Written by attorney Spencer Alan Cordell

Insanity vs. Incompetence (Florida)


Insanity has to deal with the time of the offense. The question is, at the time the crime occurred, was the accused so crazy that they couldn't tell right from wrong. This defense isn't used as much as you might think from TV and movies for a couple reasons:

  1. It is an affirmative defense. That means the Defendant has to prove that they were crazy. Not just crazy: so crazy that they couldn't tell right from wrong. They also must admit committing the crime in order to be able to argue they were insane when they committed it.
  2. The threshold is pretty low. It's not enough to be a little crazy, or even a lot crazy. The Defendant has to be unabe to tell rigth from wrong or recognize the consequences of their when they did it. It is extremely difficult to win this defense.


Incompetence or, more fully, incompetence to proceed, has to deal with the Defendant's current mental state. The level of mental state to be competent is also fairly low. Incompetence has nothing to do with guilt or innocence of the allegations, but whether or not the Defendant understands enough of what's going on to appreciate what they are being charged with and partcipate in their defense. A person should be found incompetent if they do not:

  • understand the charges/allegations against them
  • comprehend the possible penalties
  • understand the adversary nature of the legal process
  • have the ability to disclose to an attorney pertinent facts that would aid in their defense
  • exhibit appropriate courtroom behavior
  • have the ability to testify relevantly

If someone is found incompetent, the court will try to get them treatment if it is possible to restore them to competence in order to face the charges against them.

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