Incompetency and Mental Health in a Criminal Case

incompetence criminal

Rule 11 and the definition of incompetency

Rule 11 is the rule in the Arizona Rules of Criminal Procedure that address how to proceed when it is believed the defendant is not competent to assist in their own defense or stand trial. Rule 11.1 provides:

A person shall not be tried, convicted, sentenced or punished for a public offense, except for proceedings pursuant to A.R.S. § 36-3707(D), while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense. Mental illness, defect or disability means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities as defined in A.R.S. § 36-551. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.

You will note that the mere presence of a “mental illness, defect or disability” does not mean the defendant is incompetent. The mental illness must be so severe that the defendant cannot comprehend what is happening. Below we highlight some of the steps in a competency determination. Please note, determining competency can be a lengthy and involved process, and the issues below may not be comprehensive or all-inclusive. If you or someone you are responsible for is facing such an issue, you should consult with an attorney.

How to raise the issue of incompetency in court

The issue of incompetency can be brought up in two ways: First, the court can request a mental health examination on its own, or second, any party to the case can file a motion asking that the defendant’s mental health be evaluated. Once a motion requesting a mental health evaluation has been filed, all available medical and criminal history records must be provided to the court within 3 days (See Rule 11.2(b)).

Preliminary Examination

The court may order a preliminary examination of the defendant to determine if further investigation is warranted (See Rule 11.2(c)). The preliminary evaluation will look at things such as:

  1. Can the defendant provide his/her name, age, date of birth and marital status?
  2. Can the defendant relate his/her family history, education, and medical history?
  3. Does the defendant know why he/she was arrested and the nature of the charges?
  4. Does the defendant know the roles of the parties, such as the judge, defense counsel and prosecutor?
  5. Does the defendant have the ability to disclose relevant facts to defense counsel (assist in his/her defense)?
  6. Can the defendant manifest appropriate courtroom behavior?
  7. Can the defendant testify relevantly?

The doctor providing the preliminary evaluation will then provide his or her impressions as to whether or not the defendant is capable of understanding what is going on, whether or not the defendant can assist in his or her defense, and whether or not further evaluation of the defendant is warranted.

Further Competency Evaluation

If the court determines that further evaluation of the defendant’s competency is warranted, it will issue an order to that effect. If the case is in a court of limited jurisdiction (as almost all misdemeanor traffic cases are), the case will be transferred to the Superior Court for the purpose of conducting the Rule 11 evaluation of the defendant.

The Superior Court will then appoint two psychiatrists to conduct independent competency evaluation. The person being evaluated may choose one of the doctors. The Superior Court will also set a date for a competency hearing to be held after the evaluations are complete. If the defendant will not cooperate with the evaluations, the court will issue a Detention Order directing law enforcement to locate and involuntarily detain the defendant.

Competency Hearing

Within 30 days after the psychiatrists have completed there evaluations, there will be a competency hearing. At the hearing, attorneys for the defendant and the State will present their arguments. The doctors who performed the evaluations will likely be called as witnesses, and any other relevant evidence will be presented.

The court will make a number of findings after the hearing relating to competency, restoration, and commitment as outlined below.

If the defendant is unable to understand the nature of the proceedings and/or is unable to assist in his or her defense, then the court will find the defendant criminally incompetent. See A.R.S. 13-4517(3).

If the defendant is found to be competent, then the criminal prosecution will continue.

If the defendant is found to be incompetent, there are two possible paths:

  1. If the court finds that the defendant is incompetent and there is no “substantial probability that the defendant will become competent within 21 months of the date found incompetent,” the court may:
    1. Remand the defendant to the Department of Health Services to begin civil commitment proceedings;
    2. Order appointment of a guardian; or
    3. Release the defendant and dismiss the charges without prejudice. (See Rule 11.5(b))
  2. Otherwise, the court “shall order competency restoration treatment unless there is clear and convincing evidence that defendant will not regain competency within 15 months.”

Effect of being found incompetent

If the defendant is found to be incompetent with no substantial probability that he/she can be restored to competency within 21 months, then the charge(s) will be dismissed without prejudice. “Without prejudice” means the state can refile the charges as long as the statute of limitations has not run.


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