incompetent to stand trial v ngri

Defendants and relatives routinely get IST v NGRI confused when dealing with the criminal justice system. Shortly summarized IST applies to whether defendant can reasonably understand and assist in their trial defense and if the trial should be stayed for defendant to be restored to competency vs trial continued. NGRI is an affirmative defense whereas IST is more of a procedural issue and defendant can still be found guilty after restoration and the stay on proceedings is lifted. NGRI is either the entire defense or it is no defense at all unlike IST. People v. Elmore (2014) 59 Cal.4th 121, 145

The controlling case, Pate v. Robinson, 383 U. S. 375 (1966), held that failure to observe mental health inquiry procedures that are adequate enough to protect defendant's right not to be tried or convicted while incompetent to stand trial is a deprivation of due process right to a fair trial. This stems from the common-law prohibition against trials in absentia; ie a mentally incompetent defendant, though physically present in the courtroom, is in reality, not afforded any opportunity to defend himself due to cognitive absence or severely impaired thought processes. Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960). Each state has their own version of "a person who as a result of mental disease lacks capacity to understand the proceedings against him or to assist in his own defense shall not be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures." A judge shall, upon his own motion or upon a motion filed by defense counsel or the state shall stay the proceedings and order a psychiatric examination if there is reasonable cause to believe that defendant has a mental disease that impairs defendant's fitness to proceed or assist his counsel. 

A court's "duty to assess competence is a continuing one." People v. Rodas (2018) 6 Cal.5th 219, 236, fn. 5 [239 Cal. Rptr. 3d 814, 429 P.3d 1122]. This means that this inquiry is not limited to during preliminary hearings or its ilk. The word `substantial' does not dictate there be a large quantity of evidence of incompetence; rather, it means that there must be some evidence of sufficient substance so long as it cannot be dismissed as inherently unpersuasive. A court's role is only to decide whether the evidence of incompetence is substantial, not to resolve the question of incompetency then and there. Of note, an uncooperative defendant is not tantamount to an incompetent one. see People v. Mai (2013) 57 Cal.4th 986, 1033 [161 Cal.Rptr.3d 1, 305 P.3d 1175] Legally this presents itself as a manic patient who refuses to take medication, talk to doctors, aggressive in their cell, or argues with counsel is not always deemed incompetent. Parents may ask the defense counsel to assert that they are IST but their claims may not succeed if this is the only presentation.


The judge nor the state may sua sponte based on its own observations of defendant's behaviour dismiss the inquiry in lieu of the formal competence inquiry.


Not guilty by reason of mental disease is considered an affirmative defense, requiring the defendant to carry the burden of proving that he has a mental disease or defect excluding responsibility. The plea of insanity is thus necessarily one of confession and avoidance. Because NGRI is inherently one of confession and avoidance; rather, it determines whether defendant shall be punished for the guilt which was already established and thus is not the question at hand. People v. Blakely (2014) 230 Cal.App.4th 771, 775. In order to use evidence of mental disease or defect to negate a required culpable mental state, like IST, it is not necessary that defendant himself advance the affirmative defense. NGRI requires that defendant due to their mental disorder or state was incapable of knowing the nature and consequences of his conduct; not that he would have difficulty. 

Most courts follow the M’Naghten Rule or some other iteration. To establish a defense there must be evidence [burden of proof], at the time of the act, defendant was suffering from a defect of reason, from mental disorder/disease which directly rendered them unable to know the moral nature of the act; or, if he did know it, that he did not know he was doing what was wrong. The two common defenses stemming from M’Naghten are referred to as the “cognitive incapacity” and “moral incapacity” strains of the insanity defense.