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Most considerations of “criminal competency” are limited to questions of capacity to stand trial. Occasionally, issues of guilty pleas and ability to go pro se are also considered. And these are all critically important (and profoundly underconsidered). But there are multiple other questions of “criminal competency” that defense lawyers must know about and take seriously if they are to provide effective counsel. Also, within the general subject matter areas of trial and pro se status, there are embedded issues to which not nearly enough attention is paid.
How does a defense lawyer proceed when a defendant has been found incompetent to stand trial and refuses medication? Should defense counsel defend the client’s refusal in all cases (notwithstanding the client’s possible incapacity to make treatment decisions)? Or should counsel second-guess the refusal? No perfect options exist. Professor Fredrick Vars examines a relatively recent case that illuminates an underappreciated option.
A template of a court order for Restoration of Competency.
Defense lawyers addressing competence issues should gain familiarity with neuroscience-related literature. They should be able to consider neuroscience-related techniques that could provide explanations about the genuineness of an individual’s incompetence. At the very least, familiarity with neuroscience literature will inspire lawyers to ask experts about assessment approaches or inquiries that might be undertaken.
Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of neither party.
