--- title: "Competency, Insanity Procedure, and Speedy Trial" module_id: "MOD-COMPETENCY-INSANITY-SPEEDY-TRIAL" url: "https://jason93.com/legal/federal-process/modules/20-pretrial/competency-insanity-and-speedy-trial/" current_through: "2026-08-26" legal_review: "2026-08-25" links_checked: "2026-10-15" links_available: 15 links_checked_count: 15 license: "CC BY 4.0" --- # Competency, Insanity Procedure, and Speedy Trial ## Verification boundary Competency concerns present ability to proceed; insanity concerns responsibility at the time of the charged act. The Speedy Trial Act supplies statutory clocks and exclusions; the Sixth Amendment supplies a separate postaccusation balancing test. This module does not diagnose a person, calculate a live docket without every entry, resolve dangerousness, authorize involuntary medication in a particular case, apply a district plan, or decide circuit-specific appellate and collateral-review questions. ## Present competency The constitutional competency test asks whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings. [*Dusky v. United States*, 362 U.S. 402, 402–03 (1960)](https://www.govinfo.gov/content/pkg/USREPORTS-362/pdf/USREPORTS-362-402.pdf) From commencement of prosecution until sentencing, either side may move for a competency hearing, and the court must grant it or act sua sponte when reasonable cause exists to believe a present mental disease or defect may prevent understanding the proceedings or proper assistance in the defense. [18 U.S.C. § 4241(a)](https://www.govinfo.gov/link/uscode/18/4241) Before the hearing, the court may order a psychiatric or psychological examination and report under § 4247(b)–(c); at the hearing, § 4247(d) provides counsel plus opportunities to testify, present evidence, subpoena witnesses, and confront and cross-examine appearing witnesses. [18 U.S.C. §§ 4241(b)–(c), 4247(d)](https://www.govinfo.gov/link/uscode/18/4247) If the court finds present incompetency by a preponderance of the evidence, § 4241(d) requires commitment to the Attorney General for treatment in a suitable facility for a reasonable period not exceeding four months to determine whether there is a substantial probability of foreseeable restoration. [18 U.S.C. § 4241(d)(1)](https://www.govinfo.gov/link/uscode/18/4241) An additional restoration period must be reasonable and requires a finding of a substantial probability of restoration within that period; it ends when capacity is restored or the charges are disposed of, whichever is earlier, and nonrestoration triggers § 4246 procedure rather than indefinite criminal commitment under § 4241. [18 U.S.C. § 4241(d)(2)](https://www.govinfo.gov/link/uscode/18/4241) For an examination under § 4241, § 4247(b) permits examination commitment for a reasonable period not exceeding 30 days and a facility-requested extension not exceeding 15 days on the required good-cause showing. [18 U.S.C. § 4247(b)](https://www.govinfo.gov/link/uscode/18/4247) When a facility director certifies recovery, the court must hold a § 4247(d) hearing and order immediate discharge from hospitalization and set trial if it finds restored competency by a preponderance. [18 U.S.C. § 4241(e)](https://www.govinfo.gov/link/uscode/18/4241) A competency finding neither prejudices a later insanity defense nor is admissible at the trial on the charged offense. [18 U.S.C. § 4241(f)](https://www.govinfo.gov/link/uscode/18/4241) When evidence raises the constitutionally sufficient doubt about present competence, failure to conduct the required inquiry deprives the defendant of a fair trial; the issue cannot be treated as waived merely because defense counsel did not obtain the hearing. [*Pate v. Robinson*, 383 U.S. 375, 384–86 (1966)](https://www.govinfo.gov/content/pkg/USREPORTS-383/pdf/USREPORTS-383-375.pdf) The duty to protect against trial of an incompetent defendant is continuing: the court must consider the full record, including prior history, behavior, counsel's representations, and developments during trial, rather than rely on one examination or courtroom observation alone. [*Drope v. Missouri*, 420 U.S. 162, 171–81 (1975)](https://www.govinfo.gov/content/pkg/USREPORTS-420/pdf/USREPORTS-420-162.pdf) Involuntary medication solely to restore trial competency is permitted only in the rare case satisfying *Sell*'s requirements: important governmental interests, substantial likelihood of restoration without side effects significantly impairing defense participation, necessity after less intrusive alternatives, and medical appropriateness. [*Sell v. United States*, 539 U.S. 166, 179–83 (2003)](https://www.govinfo.gov/content/pkg/USREPORTS-539/pdf/USREPORTS-539-166.pdf) Before reaching a trial-competency medication order, a court ordinarily should consider whether forced medication is warranted on a different ground such as dangerousness, and *Sell* treats a qualifying medication order as immediately appealable under the collateral-order doctrine. [*Sell*, 539 U.S. at 175–77, 182–83](https://www.govinfo.gov/content/pkg/USREPORTS-539/pdf/USREPORTS-539-166.pdf) ## Insanity defense and postverdict procedure Federal insanity is an affirmative defense requiring proof that, because of a severe mental disease or defect at the time of the acts, the defendant could not appreciate their nature and quality or wrongfulness; the defendant bears clear-and-convincing proof, and mental disease or defect does not otherwise constitute the statutory defense. [18 U.S.C. § 17](https://www.govinfo.gov/link/uscode/18/17) A defendant intending to assert insanity must give written government notice and file it by the pretrial-motion deadline or a later court-set time; absent notice the defense is unavailable, subject to the court's good-cause power to permit late notice and other appropriate relief. [Fed. R. Crim. P. 12.2(a)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 12.2(b) separately requires pretrial notice of expert mental-condition evidence bearing on guilt or capital punishment; giving or omitting that notice is not the same as asserting the statutory insanity defense. [Fed. R. Crim. P. 12.2(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) After insanity notice, the court must grant a government motion for an examination under § 4242; after other Rule 12.2(b) notice, it may order an examination under court-prescribed procedures. [Fed. R. Crim. P. 12.2(c)(1)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf); [18 U.S.C. § 4242(a)](https://www.govinfo.gov/link/uscode/18/4242) Statements made during a Rule 12.2 examination, expert testimony based on them, and their fruits ordinarily may not be used against the defendant except on a mental-condition issue the defendant has placed in issue as the rule specifies. [Fed. R. Crim. P. 12.2(c)(4)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 12.2 permits exclusion of defense expert mental-condition evidence for failure to provide required expert notice, submit to an ordered examination, or make the required expert-report disclosure; it does not authorize exclusion of the defendant's own testimony merely for the notice failure. [Fed. R. Crim. P. 12.2(d)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Evidence of a Rule 12.2(a) or (b) intention later withdrawn is inadmissible against the person who gave the notice in a civil or criminal proceeding. [Fed. R. Crim. P. 12.2(e)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) When insanity is put in issue by Rule 12.2 notice, § 4242(b) requires the jury, or the court in a bench trial, to return one of three specified findings: guilty, not guilty, or not guilty only by reason of insanity. [18 U.S.C. § 4242(b)](https://www.govinfo.gov/link/uscode/18/4242) After a federal not-guilty-only-by-reason-of-insanity verdict, § 4243 requires commitment to Attorney General custody and a hearing no later than 40 days after the special verdict to determine whether release would create the statutory substantial risk. [18 U.S.C. § 4243(a), (c)](https://www.govinfo.gov/link/uscode/18/4243) At the § 4243 hearing, the acquitted person bears clear-and-convincing proof for an offense involving bodily injury, serious property damage, or a substantial risk of either, and a preponderance burden for any other offense, to show release would not create the specified risk due to present mental disease or defect. [18 U.S.C. § 4243(d)](https://www.govinfo.gov/link/uscode/18/4243) If the acquitted person does not carry the § 4243 burden, the statute requires Attorney General custody, state-placement efforts, and hospitalization until a state assumes responsibility or release or conditional release no longer creates the statutory risk; later discharge and conditional-release procedure remain governed by § 4243(f)–(g). [18 U.S.C. § 4243(e)–(g)](https://www.govinfo.gov/link/uscode/18/4243) Federal juries ordinarily are not instructed about the commitment consequences of a not-guilty-by-reason-of-insanity verdict because juries determine guilt rather than punishment or disposition; *Shannon* recognizes a limited corrective-instruction situation when a false impression about immediate release has been created. [*Shannon v. United States*, 512 U.S. 573, 579–88 (1994)](https://www.govinfo.gov/content/pkg/USREPORTS-512/pdf/USREPORTS-512-573.pdf) ## Speedy Trial Act computation and remedy The 30-day arrest-or-summons charging clock and the 70-day indictment-or-appearance trial clock are starting rules, not final calculations; every event must be classified under § 3161 and the complete docket. [18 U.S.C. § 3161(b), (c), (h)](https://www.govinfo.gov/link/uscode/18/3161) Delay from filing a pretrial motion through the hearing or prompt disposition is automatically excluded under § 3161(h)(1)(D); *Tinklenberg* holds that the motion need not actually postpone trial to trigger that exclusion. [*United States v. Tinklenberg*, 563 U.S. 647, 650, 655–60 (2011)](https://www.govinfo.gov/content/pkg/USREPORTS-563/pdf/USREPORTS-563-647.pdf) Time granted to prepare pretrial motions is not automatically excluded under § 3161(h)(1); *Bloate* holds that it may be excluded only through a properly supported ends-of-justice continuance under the applicable provision. [*Bloate v. United States*, 559 U.S. 196, 199–204, 213–14 (2010)](https://www.govinfo.gov/content/pkg/USREPORTS-559/pdf/USREPORTS-559-196.pdf) A defendant cannot prospectively waive the Speedy Trial Act “for all time,” because the Act protects the public interest as well as the defendant and requires delay to fit a statutory exclusion. [*Zedner v. United States*, 547 U.S. 489, 500–03 (2006)](https://www.govinfo.gov/content/pkg/USREPORTS-547/pdf/USREPORTS-547-489.pdf) An ends-of-justice continuance excludes time only when the court weighs the statutory interests and states its reasons on the record; *Zedner* requires express findings at least by the ruling on a dismissal motion and rejects harmless-error substitution for missing findings. [18 U.S.C. § 3161(h)(7)](https://www.govinfo.gov/link/uscode/18/3161); [*Zedner*, 547 U.S. at 506–09](https://www.govinfo.gov/content/pkg/USREPORTS-547/pdf/USREPORTS-547-489.pdf) Section 3161(h) separately addresses proceedings concerning the defendant, competency or physical inability, interlocutory appeals, essential-witness unavailability, treatment of other charges, advisement periods, codefendant delay, and ends-of-justice continuances; labels on docket entries cannot replace element-by-element classification. [18 U.S.C. § 3161(h)](https://www.govinfo.gov/link/uscode/18/3161) For a trial-clock violation, a timely pretrial or pre-plea defense motion requires dismissal, but dismissal may be with or without prejudice; *Taylor* holds there is no presumption for either result and requires reasoned consideration of the statutory factors and relevant prejudice. [18 U.S.C. § 3162(a)(2)](https://www.govinfo.gov/link/uscode/18/3162); [*United States v. Taylor*, 487 U.S. 326, 332–43 (1988)](https://www.govinfo.gov/content/pkg/USREPORTS-487/pdf/USREPORTS-487-326.pdf) Failure to seek statutory trial-clock dismissal before trial or entry of a guilty or nolo plea waives the § 3162(a)(2) dismissal right; that retrospective rule does not validate a blanket prospective waiver. [18 U.S.C. § 3162(a)(2)](https://www.govinfo.gov/link/uscode/18/3162) ## Sixth Amendment speedy-trial right A reasonably available constitutional speedy-trial objection that can be decided without a merits trial must be raised by pretrial motion under Rule 12(b)(3)(A)(iii), subject to the motion deadline and good-cause rule. [Fed. R. Crim. P. 12(b)(3)(A)(iii), (c)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) The Sixth Amendment inquiry balances length of delay, reason for delay, the defendant's assertion of the right, and prejudice; none is a necessary or sufficient condition by itself, and the length must first be presumptively prejudicial enough to trigger full analysis. [*Barker v. Wingo*, 407 U.S. 514, 530–33 (1972)](https://www.govinfo.gov/content/pkg/USREPORTS-407/pdf/USREPORTS-407-514.pdf) *Doggett* holds that sufficiently excessive postindictment government negligence can support presumptive prejudice even without specifically demonstrable trial prejudice, but the presumption's weight depends on the delay and remains part of the full *Barker* balance. [*Doggett v. United States*, 505 U.S. 647, 651–58 (1992)](https://www.govinfo.gov/content/pkg/USREPORTS-505/pdf/USREPORTS-505-647.pdf) The Sixth Amendment Speedy Trial Clause protects the interval from accusation through conviction and does not govern sentencing delay; *Betterman* left the different due-process question open rather than importing *Barker* automatically. [*Betterman v. Montana*, 578 U.S. 437, 439–48 (2016)](https://www.supremecourt.gov/opinions/boundvolumes/578BV.pdf) The Speedy Trial Act and Sixth Amendment are independent: compliance with one does not by itself resolve the other, because their triggers, exclusions or factors, preservation rules, and remedies differ. [18 U.S.C. §§ 3161–3162](https://www.govinfo.gov/link/uscode/18/3161); [*Barker*, 407 U.S. at 522–33](https://www.govinfo.gov/content/pkg/USREPORTS-407/pdf/USREPORTS-407-514.pdf) Because a completed Sixth Amendment speedy-trial violation cannot be cured by holding the delayed trial, dismissal of the charge is the required remedy; the severe consequence is one reason the *Barker* inquiry must be applied carefully to the full record. [*Barker*, 407 U.S. at 522](https://www.govinfo.gov/content/pkg/USREPORTS-407/pdf/USREPORTS-407-514.pdf) No live Speedy Trial Act or Sixth Amendment conclusion should be made without the arrest, complaint, indictment, appearance, plea, motion, competency, continuance, codefendant, interlocutory-appeal, trial, and dismissal-motion record. ## Authorities - [Dusky v. United States, 362 U.S. 402 (1960)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-DUSKY-362-US-402.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-362/pdf/USREPORTS-362-402.pdf - [18 U.S.C. §§ 17, 4241–4243, 4247](https://jason93.com/legal/federal-process/authorities/AUTH-USC-18-17-4241-4243-4247.md) · official source: https://www.govinfo.gov/link/uscode/18/4241 - [Pate v. Robinson, 383 U.S. 375 (1966)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-PATE-383-US-375.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-383/pdf/USREPORTS-383-375.pdf - [Drope v. Missouri, 420 U.S. 162 (1975)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-DROPE-420-US-162.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-420/pdf/USREPORTS-420-162.pdf - [Sell v. United States, 539 U.S. 166 (2003)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-SELL-539-US-166.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-539/pdf/USREPORTS-539-166.pdf - [Fed. R. Crim. P. 12, 12.2, 14, 41, 47, 51, 52](https://jason93.com/legal/federal-process/authorities/AUTH-FRCRIM-P-12-14-41-47-51-52.md) · official source: https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf - [Shannon v. United States, 512 U.S. 573 (1994)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-SHANNON-512-US-573.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-512/pdf/USREPORTS-512-573.pdf - [18 U.S.C. §§ 3161–3162](https://jason93.com/legal/federal-process/authorities/AUTH-USC-18-3161-3162.md) · official source: https://www.govinfo.gov/link/uscode/18/3161 - [United States v. Tinklenberg, 563 U.S. 647 (2011)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-TINKLENBERG-563-US-647.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-563/pdf/USREPORTS-563-647.pdf - [Bloate v. United States, 559 U.S. 196 (2010)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BLOATE-559-US-196.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-559/pdf/USREPORTS-559-196.pdf - [Zedner v. United States, 547 U.S. 489 (2006)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-ZEDNER-547-US-489.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-547/pdf/USREPORTS-547-489.pdf - [United States v. Taylor, 487 U.S. 326 (1988)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-TAYLOR-487-US-326.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-487/pdf/USREPORTS-487-326.pdf - [Barker v. Wingo, 407 U.S. 514 (1972)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BARKER-407-US-514.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-407/pdf/USREPORTS-407-514.pdf - [Doggett v. United States, 505 U.S. 647 (1992)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-DOGGETT-505-US-647.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-505/pdf/USREPORTS-505-647.pdf - [Betterman v. Montana, 578 U.S. 437 (2016)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BETTERMAN-578-US-437.md) · official source: https://www.supremecourt.gov/opinions/boundvolumes/578BV.pdf