Even Competency Examinations Can Open Up a Can of Worms; Think About the Potential Taint There

March 11, 2014
By Hanging Out with Carl Gunn


  • The rule that the fruits of a court-ordered mental health examination can’t be used against a defendant unless he opens the door by presenting mental health evidence apply to court-ordered competency evaluations just like other court-ordered mental health examinations.
  • To make sure your client can assert this protection, make any competency examination be court-ordered, not a defense request.
  • The competency examination then raises the same potential problems of taint of government evidence, trial strategy, and negotiating and sentencing positions, so argue for Kastigar hearings and/or walling off the trial prosecutor and trial court in your case.


I thought I’d offer one last follow-up on the last two weeks’ posts about court-ordered mental health evaluations. The Supreme Court case which gives rise to all the arguments and initially considered the Fifth Amendment implications of such examinations wasn’t a case about a court-ordered mental health examination sought by the government on a trial issue but a case about a court-ordered competency evaluation. That case was Estelle v. Smith, 451 U.S. 454 (1981), which held that the fruits of a compelled competency examination can’t be used against a defendant who doesn’t open the door by presenting mental health evidence. See Fed. R. Crim. Pro. 12.2 advisory committee’s note (1983 amendment) (noting that subsection (c), as amended, “reflect[s] the Fifth Amendment considerations at play in this context” and citing Estelle).

This suggests a couple of things to keep in mind. First, so as to avoid blurring the issues, make sure any competency examination is court-ordered, not requested by the defense. You may have an ethical obligation to bring questions about your client’s competency to the attention of the court, but you don’t have an obligation to ask the court for an examination. It’s the court that has an obligation to order an examination once a question is raised. So keep the ball in the court’s court (pun intended) and make sure any competency evaluation is court-ordered. And try to get a written order that incorporates the protections required by Estelle and Kastigar that I talked about in my last post.

Then the second thing to keep in mind is that a court-ordered competency examination can raise the same taint and fruits issues as mental health examinations ordered under Rule 12.2. Allowing the prosecutor to be exposed to the results of a court-ordered competency examination means the prosecutor should have to show the same absence of taint – of not just evidence, but also things such as trial strategy and plea negotiation and sentencing positions – as would be required of a prosecutor exposed to an examination ordered under Rule 12.2. Indeed, even the court may be tainted, so you could take the position that there needs to be a hearing about taint of the court. If you and the court and the prosecutor are interested in just avoiding that taint up-front, consider walling off the prosecutor and/or judge in your case and requiring any competency proceeding to be handled by another prosecutor and/or judge.

I haven’t fully thought through all the possible ramifications here, but they’re certainly some significant ones to think about. The two keys to remember are that (1) the protections required by Estelle mirror the protections required by Kastigar and other Fifth Amendment cases and (2) the prohibited fruits and taint can extend far beyond mere evidence. Keep this in mind for competency examinations just as much as for other mental health examinations.