Checklist · Criminal

Raising Competency, Insanity, or Diminished Capacity: A Practical Checklist

18 U.S.C. § 4241

Type
Checklist
Jurisdiction
National
Date
2026-02-10
Topic
Criminal

A step-by-step checklist for handling mental state issues in a criminal case. Section A is the intake screen that identifies which of three separate questions is actually present. Sections B through D cover competency: raising it, preparing the evaluation, reading the report, tracking the restoration clock against a bed shortage, and opposing involuntary medication element by element. Section E covers choosing among insanity, diminished capacity, and guilty but mentally ill, including the disposition consequences that usually decide the choice. Section F covers experts and funding; Section G covers intellectual disability and capital cases. Sections H and I cover diversion, sentencing, custody, supervision, and how to work with a client who is ill.

Raising Competency, Insanity, or Diminished Capacity: A Practical Checklist

Criminal > Competency, Insanity, and Mental Health Defenses | Published 10 February 2026 - Updated 11 August 2026 | UpLaw - uplaw.us

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Three separate questions. Identify which one you actually have.

Question Time frame Effect
Competency Now Suspends the case; restoration; possible dismissal
Insanity At the offense Acquittal followed by commitment
Diminished capacity At the offense Conviction of a lesser offense

And the practical reality: competency arises constantly; insanity almost never; diminished capacity is underused.

SECTION A — INTAKE SCREEN

☐ Any diagnosis, treatment, hospitalization, or medication history — ever ☐ Any prior competency finding, insanity verdict, or civil commitment ☐ Any special education history, disability determination, or IQ testing ☐ Any traumatic brain injury, stroke, dementia, or developmental disorder ☐ Any substance use, and whether the presentation is intoxication or illness ☐ Any military service and combat exposure ☐ Your own observations — can the client state the charge, describe what a judge does, follow a five-minute explanation, and repeat it back? ☐ Does the client hold beliefs about the case that are not reality-based? ☐ Is the client's presentation today consistent with their presentation at the offense? ☐ Family contacts who can supply history ☐ Which of the three questions is present? Frequently more than one.

SECTION B — COMPETENCY

B1. Raising it

☐ Raise it if you doubt it. It is not the client's to waive — Pate v. Robinson, 383 U.S. 375 ☐ State on the record that the client objects, if so ☐ Explain to the client, in advance, what you are doing and why — expect the relationship to suffer ☐ Move for outpatient evaluation where possible, to avoid a custodial wait ☐ Ask for a specific deadline in the order ☐ Ask that the order authorize release of records to the evaluator ☐ Cite the standard: Dusky v. United States, 362 U.S. 402 — rational and factual understanding, plus ability to consult with counsel rationally ☐ Federal framework: 18 U.S.C. § 4241; examinations and hearings at 18 U.S.C. § 4247

B2. Preparing the evaluation — the highest-value work in the case

☐ Gather and send records: treatment history, hospitalizations, medications and responses, prior evaluations, school and special education files, military records, disability determinations, jail medical and mental health records ☐ Write a referral letter naming specific functional concerns, with dated examples — not "the client seems unwell" ☐ Ask the evaluator to address each Dusky element separately ☐ Warn the client what the evaluation is, what is not confidential, and that statements about the offense may be used if a mental state defense is raised ☐ Document your own observations, dated, contemporaneously

B3. Reading the report

☐ Are there specific behavioral observations, or only a recitation of the standard? ☐ Were records reviewed, and are they listed? ☐ Is each Dusky element addressed functionally? ☐ Is rational understanding addressed, or only factual? ☐ Is a malingering conclusion supported by a stated method? (Instruments have contested accuracy, and exaggerating real symptoms is not competency.) ☐ Is the diagnosis linked to functional deficits, rather than stated alone? ☐ Is there a prognosis for restoration? ☐ If the report is thin, seek an independent evaluation. Many hearings are decided on the report alone.

B4. The hearing

☐ Confirm burden and standard — Medina v. California, 505 U.S. 437 permits placing it on the defendant by a preponderance; Cooper v. Oklahoma, 517 U.S. 348 forbids clear and convincing ☐ Call the evaluator; do not rest on the report ☐ Cross-examine on records not reviewed ☐ Put your own observations in the record ☐ Ask for findings on each element ☐ Preserve for appeal

B5. Special situations

☐ Client wants to plead: same standard — Godinez v. Moran, 509 U.S. 389 — but the waiver must independently be knowing and voluntary. Slow the colloquy down. ☐ Client wants to represent himself: Indiana v. Edwards, 554 U.S. 164 permits insisting on counsel for a defendant competent to be tried but not to conduct a defense. Build the record with specific deficits. ☐ Client deteriorates mid-case: re-raise. The duty is continuing — Drope v. Missouri, 420 U.S. 162.

SECTION C — RESTORATION

☐ Calendar the date of the finding and track every day since ☐ Track time served against maximum sentence exposure — it is frequently exceeded ☐ Ask, in writing, when a bed will be available and what services are being provided in the interim ☐ Where the wait is a substitute for treatment, move under Jackson v. Indiana, 406 U.S. 715: commitment solely on incompetency is limited to a reasonable period to determine whether restoration is substantially probable ☐ Relief to request, in order: release on conditions · dismissal without prejudice with referral for civil commitment evaluation · an order compelling placement with a status hearing ☐ Where restoration is not substantially probable, expect dismissal and a civil commitment referral — see Mental Health Treatment and Civil Commitment and Held Against Your Will ☐ Federal long-term commitment for dangerousness: 18 U.S.C. § 4246

SECTION D — OPPOSING INVOLUNTARY MEDICATION

☐ First: has the court considered the dangerousness route? Washington v. Harper, 494 U.S. 210 should be addressed before the harder question, and that instruction is routinely skipped ☐ Demand findings on all four Sell v. United States, 539 U.S. 166 elements: ☐ Important governmental interest — argue the charge's seriousness against time already served in restoration confinement, which the Court held diminishes the interest ☐ Significant furtherance — substantially likely to restore and substantially unlikely to cause side effects impairing the defense; cite the demeanor concern in Riggins v. Nevada, 504 U.S. 127 ☐ Necessity — identify less intrusive alternatives not yet attempted ☐ Medical appropriateness for this individual ☐ Request an evidentiary hearing with the treating clinician, not only the state's expert ☐ Ask that any order specify drugs, doses, duration, and a review date ☐ Preserve the objection

SECTION E — CHOOSING THE DEFENSE

E1. Know your jurisdiction first

☐ Which test applies — M'Naghten, M'Naghten plus volitional, Model Penal Code, or no affirmative defense at all? ☐ Who bears the burden, and at what standard? Federally, the defendant by clear and convincing evidence — 18 U.S.C. § 17 ☐ Is diminished capacity available, and for which offenses? ☐ Is guilty but mentally ill an available verdict? ☐ Note that there is essentially no constitutional floor — Clark v. Arizona, 548 U.S. 735 and Kahler v. Kansas, 140 S. Ct. 1021

E2. Price the disposition before recommending anything

Outcome What follows
Insanity acquittal Commitment under 18 U.S.C. § 4243 or state analogue; burden on the acquittee; release conditioned on Foucha v. Louisiana, 504 U.S. 71 — no longer mentally ill; frequently longer than the sentence
Diminished capacity Conviction of a lesser offense; determinate sentence; no commitment
Guilty but mentally ill A conviction, with an often-unfunded treatment direction
Conviction with mitigation Determinate sentence; treatment as a condition where available

☐ Advise the client in writing that an insanity acquittal means commitment of indefinite length ☐ Where both are available, diminished capacity is usually the better tool — proportionate, credible, and free of commitment consequences ☐ Check the notice deadline and the reciprocal examination consequence before filing; procedure at 18 U.S.C. § 4242

SECTION F — EXPERTS AND FUNDING

☐ Make the Ake v. Oklahoma, 470 U.S. 68 showing with specifics — history, records, and why sanity or competency is genuinely in issue ☐ Ask for a defense expert, not a neutral evaluator — McWilliams v. Dunn, 137 S. Ct. 1790 ☐ Move ex parte where permitted, to avoid disclosing strategy ☐ Retain a consulting expert first; the most valuable early product is an opinion on whether a defense exists at all ☐ Name the expert, the task, and the estimated cost — general requests are denied ☐ Understand and explain the disclosure trade before any defense examination

SECTION G — INTELLECTUAL DISABILITY AND CAPITAL CASES

☐ Litigate eligibility early — Atkins v. Virginia, 536 U.S. 304 ☐ Address the standard error of measurement; a rigid IQ cutoff is unconstitutional — Hall v. Florida, 572 U.S. 701 ☐ Present adaptive functioning clinically, across conceptual, social, and practical domains; strengths do not disprove disability — Moore v. Texas, 581 U.S. 1 ☐ Establish onset during the developmental period with school and family records ☐ For competency to be executed: Ford v. Wainwright, 477 U.S. 399; rational understanding of the connection between crime and punishment — Panetti v. Quarterman, 551 U.S. 930; the inquiry does not turn on diagnosis — Madison v. Alabama, 139 S. Ct. 718

SECTION H — EVERY OTHER STAGE

H1. Interrogation

☐ Get the full recording, including any pre-interview conversation ☐ Challenge the waiver: knowing, intelligent, voluntary, evaluated individually ☐ Screen for suggestibility with an expert where the confession is the case — false confession rates are elevated for people with intellectual disability and serious mental illness

H2. Bail

☐ Propose specific, achievable treatment conditions ☐ Identify the provider and secure an appointment date before the hearing ☐ Address how detention will interrupt treatment

H3. Plea

☐ Same Dusky, 362 U.S. 402 standard, independent voluntariness requirement ☐ Slow the colloquy; a client answering "yes" to everything is not understanding anything ☐ Confirm the plea does not foreclose diversion ☐ Document the client's understanding contemporaneously

H4. Diversion and mental health court

☐ What does entry require — a plea in abeyance, or an entered plea? ☐ What happens on failure? (Sometimes the original sentence, without contest.) ☐ How long is supervision compared to the likely sentence? ☐ Is treatment actually available and matched to this condition? ☐ Are the conditions achievable for a person with these symptoms? ☐ What is the record consequence — dismissal, reduction, sealing, or nothing?

H5. Sentencing

☐ Build mitigation on records plus a clinical explanation, not assertion ☐ Address treatment availability at the proposed placement specifically ☐ Where the offense is symptom-driven, say so with support and propose a structure that addresses it ☐ See Sentencing and Corrections and Preparing for Sentencing and Pursuing Early Release

H6. In custody and on supervision

☐ Medication continuity at intake — the most common and most consequential failure ☐ Segregation of a seriously mentally ill person produces predictable deterioration ☐ Deliberate indifference to serious mental health needs is actionable — see Section 1983 Litigation ☐ Where a violation is symptom-driven, propose a treatment modification rather than revocation, with records connecting condition to conduct

SECTION I — WORKING WITH THE CLIENT

☐ Meet more often, for shorter periods ☐ Write things down in plain language and leave the paper with the client ☐ Ask the client to explain it back ☐ Do not confront delusions — neither agree nor argue; redirect ☐ Be concrete about dates and next steps ☐ Involve family with consent, for records and support — and be clear who the client is ☐ Watch for deterioration and re-raise competency; the duty is continuing ☐ Document your own observations, dated — in a close case they are frequently the best evidence available ☐ Explain the disclosure trade before any evaluation ☐ Measure progress in placements obtained and time not spent deteriorating in a cell

SECTION J — THE TEN ERRORS THAT RECUR

☐ 1. Treating competency and insanity as one inquiry ☐ 2. Letting the client waive competency — it is not theirs to waive ☐ 3. Failing to re-raise when the client deteriorates ☐ 4. Sending the client to an evaluation with no records ☐ 5. Resting on the state's report instead of seeking an independent evaluation ☐ 6. Accepting a malingering finding without examining its basis ☐ 7. Not tracking restoration time against maximum sentence exposure ☐ 8. Treating a Sell motion as routine ☐ 9. Recommending insanity without pricing the commitment consequence ☐ 10. Overlooking diminished capacity

SECTION K — RECORDS TO GATHER, BY SOURCE

The evaluation is only as good as what the evaluator receives. Send all of this, organized, with a cover index.

Source What to request Why it matters
Jail medical / mental health Intake screening, sick calls, medication administration records, segregation logs, suicide watch records Current functioning; medication gaps
Prior hospitalizations Admission and discharge summaries, treatment plans, medication trials and responses Establishes severity and chronicity
Outpatient providers Progress notes, diagnoses over time, missed appointments Course of illness
Pharmacy Fill history What the client actually took, versus what was prescribed
Schools Special education file, evaluations, IEPs, disciplinary records Onset during the developmental period
Disability determinations Social Security or other findings, with the underlying evaluations An independent adjudicated record
Military Service and separation records, medical file Trauma exposure; a discharge characterization can itself be evidence
Prior court files Prior competency evaluations and findings, prior commitments The most probative single category
Family Timeline of behavior, hospitalizations, prior incidents Fills the gaps records miss
Employment Terminations, accommodations, performance records Adaptive functioning

☐ Send an index with the records; evaluators under time pressure read indexes ☐ Note explicitly which records you could not obtain, and why ☐ Update the file if the client's condition changes before the evaluation

SECTION L — DEADLINES AND A CASE TIMELINE

Event Date Notes
Arrest / first appearance Note observations from day one
Competency raised By whom
Evaluation ordered Deadline in the order?
Client seen by evaluator Custodial wait, if any
Report received
Hearing Burden and standard
Finding of incompetency ⟵ the Jackson clock starts here
Committed for restoration
Bed actually available Track the gap
Restoration review dates
Time served to date Against maximum exposure of ___
Notice-of-defense deadline Reciprocal exam consequence
Expert funding motion Ex parte?
Motions deadline

☐ The two numbers that drive everything: days since the incompetency finding, and time served against maximum exposure. Recompute both at every appearance.

SECTION M — QUESTIONS TO ASK THE EVALUATOR ON CROSS

☐ What records did you review? What records did you request and not receive? ☐ How long did you spend with the client, on how many occasions? ☐ Did you speak with anyone else — counsel, family, jail staff? ☐ Which Dusky element does each of your observations address? ☐ Did you assess rational understanding separately from factual understanding? How? ☐ What did the client say when asked to explain the charge in their own words? ☐ Did you ask the client to describe the roles of the judge, the prosecutor, and defense counsel? ☐ Did you assess the client's ability to weigh a plea offer, and how? ☐ On what basis did you conclude the client was or was not malingering? What instrument, and what is its documented accuracy? ☐ If restoration is recommended, what is the expected time frame, and on what basis? ☐ Has the client's condition changed since your evaluation, to your knowledge?

📌 The best cross-examination in a competency hearing is not adversarial. It is a series of questions that make the evaluator describe what they actually observed — because a report reciting the standard usually cannot survive being asked for specifics.

SECTION N — EXPLAINING IT TO THE FAMILY

Families ask the same questions everywhere, and the answers below prevent a great deal of misunderstanding.

☐ "Can we get him treatment instead of jail?" Sometimes, through diversion or a mental health court — and it is worth pursuing early, before a plea, before a violation, before the case hardens. Diversion is discretionary and capacity-limited.

☐ "He is obviously not well. Doesn't that end the case?" No. Illness is not incompetency, and incompetency is not dismissal. It suspends the case and usually produces commitment for restoration.

☐ "How long will he be held?" Longer than you expect, and not tied to the sentence. The limit under Jackson v. Indiana, 406 U.S. 715 is a reasonable period, but the practical measure is bed availability.

☐ "If the insanity defense works, does he come home?" Almost never, and not soon. Acquittal produces commitment with the burden on the acquittee.

☐ "Can they force him to take medication?" In two situations: dangerousness under Washington v. Harper, 494 U.S. 210, and — on four demanding findings — to restore competency under Sell v. United States, 539 U.S. 166.

☐ "What can we do that actually helps?" Gather records. Treatment history, hospitalizations, medications and responses, school files, prior evaluations. A family that arrives with an organized history improves the evaluation more than any argument counsel makes afterward.

☐ "Can we talk to his lawyer?" With the client's consent, yes — and it is usually valuable. Be clear that the client, not the family, directs the representation.

☐ "Will this be on his record?" Depends on the disposition. Ask specifically about dismissal, sealing, and what a background check will show; see Post-Conviction Relief.

SECTION O — THE ONE-PAGE VERSION

☐ 1. Identify which question you have: competency (now), insanity (then), or diminished capacity (then, as to an element). ☐ 2. Raise competency if you doubt it. It is not the client's to waive. ☐ 3. Send records to the evaluator, with a referral letter naming specific functional concerns and dated examples. ☐ 4. Read the report against each Dusky, 362 U.S. 402 element, and seek an independent evaluation if it is thin. ☐ 5. Track the Jackson, 406 U.S. 715 clock and time served against maximum exposure. Recompute at every appearance. ☐ 6. Oppose medication element by element; ask whether the dangerousness route under Washington v. Harper, 494 U.S. 210 was considered first. ☐ 7. Price the disposition before choosing a defense; an acquittal usually means longer confinement. ☐ 8. Prefer diminished capacity where available. ☐ 9. Ask for a defense expert with a named task and a stated cost. ☐ 10. Re-raise competency whenever the client changes.

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