Wisconsin Statutes
Wis. Stat. § 971.13 (2026)
Competency
✓ current as of July 2026
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971.13(1)(1) No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.
971.13(2)(2) A defendant shall not be determined incompetent to proceed solely because medication has been or is being administered to restore or maintain competency.
971.13(3)(3) The fact that a defendant is not competent to proceed does not preclude any legal objection to the prosecution under s. 971.31 which is susceptible of fair determination prior to trial and without the personal participation of the defendant.
971.13(4)(4) The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) or (5) unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant.
971.13 NoteJudicial Council Committee’s Note, 1981: Fundamental fairness precludes criminal prosecution of a defendant who is not mentally competent to exercise his or her constitutional and procedural rights. State ex rel. Matalik v. Schubert, 57 Wis. 2d 315, 322 (1973).
971.13 NoteSub. (1) states the competency standard in conformity with Dusky v. U.S., 362 U.S. 402 (1960) and State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250, 265 (1974). Competency is a judicial rather than a medical determination. Not every mentally disordered defendant is incompetent; the court must consider the degree of impairment in the defendant’s capacity to assist counsel and make decisions which counsel cannot make for him or her. See State v. Harper, 57 Wis. 2d 543 (1973); Norwood v. State, 74 Wis. 2d 343 (1976); State v. Albright, 96 Wis. 2d 122 (1980); Pickens v. State, 96 Wis. 2d 549 (1980).
971.13 NoteSub. (2) clarifies that a defendant who requires medication to remain competent is nevertheless competent; the court may order the defendant to be administered such medication for the duration of the criminal proceedings under s. 971.14 (5) (c).
971.13 NoteSub. (3) is identical to prior s. 971.14 (6). It has been renumbered for better statutory placement, adjacent to the rule which it clarifies. [Bill 765-A]
971.13 AnnotationDefense counsel having reason to doubt the competency of a client must raise the issue with the court, strategic considerations notwithstanding. State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986).
971.13 AnnotationA probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer’s competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), 95-0907.
971.13 AnnotationThere is a higher standard for determining competency to represent oneself than for competency to stand trial, based on the defendant’s education, literacy, fluency in English, and any physical or psychological disability that may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and postconviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938.
971.13 AnnotationA prior mental illness or a mental illness diagnosis made subsequent to the proceeding in question may create a reason to doubt competency, but neither categorically creates a reason to doubt competency. State v. Farrell, 226 Wis. 2d 447, 595 N.W.2d 64 (Ct. App. 1999), 98-1179.
971.13 AnnotationThis section codifies the two-part “understand-and-assist” due process test for determining competency set forth in Dusky, 362 U.S. 402 (1960), that considers whether a defendant: 1) has sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding; and 2) has a rational as well as factual understanding of the proceedings. Thus, a defendant is incompetent if the defendant lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in the preparation of the defense. State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, 97-3217. See also State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135, 13-1228.
971.13 AnnotationIt is entirely reasonable that a competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586.
971.13 AnnotationA judge who carefully considered the transcribed record and the judge's recollection of a previous proceeding involving the defendant did not impermissibly testify. There is no substantive difference between a judge’s observation of a defendant’s demeanor at the time of a competency hearing and the judge’s observations of the defendant at an earlier proceeding. Both may be probative. State v. Meeks, 2002 WI App 65, 251 Wis. 2d 361, 643 N.W.2d 526, 01-0263.
971.13 AnnotationReversed on other grounds. 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, 01-0263.
971.13 AnnotationCounsel’s testimony on opinions, perceptions, and impressions of a former client’s competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, 01-0263.
Notes of Decisions
Cited in 55
cases (15 in the last 5 years), 1974–2026 · leading case: Kainz v. Ingles, 2007 WI App 118 (Wis. Ct. App. 2007).
Kainz v. Ingles, 2007 WI App 118 (Wis. Ct. App. 2007). “§ 971.13, and SCR 20:1.14, and because the competency standard used by the trial court is not properly supported by law and is too broad; and (3) her choice not to accept the settlement was "not completely irrational" because even though one estimate was that her damages were…”
State v. Garfoot, 558 N.W.2d 626 (Wis. 1997). “" Wis. Stat. § 971.13 (1). There are several theoretical reasons supporting the legal principle that an incompetent or unfit defendant may not be required to stand trial: (1) were he tried it would violate the long-standing common-law view that persons should not be tried in…”
State v. Byrge, 2000 WI 101 (Wis. 2000). “Judicial Council Committee's Note, 1981, § 971.13(1), Stats. "Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity *216 to understand the proceedings and to assist counsel.”
State v. Jimmie Lee Smith, 2016 WI 23 (Wis. 2016). “§ 971.13 (1), providing that "[n]o person who lacks substantial mental capacity to understand the proceedings or 23 No.”
State v. Klessig, 564 N.W.2d 716 (Wis. 1997). “Wis. Stat. § 971.13 (1) defines competency to stand trial and outlines the effects of being deemed incompetent to stand trial: Competency.”
State v. Joseph G. Green, 2022 WI 30 (Wis. 2022). “¶11 We begin with the statutory foundation for commitment proceedings in criminal prosecutions, Wis. Stat. § 971.13 (1), which provides: No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or…”
State Ex Rel. Vanderbeke v. Endicott, 563 N.W.2d 883 (Wis. 1997). “We conclude that when an administrative law judge has reason to doubt that a probationer is competent, a competency proceeding should be conducted by the circuit court in the county in which the probationer was sentenced and that the competency proceeding should adhere to Wis.…”
State v. Hanson, 2001 WI 70 (Wis. 2001). “09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13 . However, given the state of the record, we cannot determine whether Hanson's driving record supported a criminal sentence even without consideration of his…”
State v. Johnson, 395 N.W.2d 176 (Wis. 1986). “The second basis for Kagan-Kans’ decision not to raise the competency issue was his own assessment based on sec. 971.13, Stats., that Johnson was competent, at least with respect to those areas which Kagan-Kans thought Johnson needed to be competent.”
State v. Wanta, 592 N.W.2d 645 (Wis. Ct. App. 1999). “at 354 (citations omitted); § 971.13(1), Stats. 4 While the pro *692 hibition against trying an incompetent defendant is deeply rooted in our common law heritage, making competence to stand trial in a criminal proceeding a fundamental right requiring due process protections, it…”
Shun Warren v. Michael Baenen, 712 F.3d 1090 (7th Cir. 2013). “” Wis. Stat. § 971.13 (2). And indeed the record, rather than establishing a reasonable probability that Warren would have been found incompetent, shows that Warren met the constitutional standard for competence to enter a plea.”
State v. Debra A. E., 523 N.W.2d 727 (Wis. 1994). “11 For the purposes of trial, conviction or sentencing, a defendant is incompetent if he or she lacks "substantial mental *127 capacity to understand the proceedings or assist in his or her own defense_" Section 971.13(1), Stats. 1991-92. Mirroring the standard for competency to…”
— Wis. Stat. § 971.13(1) — 32 cases
State v. Byrge, 2000 WI 101 (Wis. 2000). “Judicial Council Committee's Note, 1981, § 971.13(1), Stats. "Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity *216 to understand the proceedings and to assist counsel.”
State v. Jimmie Lee Smith, 2016 WI 23 (Wis. 2016). “§ 971.13 (1), providing that "[n]o person who lacks substantial mental capacity to understand the proceedings or 23 No.”
State v. Garfoot, 558 N.W.2d 626 (Wis. 1997). “" Wis. Stat. § 971.13 (1). There are several theoretical reasons supporting the legal principle that an incompetent or unfit defendant may not be required to stand trial: (1) were he tried it would violate the long-standing common-law view that persons should not be tried in…”
State v. Joseph G. Green, 2022 WI 30 (Wis. 2022). “¶11 We begin with the statutory foundation for commitment proceedings in criminal prosecutions, Wis. Stat. § 971.13 (1), which provides: No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or…”
State v. Wanta, 592 N.W.2d 645 (Wis. Ct. App. 1999). “at 354 (citations omitted); § 971.13(1), Stats. 4 While the pro *692 hibition against trying an incompetent defendant is deeply rooted in our common law heritage, making competence to stand trial in a criminal proceeding a fundamental right requiring due process protections, it…”
— Wis. Stat. § 971.13(3)(d) — 2 cases
State v. Walter J. Lange (Wis. Ct. App. 2022).
State v. Curtis F. Anderson (Wis. Ct. App. 2024).
— Wis. Stat. § 971.13(3)(e) — 1 case
State v. Curtis F. Anderson (Wis. Ct. App. 2024).
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