The Strugar Competency Proceedings: Lessons for Capacity Analysis
By Bennett Blum, MD | Updated July 12, 2026
A psychiatric diagnosis does not answer a legal capacity question. The central forensic task is to identify the abilities required by the governing legal standard, examine how any impairment affected those abilities at the relevant time, and explain the conclusion without reaching beyond the evidence.
That principle was tested in unusually consequential circumstances in Prosecutor v. Pavle Strugar before the United Nations International Criminal Tribunal for the former Yugoslavia. Dr. Blum’s role in the matter is part of his history as an expert witness. Its enduring relevance to attorneys, however, lies less in the prominence of the forum than in the structure of the analysis.
The forensic question in the Strugar proceedings
During Strugar’s trial, the defense sought termination of the proceedings on the ground that he was not fit to stand trial. In March 2004, the Prosecution submitted a joint medical report prepared by Bennett Blum, MD; Vera Folnegović-Šmalc, MD; and Daryl Matthews, MD. The experts reviewed medical records and trial materials, interviewed Strugar, considered collateral observations, and evaluated his functional abilities. Drs. Blum and Matthews subsequently testified before the Trial Chamber.[1]
The question was not whether Strugar was entirely free of illness or cognitive limitation. The Tribunal had to determine whether he retained enough of the particular abilities required to participate meaningfully in the proceedings. The Trial Chamber identified a non-exhaustive set of capacities, including the abilities to understand the charges, proceedings, and evidence; instruct counsel; appreciate the consequences of the proceedings; plead; and testify.[1]
The experts agreed on several clinical facts, including the presence of vascular dementia and some memory difficulty, but disagreed about the functional significance of those findings. The Trial Chamber accepted the approach that concentrated on Strugar’s actual, legally relevant abilities and found him fit to stand trial.
The Appeals Chamber later reviewed the dispute and upheld that determination. Its analysis reinforced a fundamental distinction: medical diagnoses—even multiple diagnoses—do not establish legal incompetence unless their functional effects compromise the abilities required by the applicable legal standard.[2]
Why function matters more than a diagnostic label
A diagnosis may establish the presence of a clinical condition. A capacity opinion requires a further step: a reasoned connection between that condition and the person’s ability to perform the functions the law requires.
That connection cannot be assumed. A disorder may have no material effect on the ability at issue, may affect it only intermittently, or may impair one function while sparing another. Assistance available in the actual setting may also matter. Conversely, relatively subtle symptoms can be decisive if they interfere with the particular abilities required for the decision or proceeding in question.
The Strugar decisions are important not because they created a psychiatric test that can be transplanted into other cases, but because they demonstrate a disciplined sequence of analysis:
Identify the governing legal question.
Translate that question into the abilities that must be evaluated.
Determine the person’s actual functioning at the relevant time.
Connect any psychiatric, cognitive, medical, or situational impairment to those functions.
Consider the assistance and conditions under which the person was expected to function.
State the limitations of the evidence and address reasonable alternative explanations.
The Tribunal—not the experts—defined the legal standard and decided the ultimate question of fitness.
What carries over to civil capacity litigation—and what does not
Fitness to stand trial is not the same legal question as testamentary capacity, contractual capacity, donative capacity, capacity to consent, or susceptibility to undue influence. Those standards differ, and their precise elements vary by jurisdiction. A criminal-competency decision should not be cited as though it supplies the substantive legal test for a probate or civil dispute.
What does carry over is analytical discipline.
In a retrospective analysis involving a will, trust, gift, contract, or fiduciary dispute, the forensic inquiry should begin with the challenged act and the operative legal standard. The analysis must then be anchored to the relevant date or period—not merely to a diagnosis made months earlier or later.
Depending on the matter, useful evidence may include:
Contemporaneous medical records
Estate-planning files
Financial and transaction records
Correspondence and recorded communications
Witness observations
Patterns of behavior before and after the disputed act
The chronology surrounding the challenged decision
The expert’s task is to explain what those materials do and do not establish about the specific abilities at issue.
This is one reason early forensic psychiatric litigation consultation can be useful. Before the record hardens around a diagnostic label or an overbroad theory, counsel can identify the correct psychiatric question, the evidence needed to answer it, and the facts that may weaken the proposed opinion.
Capacity, vulnerability, and coercion are distinct questions
Capacity and undue influence often interact, but they are not interchangeable. A person may retain the capacity to perform a legal act and still be unusually vulnerable to manipulation. Conversely, vulnerability, dependency, or cognitive impairment does not by itself prove that undue influence occurred.
A sound analysis keeps the questions separate before examining their relationship.
Capacity analysis addresses the person’s abilities in relation to the particular decision. Undue-influence analysis additionally examines the relationship, the decision environment, the alleged influencer’s conduct, access to information and independent advice, dependency, isolation, fear, deception, and other evidence of compromised volition.
The same restraint applies to coercion. Similar human mechanisms may arise in very different legal settings, but context and doctrine matter. No conclusion should be imported from one forum into another without attention to the governing law and the actual evidence.
The value of a consulting role
In a complex matter, the most useful first step may not be a report or testimony. A non-testifying consultant can help counsel:
Frame the psychiatric issue accurately
Identify missing records and witnesses
Test whether the chronology supports the case theory
Evaluate the reasoning of an opposing expert
Decide whether a testifying opinion is warranted and supportable
The consultant’s role is not to supply a preferred conclusion. It is to help counsel understand what the evidence can support, what it cannot support, and what further development may be necessary.
Attorneys handling selected complex matters involving mental or testamentary capacity, undue influence, coercion, elder financial exploitation, or seeking review of an opposing expert's opinion, may submit a non-confidential attorney case inquiry. Do not send records or confidential information before conflicts have been checked and a written engagement agreement is in place.
This article is educational and is not legal advice. Capacity standards, burdens of proof, evidentiary rules, and the permissible role of an expert vary by jurisdiction and type of proceeding. Counsel should identify the controlling law; the court determines the ultimate legal issues.
Sources
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision Re the Defence Motion to Terminate Proceedings (ICTY Trial Chamber II, May 26, 2004), especially paragraphs 1–17 and 35–53.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement (ICTY Appeals Chamber, July 17, 2008), especially paragraphs 25–31 and 41–64.