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Bar Journal - Winter 2006



This article presents recent statistical data regarding the competency to stand trial (CST) evaluations done in New Hampshire and offers some observations on the conduct of the process as well as and suggestions for criminal justice planning, mental health planning, and legislative efforts directed at process improvements.


The Database: The New Hampshire Department of Corrections (DOC) has traditionally provided the bulk of psychiatric services used in determining CST. DOC adopted this role when the Secure Psychiatric Unit was moved from the New Hampshire State Psychiatric Hospital to the State Prison in the mid-1980s. In 2000, a contract between the state and Dartmouth College was implemented to provide psychiatric services to the DOC including the Chief Forensic Examiner role. Additionally, this contract provides for Dartmouth Forensic Fellowship participation at DOC, including CST evaluations.


Over the past decade the demand for competency evaluation services has risen rapidly (see figure 1) from a fairly stable rate of about 70 evaluations per year to 191 evaluations in 2003, and 210 in 2004.  The reasons for this change are unclear.


The information presented in this was extracted through the use of text-search algorithms applied to approximately 700 New Hampshire court-ordered adult competency evaluations performed between 1998 and 2002 by the DOC. A sample of 196 cases was supplemented via court file review to obtain judicial findings. This sample size was limited primarily by data availability, which varied from court to court both because of absence of clear documentation and because of varying decisions by courts to support the data gathering process.




The laws of the United States and the state of New Hampshire require that criminal defendants not be tried unless they are competent. Competency is defined by the federal Dusky standard (Dusky v. United States, 362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960)) and articulated in New Hampshire’s RSA 135-17 as:  


“Whether the defendant has a rational and factual understanding of the proceedings against him or her, and sufficient present ability to consult with and assist his or her lawyer on the case with a reasonable degree of rational understanding.” 


The state of New Hampshire recently elaborated a process for addressing issues of CST. To do so, RSA 137:17 was substantially revised so as to provide specific guidance regarding the:


  • Process of evaluation
  • The standard to be used
  • The process to be used for restoration
  • The standard and duration for restoration orders


The courts of New Hampshire are now attempting to develop workable means of implementing this law in the context of New Hampshire resources and mental health practices. Moreover, new guidance has been provided by the US Supreme Court in Sell v. U.S., 539 U.S. 166 and, to a degree, by the New Hampshire Supreme Court  In re Bahmer, 2003 N.H. LEXIS 82, regarding the options for treatment to restore competency.


Competency evaluations are conducted to meet a number of public policy goals and individual rights concerns such as the fair, safe and efficient judicial processing of criminal charges and to avoid the inappropriate “criminalization” of the severely mentally ill.  Our study of recent CST evaluations in New Hampshire is aimed at aiding in the development of constitutionally valid and realistic processes for restoration of competency, and the evolution of the statutory framework for addressing CST in light of experience and new case law.


The Data - Overview

Volume data


The chart below shows the numbers of competency evaluations performed at DOC. The 1993 and 1997 data are interpolated estimates. 

Figure 1



Of those evaluated, 77 percent were male. The average age was 36 (men averaged 35 and women 40).  Only 6.8 percent of the evaluees were under 21 (but older than 171/2). Only 3.75 percent of defendants were 65 or older.


Hispanic or Asian surnamed CST evaluees constituted 5 to 10 percent of the evaluations.)


Court of origin

As might be expected, the bulk of the CST referrals were from the more urbanized “Southern Tier” of the state, with Hillsborough County alone accounting for nearly half of the evaluations conducted. (Fig. 2)

Superior courts referred 40 percent of the cases, and 60 percent were from district courts.

Figure 2

Findings on competency

Overall, 47 percent of evaluees were deemed not competent to stand trial by the psychiatrist and 52 percent were found competent (N=672). This result varied according to the level of the referring court (Table 1)




 Not Competent

 District Court

 43 percent (174)

 57 percent (222)

 Superior Court

  64 percent (170)

 36 percent (93)

 Table 1 (d.f. =1, ÷2=27.14, pd” 0.001)

In the data subset of 192 cases containing judicial findings, the overall level of agreement between the judicial finding and the psychiatrist’s finding was 92 percent. In cases where the judicial finding was “not competent” the psychiatrist and the court agreed 94 percent of the time. Where the judge’s finding was “competent” the agreement rate was 92 percent.


Clinical status of evaluees:


Forty-two percent of the evaluees were deemed to suffer from or have a history of psychotic illness, and 30 percent had a history of admission to New Hampshire Hospital (which almost uniformly involves a diagnosis of serious mental illness and dangerousness.)


Mental retardation was diagnosed in 13 percent of the cases, with an additional 11 percent found to suffer from borderline intellectual functioning. Additionally, 12.4 percent were diagnosed with dementia or other cognitive syndromes (excluding learning disorder and Attention Deficit-Hyperactivity Disorder (ADHD)but including brain syndromes without memory symptoms such as affective, personality, or judgement impairments due to brain dysfunction.) Thus, the total of persons suffering from cognitive syndromes excluding ADHD and learning disorders was 36.4 percent. American Psychiatric Association (1994) Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author


Other non-psychotic diagnoses included mood and personality disorders and ADHD. Only 5.4 percent of evaluees were found to suffer from personality disorder as the primary diagnosis. Of all personality diagnoses, 48 were mixed or “Not Otherwise specified” diagnoses, 39 were anti-social personality, 13 were borderline personality, 6 schizotypal, 3 paranoid, and 1 each was histrionic and schizoid.


Malingering is the intentional production of or exaggeration of medical symptoms in order to obtain some understandable benefit. Evaluators viewed 3.5 percent of evaluees as definitely malingering with an additional 5.25 percent viewed as suspected of falsifying symptoms of incompetency.


Fifty-four of the evaluees had a history of assaultive behavior, based upon legal records, patient history, or clinical records. Fifteen percent had a history of sexual assault, and 4 percent had a history of arson.


Relationship of competency findings to demographic and clinical variables:


County of referring court versus competency finding by psychiatrist:




Not Competent 

 Belknap  48  percent (14)  52 percent (13)
 Carroll  72 percent (17)  28 percent (6)
 Cheshire  51 percent (20)  49 percent (20)
 Coos  56 percent (5)  44 percent (4)
 Grafton  48 percent (11)  52 percent (12)
 Hillsborough  52 percent (160)  48 percent (151)
 Merrimack  59 percent (60)  41 percent (45)
 Rockingham  56 percent (33)  44 percent (27)
 Strafford  37 percent (14)  63 percent (23)
 Sullivan  35 percent (7)  65 percent (13)
 State Total  53 percent (341)  47 percent (314)

 Table 2 (d.f. =9, ÷2=11.35, ns)

Gender:  47 percent of men and 47 percent of women were deemed not competent.

Diagnoses:  62 percent of persons receiving a diagnosis with psychosis were deemed not competent while only 37 percent of non-psychotic defendants were deemed to be not competent. (Fig. 3)


76 percent of mentally retarded persons were deemed not competent to stand trial while only 36 percent of persons deemed to have “borderline intellectual functioning” were deemed to be not competent.


75 percent of persons with IQ estimates of 65 or below were deemed not competent while 25 percent of those with IQ estimates above 75 were not competent.


Twenty- two percent of persons diagnosed to be definitely or possibly malingering were also deemed to be not competent to stand trial. Most malingerers also had an additional diagnosis such as mental retardation.

Figure 3

(d.f. =7, ÷2=129.83, pd" 0.001)

Discussion of the Rising Number of Evaluation Referrals


 The crime rate nationally and in New Hampshire has fallen over the past decade. The population of New Hampshire has risen 15 percent from 1,111,000 in 1992 to 1,275,056 in 2002 while the Crime Index (a total volume measure) fell 17 percent from 34,225 to 28,306. (FBI Uniform Crime Reports, http/ Yet, despite this decline in the frequency of crime and a modest rise in population, the number of competency evaluations has soared during this same period, more than doubling (129 percent). It has risen at a rate of nearly nine times the population growth. Whether this is due to changes in the behavior of the criminal justice system or changes in the nature of the defendant population is an open question. There are many possible hypotheses to explain this change.


Preliminary review of the data suggests a trend of rising rates of findings of competency, possibly suggesting a less selective approach to referral for evaluation.  There appears to be a disproportionate rise in district court cases, rising proportions of psychotic persons referred, and rising rates of former NHH patients referred. These trends raise the question of whether public disorder cases involving the patently mentally ill are less prone to be directed to the mental health sector.  None of these trends, in and of themselves can explain the marked rise in the overall numbers of evaluations. Future analysis of the database may give further insights into the causes of this rise in overall numbers.


Efforts at restoration of competency in New Hampshire have been hobbled by lack of funding for programs for restoration. The database described may provide insights into the potential demand for and costs of proposed restoration programs.


The rate of findings of “not competent” in New Hampshire appears to be somewhat higher than the national experience and to vary by county. For example, Sullivan County referrals were more than twice as likely to be assessed as “not competent” as were referrals from Carroll County. These overall findings, however, were not statistically significant. In general, the rate of findings of incompetence may reflect factors such as attorney referral rates, defendant population differences, and in the case of misdemeanor defendants, differences in the application of police officer discretion in the management of public disorder offenses.


In a widely quoted meta-analysis, Roesh and Golding (Roesch, R., & Golding, S. L. (1980) Competency to Stand Trial, Urbana, Ill: University of Illinois Press, p. 48) found, in ten studies of competency to stand trial, an average incompetence rate of 30 percent with a range of findings of 4 percent to 77 percent. It should be noted that most published studies of competency findings deal exclusively with felony cases, which are widely recognized to produce lower rates of findings of incompetence than do less serious charges. (Cochrane, R. E., Grisso, T., & Frederick, R. I. (2001). “The relationship among criminal charges, diagnoses, and psycholegal opinions among federal pretrial detainees.” Behavioral Sciences and the Law, 19, 565-582.)

State Has Burden of Proof


New Hampshire law puts the burden of proof of competency upon the state, by a preponderance of the evidence. The fact is that defendants have substantial control over clinical information/records about themselves and may be fairly selective in making that information available. Thus, the information needed by the state to sustain its burden is substantially controlled by the defense. Being found incompetent to stand trial often amounts to a “win” of the case for the defendant. These factors may tend to raise the rate of findings of incompetence by comparison with states where the burden is on the defense to prove incompetence.


In the current database, two-thirds of defendants evaluated had diagnoses of psychosis or serious cognitive syndromes. Such syndromes relate to the “rational” and “factual” Dusky criteria respectively. One is left to wonder at the applicability of the Dusky criteria to the remaining one-third of defendants. This group provides fertile ground for further investigation. This group includes persons with substance abuse issues, personality problems that include poor judgement and uncooperative behavior, and people who are simply very upset, anxious, or depressed at the fact that they are being prosecuted or incarcerated. The lack of explicit statements in Dusky about the nexus between mental illness and competency gives rise to a sometimes troubling ambiguity.


Public policy discussions regarding issues of psychiatry and the law often take place in an atmosphere of reaction to dramatic (but unusual) cases and without the benefit of objective information to balance false assumptions and prejudices. The systematic collection of data, such as that described here, offers an opportunity to put such policy discussions on a more rational footing.


James AdamsAuthor

James J. Adams, M.D., is the Chief Forensic Examiner for the New Hampshire Department of Corrections. He performs the vast majority of the competency evaluations done in the state and has served in that role since 1998. He was trained at the University of Michigan Medical School and the University of California – San Diego. He is an assistant professor of psychiatry at Dartmouth College and is involved in training Forensic Psychiatry Fellows in the Dartmouth program.

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