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Pulaski County Courthouse, Little Rock, Arkansas




Fitness to Proceed, also known as Competence to Stand Trial, evaluations are an examination of the defendant’s present capacity to understand the proceedings against him or her and the capacity to assist in his or her defense. These evaluations can be requested by any interested party (e.g., the defense, prosecution, or judge). Expert Psychological Evaluations’ psychologists have experience in performing these evaluations under multiple state and federal statutes.


For the state of Arkansas, per ACA § 5-2-327, the evaluation is focused on five major components: (1) a substantiated diagnosis in the terminology of the American Psychiatric Association's current edition of the Diagnostic and Statistical Manual; (2) the sign or symptom of mental disease or defect that led to the opinion on the presence of mental disease or defect; (3) a description of any evidence that the defendant is feigning a sign or symptom of mental disease or defect; (4) an opinion on whether the defendant lacks fitness to proceed as a consequence of mental disease or defect and based on an assessment of seven capacities; and (5) a description of the reasoning used by the examiner to support the opinion.


Of note, ACA § 5-2-301 defines a mental disease or defect as a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life; state of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period; or significant impairment in cognitive functioning acquired as a direct consequence of a brain injury. 



Expert Psychological Evaluations’ psychologists utilize empirically validated psychological tests and research for examining the defendants’ capacity to understand the proceedings (e.g., understand potential legal defenses, constitutional rights, dispositions, pleas, and penalties), make rational decisions (e.g., whether to take a plea bargain, elect for a bench trial, or testify), and appreciate various psycholegal concepts (e.g., adversarial nature of the court, the seriousness of charges, or evidence against the defendant).


Clinical interviews, behavioral observations, and occasionally collateral contacts are utilized to assess the defendant’s capacity to assist counsel. Areas of focus include, but are not limited to, the ability to comprehend instructions, participate in planning a legal defense, understand and examine testimony and evidence, challenge witnesses, testify on their behalf, control courtroom behavior, attend to and recall new information, and communicate in an organized and meaningful manner. Special attention is given to the assessment of a mental disease or defect and evidence of feigning and exaggeration of mental disorders. Each necessary criterion of the referral question is individually considered and explained. Evidence supporting the forensic opinion is provided in detail, and information contradictory to the forensic opinion is discussed and critiqued.

Relevant Case Law

for Fitness to Proceed


The standard of evidence for competence to stand trial is preponderance of the evidence due to the Due Process Clause (14th Amendment).


Competency includes, "Whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him."


The Supreme Court rules the issue of competence may be raised at any time during the criminal proceedings. The court has an obligation to raise the question when confronted with evidence that raises a bona fide doubt, even if the defense has not requested the evaluation.


The (Dusky) standard to waive consitutional rights is the same as for competency to stand trial.

Permanent retrograde amnesia is not automatically grounds to be found incompetent to stand trial. The court shoulder consider the extent the (1) amnesia affected the defendant's ability to consult with and assist counsel, (2) amnesia affected the defendant's ability to testify, (3) evidence could be reconstructed, (4) government assisted the defendant in the reconstruction, (5) strength of the prosecution's case, and (6) any other facts relevant for a fair trial.

A court should consider or reconsider the issue of fitness at any time when sufficient doubt arises regarding a defendant's current fitness.

Case Law
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