Burden of Proof and Intent: Mental Incompetency and a finding

Of Judicially Incompetent to Stand Trial: An Analysis

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

I once heard a psychologist argue that in order to practice law, one had to be

“Judicially Competent to Stand Trial.” I have also heard psychiatric social workers

argue that one who is not “Judicially Competent to Stand Trial” cannot own property, or

contract. I would like to argue that these persons are mistaken, in part, because the type

of intent required for a particular type of activity parallels the burden of which is required

to prove a relevant fact at trial.

I have argued previously that contemporary science, based on Quantum Physics,

tells us that we live in a world and universe of moderate relativism. There is no absolute

certainty in this world or universe, only probable knowledge. Thus, in relation to law,

and what is required to prove a fact, or reality, using a legal proceeding, there are three

different standards of proof which must be proved. They are as follows:

1. Civil Case- property, contracts, tort, constitutional rights at law without equity

Preponderance of the Evidence

55% standard of proof/reality

 2. Civil Regulatory Case- licensure, environmental or corporate regulation,

-involuntary psychiatric commitments, guardianships

-Clear and Convincing Evidence 85% standard of proof/reality

3. Criminal Case- Prosecution of Criminal Defendant

- Evidence Beyond a Reasonable Doubt

- 99.9999999% standard of proof/reality

Now, my point is that in each of the three different proceedings discussed above,

the standard for “reality” is different, and thus, the type of intent required to intend reality

for that type of proceeding is different. Thus, the following is true:

In order to be judicially incompetent to contract or own property one must not be able

to know reality at a percentage of 55% or better. Now, some type of test is required, I

suppose, but it should generally say that if the person is 55% accurate in the person’s

reality perceptions, then that person is judicially competent to stand trial to own property

and to contract. If a person is alleged to be delusional, or hallucinatory, or have

dementia, such that the person cannot form contractual intent or ownership intent,then it

must be proved that the person’s intent is less accurate than 55% or better.

Similarly, in order to be judicially incompetent to take care of your own personal or

financial affairs (guardianship), or to be judicially incompetent on the basis of being a

danger to oneself or a third person (involuntary commitment), or to be judicially

incompetent to practice law (hold a license), one must not be able to know reality at a

percentage of 85% or better. Again, if a person is alleged to be delusional, or

hallucinatory, or have dementia, such that the person cannot form regulatory intent, then
it must be proved that the person’s intent/reality perception is less accurate than 85% or

better. Thus, logically, one could have the judicial intent necessary to own property or

contract, but not have the judicial intent necessary to practice law or take care of one’s

own affairs without supervision. Of course, it would also have to proven that the

proposed guardian was more competent in this respect than the proposed ward.

Finally, in order to be judicially incompetent to stand trial to form mens rea, or

criminal intent, one must be found to be judicially incompetent to stand trial by reason of
not being able to know reality at a level of 99.9999999% . A Criminal Conviction
requires that the Defendant must have really known what he or she was doing at a
percentage of 99.999999%, or there is no basis for specific intent, that is, criminal intent.
Now, it is possible that a person does not reach the 85% test for involuntary commitment
(knows reality below 85% perceptually) and also clearly does not meet the 99.99999%
test for criminal liability, and thus could be involuntary committed to a psychiatric ward
for some period of time for being a danger to oneself or another. However, it is equally
true that a person could know reality at 87% probability but not 99.99999% probability,
and such a person could practice law, for example, could not be involuntarily committed,
could not be subject to a guardianship, yet still be acquitted of criminal charges for lack
of specific or criminal intent. Obviously, such a person could also own property and
have the power to contract. The idea that a criminal defendant has been found judicially
incompetent to stand trial for an inability to form specific intent cannot be used as a basis
for asserting that such a person cannot own property, contract, practice law, have and
exercise constitutional rights.