Question: What are some of the competency issues that can arise in Wisconsin criminal cases?

Answer: A person cannot be prosecuted in a criminal case if they’re not competent. So, a person being incompetent to stand trial typically means one of two things: either you have a person who cannot understand what’s going on—they can’t understand what they’re charged with, who the judge and the attorneys are, why they have to go to court and so on; or, they do understand those things factually but they might be incapable of assisting in their own defense. So this could be a person with serious delusions or somebody having hallucinations, a person who can’t sit still and control themselves long enough to have a rational conversation with their attorney, things like that.

In Wisconsin, or lack of competency, should not be seen as a defense to a charge; it’s really just a basic issue of fairness. Nobody should be forced to participate in a court process that they just can’t understand. This question of fairness is so important that attorneys have a duty, an ethical duty, to raise the issue of competency. Even if their client doesn’t want to or doesn’t feel it’s necessary, the issue of fairness requires that we do that.

Once a person’s competency is called into question, then a judge will usually have a person evaluated by a psychiatrist or a psychologist, possibly by more than one. They’ll have a hearing. And then if the judge decides that the person is not competent, then the person can be required to go to treatment or take medication, or there could be other options such as hospitalizing a person. Competency can be reviewed again in the future. Sometimes a person becomes competent with medication or treatment. And if that happens, then the criminal prosecution can typically pick up right where it left off. However, there are cases where a person never becomes competent and if that happens then the criminal trial is never going to happen.

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