an easy decision to make. If, for example, your client is not facing significant time as a result of the charge against him, being found incompetent could result in his spending more time deprived of his liberty. You will need to consider the severity of the charges against your client, the likelihood of his spending a lot of time in prison as a result of those charges, and the strength of the prosecution's case against him, in addition to your own sense of his competence. These are all factors that will influence your decision about whether to file a motion requesting a competency evaluation and hearing.
Another important strategic consideration implicates your client's Fifth Amendment rights. Once you request an examination, it is not possible to control the kinds of questions asked of your client and the potential for incrimination (perhaps as to yet-uncharged offenses). We do not mean to imply that this consideration should foreclose concern regarding your client's competence, but you should think about it, particularly in a close case.
14.1. Motion for Evaluation of Defendant's Competency to Stand Trial [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
_________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_________________________________/
Defendant, 
, by 
attorney, moves this Court to order an evaluation and
a hearing as to the defendant's competence to stand trial. This motion is based on MCL 330.2020, 330.2022,
330.2024; MSA 14.800(1020), MSA 14.800(1022), 14.800(1024),
1. On 
, 
was charged with 
.
2. 
case is pending in 
and scheduled to 
on 
.
3. On a showing that the defendant may be incompetent to stand trial, the court must order the examination of the defendant. MCR 6.125.
4. A defendant is incompetent to stand trial if he is incapable because of mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner. MCL 330.2020(1); MSA 14.800(1020)(1).
6. As 
is incompetent, 
cannot be the subject of criminal proceedings.
MCL 330.2022(3); MSA 14.800(1022)(3).
7. The conviction of an accused while 
is incompetent to stand trial violates due process.
Medina v California, 505 US 437; 112 SCt 2572; 120 LEd2d 353 (1992); People v Newton, 179 Mich App 484
(1987).
For these reasons, 
respectfully requests that this Court grant 
motion
for an evaluation and hearing to determine whether 
is competent to stand trial.
Respectfully submitted,
______________________
Attorney for Defendant