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Flashcards in 3 Competency Deck (48):

What does competence refer to?

Refers to the defendant's ability to function knowingly and meaningfully in a legal proceeding. This includes:
- Waiving Miranda rights
- Execution
- Pleading guilty
- Waiving counsel
- Standing trial


In Canada, what is competence referred to?

Fitness to stand trial.


By pleading guilty, what constitutional rights do they waive?

- The right to jury by trial
- The right to confront their accusers
- The right to call favourable witnesses
- The right to remain silent


The Supreme Court decided that waiving such important rights must be done how?

- Knowingly
- Intelligently
- Voluntarily


What are the four underlying principles?

1) To safeguard the accuracy of any criminal adjudication.
2) To guarantee a fair trial.
3) To preserve the dignity and integrity of the legal process
4) to be certain that the defendant, if found guilty, knows why he or
she is being punished


What is the standard for competency?

1. Whether one has sufficient ability to consult with a lawyer with a reasonable degree of understanding.
2. One has a rational, factual understanding of the proceedings against him.


If you are incompetent, you are unable...?

1. To conduct a defence at any stage of the proceeding or to instruct counsel to do so, and are unable on account of mental disorder to:
- Understand the nature or object of the proceedings
- Understand the possible consequences of the proceedings
- Communicate with counsel


The mere presence of severe psychopathology is only a threshold issue, it's not enough to be deemed incompetent, it must...?

- Be demonstrated that such severe disturbance in the defendant.
- Results in the defendant being unable to assist the attorney or to comprehend the nature of the proceedings and their likely outcome.


Who may request an assessment to be done?

- The court (the judge)
- The accused
- The prosecution (if the accused states there is a mental issue or
if the Crown has reasonable grounds.)


When can question of the defendant's competence be raised?

At any point in the criminal process. Once the question of incompetence is raised, the judge will typically order an evaluation.


Assessments should be conducted outside of custody unless...?

- The court is convinced detention is necessary
- or the accused can show why they should not be detained
- Evaluations can take place in a jail, outpatient clinic or an
inpatient facility.


What is measured in a competency evaluation? (two components)

1. Foundational competence
2. Decisional competence


What is meant by 'the defence bears the burden of proof?'

The defendant has to show it was more likely than not that he or she was incompetent.


What is the result of a competency evaluation? (2)

- Fit to stand trial
- Unfit to stand trial


What happens in the court if you're deemed unfit to stand trial?

- Set aside plea; trial is postponed
- Dismiss the jury
- The charges are sometimes dropped (if minor) in exchange for
the defendant to receive treatment.


What happens if you are unfit to stand trial?

- Court may make an order to refer it to a board for results
- Fitness must be reviewed every year
- Crown must establish that it has a prima facie case every 2 years
- Accused may request a hearing at any time
- Options are conditional discharge or hospitalization


What happens to YOU if you are found to be unfit to stand trial?

- Typically hospitalization
- May treat you against will
- Goal is to restore your fitness
- Can't be held for more than a reasonable period of time.
- If you are never deemed competent, you are held until you are not
a danger to society.


What is the most effective treatment if you are found unfit to stand trial?

Drug therapy and training.


Can you force someone to take treatment against their will?

The mental health law is under provincial jurisdiction. This means in some provinces you can, others you cant.


What percentage of people who are deemed unfit become fit to stand trial?

80% deemed fit within 6 months.
Most of the remainder deemed fit within one year.


What does the term "jackson d" mean?

When a defendant is found incompetent to stand trial, he or she can be hospitalized for treatment to restore the defendant. But only for a reasonable period of time (2/3 max sentence)


What are some misuses of the competency evaluation?

- Attorneys use them to determine is there is a basis for the
insanity defence or get information for plea bargaining.
- Some attorneys use the competency evaluation for the means
of delaying a trial.
- Competency referrals may be used as a mechanism to get
defendants out of jail and into mental health facilities.


What happens if you are found not competent to be executed?

- One cannot understand the nature of the pending proceedings
- Lacks a sufficient capacity to recognize or understand any fact
in which might exist which would make the punishment unlawful.


What did researchers find about people who are ages 15 and under regarding juvenile competence?

- Below age 15 are significantly impaired in ways that compromised
their abilities to function as competent defendants.
- Below average intelligence was also associated with deficits


What is the difference between competency and insanity?

Competency - Time of trail
Insanity - Time of crime
* You can be find competent yet insane, or incompetent yet sane.


What does "wrong" mean?

Against the commonly accepted standards of morality and conduct
which prevail in the community at large.


What does insanity refer to?

Refers to the defendants mental state at the time of the crime. This includes what happens leading up to and after the crime is committed.


In Canada, what is insanity referred to?

Not criminally responsible on account of mental disorder.


What are the two elements that must be present for criminal guilt?

1) Actus Reus - Wrongful deed
2) Mens Rea - Criminal intent


Currently in Canada, if a person is deemed NCRMD, and is found not a threat to society, what would happen?

They should receive an absolute discharge.


What is the McNaghten rule?

It must be clearly proved that at the time of committing the act, the accused was under such a defect of reason, he did not know what he was doing wrong.


How many states use the mcnaghten rule?

About half.


What is the brawner rule?

Defendant is not responsible for criminal conduct if at the time of such conduct they lack capacity to understand the wrongfulness.


How many states is the brawner rule used in?

About 20.


What is "Guilty but mentally ill" (GBMI)?

Defendant is provided treatment at a state mental hospital until her or she is declared to be sane, and then is sent to prison.


Is GBMI a defence or a verdict?

GBMI is a verdict. Meaning that the person is criminally responsible, but is not incarcerated. They are instead subjected to confinement.


What part of "but mentally ill" mean in the title GBMI?

Signifies a possession of a mental disorder, but does not absolve the person of criminal responsibility.


In 1992, what happened to the system change of insanity?

They found permanent institutionalization is wrong. A system or regular review and assessment was introduced and the person could not spend more time there then if they were found guilty.


Before 1992, why was the insanity plea not used as much?

Generally the punishment of the insanity plea often was worse than just pleading guilty.


How does one go abouts pleading insanity? (if you're the lawyer)

- Collect as much information about the crime as you can
- Ask the defendant what was happening before, during and after
- "at the time of crime" includes the frame of time around it
- Contact family members, arresting officers, etc
- Family, school, work, health, criminal records.


What is the difficulty in determining insanity?

- Insanity is a legal concept that varies by jurisdiction
- Requires a retrospective assessment of the person's mental


Insanity DOES NOT equal _________.



What are the three possible results of being found "insane"?

1) Absolute discharge
2) A conditional discharge
3) A detention order in hospital with appropriate conditions
(cannot include forced treatment.)


How dangerous are defendants found NGRI?

- Most who are found NGRI are usually put in to an institution, it is
difficult to assess the risk they pose to public safety.
- Research says there is no difference in reoffending between these
people and "regular" felons.


What is the criticism of the insanity defence?

It relies too much on psychiatric experts.
1) Research says clinicians are reliable and valid to assess mental
2) However, research says do not allow experts to give ultimate
opinion testimony. (Are they insane or not)


What is the defense of diminished capacity? (And what is it different from the insanity defense?)

It applies to defendants who lack the ability to commit a crime knowingly. It differs from insanity because it focuses on having the state of mind to act with purpose and intent, not whether they knew the crime was wrong or not.


What have people argued to get rid of the insanity defense?

That we cannot talk about guilt without bringing in the person's state of mind.


What is malingering?

The conscious fabrication or gross exaggeration of physical and/or psychological symptoms to achieve an external goal.