Competency/ Insanity


Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own defense or to instruct counsel on the accused's own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge (has the same effect as a judgment of acquittal).  11 Del. Crim. Code § 404


It is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused's conduct. 11 Del. Crim. Code § 401

Guilty but mentally ill - no finding of "guilty, but mentally ill" can be rendered until the trier of fact has examined all reports (including the presentence investigation); has held a hearing on the sole issue of the defendant's mental illness, at which either party may present evidence; and is satisfied that the defendant did in fact have a mental illness at the time of the offense to which the plea is entered. 11 Del. Crim. Code § 408

Special Rules

In all criminal proceedings involving a victim or witness with a cognitive disability, the court and the prosecution shall take appropriate action to ensure a prompt trial in order to minimize the length of time the victim or witness must endure the stress of the victim's or witness's involvement in the proceedings. 11 Del. Code § 9423

Protections for witnesses/victims with “cognitive disabilities:” A victim or witness with a cognitive disability is entitled to an explanation, in language the victim or witness understands, of all legal proceedings in which the victim or witness is to be involved. A victim or witness with a cognitive disability is entitled to be accompanied, in all proceedings, by a "friend'' or other person in whom the victim or witness trusts, which person shall be permitted to advise the judge, when appropriate and as a friend of the court, regarding the person with a cognitive disability and that person's ability to understand proceedings and questions. A victim or witness with a cognitive disability is entitled to information about, and referrals to, appropriate social services and programs to assist the victim or witness, and the victim's or witness's family, in coping with the emotional impact of the crime. 11 Del. Code § 9424

"Cognitive disability'' means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. "Cognitive disability'' also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation. 11 Del. Code § 9422


Death Penalty 

Before trial the defendant may file a motion with the Court alleging that the defendant was seriously mentally retarded at the time the crime was committed. Upon the filing of the motion, the Court shall order an evaluation of the defendant for the purpose of providing evidence of the following: 1) Whether the defendant has a significantly subaverage level of intellectual functioning; 2) Whether the defendant's adaptive behavior is substantially impaired; and 3) Whether the conditions described in paragraphs (d)(1) and (d)(2) of this section existed before the defendant became 18 years of age. 11 Del. Code § 4209