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The Champion

December 2017 , Page 34 

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Competent on Competence - Understanding the Duties and Approaches to Effectively Address a Client’s Incompetence to Stand Trial

By John T. Philipsborn

        The U.S. Supreme Court has referred to defense lawyers as uniquely positioned to provide insight and information about a client’s apparent incompetence — or competence — to stand trial. Reviewing courts have explained that lawyers have an obligation to effectively investigate a client’s possible incompetence and to bring the accused’s legally defined mental condition of incompetence to the attention of the trial court when necessary. This combination of legal authority creates a greater duty of preparation and attentiveness to competence issues than many lawyers are aware of or take on as a matter of course. Lawyering practices on this critical subject vary, often depending on a lawyer’s training and on the level of experience the practitioner has in addressing competence questions. The result is that, in daily practice in U.S. courts, the legal requirement that an individual be competent to stand trial is being addressed (or not) by defense counsel with varying de

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