130.4Suggested Questions for Mental Health Expert

Last Updated: 12/01/23

Key Concepts

  • Even though the defendant bears the burden proving incapacity to proceed, in practice the state may be expected to call witnesses and present evidence at a capacity hearing.
  • At the end of the hearing, the prosecutor should ensure that the court makes findings of fact to support its decision on capacity to proceed.

The prosecutor should begin the examination by (i) asking general qualifying questions for a medical expert witness, (ii) tendering the witness as an expert, and (iii) introducing the evaluation report into evidence either by stipulation with defense counsel or by laying a foundation and moving to introduce. For suggestions on how to conduct these preliminary steps, see the related entries on Expert Testimony: Basic Guidelines, and Expert Testimony: Generic Question Outline

Next, the prosecutor should review in detail with the witness how the evaluation process was done, and ask the witness to explain the results from each of the various tests and examinations that were conducted.

Finally, the prosecutor may elicit an opinion from the witness as to the defendant’s capacity to proceed:

  1. Does the defendant have the ability to understand that (he) (she) has been charged with committing the offense(s) of ____________________?
  2. Is the defendant able to understand what a trial is, and what the defendant will be put on trial for if the defendant pleads not guilty to (this) (these) offense(s)?
  3. Does the defendant understand the possible outcome or verdict in this case?
  4. Is the defendant able to understand (this is a) (these are) serious criminal charge(s) and that if defendant is found guilty, the defendant may be imprisoned, fined, or subjected to other penalties?
  5. Does defendant have the ability to understand (his) (her) legal rights, such as the right to:
    1. a public trial;
    2. counsel;
    3. hear the testimony of witnesses;
    4. testify in (his) (her) own defense;
    5. and the right against self-incrimination?
  6. Does the defendant understand (his) (her) own role as the defendant; in other words, that (he) (she) is accused of committing the criminal acts charged?
  7. Does the defendant understand the role of (his) (her) attorney?
  8. Does the defendant understand the role of the judge, prosecutor, jury, and witnesses?
  9. Does the defendant have to ability to cooperate with (his) (her) attorney and to help the attorney to prepare (his) (her) defense?
  10. Is the defendant able to communicate to (his) (her) attorney the facts and circumstances of what happened that brought about the charge(s)?
  11. Does the defendant have the ability to testify rationally?

If the defendant appears to be presently incapable of standing trial, the prosecutor should also consider asking the following:

In your opinion, is there a substantial probability that the defendant will regain (his) (her) capacity to stand trial in the foreseeable future?