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Mental Health Defenses in Criminal Court - What They Are, How They May Affect Your Case

Mental Health Defenses in Criminal Court - Erin Bailey Law

It is very common for people accused of a crime to have a mental health diagnosis. With that in mind, it is also very important that they have an experienced criminal defense attorney who understands and is able to maximize the impact that Mental Health played in the circumstances of the alleged crime. 

Here we will outline mental health terms and potential defenses in criminal law along with how they may impact proceedings. 


In the State of South Carolina, anyone accused of a crime must be competent to stand trial. If an accused person does not understand the charges against them, does not understand the legal process, or cannot assist in their own defense, they are not competent to stand trial. An evaluation for competency must first be made by forensic psychologists that work for the State of South Carolina. If the defense disagrees with the assessment made by the state evaluators, they may hire a private forensic psychiatrist for a second opinion. 

A Defendant who is not competent may be committed to the State Mental Hospital in an attempt to restore their competency through medication and therapy. If they are unable to be restored to competency, then the case is referred to probate court. Probate court may involuntarily commit the person for hospitalization, depending on the circumstances. 

A person may be not competent to stand trial as a result of mental illness, brain injury, developmental disabilities, low IQ, or a medical condition. 

Insanity Defense: Not Guilty by Reason of Insanity

If an accused criminal defendant is competent to stand trial, the next potential defense to examine is whether they are Not Guilty by Reason of Insanity. The question here is whether, at the time of alleged crime, the Defendant was unable to distinguish right from wrong due to mental disease or defect. Again, an evaluation must be made by the State examiners first. If the Defense disagrees with their findings, they may hire an independent forensic psychiatrist to examine the Defendant and the records. 

If a Defendant is found Not Guilty by Reason of Insanity, they will be committed to the State Mental Hospital for 120 days. At the end of the 120 day period, the Department of Mental Health will make further recommendations for treatment, which could include further hospitalization, placement in a managed living home, or release with supervision that the person is compliant with outpatient treatment. The length of supervision can not exceed the maximum prison sentence that the crime would carry. 

Guilty But Mentally Ill

If an accused criminal defendant understands the proceedings against them and knew the difference between right and wrong, they can still potentially be found Guilty But Mentally Ill. This finding is made when the accused understood the difference between right and wrong, but was unable to conform their conduct accordingly due to mental disease or defect. 

A finding of Guilty But Mentally Ill means that if the accused has to serve any prison time for their alleged crime, they will receive extra mental health services in the Department of Corrections. 


If a person accused of a crime has mental illness, but does not meet the legal standard for Not Competent, Not Guilty by Reason of Insanity, or Guilty But Mentally Ill, there are still options. The accused’s mental health history and diagnosis can be presented to the prosecutor and judge as a way to soften any potential sentence. 

Many counties in South Carolina offer Mental Health Court, where a defendant must comply with treatment and regularly check in with a Judge as a type of alternative sentence. 

Judges can order that a Defendant comply with mental health treatment as a condition of probation. 

Non-Traditional Mental Health Defenses

The law in South Carolina is written with traditional mental health diagnoses in mind, for example, schizophrenia, bi-polar disorder, and mania. However, since these laws were last revised, these concepts have been applied to more non-traditional conditions. 

Traumatic Brain Injury, Autism, Low IQ, Stroke, dementia, and developmental disabilities are just a few examples of conditions that potentially could give rise to a mental health defense.

Mental Health Defenses are highly technical and require an attorney with experience. Trial lawyer Erin Bailey has prosecuted AND defended both traditional and more non-traditional mental health cases throughout her career. 


Learn more about our practice areas and criminal defense lawyers, or get in touch with the Erin Bailey Law team today.

This post is offered for general information only and is not legal advice. Our lawyers must make a case-by-case assessment of any claims. Results may vary depending on the facts involving any case.

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