In Nebraska the procedure for determining whether a defendant is mentally competent to stand trial is discretionary with the court. Unlike the New York Criminal Procedure Law, described by H. H. A. Cooper in the preceding article ("Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem under the New York Criminal Procedure Law", the Nebraska statutes do not require a judge to order a psychiatric examination of a defendant whose mental competency to stand trial or to be sentenced is in doubt. Cooper's basic message is that judges must be aware that mental competency is neither completely a medical nor a legal question. This conclusion applies to Nebraska judges as well as to their New York counterparts; although Nebraska judges are not required to seek medical opinions, the law says they may, and often they do. This article concentrates on how the Nebraska judge should best use medical opinions to determine whether a defendant is mentally competent. After comparing Nebraska and New York laws in this area, the article recommends that one of the Nebraska statutes concerned with competency to stand trial or to be sentenced be repealed and that the other statute be expanded and revised. These statutory changes would not alter the present mental competency law in Nebraska, but they would clarify the defendant's rights and the proper roles of the judge and the medical experts.
Competency to Stand Trial in Nebraska,
52 Neb. L. Rev. 69
Available at: http://digitalcommons.unl.edu/nlr/vol52/iss1/6