When a criminal defendant is so mentally or developmentally disabled that they are unable to understand the proceedings against them or assist their attorney in their own defense, proceeding to trial would be unfair to the defendant and violate the defendant’s Fifth and Fourteenth Amendment rights to due process under the United States and Colorado constitutions. This special status where a defendant’s mental incapacity prohibits a defendant from proceeding to trial is known as “Incompetent to Proceed.” A defendant’s incompetence to proceed is about the defendant’s present mental condition to fairly stand trial. It is not about the defendant’s mental condition on the date of offense, although the two are often related.

When a defendant’s competency to proceed is at issue, for most purposes, the criminal case pauses and shifts to:

1. Determining whether the defendant is competent to proceed,
2. If not, determining whether the defendant is restorable to competency, and
3. If so, restoring the defendant.

Discovery obligations under Rule 16, the Victim Rights Act, Rule 3.8 of the Colorado Rules of Professional Conduct, and all of the defendant’s constitutional rights, however, remain fully in effect.

The Victim’s Perspective

Even though the VRA remains fully in effect during competency proceedings, many events during the competency process are not “critical stages” under the VRA. For victims, the absence of critical stages and the consistent communication that comes with it can be frustrating. In addition to the lack of communication, victims often find themselves confused and angry when, after months and sometimes years have passed, a victim hears that the case will be dismissed due to the defendant’s persistent incompetence. Best practice is to ask victims whether they would like a regular check-in during the competency process, and if so, how they would like you to check in with them. Sometimes even a brief email or text message will suffice to help them stay connected and confident that the justice system is continuing to work for them.