Delaware

Below are the key provisions of the state's competency statutes and court rules. It is important to note jurisdictions may have informal procedures in addition to the rules listed. The information provided is limited to what is contained in the written rules and statutes and does not include any case law or analysis of how these rules have been interpreted or applied. Users are encouraged to use this data as a starting point for understanding the competency processes in the state and how those processes compare to other states.

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Key Information

Relevant Statutes and Rules

Del. Code Ann. tit. 11, §§ 402, 403, 404*; Superior Court Crim R. 12.2.

*found unconstitutional as applied by State v. Topolski, 303 A.3d 338 (Del. Sup. Ct. 2023)

What proceedings can occur while the defendant is incompetent

"[U]pon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal." Del. Code Ann. tit. 11, § 404(a)

Number of examiners required

None stated.

Qualifications of examiners

None stated.

What must the evaluation report contain

None stated.

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Delaware Psychiatric Center is the only option mentioned in the statute. Court "may" order the defendant confined and treated there. If it so orders, the defendant ""shall be kept there at all times in a secured building until the Superior Court of the county wherein the case would be tried or was tried is satisfied that the public safety will not be endangered by the patient's release." Del. Code Ann. tit. 11, § 403(b)

"(c)(1) Upon petition by a patient confined pursuant to [an incompetency finding], or upon petition by the Center Director of the Delaware Psychiatric Center, the Court may permit housing in an unsecured building or participation by the patient in any treatment program that is offered by the Center, which requires or provides that the patient be placed outside a secured building."

Del. Code Ann. tit. 11, § 403(c)(1)

What is the test for restorability

None stated.

What is the procedure after restoration

"(b) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center."

Del. Code Ann. tit. 11, § 404(b) (West)

What is the procedure if there is a finding of unrestorability

None stated.

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

None stated.

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

None. D may be "confined and treated in the Delaware Psychiatric Center until the person is capable of standing trial." Del. Code Ann. tit. 11, § 404(a)

National Database

Additional state-level data can be found in our Competency Data Summary Spreadsheets and accompanying Competence Information Guide.

See the full data

Disclaimer

The information provided on this website does not, and is not intended to, constitute legal advice. 

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