WHY FORENSIC MENTAL HEALTH PROFESSIONALS SHOULD NOT EVALUATE CERTAIN TYPES OF CRIMINAL COMPETENCY: ISN’T THAT THE JUDGE’S JOB?

Abstract

Criminal competency determinations lie at the core of procedural justice, safeguarding defendants’ constitutional rights while ensuring the orderly administration of criminal proceedings. Forensic mental health professionals (FMHPs) are routinely tasked with evaluating competency to stand trial and related legal capacities. However, expanding reliance on expert evaluations has blurred the boundary between clinical assessment and judicial decision-making. This article argues that forensic mental health professionals should not evaluate certain types of criminal competency determinations that are fundamentally legal, normative, or value-based in nature. Drawing upon legal doctrine, forensic ethics, role differentiation theory, and empirical critiques of competency assessment, the paper examines which competency questions are appropriately within the scope of forensic expertise and which properly belong to judicial determination. Through analysis of common competency domains, professional guidelines, and case law trends, the article proposes a principled framework for limiting forensic evaluations to empirically grounded functional capacities while preserving the judge’s role as ultimate arbiter of legal competence.