Competent to Stand Trial
ORC 2945.37 — a question about now, not a question about then
Two questions about a person's mind get asked in a criminal case and they are constantly mistaken for each other. One is about the present and it is decided before trial by a judge. The other is about a moment in the past and it is decided at trial. They have different standards, different decision makers and completely different consequences, and using the wrong word for the one you mean is how conversations about this go wrong.
Who handles this in Ohio: Ohio State Bar Association lawyer referral; and legal aid programs and the state offices, listed in the Ohio directory.
| The question | What moment it looks at | Who decides | What it produces |
|---|---|---|---|
| The questionCompetency to stand trial | What moment it looks atThe defendant's present mental condition | Who decidesThe judge, before trial | What it producesThe case stops where it is, and treatment may be ordered |
| The questionNot guilty by reason of insanity | What moment it looks atThe defendant's condition at the time of the offense | Who decidesThe trier of fact, at trial | What it producesA verdict |
- A defendant is presumed to be competent to stand trial.
- After a hearing, a court finds a defendant incompetent only where it finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings, or of assisting in the defense.
- Those are two separate routes to the same finding, and either one on its own is enough.
Incompetent is not a defense and it is not a verdict. A finding of incompetency does not end a case and does not decide anything about guilt. It stops the case where it is standing and sends the question to treatment. The charge is still there afterwards, which is the part people are most surprised by and the reason the word is not interchangeable with insanity.
What happens next is in the following section. A court may order treatment intended to restore competence, on a period the section caps rather than leaves open, and the cap moves with the most serious offense charged.
| Most serious charge | Longest treatment |
|---|---|
| Most serious chargeAggravated murder, murder, or an offense of violence that can carry death or life imprisonment | Longest treatmentThree years |
| Most serious chargeAn offense of violence that is a felony of the first or second degree | Longest treatmentOne year |
| Most serious chargeAny other felony | Longest treatmentSix months |
| Most serious chargeA misdemeanor of the first or second degree | Longest treatmentSixty days |
| Most serious chargeA misdemeanor of the third or fourth degree, a minor misdemeanor or an unclassified misdemeanor | Longest treatmentThirty days |
There is an outer limit, and what sits past it is the probate court. Where a court finds that even with a course of treatment there is not a substantial probability the defendant will become competent within the period the section allows for the charge, the section says the court shall order the defendant discharged, unless the prosecutor or the court moves to retain jurisdiction under the following section or files an affidavit in the probate court for civil commitment. That last route is the same probate process the evaluation page on this site describes, reached from the criminal side instead of the street.
- A person is not guilty by reason of insanity only where the person proves, in the manner the burden of proof section specifies, that at the time of the commission of the offense the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person's acts.
- The burden is on the person raising it, which is the opposite of how the state's burden works on everything else.
- Not knowing the wrongfulness is the whole test. Having a mental illness, even a serious one, is not the same finding and the definition does not treat it as one.
“Is competency something that can be raised in this case, and who is able to raise it?”
This describes the two questions and the sections that hold them. Whether either one fits a particular person, what an evaluation involves, how the restoration caps apply to a specific charge, and what a court does with a report are all answered case by case on a record. A licensed Ohio attorney is who raises either question, and neither is raised by describing a condition to an officer.
Sources for this section (7)
- ORC 2945.37 — Competency to stand trial, definitions and hearing
- ORC 2945.38 — Disposition after a competency finding, and restoration treatment
- ORC 2901.01 — General definitions, including not guilty by reason of insanity
- ORC 2945.371 — Evaluations and reports of the defendant's mental condition
- ORC 2945.39 — Retaining jurisdiction where competence is not restored
- ORC 5122.11 — Affidavit filed with the probate court
- ORC 2901.05 — Burden of proof, and the self defense presumption
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed Ohio attorney.