<3> A defendant is presumed competent to stand trial unless his mental condition prevents him from understanding the nature and object of the proceedings against him, or the court determines that he is unable to assist in his defense. See Dusky v. United States, 362 U.S. 402 (1960) (test for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him."). See State v. Milam, 159 W.VA. 691, 226 S.E.2d 433 (1976) (Syllabus pt.1)

The presumption that the defendant is competent to stand trial may be called into question by defense counsel, the prosecutor, or the trial judge.

Once facts known to a trial court are sufficient to place a defendant's competence to stand trial in question, the trial court must hold an evidentiary hearing to determine the question. "Whenever a trial court knows that a criminal defendant has a recent history of mental illness, it is an abuse of its discretion not to afford him or her an opportunity for psychiatric evaluation [and to hold a hearing on the defendant's competence to stand trial]." State v. DeMastus, 270 S.E. 2d 649 (W.Va. Sup.Ct.App., 1980)

When defense counsel raises an issue about a defendant's competence to stand trial and does so in good faith and with supporting evidence, a trial court must allow further inquiry into the competency of the defendant to stand trial.

"Evidence of irrational behavior, a history of mental illness or behavioral abnormalities, previous confinement for mental disturbance, demeanor before the trial judge, psychiatric and lay testimony bearing on the issue of competency, and documented proof of mental disturbance are all factors which a trial judge may consider in the proper exercise of his discretion." State v. Arnold, 219 S.E.2d 922, 926 (1975). See also, State v. Sanders, 209 W.Va. 367, 549 S.E.2d 40 (2001); State v. Demastus, 165 W.Va. 367, 270 S.E.2d 649 (1980)

These indicators that bear on the issue of competency and the necessity for a competence to stand trial hearing follow those enumerated in Pate v. Robinson and restated in Drope v. Missouri:

The import of our decision in Pate v. Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these facts standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. [Drope v. Missouri, 420 U.S., at 180]

<4> Under the provisions of the West Virginia code, "when a trial court has reason to believe that defendant in a criminal case may be incompetent to stand trial and orders a mental examination of the defendant, the defendant is entitled as a matter of right to a full evidentiary hearing on the question of his competency." State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (Sup.Ct.App. W.Va., 1976).

<5> In West Virginia, as in other jurisdictions, the burden, once the issue of competence to stand trial has been raised, lies with the prosecutor to prove that the defendant is competent. The West Virginia code provides that: "A finding of incompetence for trial shall require proof by a preponderance of the evidence." § 27-6A-1(d).

Does the Due Process Clause of the US Constitution permit a State to require a defendant who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence? See: Medina v. California, 112 S. Ct. 2572 (1992). Prior to Medina's trial for first degree murder, the California court granted his motion for a competency hearing under a state law which established a presumption of competence and placed on the defendant the burden of proving incompetence by a preponderance of the evidence. Medina was found competent to stand trial, convicted and sentenced to death. Medina claimed that the statute's presumption and burden of proof violated his right to due process.

The Supreme Court held that the Due Process requirements of the Constitution permit a State to require a defendant claiming incompetence to stand trial to be charged with the burden of proving his incompetence by a preponderance of the evidence. The Court found no historical basis for concluding that allocating the burden of proof to a criminal defendant violates due process. Indeed, the Court found no contemporary settled view that would decide the question.

[Note: I do not have a current breakdown, state-by-state, and do not know whether a majority of states place the ultimate burden of proof on the prosecution or on the defendant.]

In State v. Jenkins, 180 W.Va. 651, 379 S.E.2d 156 (1989), the court held that the standard for appellate review of a determination of competency to stand trial made by a trial court is whether the finding is supported by a preponderance of the evidence. Yet, the Supreme Court sometimes indicates that the standard of review is not an evaluation (and weighing of the evidence) but an "abuse of discretion" standard.

<6> Generally, a defendant is not incompetent to stand trial because he takes prescribed psychotropic drugs or other medication without which he might be deemed incompetent to stand trial. However in Riggins v. Nevada, 504 U.S. 127 (1992), the US Supreme Court held that forced administration of anti-psychotic medication of a defendant during his trial on murder and robbery charges, when he has complained of hearing and voices and having sleep problems and had been prescribed the anti-psychotic drug Mellaril and been found competent to stand trial violates both his 6th and 14th Amendment rights.

The Court left open the possibility that if the District Court had made findings to the effect that the treatment was medically appropriate, had considered less intrusive alternatives, and was necessary for the defendant's or others safety, then the government could proceed to try the defendant and administer the treatment over his objection.

See generally: Bruce J. Winick, Psychotropic Medication and Competence to Stand Trial, 1977 Am. B.F. Res. J. 769. For an update on issues raised by Winick in his 1977 article and the Supreme Court in Riggins v. Nevada see: Old Law Meets New Medicine: Revisiting Involuntary Psychotropic Medication of the Criminal Defendant, 2001 Wis. L. Rev. 307; Thomas G. Gutheil & Paul S. Appelbaum, "Mind Control," "Synthetic Sanity," "Artificial Competence," and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L. Rev. 77 (1983); Dora W. Klein, The Case Against Administering Involuntary Medications to a Defendant During Trial, 55 Vand. L. Rev. 165 (2002); Aimee Feinberg, Forcible Medication of Mentally Ill Criminal Defendants: The Case of Russell Eugene Weston, Jr., 54 Stan. L. Rev. 769 (2002); Linda C. Fentiman, Whose Right Is It Anyway?: Rethinking Competency to Stand Trial in Light of the Synthetically Sane Insanity Defendant, 40 U. Miami L. Rev. 1109 (1986); Bruce J. Winick, New Directions in the Right to Refuse Mental Health Treatment: The Implications of Riggins v. Nevada, 2 Wm. & Mary Bill of Rts. J. 205 (1993).

<7> The procedure to follow when a defendant has been found incompetent to stand trial is set forth in W.Va. Code, 27-6A-2(b). See also: State v. Bias, 177 W.Va. 302, 306, 352 S.E. 2d 52, 56 (1986)

<8> Questions to raise about the psychologist/psychiatrist testimony: 1) what is the basis for the testimony? 2) contemporaneous interview or encounter with the defendant during the course of treatment or institutionalization? 3) if the testimony is based on a contemporaneous interview, where did the interview take place? how long did the interview last? was more than one interview conducted? who was present during the interview(s)? were verbatim notes taken during the interview? 4) was the interview conducted by a psychologist or a psychiatrist, or by some other professionally trained mental health worker? 5) did the psychiatrist/psychologist have prior forensic experience? is s/he qualified as a forensic psychiatrist or a forensic psychologist? (here you'll need to know something about certifications, which professional organizations offer them, and the criteria by which they are acquired), (6) what psychological tests were administered? was the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) administered? (before raising this question you will need to know that this test is, what it purports to measure; indeed, it helps when raising issues about a psychological test to have a copy of the test, to which you can refer)

"The MacCAT-CA is a 22-item structured interview for the pretrial assessment of adjudicative competence. This instrument uses a vignette format and objectively scored questions to standardize the measurement of three competence-related abilities: Understanding (capacity for factual understanding of the legal system and the adjudication process); Reasoning (ability to distinguish more relevant from less relevant factual information and ability to reason about the two legal options: pleading guilty or not guilty); and Appreciation (capacity to understand his or her own legal situation and circumstances)." [MacArthur Competence Assessment Tool - Criminal Adjudication (MacCAT-CA)] [Background on the empirical studies that underlie the test: The MacArthur Adjudicative Competence Study]

On the MacCAT-CA, see: Paul S. Appelbaum & Thomas Grisso, MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (Professional Resource Exchange, Inc., 1998)

<9> An accused person, may have been sane at the time of the acts charged, and still be incompetent to stand trial.

<10> The competency of a criminal defendant to stand trial "is essentially a factual question to be decided on a case by case basis . . . ." State v. Swiger, 175 W.Va. 578, 336 S.E.2d 541 (1985) (quoting, with approval, State v. Ferguson, 26 Ariz. App. 285, 286; 547 P.2d 1085, 1086 (1976)).

<11> The test for competence to stand trial and competency to plead guilty are the same, and the statutory provisions which apply to determinations of competence to stand trial are held to apply equally to competence to plead guilty. State v. Cheshire, 170 W.Va. 217, 292 S.E.2d 628 (1982)

Bibliography: Benjamin James Vernia, The Burden of Proving Competence to Stand Trial: Due Process at the Limits of Adversarial Justice, 45 Vand. L. Rev. 199 (1992); Gerald Bennett, A Guided Tour Through Selected ABA Standards Relating to Incompetence to Stand Trial, 53 Geo. Wash. L. Rev. 375 (1985); Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. Miami L. Rev. 539 (1993); Cooper v. Oklahoma and the Fundamental Right Not to Be Tried While Incompetent, 24 N.E. J. on Crim. & Civ. Con. 511 (1988); Richard J. Bonnie, et.al., An Empirical Study of Insanity Pleas and the Impact of Doubted Client Competence, 87 J. Crim. L. & Criminology 48 (1996); Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and Response to Professor Bonnie, 85 J. Crim. L. & Criminology 571 (1995); Michael L. Perlin, Pretexts and Mental Disability Law: The Case of Competency, 47 U. Miami L. Rev. 625 (1993); T. Grisso, Evaluating Competencies: Forensic Assessments and Instruments (New York: Plenum Press, 1986)

West Virginia Code provisions on "competence to stand trial":

§27-6A-1. Determination of competency of defendant to stand trial and of criminal responsibility, examination, commitment.

(a) Whenever a court of record, or in the instance of a defendant charged with public intoxication a magistrate or other judicial officer, believes that a defendant in a felony case or a defendant in a misdemeanor case in which an indictment has been returned, or a warrant or summons issued, may be incompetent to stand trial or is not criminally responsible by reason of mental illness, mental retardation or addiction, it may at any stage of the proceedings after the return of an indictment or the issuance of a warrant or summons against the defendant, order an examination of such defendant to be conducted by one or more psychiatrists, or a psychiatrist and a psychologist, or in the instance of an individual charged with public intoxication, an alcoholism counselor: Provided, That with the exception of subsections (a) and (g) of this section, no other subsection in this section nor any other provision of this article shall apply to individuals charged with public intoxication pursuant to section nine, article six, chapter sixty of this code.

(b) After the examination described in subsection (a) of this section, the court of record may order that the person be admitted to a mental health facility designated by the director of health for a period not to exceed twenty days for observation and further examination if the court has reason to believe that such further observation and examination are necessary in order to determine whether mental illness, mental retardation or addiction have so affected a person that he is not competent to stand trial or not criminally responsible for the crime or crimes with which he has been charged.

(c) At the conclusion of each examination or observation period provided for herein, the examining psychiatrists, or psychiatrist and psychologist, shall forthwith give to the court of record a written signed report of their findings on the issue of competence to stand trial or criminal responsibility. Such report shall contain an opinion, supported by clinical findings, as to whether the defendant is in need of care and treatment.

(d) Within five days after the receipt of the report on the issue of competency to stand trial, or if no observation pursuant to subsection (b) of this section has been ordered, within five days after the report on said issue following an examination under subsection (a) of this section, the court of record shall make a finding on the issue of whether the defendant is competent for trial. A finding of incompetence for trial shall require proof by a preponderance of the evidence. Notice of such findings shall be sent to the prosecuting attorney, the defendant and his counsel. If the court of record orders or if the defendant or his counsel on his behalf within a reasonable time requests a hearing on such findings, a hearing in accordance with section two of this article shall be held by the court of record within ten days of the date such finding or such request has been made.

(e) After a conviction and prior to sentencing, the court of record may order a psychiatric or other clinical examination and, after such examination, may further order a period of observation in a mental health facility designated by the director of health. Such a period of observation or examination shall not exceed forty days.

If after hearing conducted pursuant to the procedures prescribed in subsection (c), section four, article five of this chapter, the court of record makes the findings specified in section four, article five of this chapter or finds that the convicted individual would benefit from treatment in a mental health facility, the court may enter an order of commitment in accord with section four, article five for treatment in a mental health facility designated by the director of health.

(f) In like manner, in accordance with procedures set forth in subsections (a), (b) and (c) of this section, a juvenile court may order a psychiatric examination or a period of observation for an alleged delinquent or neglected juvenile in a mental health facility to aid the court in its disposition. The period of observation shall not exceed forty days.

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§27-6A-2. Hearing on competency to stand trial; findings.

(a) At a hearing to determine a defendant's competency to stand trial, the defendant shall be present and he or she shall have the right to be represented by counsel and introduce evidence and cross-examine witnesses. The defendant shall be afforded timely and adequate notice of the issues at the hearing and shall have access to a summary of the medical evidence to be presented by the state. The defendant shall have the right to an examination by an independent expert of his or her choice and testimony from such expert as a medical witness on his or her behalf. All rights generally afforded a defendant in criminal proceedings shall be afforded to a defendant in such competency proceedings except trial by jury.

(b) At the termination of such hearing the court of record shall make a finding of fact upon a preponderance of the evidence as to the defendant's competency to stand trial based on whether or not the defendant is capable of participating substantially in his or her defense and understanding the nature and consequences of a criminal trial. If the defendant is found competent, the court of record shall forthwith proceed with the criminal proceedings. If the defendant is found incompetent to stand trial, the court of record shall upon the evidence make further findings as to whether or not there is a substantial likelihood that the defendant will attain competency within the next ensuing six months, and if the court of record so finds, the defendant may be committed to a mental health facility for an improvement period not to exceed six months. If requested by the chief medical officer of the mental health facility on the grounds that additional time is necessary for the defendant to attain competency, the court of record may, prior to the termination of the six-month period, extend the period for an additional three months. Within ten days of the termination of such period, the court of record shall ascertain by hearing in accordance with subsection (a) of this section whether or not the defendant has attained competency to stand trial.

(c) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does not involve an act of violence against a person and is found to be incompetent to stand trial with no substantial likelihood of obtaining competency, or if after such improvement period the defendant is found to be incompetent to stand trial, the criminal charges shall be dismissed. The dismissal order may be stayed for ten days to allow civil commitment proceedings to be instituted pursuant to article five of this chapter.

(d) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found not to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found not to be a danger to self or others, then the court shall maintain jurisdiction over the defendant.

(e) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and, upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found to be a danger to self or others, then the court shall maintain jurisdiction over the defendant and shall commit the defendant to a mental health facility under the authority of the department of health and human resources. The defendant's supervising physician or psychologist shall cause the defendant's competency to stand trial and dangerousness to self or others to be reviewed every six months during the period of his or her inpatient hospitalization.

(f) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person, upon notice from the medical director of the mental health facility that the defendant no longer constitutes a danger to self or others along with an alternative disposition plan which sets forth in detail a treatment plan for the defendant designed to allow his or her release without endangering the public, the court shall promptly conduct a hearing. The clerk shall give notice of the hearing to the prosecuting attorney and the victim or next of kin of the victim of the offense for which the person was committed. The burden shall be on the victim or next of kin of the victim to keep the court apprised of that person's current mailing address.

After hearing, the court may order the release from hospitalization of a defendant found incompetent to stand trial due to mental illness, addiction or retardation prior to the expiration of the court's jurisdiction only when the court finds that the defendant is no longer a danger to self or others: Provided, That a defendant may be released from inpatient hospitalization by the court when the defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment only if it can be determined by clear and convincing evidence that with continued outpatient therapy or other mode of outpatient treatment, the defendant's mental illness does not make him or her a danger to self or others. When a defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, the court in its discretion, may make the continuance of the medication or other mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode of treatment does not continue his medication or other mode of treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall recommit the defendant to the mental health facility.

(g) The prosecuting attorney shall, by motion, cause the competency to stand trial of a defendant subject to the court's jurisdiction pursuant to subsection (d) of this section or released pursuant to subsection (f) of this section to be determined at least every six months while the defendant remains under the jurisdiction of the court. A defendant placed under the jurisdiction of the court pursuant to the provisions of subsection (d) or (e) of this section shall remain under the court's jurisdiction until the expiration of the maximum possible sentence the defendant could have received if convicted unless the defendant regains competency and the criminal charges reach resolution or the court, upon motion of the prosecuting attorney, dismisses the indictment or charge.

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§27-6A-4. Release from jurisdiction of the court; discharge.

(a) No later than thirty days prior to the release of a defendant because of the expiration of the court's jurisdiction, if the defendant's supervising physician or psychologist believes that the defendant's mental illness or mental retardation or addiction causes the defendant to be dangerous to self or others, the supervising physician or psychologist shall notify the prosecuting attorney in the county of the court having jurisdiction of such opinion and the basis therefor. Following this notification, the prosecuting attorney shall file a civil commitment application against the defendant, pursuant to article five of this chapter.

(b) Except as provided in subsection (g), section two of this article, the court may discharge a mentally ill or addicted defendant from the court's jurisdiction prior to the expiration of the period specified in this section only when the court finds that the person is no longer mentally ill or addicted and that the person is no longer a danger to self or others: Provided, That a defendant may not be released from the court's jurisdiction when the defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment only if it can be determined by clear and convincing evidence that with continued outpatient therapy or other mode of outpatient treatment, the defendant's mental illness does not make him or her a danger to self or others. When a defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, the court in its discretion, may make the continuance of the medication or other mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode of treatment does not continue his medication or other mode of treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall reinstate its jurisdiction over the defendant. The court may discharge a mentally retarded defendant from the court's jurisdiction prior to the expiration of the period specified in this section only when the court finds that the person is no longer a danger to self or others.

(c) Those persons committed under the provisions of this article may be released or discharged from the inpatient mental health facility only upon entry of an order from the court of record which committed the defendant, finding that the defendant will not be a danger to self or others if so released, based upon the evidence admitted at the hearing.

(d) The court shall promptly conduct a hearing after receipt of the physician's or psychologist's notification referred to in subsection (a) of this section. The clerk shall notify the prosecuting attorney and the victim or next of kin of the victim of the offense for which the defendant was committed of the hearing. The burden shall be on the victim or next of kin of the victim to keep the court apprised of the defendant's current mailing address.

§27-6A-5. Periodic review of person found incompetent to stand trial.

The periodic review of a person who has been found incompetent to stand trial shall include a clinical opinion with regard to the person's competence to stand trial, which opinion shall be made a part of the patient's medical record. If any person previously found incompetent to stand trial is later determined to be competent, the director of mental health shall notify the court of record, which shall promptly hold a hearing on the person's competency to stand trial.

§27-6A-6. Judicial hearing of defendant's defense other than not guilty by reason of mental illness.

If a defendant who has been found to be incompetent to stand trial believes that he can establish a defense of not guilty to the charges pending against him, other than the defense of not guilty by reason of mental illness, mental retardation or addiction, he may request an opportunity to offer a defense thereto on the merits before the court which has criminal jurisdiction. If the person is unable to obtain legal counsel, the court of record shall appoint counsel for the defendant to assist him in supporting the request by affidavit or other evidence. If the court of record in its discretion grants such a request, the evidence of the defendant and of the state shall be heard by the court of record sitting without a jury. If after hearing such petition the court of record finds insufficient evidence to support a conviction, it shall dismiss the indictment and order the release of the defendant from criminal custody. The order may be stayed for ten days to allow institution of civil proceedings pursuant to article five of this chapter.

§27-6A-7. Release of defendant during course of criminal proceedings.

Notwithstanding any finding of incompetence to stand trial under the provisions of this article, the court of record may at any stage of the criminal proceedings allow a defendant to be released with or without bail.

§27-6A-8. Credit for time; expenses.

(a) If a person is convicted of a crime, any time spent in involuntary confinement in a mental health facility as a result of being charged with such crimes, shall be credited to this sentence. (b) All medical and psychological expenses attendant upon these proceedings shall be paid by the state.

Query: Is the statutory scheme envisioned in §27-6A-2 (e), (f), (g) whereby a dangerous defendant found incompetent to stand trial can be maintained in a mental institution without a finding that the defendant is mentally ill constitutional? See Foucha v. Louisiana, 504 U.S. 71 (1972) [on-line text]; Jones v. United States, 463 U.S. 354 (1983); State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (questioning whether due process and equal protection guarantees were violated by allowing the circuit court to retain jurisdiction over a defendant found not guilty by reason of insanity for the maximum period of time for which she could have been sentenced had she been convicted of the offense charged) [on-line text]