When someone officially questions the competency of a defendant to stand trial, that person is said to have “raised competency.” Although prosecutors and judges are obligated to raise competency if we have “reason to believe” the defendant is incompetent to proceed, the vast majority of the time, the defendant’s attorney is the person who raises competency.

In practice, you should usually let the defense attorney decide when and whether to raise competency. The defense attorney is ethically required to raise competency when they suspect a defendant is incompetent, and the defense attorney is almost always in the best position to know whether competency should be raised.

To raise competency, a defense counsel must file a motion with the court that meets the requirements of § 16-8.5-102(2)(b). When filed by the defense, this motion is filed under seal and is reviewed ex parte by the court. Id. The defense must, however, notify the prosecution of the motion at the time the defense files it. Id. If the defense requests a hearing, the defense must provide a copy of the motion to the prosecution at the time of that request. Id.

Although unusual, competency can be raised during a proceeding if, “for good cause shown, the defendant’s mental disability or developmental disability was not known or apparent before the commencement of the proceeding.” Id.

Effect of Raising Competency

Raising competency, regardless of who raises it, triggers the procedure outlined in Article 8.5 of Title 16. If a defendant is incompetent to proceed, “the defendant must not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant.” § 16-8.5-102(1). This doesn’t necessarily preclude the resolution of preliminary matters like preliminary hearings and motions hearings during this time. Id. In practice, however, the mere act of raising competency usually has the effect of pausing all or almost all pre-trial proceedings.