cdTOCtest

understanding and has a rational as well as factual
understanding of the proceedings against him.”

II. PSYCHIATRIC OR PSYCHOLOGICAL

EXAMINATION OF THE DEFENDANT WITH

RESPECT TO THE FITNESS TO PROCEED

(N.J.S.A. 2C:4-5)

A court should hold a competency hearing, even
when not requested, where the evidence raises a “bona fide
doubt” as to a defendant’s competence to stand trial. Pate
v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842
(1966); State v. Spivey, 65 N.J. 21, 37 (1974); State v.
Lambert, 275 N.J. Super. 125, 128 (App. Div. 1994);
State v. Cecil, 260 N.J. Super. 475, 480 (App. Div. 1992),
certif. denied, 133 N.J. 431 (1993); State v. Otero, 238
N.J. Super. 649, 652 (Law Div. 1989); see also United
States v. DiGilio, 538 F.2d 972, 987 (3d Cir. 1976), cert.
denied sub nom. Lupo v. United States, 429 U.S. 1038, 97
S.Ct. 733 (1977) (“due process requires that the trial
court inquire sua sponte into the defendant’s competence
if there is reason to doubt it”). Once a defendant raises
a “bona fide doubt” as to competency, the burden rests
with the State to establish competency to stand trial by
a preponderance of the evidence. State v. Lambert, 275
N.J. Super. at 129; State v. Otero, 238 N.J. Super. at 652-
53; State v. Ehrenberg, 284 N.J. Super. 309, 313 (Law
Div. 1994); cf. Cooper v. Oklahoma, 517 U.S. 348, 355,
369, 116 S.Ct. 1373, 1377, 1384 (1996) (the State may
presume that a defendant is competent and place upon
him the burden of proving his incompetence by a
preponderance of the evidence, but may not impose a
burden on the defendant to prove incompetence by clear
and convincing evidence) (citing in part Medina v.
California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579
(1992)). Moreover, when a bona fide doubt is raised as
to the competence of a mentally ill defendant to proceed
pro se, the court should appoint counsel to aid in the
competency determination, as well as to assist the
defendant in trying the case. State v. Ehrenberg, 284 N.J.
Super. at 315.

A. The Examination

Whenever there is a doubt as to a defendant’s fitness
to proceed, the competency issue may be raised at any
time, by either party, or by the court on its own motion.
N.J.S.A. 2C:4-5a; State v. Otero, 238 N.J. Super. at 652.
The court may then appoint at least one qualified
psychiatrist or licensed psychologist to examine and

report on the condition of the defendant. N.J.S.A. 2C:4-

5a.

Alternatively, the court may order an examination of

the defendant by the Department of Human Services,

which shall be conducted at a jail, prison, or psychiatric

hospital. Id. To ensure that a defendant is not

unnecessarily hospitalized for the purpose of the

examination, a defendant shall not be admitted to a State

psychiatric hospital for such an examination unless the

psychiatrist or psychologist determines that hospitaliza-

tion is clinically necessary to perform the examination; if

so, the defendant may be placed in a State hospital for

that purpose for no more than 30 days. Id.

B. The Report

The report of the examination must include the

following:

1. A description of the nature of the examination;


2. A diagnosis of the mental condition of the
   defendant; and


3. An opinion as to the defendant’s capacity to
   understand the proceedings against him and to assist in
   his own defense. N.J.S.A. 2C:4-5b.

The examiner may ask the defendant questions

regarding the crimes for which he is charged when such

questions are necessary to form an opinion as to a

“relevant issue.” Id.; see also State v. Moya, 329 N.J. Super.

499, 511 (App. Div. 2000) (one of the “relevant issues”

is the question of danger, i.e., an appropriate inquiry of

the crimes charged is not only pertinent to the issue of

competency, but also to the issue of danger). However,

the evidentiary character of any inculpatory statement is

limited expressly to the question of competency and is

not admissible on the issue of guilt. Id.; see also United

States v. Alvarez, 519 F.2d 1036, 1042, 1044 (3d Cir.

1975) (in accordance with the privilege against self-

incrimination, and by federal statute, statements made

by the defendant as a result of a court-ordered psychiatric

examination may be used for the purpose of determining

competency to stand trial, but may not be used against

the defendant at trial).

If the examination cannot be conducted due to the

unwillingness of the defendant, it is to be so stated in the

report, and include, if possible, an opinion as to whether

it is due to mental incompetence. N.J.S.A. 2C:4-5c.