Pro Se Chicago's Weblog

April 13, 2018

2018 U.S. and Illinois criminal law regarding insanity, temporary insanity, fitness, and mental illness

The legal profession from attorneys to judges and police officers are NOT taught sufficiently about the difference between the lay, professional, and legal understanding and interpretation of terms such as insanity, temporary insanity, fitness, and mental illness.

This is a specialized area of law that invades all criminal courts and the misuse of these concepts harm the mentally ill, the disabled, the victims of crimes, the innocent accused, as well as society as a whole.

It is imperative that American courts come to grips with this unfortunate situation as 11% of the population is known to suffer from mental illness and American prisons and jails have become the largest and most inadequate providers of mental health services in America today.

This link will allow you to download a 20 page, two article document that 1st defines these terms in the medical and legal realms, and then, 2nd summarizes in an up to date memorandum of law the laws pertaining to the legal precedent and legal procedural management of issues related to insanity, temporary insanity, fitness, and mental illness in Illinois and U.S. courts. click here for link

I welcome your feedback as well as would welcome pro bono assistance in this matter before the Cook County Courts. Contact me at

Please feel free to distribute this document to all attorneys and judges, as well as pro se (self-represented) litigants. I would appreciate a note about where you have distributed it and how well it is received.

Linda Lorincz Shelton, PhD, MD

(Retired disabled physician – neonatology, pediatrics, psychiatry, and pathology/Paralegal, Self-Taught Constitutional Legal Specialist/civil rights activist)

December 5, 2008

Fitness Exams = BCX (Behavioral Clinical Exam) to Stand Trial and for Self-Representation

Updated 3-23-15



  1. Due Process Clause Prohibits Conviction & Sentencing of Mentally Unfit Defendants – If Bona Fide Doubt of Fitness Present at Any Time Must Examine for Fitness & Hold Fitness Hearing
  2.  The due process clause of the fourteenth amendment prohibits the conviction and sentencing of a defendant who is not fit to stand trial. U.S. Const., Amend. XIV; People v. Johnson, 206 Ill. 2d 348, 361, 794 N.E.2d 294, 303 (2002). In Illinois, a defendant is presumed fit to stand trial and is considered unfit only if his mental or physical condition prevents him from understanding the nature and purpose of the proceedings against him or assisting in his own defense. 725 ILCS 5/104-10 (West 2000); People v. Shum, 207 Ill. 2d 47, 57, 797 N.E.2d 609, 615-16 (2003).
  3. When a bona fide doubt as to defendant’s fitness to stand trial exists, the court must order a fitness hearing to resolve the question of fitness before the case proceeds any further. 725 ILCS 5/104-11(a) (West 2000); Johnson, 206 Ill. 2d at 361, 794 N.E.2d at 303; People v. Griffin, 178 Ill.2d 65, 79 227 Ill.Dec. 338, 687 N.E.2d 820 (1997).
  4. The test for incompetence [fitness] is also well settled. A defendant may not be put to trial unless he ” `has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.’ ” DuskyUnited States, 362 U.S. 402, 402 (1960) (per curiam).
  5. If the court has expressed a bona fide doubt of fitness or if the evaluators report opines that the defendant is unfit, then the court must order a due process fitness hearing; but if a report says a defendant is fit and the judge agrees after a request for an exam by the defense or prosecutor, then the court is NOT obligated to hold a fitness hearing. People v. Hill, 345 Ill.App.3d 620, 803 N.E. 2d 138 (2003); People v Hanson, 2012 IL App (3d) 110210-U (2004) “To hold a fitness hearing, the court must first hear evidence raising a bona fide doubt of the defendant’s fitness.” People v. Eddmonds, 143 Ill.2d 501, 518, 161 Ill.Dec. 306, 578 N.E.2d 952, 959 (1991)
  6. Rationality is explicit in the United States Supreme Court’s Duskystandard but not in most U.S. Competency to stand trial (“CST”) standards. It is hard to imagine that the legal purposes of CST determinations are served if a defendant’s understanding of the proceedings is irrational (e.g., delusional or psychotically confused) or if the defendant cannot consult rationally with counsel.  Most insanity tests include a rationality criterion. . . .  Irrational understanding of proceedings and irrationally assisting one’s counsel are both oxymoronic and inconsistent with the legal purposes for CST determinations. J Am Acad Psychiatry Law, Competence to Stand Trial Should Require Rational Understanding, 39:1:19-30 (February 2011)
  7. A fitness examination order is NOT evidence of a bona fide doubt per the First District Illinois Appellate Court in People v. Hill, 345 Ill.App.3d 620, 803 N.E. 2d 138 (2003), 2003 Ill. App. (1st) 021387. “[W]e find that the trial court’s decision to appoint an expert to examine a defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt as to the defendant’ fitness to stand trial has been raised.” (Hill Id at 627) This overturned People v. Cleer, 328 Ill. App. 3d 428 (2002), where the court determined that the grant of a fitness examination implicitly demonstrated the trial judge’s bona fide doubt concerning defendant’s fitness for trial.
  8. The report of the fitness examination ordered from Forensic Clinical Services is due within 30 days of the date of the order per 725 ILCS 5/104‑15
  9. [O]nce facts are brought to the attention of the trial court, either from observation of the defendant or the suggestion of counsel, that raise a bona fide doubt of the defendant’s fitness to stand trial, the trial court has a duty to hold a fitness hearing. People v. Brandon, 162 Ill.2d 450, 456, 205 Ill.Dec. 421, 643 N.E.2d 712, (1994); see 725 ILCS 5/104-11() (West 1996).
  10. A Court may order a fitness exam (behavioral clinical exam = BCX) at the request of the state or the defense or if the court expresses a bona fide doubt of defendant’s fitness per 725 ILCS 5/104‑ This bona fide doubt must be specific and not a general statement and must be expressed in open court on the record. It is not sufficient for a judge to state that a defendant’s behavior or writings suggest a fitness exam is needed. The defense attorney, prosecuting attorney, or judge must specify, in their pleading or on the record, the nature of the behavior or the details in the writings that suggest fitness is absent. General statements are not sufficient. “To hold a fitness hearing, the court must first hear evidence raising a bona fide doubt of the defendant’s fitness.” People v. Eddmonds, 143 Ill.2d 501, 518, 161 Ill.Dec. 306, 578 N.E.2d 952, 959 (1991)
  11. If the defense attorney or prosecuting attorney moves for a fitness exam, then appointment of an expert under this provision cannot be considered a conclusion concerning a bona fide doubt of defendant’s fitness but, rather, merely allows an expert to examine the defendant to determine if a bona fide doubt may be raised. (Hill, supra)
  12. It is well settled in Illinois that where no bona fide doubt as to a defendant’s competency to stand trial exists, a psychiatric report shows defendant fit and the defendant moves for or acquiesces in the withdrawal of a petition requesting a fitness hearing, there is no abuse of discretion where the court fails to hold a fitness hearing sua sponte. Hill (Supra); People v. Hicks, 35 Ill. 2d 390, 394, 220 N.E.2d 461 (1966); People v. Mayhew, 18 Ill. App. 3d 483, 488, 309 N.E.2d 672 (1974).
  13. Statutes REQUIRE the Judge Shall Inform the Defendant that He/She has the Right to Refuse to Answer Questions at the Fitness Exam
  14. 725 ILCS 5/104‑14(c) mandates that the Court inform the Defendant that he has a statutory right to refuse to answer questions at the BCX exam:
  15. Use of Statements Made During Examination or Treatment. “ 725 ILCS 5/104‑14 (c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him that he may refuse to cooperate with the person conducting the examination, but that his refusal may be admissible into evidence on the issue of his mental or physical condition. [emphasis added]”
  16. Bail may NOT be Revoked or Denied Based on Order to Undergo Fitness Examination
  17. 725 ILCS 5/104‑13(d) mandates that the Court MAY not revoke bail if the Defendant is ordered to undergo a BCX exam in order to accomplish the exam:
  18. Fitness Examination. “725 ILCS 5/104‑13 (d) Release on bail or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered.”
  19. Therefore, defendants have a statutory right to refuse to answer questions at a BCX exam and this act does not permit the Court to revoke or alter bail for violation of the condition of bail to appear at a BCX exam and answer questions. The Court may hold the defendant in contempt only if they refuse to show up for the exam.
  20. Mental Illness is Determined by a Physician; Fitness is a Legal Term Determined by a Court
  21. A professional forensic psychiatric exam is not really necessary to determine fitness, but is necessary to determine if the defendant suffers from mental illness. Fitness and mental illness are two different issues and determination of such is not equivalent. Fitness is determined by a judge; mental illness is diagnosed by a licensed physician or psychologist. A forensic exam is evidence that may be used in the fitness hearing to determine fitness by the trier of the facts, along with any other evidence produced by the defense, the state, or the court.
  22. The Illinois Supreme Court has repeatedly held that when determining whether a bona fide doubt of defendant’s fitness exists, courts should consider the following factors: “the defendant’s irrational behavior, the defendant’s demeanor at trial and any prior medical opinion on the defendant’s competence to stand trial”. [emphasis added] People v. Harris, 206 Ill.2d 293, 304, 276 Ill.Dec. 286, 794 N.E.2d 181, 190 (2002).
  23. There is no fixed sign, symptom, or behavior that mandates a determination of fitness. “The question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” People v. Eddmonds, 143 Ill. 2d 501, 518 (1991) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). Some doubt of a defendant’s fitness is not enough. People v. Walker, 262 Ill.App.3d 796, 803, 200 Ill.Dec 345, 635 N.E.2d 684 (1994).
  24. No single factor in itself raises a bono fide doubt of a defendant’s fitness to stand trial; the fact that a defendant suffers a mental disturbance or requires psychiatric treatment such as psychotropic drugs does not necessarily raise a bona fide doubt. Walker, 262 Ill. App. 3d at 803, 200 Ill.Dec. 345, 635 N.E.2d 684; People v. Shum, 207 Ill. 2d 47, 59, 797 N.E.2d 609, 615-16 (2003); People v. Easley, 192 Ill. 2d 307, 322, 736 N.E.2d 975, 986 (2000) Even evidence of extreme disruptive behavior and a sociopathic personality does not compel the conclusion that a bona fide doubt exists as to a defendant’s fitness to stand trial. People v. Smith, 253 Ill.App.3d 948, 953, 192 Ill.Dec. 742, 625 N.E.2d 897 (1993) “Fitness speaks only to a person’s ability to function within the context of a trial. It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his or her mind may be otherwise unsound.” Easley, 192 Ill. 2d at 320, 736 N.E.2d at 986.
  25. Evidence presented at the fitness hearing may include a report from forensic clinical services, or from private psychiatrists and psychologists retained by either side. The report may state that the defendant is fit or unfit for trial and the examiners detailed reasoning and clinical judgment as to why he came to that conclusion, or may simply be a statement that the examiner was unable to make this determination at the exam because the defendant was unable or unwilling to cooperate with questions.
  26. Court determinations of fitness are made by a court hearing and not by the forensic examiner.
  27. The ultimate decision as to a defendant’s fitness must be made by the trial court, not the experts. People v. Bilyew, 73 Ill.2d 294, 302 (1978)
  28. The examiner’s report is merely evidence. The trier of fact at the fitness hearing decides its weight. Fitness by statute and case law is determined by the judge, if jury is waved or the jury in a fitness hearing per 725 ILCS 5/104-11(c): “725 ILCS 5/104-11 (c) When a bona fide doubt of the defendant’s fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry.” [emphasis added]
  29. Courts may still determine fitness even though the forensic psychiatry examiner is unable to determine fitness based on defendant’s unwillingness to cooperate:
  30. “COURTS DETERMINE FITNESS BASED ON THREE FACTORS: the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion on the defendant’s competence to stand trial.”  Hill 803 N.E. 2d 138, at 145. [emphasis added]
  31. “Although the . . . [the expert] was not able to “come to [a] definitive opinion in regards to defendant’s fitness to stand trial,” this failure was due to defendant’s lack of cooperation.” Hill 803 N.E. 2d 138, at 145. In Hill case the court concluded that the defendant was fit to stand trial. A previous, though not contemporaneously timely exam had determined defendant was mentally ill but fit to stand trial and the judge’s observations in court led him to conclude the defendant understood the players in the court and the charges against him. While these reports provide some evidence of mental illness, they are insufficient to counter the several indications in the record that defendant understood and participated at trial . . . . [and] exhibited no irrational behavior.  Hill 803 N.E. 2d 138, at 146
  32. Determining if there is a Bona Fide Doubt of Fitness REQUIRES a Fact Specific Inquiry 
  33. Whether a bona fide doubt as to a defendant’s fitness has arisen is generally a matter within the discretion of the trial court. People v. Sandham, 174 Ill.2d 379, 382, 220 Ill.Dec. 611, 673 N.E.2d 1032 (1996). “[W]hether the doubt is bona fide’ is relevant only to the initial determination to hold a fitness hearing.” (Emphasis in original and added.) People v Murphy 160 Ill.App.3d 781 at 783, 112 Ill.Dec. 295, 513 N.E.2d 904 (1987)” Brown, 252 Ill.App.3d at 383. “Whether a bona fide doubt of a defendant’s fitness exists involves a fact-specific inquiry” (emphasis added). See Eddmonds, 143 Ill.2d at 518, 161 Ill.Dec. 306, 578 N.E.2d at 959 (1991), quoting Drope, 420 U.S. at 180, 95 S.Ct at 908, 43 L.Ed.2d at 118 (“there are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated’”)” People v. M. Tapscott, 386 Ill.App.3d 1064, 899 N.E.2d 597, 326 Ill.De. 380 (2008).
  34. A bona fide doubt of fitness is more than a general statement that the defendant is crazy or psychotic. This occurs only when “the circumstances raise a “bona fide doubt” – that is, “a real, substantial[,] and legitimate doubt” [found by this fact-specific inquiry]. (People v. Eddmonds, 143 Ill.2d 501, 518, 161 Ill.Dec. 306, 578 N.E.2d 952, 959 (1991)
  35. Definitions of terms “psychotic”, “irrational”, “delusional”, “hallucinating”, and “competent”.
  36. The terms “psychotic”, “irrational”, “delusional”, “hallucinating”, and “competent” are frequently misused by layman, including judges and attorneys.
  37. “Psychotic” refers to an abnormal condition of the mind, and is a generic psychiatricterm for a mental state often described as involving a “loss of contact with reality[1]. Psychosis is a descriptive term for the hallucinationsdelusions, sometimes violence, and impaired insightthat may occur. It is a diagnosis of exclusion[2] and requires that other diagnoses such as metabolic derangement or PTSD flashback be excluded. So a new-onset episode of psychosis cannot be considered a symptom of a psychiatric disorder until other relevant and known causes of psychosis are properly excluded, or ruled out. Many clinicians improperly perform, or entirely miss this step, introducing avoidable diagnostic error and misdiagnosis. It is a term best avoided by laymen due to its non-specificity and history of inappropriate use.
  38. hallucinationis defined as sensory perception in the absence of external stimuli. (See FN[3]1) (For example: talking to a person not seen by others or believing that “God told me to kill him,”) Hallucinations are different from illusions, or perceptual distortions, which are the misperception of external stimuli. Hallucinations may occur in any of the senses and take on almost any form, which may include simple sensations (such as lights, colors, tastes, and smells) to experiences such as seeing and interacting with fully formed animals and people, hearing voices, and having complex tactile sensations.
  39. Delusions are false beliefs, both bizarre (For example: “the judge is a Martian”or “the television told me to kill him”) and non-bizarre (For example: “there is a conspiracy against me by the Mayor”) , that a person holds on to, without adequate evidence (See FN1).
  40. Rationality is commonly understood to mean the exercise of reason when thinking. Reason itself is subject to various interpretations such as judgment and logic, often assessed subjectively by one person in another. Differences in religious and political beliefs, values, and interests can cause reasonable individuals to disagree on what is reasonable, as it were.[4] Failure to hear evidence, either through judicial or attorney misconduct, incompetence at law, or bias, proving an assertion by a defendant may be falsely attributed to irrationality. Therefore, it is important to hear explanations and evidence about assertions made by a defendant before concluding that they are irrational.
  41. Another common meaning of rational is “sane, lucid or as “opposed to insane”. Psychological definitions of rational are dichotomized by the use of reason (logical thought), on the one hand, and as sane and lucid on the other[5]. Unqualified understanding can simply mean knowing the facts (without connoting rationality in any sense) or appreciating the meaning of (connoting at least some level of rationality). Rationality helps to characterize the quality of understanding needed but the meaning of rationality itself in the context of CST is in need of clarification.
  42. The term “competent” refers to fitness to stand trial also known as CST in a legal setting. The competency evaluation, as determined by the Dusky standard, is whether the accused “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.” Being determined incompetent is substantially different from undertaking an insanity defense; competence regards the defendant’s state of mind at the time of the trial, while insanity regards his state of mind at the time of the crime.
  43. Once a Bona Fide Doubt of Fitness is Determined, the Defendant is No Longer Considered Fit Until there is a Fitness Trial to Determine the Issue – the Burden is on the State to Prove Fitness
  44. Once a bona fide doubt of defendant’s fitness to stand trial is raised, there is no longer a presumption of fitness. Murphy, 160 Ill.App.3d 781. “Only if, from an objective point of view, the circumstances raise a “bona fide doubt” – that is, “a real, substantial[,] and legitimate doubt” (People v. Eddmonds, 143 Ill.2d 501, 518, 161 Ill.Dec. 306, 578 N.E.2d 952, 959 (1991) – of the defendant’s fitness does the defendant have a right to a fitness hearing. 725 ILCS 5/104-11(a) (West 2002).”
  45. Once a bona fide doubt is raised as to the defendant’s fitness to stand trial, the State must prove the defendant fit by a preponderance of the evidence. Clay, 361 Ill. App. 3d at 331, 836 N.E.2d at 889. In determining a defendant’s fitness, courts are to consider, among other things, the “defendant’s ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged.” (Emphasis added.) 725 ILCS 5/104-16(b)(2) (West 2010) [People v. Clay, 361 Ill. App. 3d 310, 330, 836 N.E.2d 872, 889 (2005)]
  46. Defendant has a Right to Request and Examination by a Psychiatrist or Psychologist of His/Her Choice, in Addition to the Requirement that the Judge Review Prior Psychiatric Examinations, in Determining Fitness
  47. 725 ILCS 5/104-13(e) Upon request by the defense and if the defendant is indigent, the court may appoint, in addition to the expert or experts chosen pursuant to subsection (a)[6] of this Section, a qualified expert selected by the defendant to examine him and to make a report as provided in Section 104-15.
  48. The Illinois Supreme Court has held that 72 ILCS 5/104-13(e) mandates appointed of an expert of the defendant’s choice. People v. Vallo, 2001 Ill.App.(1st) 993073; People v. Kinion, 97 Ill.2d 322, 336, 73 Ill.Dec. 528, 454 N.E.2d 625 (1983)
  49. “COURTS DETERMINE FITNESS BASED ON THREE FACTORS: the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion on the defendant’s competence to stand trial.”  Hill 803 N.E. 2d 138, at 145. [emphasis added]
  50. The Defendant has a Due Process Right through Statutes to Request a Jury Trial for Fitness and to be Present at ALL Fitness Related Hearings
  51. Fitness hearings are collateral civil proceedings and when they are held without following the statutory requirements of the law, as well as in violation of requirement for the judge to state on the record a legally sufficient basis of an order for a fitness examination (behavioral clinical examination = BCX), claiming the defendant is unfit, then the orders for fitness exam and any discussion about fitness are void ab initio.
  52. Where the public policy of the State of Illinois is violated, the order is void, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975). As statutes are public policy, violation of statutes makes the orders voidable.
  53. The U.S. Supreme Court in Drope v. Missouri, 420 U.S. 162 (1975) held that a defendant has a due process right to be present at any hearing where fitness is discussed, regardless of behavior or mental health. Illinois fitness statutes only allow exclusion from hearings based on physical illness[7]. If the fitness statute requiring presence of defendant is violated the hearings were illegal – violated public policy as expressed by the U.S. Supreme Court and are therefore voidable.
  54. A defense attorney may not waive appearance of the defendant without the defendant’s consent when fitness is at issue, as the statute causes the defendant to possess a due process right to be present.
  55. The right to be present is not an express right under the United States Constitution, but is implied, arising from the due process clause of the fourteenth amendment. U.S. Const., amend. XIV, §1; Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658, 2667 (1987); United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1484 (1985); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 78 L. Ed. 674, 678, 54 S. Ct. 330, 332 (1934). Article I, section 8, of the Illinois Constitution grants criminal defendants the express right “to appear and defend in person and by counsel.” Ill. Const. 1970, art. I, §8. Accordingly, both the federal constitution and our state constitution afford criminal defendants the general right to be present, not only at trial, but at all critical stages of the proceedings, from arraignment to sentencing. Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 356, 90 S. Ct. 1057, 1058 (1970); People v. Bull, 185 Ill. 2d 179 (1998); People v. Bean, 137 Ill. 2d 65, 80-83 (1990); People v. Martine, 106 Ill. 2d 429, 439 (1985).
  56. The S. Supreme Court “repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U.S. 715(1972); Humphrey v. Cady, 405 U.S. 504 (1972); In re Gault, 387 U.S. 1 (1967); Specht v. Patterson,386 U.S. 605 (1967). Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding [441 U.S. 418, 426] of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena “stigma” or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.” Addington v. Texas, 441 U.S. 418, 425-426 (1979)
  57. “The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .’ We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas,380 U. S. 400 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States,146 U. S. 370 (1892).” Illinois v. Allen, 397 U.S. 337, 338 (1970)
  58. In hearings and trial where the fitness of defendant is not at issue, “[a] defendant can lose his right to be present at trial if, following the judge’s warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect.” Illinois v. Allen, 397 U.S. 337, 342-343 (1970)
  59. “A trial judge confronted by a defendant’s disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court’s handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 343-346 (1970)
  60. However, the due process right provided by the Illinois Fitness Statute, 735 ILCS 104-16(c) would be superior to any waiver of right to be presence due to defendant’s behavior in the courtroom. Drope v. Missouri, 420 U.S. 162 (1975)
  61. “[E]ven where a defendant has the general right to be present because the proceeding is a ‘critical’ stage, a defendant’s absence is not a per se constitutional violation. Rather, a defendant’s absence from such a proceeding will violate his constitutional rights only if the record demonstrates that defendant’s absence caused the proceeding to be unfair or if his absence resulted in a denial of an underlying substantial right.” People v. Lindsey, 201 Ill. 2d 45, at 57 (2002). To show a constitutional violation of the right to be present, there must be evidence that defendant’s due process rights were violated by his absence from the courtroom, i.e., that defendant’s physical absence from the proceedings caused the proceedings to be unfair or that his physical absence from the proceedings resulted in the denial of an underlying constitutional right. There has been no showing on this record. Consequently, we find no constitutional violation.” Lindsey, 201 Ill. 2d at 60.
  62. There is no constitutional right to a jury at a hearing to determine fitness to stand trial. The present Illinois Fitness Statute only requires a jury trial if the defendant requests a jury trial. People v. Haynes, 174 Ill.2d 204, 220, 673 N.E.2d 318, 326 (1996). In People v. Melka, Ill. App. (1st) 981077, the defendant cited section 104-12 of the Code of Criminal Procedure of 1963, which provides as follows: “Right to Jury. The issue of the defendant’s fitness may be determined in the first instance by the court or by a jury. The defense or the State may demand a jury or the court on its own motion may order a jury. However, when the issue is raised after trial has begun or after conviction but before sentencing, or when the issue is to be redetermined under Section 104-20 or 104-27, the issue shall be determined by the court.” 725 ILCS 5/104-12 (West 1996).
  63. In Melka, the defense did not demand a hearing prior to the initial trial. Therefore, the Appellate Court held that “it appears that the statute provides that the issue shall be determined by the court.” [the default position of the statute in cases where the defendant fails to demand a jury trial on a fitness issue] The defendant cited People v. Thomas, 43 Ill. 2d 328, 253 N.E.2d 431 (1969); People v. Burson, 11 Ill. 2d 360, 143 N.E.2d 239 (1957); and People v. James, 130 Ill. App. 2d 532, 263 N.E.2d 705 (1970), all of which involved prior versions of section 104-12. The prior statutory law did require that the trial judge impanel a jury for a fitness hearing. See, e.g., James, 130 Ill. App. 2d at 533, 263 N.E.2d at 706 (quoting Ill. Rev. Stat. 1967 ch. 38 sec. 104-2). The current, applicable statute does not so provide.
  64. However, when the defense attorney fails to communicate with the defendant, due to ineffective assistance of counsel, if the defendant was thereby denied the right to request a jury trial, the defendant may have grounds to argue that due to ineffective assistance of counsel they were denied a jury trial which they had decided was necessary to preserve their rights.
  65. Even though the Defendant is Sane at the Time of Trial, Lack of Sanity at Time of Offense may Result in Finding of Unfit for Trial when Defendant Unable to Testify about Mental State at Time of Offense & Unable therefore to Assist Counsel in His/Her Defense [General Insanity AKA Fitness or CST and Temporary Insanity are Two Different Issues]
  66. Even if there is no request for a fitness exam and no bona fide doubt of fitness, a defendant may still use the defense of not sane at time of the offense (temporary insanity or lack of intent due to an altered state of consciousness, not caused by defendant – i.e. not drunk and not under influence of self-ingested illicit drugs. A post-traumatic-stress-disorder (PTSD) flashback would theoretically fit in this category.). People v. Lowe, 109 Ill. App. 2d 236 (4 Dist. 1969).
  67. A mental state problem at the time of the offense does not equate to an insanity defense. People v. Lee, 128 Ill. App. 3d 774 (1 Dist. 1984) Fitness is a legal term and not a psychiatric opinion. If there is no memory of events at the time of the offense, or no knowledge by the defendant of the event, then there is no general insanity defense.. People v. Kashney, 129 Ill. App. 3d 218 (1 Dist. 1984).
  68. One can be unfit but not insane, if one has no knowledge of the event and therefore cannot admit to having committed the offense, yet on exam by experts is found sane. The court in People v. Stahl, 2013 Ill. App. LEXIS 71 (5 Dist. 2013) held that the defendant was unfit for trial as he could not assist defense counsel due to the results of a gunshot wound to the head, but he was not insane, as physicians found him sane at the time of trial. A classic insanity defense requires knowledge of and admission of acts charged. The Illinois Supreme Court upheld that ruling. “Accordingly, under article 104 of the Code, amnesia as to the events surrounding the crime does not per se render a defendant unfit to stand trial. Rather, the fact that a defendant cannot recollect the incident at issue is just one of the circumstances that may be considered in determining a defendant’s fitness. See 725 ILCS 5/104-16(b)(2) (West 2010). We therefore hold that a court must consider the totality of the circumstances to determine whether a defendant is fit to stand trial.” People v. Stahl, 2014 IL 115804 [The lack of memory due to gunshot wound for the event prohibited the defendant from assisting his attorney, therefore, the Supreme Court affirmed that Stahl was unfit for trial and denied State’s appeal.]
  69. The State argues, however, that concerns about a defendant’s ability to remember the events at issue are more properly raised in an appeal after trial and framed in terms of general due process concerns. In support of this argument, the State points to the procedural history of Schwartz. [People v. Schwartz, 135 Ill. App. 3d 629, 482 N.E.2d 104 (1985)] There, as previously discussed, the defendant challenged his conviction on the grounds both that he should not have been found fit to stand trial and that his inability to remember events deprived him of a fair trial because he could not present all of the evidence relevant to his insanity defense. [Court held that memory at time of event did not cause defendant to be unfit] We have already rejected the holding in Schwartz. Moreover, we do not read the opinion to hold that a defendant suffering from amnesia must always go through a trial and then challenge his conviction on general due process grounds instead of challenging the court’s fitness determination. As we have already discussed, the applicable statute expressly emphasizes the defendant’s ability to recall and relate to counsel the events at issue in the charges against him. Here, the defendant has no such ability. To hold that this issue is not a question of fitness would be at odds with the very purpose of our provisions related to fitness to stand trial. [emphasis added] People v. Stahl, 2014 IL 115804 at ¶28
  70. Lack of memory for the event is not proof of general incompetence to take care of self or represent self but may prove no intent, which is an affirmative defense, as an element of many crimes is intent, (Stahl, (supra)) as with, for example, those charged with aggravated battery of a peace officer, without knowledge that the person was a peace officer, at the time of the offense, or without intent to harm them as they were delusional or in an altered mental state at the time (such as a PTSD flashback) then there is no probable cause under the Illinois battery statute[8]. Probable cause exists “if ‘the facts and circumstances within [the officer’s] knowledge and of which they had reasonably reliable information’ would suffice to ‘warrant a prudent person believing’ that a person has committed a crime.”   Burke v. Town of Walpole, 405 F.3d 66, 80 (1st Cir.2005) (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 254 (1st Cir.1996).
  71. If defendant’s experts opine he is not sane at the time of the offense, then the state is not authorized to request a general fitness exam. The state holds no legal right under the statutes to plead insanity for the defense, when the defense is only pleading that the insanity was limited to the time of the offense. However, the defendant is unfit for trial as he cannot provide assistance to the defense attorney. A discharge hearing must occur at this point. People v. Sedlacek, 2013 Ill. App. LEXIS 172 (5 Dist. March 2013). The Department of Mental Health is not required to house defendants who are unfit for trial but not in need of mental health treatment and not committable. People v. Lang, 62 Ill. App. 3d 688, 378 N.E.2d 1106 (1 Dist. 1978). Least restrictive environment is required by law, unless the defendant is proven in an evidentiary hearing to be too dangerous to release or under civil commitment proceedings he is found to be a danger to himself or others. Treatment may still be mandated, whether as an inpatient in a secure facility or as an outpatient, for a period of time to be determined by statute, by the court, and by the treating physician.
  72. As the IL fitness statute, 725 ILCS 5/104 does not differentiate between someone who is unfit or insane and someone who is temporarily insane or has a temporary altered mental status, there is a large hole in the law that leaves the latter subject to inappropriate and perhaps overly harsh and burdensome denial of their liberty rights. It would be appropriate for a court to certify a question to the IL Supreme Court as to whether this law is unconstitutional concerning those who have temporary insanity or an altered mental state that causes them to commit an offense. In addition, this would be an appropriate issue of first impression to be addressed by direct appeal if the fitness statute dispositions are used for a person with temporary insanity or an altered mental state at time of offense who is fit and sane at other times.
  73. However, the IL statutes for fitness do NOT differentiate between how a person found insane versus one found temporarily insane should be handled. There is a total absence of law pertaining to the disposition of persons found temporarily insane, with lack of intent, and therefore not guilty by reason of temporary insanity. It is fundamentally unfair to confine them to a mental institution if they are unlikely to be in that temporarily insane state again, or if they are not dangerous while in that state.
  74. Once an Examiner’s Report is Received by the Court, it Must hold a Fitness Trial (Hearing) within 45 Days.
  75. The fitness hearing must be held within 45 days of receiving the report of the fitness exam, regardless of the results of the report per 725 ILCS 5/104‑16: “725 ILCS 5/104‑16 (a) The court shall conduct a hearing to determine the issue of the defendant’s fitness within 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it”
  76. However, there is no legal penalty to the court or state if they refuse to hold the hearing within 45 days. This is often abused and the courts may grant continuance after continuance, or keep reordering the fitness exam. The law allows this to toll speedy trial.
  77. The details of the forensic examiner’s report have no bearing on scheduling the fitness hearing. A judge may not continue to re-order the BCX until he obtains a report of fitness or no fitness even if the defendant refuses to cooperate and the examiner reports he is unable to determine fitness, in order to delay a hearing. The hearing is a statutory right and delaying the hearing because the report says that the examiner cannot determine fitness due to failure to cooperate does NOT toll this statutory time period of 45 days after the report is received. A judge has no legal authority to mandate that the defendant must answer questions. [no case law available on this, but this is writer’s opinion based on case law as to plain language interpretation of a statute – Case law concerning plain language interpretation of law: The fundamental rule of statutory construction is to ascertain and give effect to the legislature’s intent.  People v. Pack, 224 Ill.2d 144, 147, 308 Ill.Dec. 735, 862 N.E.2d 938 (2007).   The language of the statute is the best indication of legislative intent, and we give that language its plain and ordinary meaning.  Pack, 224 Ill.2d at 147, 308 Ill.Dec. 735, 862 N.E.2d 938.   We construe the statute as a whole and cannot view words or phrases in isolation but, rather, must consider them in light of other relevant provisions of the statute.  People v. Beachem, 229 Ill.2d 237, 243, 321 Ill.Dec. 793, 890 N.E.2d 515 (2008).]
  78. If Found Unfit Must Determine Least Restrictive Environment for Treatment and Further Evaluation
  79. The Illinois Statutes require that if a defendant is eligible for bail, then bail cannot be revoked and the defendant must be placed in the least physically restrictive treatment program (i.e. unless found dangerous in an evidentiary hearing or not eligible for bail, the treatment must be outpatient, unless the psychiatrist designated to treat the defendant finds it necessary under appropriate civil involuntary commitment laws to hold the defendant in a secure setting.)
  80. As section (b) of 725 ILCS 5/104-17 conflicts with section (a) in that it states that if the discretionary placement by order of court is with the Department of Human Services it must be in a secure facility until a treatment plan is developed and then the DHS will determine if the treatment should be inpatient or outpatient, a question needs to be certified to the Illinois Supreme Court to determine if section (a) over-rides section (b) in the case of those defendants eligible for bail and determined not to be dangerous.
  81. It appears on its face that mandating a secure facility when a defendant is eligible for bail and not dangerous, is a violation of equal protection and discriminatory against those placed in the Dept. of Human Services when they do not have the funds to pay for private mental health treatment on an outpatient basis due to indigency. Therefore, section (b) appears fundamentally unconstitutional, but this is an issue of first impression that must be tested by the courts.725 ILCS 5/104-17. Commitment for Treatment; Treatment Plan. (a) If the defendant is eligible to be or has been released on bail or on his own recognizance, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment plan. (b) If the defendant’s disability is mental, the court may order him placed for treatment in the custody of the Department of Human Services, or the court may order him placed in the custody of any other appropriate public or private mental health facility or treatment program which has agreed to provide treatment to the defendant. If the defendant is placed in the custody of the Department of Human Services, the defendant shall be placed in a secure setting. During the period of time required to determine the appropriate placement the defendant shall remain in jail. If upon the completion of the placement process the Department of Human Services determines that the defendant is currently fit to stand trial, it shall immediately notify the court and shall submit a written report within 7 days. In that circumstance the placement shall be held pending a court hearing on the Department’s report. Otherwise, upon completion of the placement process, the sheriff shall be notified and shall transport the defendant to the designated facility. The placement may be ordered on either an inpatient or an outpatient basis. 
  82. Edward’s Issues and Miscellaneous Concerns
  83.  As a retired physician and former Medical Director of a Psychiatry/Psychology group practice, I recommend that during fitness exams that the defendant should have a right set in the statutes to have a tape recording, video recording, or silent witness present (especially if they are mentally incompetent, youthful, or have been abused by police or medical staff in the past and need someone’s presence to keep them calm and cooperative).
  84. There is NOTHING in the American Psychiatric Association’s ethical standards or the Association of Psychiatry and the Law ethical standards that suggest universally that a silent witness or recording would interfere with the examiner’s ability to obtain an accurate examination[9].  Of course, in some situations a witness could be intimidating and that would interfere with the exam, but there are also instances, such as with a child, with a person with PTSD or who is claustrophobic, or the mentally ill or mentally challenged that a person would be comforted and more likely to give accurate answers to the examiner if they were present. The stated policy of the Cook County Circuit Court Forensic Examiner that witnesses universally interfere with exams has no basis in fact.
  85. Unless this is done, the defendant will have no due process means of having the medical examiner’s interview reviewed by other professionals for standard of care and accuracyThe defendant would have no way of refuting a false mental health diagnosis made by an incompetent examiner outside the standard of care of the profession.  This would deny due process.
  86. The United States Supreme Court in Indiana v. Edwards (2008) went beyond Faretta and stated that even if a defendant is mentally fit to stand trial, the State may deny the defendant the right to self-representation on grounds that he is mentally not competent to represent himself IF HE WOULD BE DENIED A FAIR TRIAL. They stated that mental illness is not a unitary or static concept and that the trial judge must carefully consider this issue. Yet they set NO guidelines as to the definition of mental competency to self-representation and specifically rejected Indiana’s blanket bar on self-representation if the court finds the defendant cannot “communicate coherently.”
  87. This poses a dilemma for the court as the court must itself determine mental competency for self-representation without any guidelines at present.
  88. Regardless of the result of the forensic clinical exam and the examiner’s report, I recommend that the judge should question the defendant and have this on the record. Particularly with very intelligent and legally savvy defendants who refuse to answer questions at a fitness exam because they feel the fitness order was illegal and unjustified or because they disagree with the court’s dicta [U.S. Supreme Court dicta in Estelle v. Smith, 451 U.S. 454 (1981) that the defendant has no constitutional fifth amendment right to have a witness present during a fitness exam or a recording of the fitness exam], it is important for the judge to question the defendant on the record to verify fitness and competence for self-representation. The answers to these questions can then be utilized by the court in lieu of a professional’s fitness exam report to determine the issue of fitness, but not the issue of mental illness. A professional forensic psychiatric exam is not really necessary to determine fitness, but is necessary to determine if the defendant suffers from mental illness.
  89. The questions should include the following:
  • if the defendant is able to formulate questions logically that address specific issues related to his case (the judge could ask the defendant a hypothetical case about a crime and what a witness saw, asking the defendant to take notes, and then ask him what they would ask the witness on the stand in order to assess this issue);
  • if the defendant understands the role of the players in the court;
  • if the defendant understands the charges against him or what he is accused of;
  • if the defendant understands the possible sentence and what the word “sentence” means;
  • if the defendant understands the meaning or actual consequences of being sentenced (jail, loss of liberty, parole, not able to make phone calls or visit persons whenever they want) as well as what these consequences entail;
  • if the defendant is oriented as to time, place, and situation (that he is in custody, on bail, in a certain place, city, and on a certain date and what that means);
  • if the defendant expresses basic understanding of the concept of legal research and the significance of statutes, codes, and case law, as well as how to accomplish this while in custody or on bail (go to law library, use legal resources, talk with an attorney – for example: ask the defendant to read a statute and then ask what it means to make sure the defendant can read and make a rational interpretation of what they read); and
  • if the defendant is able to control his behavior and emotions so that he can effectively listen, take notes, and formulate questions including questions to a stand-by counsel regarding courtroom procedure.

90. If all of these issues are answered in the affirmative then the defendant should be considered fit for purposes of trial and competent for purposes of self-representation. If the defendant meets all these criteria but due to PTSD may have a flashback triggered with the questioning of a particular witness due to the topic discussed, the court has plenary power, as an ADA accommodation, to allow a stand-by counsel to question that witness with prior guidance from pro se defendant. There is to date no case barring this type of order.

91.Unfortunately, courts are left to formulate criteria for mental competence for self-representation with the United States Supreme Court holding in abeyance further decisions upon the criteria for mental competence for self-representation until further cases reach the Court.

[1] American Psychiatric  Association, 1994 The Diagnostic and Statistical Manual Revision IV (DSM-IV)

[2]  Freudenreich, Oliver (3 December 2012). “Differential Diagnosis of Psychotic Symptoms: Medical “Mimics””Psychiatric Times. UBM Medica. Retrieved October 2013.

[3] FN = footnote

[4] J Am Acad Psychiatry Law , Competence to Stand Trial Should Require Rational Understanding, 39:1:19-30 (February 2011)


[5] Reber AS, Reber E: The Penguin Dictionary of Psychology (ed 3).London: Penguin Books, 2001


[6]    725 ILCS 5/104-13. Fitness Examination.

(a) When the issue of fitness involves the defendant’s mental condition, the court shall order an examination of the defendant by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. No physician, clinical psychologist or psychiatrist employed by the Department of Human Services shall be ordered to perform, in his official capacity, an examination under this Section.

[7] 725 ILCS 5/104-16(c) The defendant has the right to be present at every hearing on the issue of his fitness. The defendant’s presence may be waived only if there is filed with the court a certificate stating that the defendant is physically unable to be present and the reasons therefor. The certificate shall be signed by a licensed physician who, within 7 days, has examined the defendant. [emphasis added]
[8]720 ILCS 5/12-3

Sec. 12-3. Battery.

(a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.

720 ILCS 5/12-3.05

Sec. 12-3.05. Aggravated battery.

(d) Offense based on status of victim. A person commits aggravated battery when, in committing a battery, other than by discharge of a firearm, he or she knows the individual battered to be any of the following:

(4) A peace officer:

(i) performing his or her official duties;

(h) Sentence. Unless otherwise provided, aggravated battery is a Class 3 felony.

Aggravated battery as defined in subdivision . . . (d)(4) . . . is a Class 2 felony.

[9] See these ethical standards attached or on accompanying CD

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