I know that a person charged with a crime must have the mental capacity to stand trial. A person must understand the nature of the charge, the possible punishment for the crime, have a basic knowledge of the legal system and be able to work with an attorney in order to assist in the defense of the case.
There are times when a person is does not possess the minimum ability to stand trial. Sometimes this is due to mental illness. Other times it is due to developmental disability. The inability to stand trial may be temporary, such as in cases of treatable mental illness. There are also times when a condition is permanent. Oregon law sets out the procedure for determining whether or not a person is “fit to proceed” and sets out a procedure for determining whether or not a person’s incapacity is permanent.
It is particularly important for a criminal defense lawyer to consider whether or not a client is fit to proceed when defending a Measure 11 case.
When a defense lawyer or a Judge has reason to believe that a person charged with a crime is not fit to proceed “aid and assist” proceedings are initiated. The decision as to whether or not a person is capable of proceeding to trial is left entirely to the Judge presiding over the case. The Judge selects an expert to evaluate the defendant and offer an opinion on the person’s fitness to proceed. Generally, these evaluations are done at the Oregon State Hospital. A person is usually transported to the Oregon State Hospital for a period of 30 days for an evaluation. However, the Court is not required to send a person to the State Hospital and can direct the defendant to an appropriate placement in the community subject to monitoring and supervision.
These evaluations are designed to measure a person’s baseline intellectual ability and are designed to detect a person who is faking or exaggerating their disability. Different tests are used depending on the persons age and the nature of their disability. Some testing is specifically designed for people who are afflicted with mental retardation and developmental disabilities.
After the evaluation, the expert renders an opinion on the defendant’s fitness to proceed. If a person is not fit to proceed, the expert advises the Court on possible plans to assist a person in regaining the ability to stand trial. In cases with mental health issues, medications can sometimes help restore a person’s mental capacity. Cases of low intelligence and developmental disabilities are more challenging. There are types of education that can be attempted, focusing on how the legal system works and how a lawyer can help the defendant. These efforts to “treat until fit” can last from 90 to 180 days.
After the evaluation is complete a hearing is held. The expert testifies and is subject to cross examination. If the prosecution or the defense disagree with the conclusions of the expert they can request that another evaluation be performed by a different expert. If a second evaluation is performed the Court sets another hearing in 30 days and refers the defendant for the evaluation. Once the evaluations are complete the Court decides whether or not a person is fit to stand trial or whether other measures must be taken to assist the defendant.
If it is determined that a person will never be capable of standing trial the Judge can dismiss the case and commence civil commitment proceedings. If the person does not qualify for civil commitment, the Court can order the defendant to be discharged.
For example, suppose a person with serious developmental disabilities commits a serious crime and is awaiting trial. A person with this kind of disability cannot have their capacity “restored” because they never had the requisite mental capacity to stand trial. The Court can order the “treat until fit” education, which may improve the person’s understanding of how the legal system functions. But, a person who suffers from serious cognitive impairments may never develop the ability to intelligently make the decisions that only a defendant can make in the defense of a criminal case. These decisions are especially critical when a person is charged with a Measure 11 crime carrying the possibility of long prison sentences.
In cases of mental illness there are other difficulties. Suppose you have a person who suffers from severe schizophrenia who has auditory and visual hallucinations. This person would respond to medications, but refuses to take medications. The Court can, in some circumstances, force a person to be medicated. But, in cases where a persons capacity cannot be restored, even with medications. People in this position are generally subject to civil commitment and long term hospitalization.
As Portland Criminal Defense Lawyer, I recognize that it is necessary to understand the full range of events that can transpire in a criminal case. Determining a client’s fitness to proceed is a critical issue, particularly in serious felony cases.
By James F. O’Rourke Jr.
Source: JFO Rourke Blog
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