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Learn about Competency

What is Competency?

First, we have to be specific about the type of competency we are seeking:

  • Competence to Proceed/to Stand Trial

  • Competence to make Medical Decisions

  • Competence to be a Witness

  • Competence to Make or Change a Will

  • Competence to be Executed


In our case, competency means that you have enough knowledge and soundness of mind to deal with legal matters, such as standing trial.  To be competent you have to:

  • Understand the charges against you

  • Understand the possible penalties for your crime

  • Understand how the court works and the jobs of the people who work in the court, such as the judge, the district attorney and your attorney

  • Be able to work with your attorney

  • Be able to act appropriately in court

  • Be able to make the decisions that are yours to make 


The Dusky Standard [Dusky v. United States, 362 U.S. 402 (1960)]

To determine competence to stand trial, the “test must be whether he 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.”

Wisconsin State Statute 971.13(1) says: 

“No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”


Competence is a Judicial Decision

  • Competence can be “raised” at any point in a criminal trial by any party with legal standing

  • Once raised, the judge must sign an order for evaluation (voluntary participation is not required)

  • Ultimately, in any court, Competence to Stand Trial is a LEGAL decision that can only be decided by the presiding judge


How is Competency Determined?

  • Evaluation by a licensed psychologist or psychiatrist

  • Records review

  • Collateral interviews

  • Psychological testing

  • In person interview

  • Examiner’s report to court


What happens if someone is not competent?

A determination for the least restrictive environment to provide competency remediation is made so as to protect an individual’s liberty unless a more compelling state interest exists, such as protection of the individual or the community.  The options are inpatient treatment at a state mental health institution or an outpatient referral to the Outpatient Competency Restoration Program (OCRP).


Supreme Court decisions regarding competency.

Click to see Wisconsin Statute 971 that governs competency to stand trial for adults.

Click here to learn about juvenile competency.

757 N Broadway, Suite 500

Milwaukee, WI 53202

Tel: (414) 271 – 5577

Wisconsin Forensic Unit

Tel: (414) 293– 8320

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