WHEN CAN MENTAL COMPETENCY BE USED AS A DEFENSE IN CLEARWATER & TAMPA BAY FLORIDA

According to a new report as many as 60,000 Defendants are given court ordered mental competency psychological tests each year and of that number as many as 12,000 Defendants are found to be incompetent to stand trial, which makes your favorite Clearwater Criminal Attorney glad that he wasn’t subjected to the competency tests … 


The following questions are routinely asked to determine mental competency 
1. Colloquy—Rational and Factual Understanding of Proceedings

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

  • Do you know where you are? Can you tell me?
  • Did your attorney explain to you what will happen with your case today?
  • Did he or she tell you how criminal cases proceed?
  • Did you know why you are here? Can you tell me?
  • Do you know what my job is as a judge? Can you tell me?
  • Do you know what the prosecutor’s job is? Can you tell me?
  • Do you know what your attorney’s job is? Can you tell me?
  • Do you know what the jury’s job is? Can you tell me?
  • Can you tell me the difference between pleading guilty or not guilty?
  • Does Modern Art really make any sense to you — if so, are you a Freudian? 



2. Colloquy—Present Ability to Consult with Lawyer and Assist in Defense

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

  • Do you think your attorney is on your side or on the prosecution’s side? Why?
  • I’d like you to remember these three objects: (e.g., square, apple, triangle, ball, pencil, etc.).
  • What would you do if your attorney said you should plead guilty but you didn’t want to?
  • What would you do if you wanted to plead guilty but your attorney said you shouldn’t?
  • Can you repeat the names of the three objects I asked you to remember?
  • Do you know whether the prosecution could make you testify at trial? What do you think?
  • Do you know why the prosecutor wears red pajamas while arguing about Freud?



Mental Competency Evaluations are often difficult for judges, lawyers and family members of the defendant and the victim to appreciate. Here are some mental competency guidelines for use in evaluations. In Florida the following law applies where mental competence is at issue for the case to proceed in criminal cases….if you should have a competency issue call a Pinellas Criminal Law Attorney:


916.12 Mental competence

(1) A defendant is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.
(2) Mental health experts appointed pursuant to s. 916.115 shall first determine whether the defendant has a mental illness and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed as described in subsection (1). A defendant must be evaluated by no fewer than two experts before the court commits the defendant or takes other action authorized by this chapter or the Florida Rules of Criminal Procedure, except if one expert finds that the defendant is incompetent to proceed and the parties stipulate to that finding, the court may commit the defendant or take other action authorized by this chapter or the rules without further evaluation or hearing, or the court may appoint no more than two additional experts to evaluate the defendant. Notwithstanding any stipulation by the state and the defendant, the court may require a hearing with testimony from the expert or experts before ordering the commitment of a defendant.
(3) In considering the issue of competence to proceed, an examining expert shall first consider and specifically include in his or her report the defendant’s capacity to:

(a) Appreciate the charges or allegations against the defendant.
(b) Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant.
(c) Understand the adversarial nature of the legal process.
(d) Disclose to counsel facts pertinent to the proceedings at issue.
(e) Manifest appropriate courtroom behavior.
(f) Testify relevantly.
In addition, an examining expert shall consider and include in his or her report any other factor deemed relevant by the expert.
(4) If an expert finds that the defendant is incompetent to proceed, the expert shall report on any recommended treatment for the defendant to attain competence to proceed. In considering the issues relating to treatment, the examining expert shall specifically report on:

(a) The mental illness causing the incompetence;
(b) The treatment or treatments appropriate for the mental illness of the defendant and an explanation of each of the possible treatment alternatives in order of choices;
(c) The availability of acceptable treatment and, if treatment is available in the community, the expert shall so state in the report; and
(d) The likelihood of the defendant’s attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future.
(5) A defendant who, because of psychotropic medication, is able to understand the nature of proceedings and assist in the defendant’s own defense shall not automatically be deemed incompetent to proceed simply because the defendant’s satisfactory mental functioning is dependent upon such medication. As used in this subsection, “psychotropic medication” means any drug or compound used to treat mental or emotional disorders affecting the mind, behavior, intellectual functions, perception, moods, or emotions and includes antipsychotic, antidepressant, antimanic, and antianxiety drugs.
Should this painting be tried by a jury of its peers?