Toolkit · Criminal

The Competency Evaluation, Insanity Defense, and Mental Health Disposition Toolkit

18 U.S.C. § 4241

Type
Toolkit
Jurisdiction
National
Date
2026-01-04
Topic
Criminal

Working instruments for mental state issues in criminal cases. The competency set includes a screening sheet, a motion for evaluation, a referral letter to the evaluator, a records index, a report analysis worksheet, and an evaluator cross-examination outline. The confinement set includes a restoration clock tracker and a motion for release or dismissal after prolonged incompetency. The medication set includes an element-by-element opposition to a Sell motion. The defense-selection set includes a disposition comparison table and a pre-filing checklist for a notice of insanity defense. An expert funding motion, a mental health court intake evaluation, a client communication card, a family guidance sheet, and an authority quick reference complete it.

The Competency Evaluation, Insanity Defense, and Mental Health Disposition Toolkit

Criminal > Competency, Insanity, and Mental Health Defenses | Published 4 January 2026 - Updated 19 August 2026 | UpLaw - uplaw.us

How this toolkit is built

Fifteen instruments. Bracketed text is for completion. State standards, burdens, and tests vary more in this area than in any other part of criminal law — read the local statute before filing anything here.

One organizing rule: competency is about the present, insanity is about the past, and the highest-value work in either happens before the evaluator sees the client.

Tool 1 — Mental State Screening Sheet

Client: [ ] · Charge: [ ] · Screened: [date]

# Item Yes Notes
1 Any diagnosis, treatment, or hospitalization — ever ☐
2 Current or recent psychiatric medication ☐
3 Prior competency finding, insanity verdict, or civil commitment ☐
4 Special education history, IQ testing, disability determination ☐
5 Traumatic brain injury, stroke, dementia, developmental disorder ☐
6 Substance use — and is the presentation intoxication or illness? ☐
7 Military service; combat exposure ☐
8 Can the client state the charge in their own words? ☐
9 Can the client describe what the judge and prosecutor do? ☐
10 Can the client follow a five-minute explanation and repeat it back? ☐
11 Does the client hold non-reality-based beliefs about the case? ☐
12 Is today's presentation consistent with the presentation at the offense? ☐

Question(s) present: ☐ Competency (now) ☐ Insanity (then) ☐ Diminished capacity (then, as to an element) ☐ Mitigation only Family contacts for history: [ ]

Tool 2 — Motion for Determination of Competency

1. Bona fide doubt. Counsel has a bona fide doubt as to Defendant's present competency and moves for evaluation and hearing.

2. Observations (dated and specific — not "the client seems unwell"): — On [date], Defendant was unable to state the charge against him. — On [date], Defendant told counsel that prior counsel had been replaced by an impostor. — On [date], Defendant could not follow or repeat any part of a five-minute explanation of the plea offer.

3. History. [Diagnoses, hospitalizations, medications, prior findings — records attached or identified.]

4. Standard. Competency requires sufficient present ability to consult with counsel with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings. Dusky v. United States, 362 U.S. 402. A hearing is required where a bona fide doubt appears. Pate v. Robinson, 383 U.S. 375. The duty is continuing. Drope v. Missouri, 420 U.S. 162. Federal procedure: 18 U.S.C. § 4241; examinations and reports, 18 U.S.C. § 4247.

5. Requests. ☐ Evaluation addressing each functional element separately ☐ Outpatient evaluation where possible, to avoid a custodial wait ☐ A deadline stated in the order ☐ Authorization for release of records to the evaluator ☐ Authorization for an independent evaluation — Ake v. Oklahoma, 470 U.S. 68; McWilliams v. Dunn, 137 S. Ct. 1790

Note on the record if the client objects. Competency is not the client's to waive.

Tool 3 — Referral Letter to the Evaluator

[Date] · To: [Evaluator]

Re: [Client], [case no.] — competency evaluation

Enclosed are records, indexed. I write to identify the specific functional concerns I have observed, so that your evaluation can address them directly.

1. Ability to consult with counsel. [On [date], the client interrupted repeatedly to describe a conspiracy involving this office. On [date], he was unable to tell me what happened on the night in question in any sequence.]

2. Rational understanding of the proceedings. [The client states that the judge is "not real." He can define the role of a prosecutor but believes this prosecutor is acting under foreign direction.]

3. Factual understanding. [Intact as to roles; unclear as to the charge and possible penalties.]

4. Plea reasoning. [Unable to compare the offer to the exposure; changed his answer four times in ten minutes.]

5. Behavior in court. [Two outbursts on [dates].]

Records enclosed: see index. Records requested and not received: [ ].

I would be grateful if the report would address each element of the competency standard separately, and would distinguish rational from factual understanding.

[Counsel]

Tool 4 — Records Index for the Evaluator

# Source Records Dates Obtained Notes
1 Jail medical / mental health Intake screening, sick calls, medication administration, segregation logs, suicide watch ☐ Medication gaps are the key finding
2 Prior hospitalizations Admission/discharge summaries, treatment plans, medication trials ☐ Severity and chronicity
3 Outpatient providers Progress notes, diagnoses over time ☐ Course of illness
4 Pharmacy Fill history ☐ What was actually taken
5 Schools Special education file, evaluations, IEPs ☐ Developmental onset
6 Disability determinations Findings plus underlying evaluations ☐ Independent adjudicated record
7 Military Service, separation, medical ☐ Discharge characterization can itself be evidence
8 Prior court files Prior competency evaluations and findings ☐ Most probative single category
9 Family Behavioral timeline, prior incidents ☐ Fills record gaps
10 Employment Terminations, accommodations, performance ☐ Adaptive functioning

☐ Send the index with the records — evaluators under time pressure read indexes ☐ State explicitly what you could not obtain, and why

Tool 5 — Report Analysis Worksheet

# Element Addressed? Quality
1 Understanding of the charges ☐
2 Understanding of penalties ☐
3 Understanding of courtroom roles and procedure ☐
4 Ability to disclose relevant facts to counsel ☐
5 Ability to relate to counsel and consider advice ☐
6 Ability to weigh plea options rationally ☐
7 Ability to testify relevantly ☐
8 Capacity to maintain appropriate behavior ☐

Red flags: ☐ Recites the legal standard and states a conclusion, with no behavioral observations ☐ Lists no records, or "no records available" where records exist ☐ Addresses factual understanding only ☐ States a diagnosis with no link to functional deficits ☐ Concludes malingering with no instrument or stated basis ☐ Offers no prognosis for restoration

📌 If the report is thin, seek an independent evaluation. Many hearings are decided on the report alone, which makes a second report the entire contest.

Tool 6 — Evaluator Cross-Examination Outline

☐ What records did you review? What did you request and not receive? ☐ How long did you spend with the client, on how many occasions? ☐ Did you speak with counsel, family, or jail staff? ☐ Which element does each of your observations address? ☐ Did you assess rational understanding separately from factual? 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, prosecutor, and defense counsel? What was said? ☐ How did you assess the ability to weigh a plea offer? ☐ 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 time frame, and on what basis? ☐ Has the client's condition changed since your evaluation, to your knowledge?

Tone note. The best cross here is not adversarial. It is a series of questions asking the evaluator to describe what they actually observed — because a report that recites the standard usually cannot survive being asked for specifics.

Tool 7 — Restoration Clock Tracker

Finding of incompetency: [date] ⟵ the Jackson v. Indiana, 406 U.S. 715 clock starts here

Event Date Days elapsed
Incompetency finding —
Commitment order
Bed actually available ⟵ track this gap
Treatment actually begun
First restoration review
Second review

Time served to date: [ ] · Maximum sentence exposure: [ ] · Percentage consumed: [ ]%

☐ Ask in writing: when will a bed be available, and what services are being provided in the interim? ☐ Recompute both numbers at every appearance.

Tool 8 — Motion for Release or Dismissal After Prolonged Incompetency

1. Defendant was found incompetent on [date]. [N] days have elapsed. Defendant remains in custody [awaiting a bed / without restoration services].

2. A defendant committed solely on incompetency may be held only for a reasonable period to determine whether there is a substantial probability of restoration in the foreseeable future. Jackson v. Indiana, 406 U.S. 715. If restoration is not substantially probable, the State must pursue ordinary civil commitment or release.

3. Waiting for a placement is neither treatment nor a determination. [N] days without services cannot constitute a reasonable period for making a determination that has not begun.

4. Time served now totals [N] against a maximum exposure of [N].

5. Relief requested, in order: release on conditions; alternatively, dismissal without prejudice with referral for civil commitment evaluation under Mental Health Treatment and Civil Commitment; alternatively, an order compelling placement within [N] days with a status hearing. Federal long-term commitment for dangerousness is governed by 18 U.S.C. § 4246.

Tool 9 — Opposition to a Sell Motion

Threshold: has the Court considered the dangerousness route under Washington v. Harper, 494 U.S. 210? Sell v. United States, 539 U.S. 166 directs that it be addressed first, and that instruction is routinely skipped.

# Element Government's showing Defect
1 Important governmental interest Charge is [non-violent]; Defendant has served [N] months in restoration confinement, which diminishes the interest
2 Significant furtherance No individualized prediction of restoration; no analysis of side effects impairing the defense — Riggins v. Nevada, 504 U.S. 127
3 Necessity Less intrusive alternatives not attempted: [ ]
4 Medical appropriateness Regimen not individualized; [contraindication]

Requests: evidentiary hearing · testimony from the treating clinician, not only the State's expert · specification of drugs, doses, and duration in any order · a review date · preservation of the objection.

Tool 10 — Disposition Comparison Table

Complete this before recommending any mental state defense. Give a copy to the client.

Path Verdict What follows Duration Burden
Insanity acquittal Not guilty by reason of insanity Commitment — 18 U.S.C. § 4243 or state analogue Indefinite; frequently longer than the sentence; release conditioned on Foucha v. Louisiana, 504 U.S. 71 On the acquittee
Diminished capacity Guilty of a lesser offense Determinate sentence Fixed Prosecution retains its burden
Guilty but mentally ill Conviction Sentence, with an often-unfunded treatment direction Fixed —
Conviction + mitigation Conviction Sentence, treatment as a condition where available Fixed —
Diversion / mental health court Varies Supervised treatment; dismissal or reduction on completion Often longer than the sentence —

☐ 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

Tool 11 — Notice of Insanity Defense: Pre-Filing Checklist

☐ Which test applies in this jurisdiction — M'Naghten, M'Naghten plus volitional, Model Penal Code, or none? ☐ Who bears the burden, at what standard? Federally, defendant by clear and convincing evidence — 18 U.S.C. § 17 ☐ Note there is essentially no constitutional floor — Clark v. Arizona, 548 U.S. 735; Kahler v. Kansas, 140 S. Ct. 1021 ☐ Notice deadline: [ ] · Reciprocal examination consequence understood and explained ☐ Procedure: 18 U.S.C. § 4242 or state analogue ☐ Disposition priced using Tool 10 ☐ Diminished capacity evaluated and ruled out, with reasons ☐ Expert retained is a defense expert ☐ Client advised in writing; advice documented

Tool 12 — Expert Funding Motion

1. The issue. [Sanity at the time of the offense / present competency] will be a significant factor. [State the specific history and records supporting this — not a general assertion of illness.]

2. The expert and the task. Defendant seeks authorization to retain [named expert], [qualifications], to [review the records identified below, examine Defendant, and advise counsel whether a mental state defense is supportable]. Estimated: [N] hours at $[ ].

3. Authority. Ake v. Oklahoma, 470 U.S. 68 entitles an indigent defendant to expert assistance in evaluation, preparation, and presentation. A neutral evaluator available to both sides does not satisfy that entitlement; the defense is entitled to assistance on its own side. McWilliams v. Dunn, 137 S. Ct. 1790.

4. Consulting first. Defendant requests authorization for a consulting expert; if the review supports testimony, Defendant will move separately.

5. Defendant requests ex parte consideration where permitted.

Tool 13 — Mental Health Court Intake Evaluation

# Question Answer Concern
1 What does entry require — plea in abeyance, or plea entered? An entered plea forecloses contest
2 What happens on failure? Sometimes the original sentence, without contest
3 Program length vs. likely sentence Supervision is frequently longer
4 Is treatment actually available and matched to this condition? Generic programs fail specific conditions
5 Are the conditions achievable with these symptoms? Conditions calibrated for asymptomatic participants set up failure
6 Housing and transportation requirements The most common practical failure point
7 Medication requirements Consider the involuntary-medication problem
8 Record consequence — dismissal, reduction, sealing, nothing?
9 Termination procedure and right to be heard
10 Who supervises, and how often must the client appear?

Tool 14 — Client Communication Card and Family Guidance

A. For counsel, working with a client who is ill ☐ Meet more often, for shorter periods ☐ Write things down in plain language and leave the paper ☐ Ask the client to explain it back ☐ Do not confront delusions — redirect ☐ Be concrete about dates and next steps ☐ Watch for deterioration and re-raise competency ☐ Document your own observations, dated ☐ Explain the disclosure trade before any evaluation

B. For the family ☐ Illness is not incompetency, and incompetency is not dismissal. ☐ An insanity acquittal is not release — it is commitment, with the burden on the acquittee. ☐ The most useful thing you can do is gather records. Treatment history, hospitalizations, medications and responses, school files, prior evaluations. This improves the evaluation more than any argument afterward. ☐ Talk to counsel with the client's consent; the client directs the representation. ☐ Expect the timeline to be longer than seems reasonable, and ask at every hearing how many days have passed since the finding.

Tool 15 — Authority Quick Reference

Competency: Dusky, 362 U.S. 402 · Pate, 383 U.S. 375 · Drope, 420 U.S. 162 · Medina, 505 U.S. 437 · Cooper, 517 U.S. 348 · Godinez, 509 U.S. 389 · Edwards, 554 U.S. 164 Federal procedure: 18 U.S.C. § 4241 · § 4244 · § 4247 · § 4246 Medication: Harper, 494 U.S. 210 · Riggins, 504 U.S. 127 · Sell, 539 U.S. 166 Restoration limit: Jackson, 406 U.S. 715 Insanity: 18 U.S.C. § 17 · 18 U.S.C. § 4242 · 18 U.S.C. § 4243 · Clark, 548 U.S. 735 · Kahler, 140 S. Ct. 1021 · Foucha, 504 U.S. 71 · Addington, 441 U.S. 418 Intellectual disability and capital: Atkins, 536 U.S. 304 · Hall, 572 U.S. 701 · Moore, 581 U.S. 1 · Ford, 477 U.S. 399 · Panetti, 551 U.S. 930 · Madison, 139 S. Ct. 718 Experts: Ake, 470 U.S. 68 · McWilliams, 137 S. Ct. 1790

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