1/2/2018
Court Preparation and Testimony
Assessing Competence to Stand Trial
Bruce Michael Cappo, Ph.D., ABPP Clinical Associates, P.A.
January 5, 2018 For CrossWinds Counseling & Wellness
About your presenter • Started Clinical Associates, P.A. in 1992 • Multi‐Disciplinary ‐ About 85 practitioners Lenexa, Wichita, Hays in KS and Kansas City and St. Louis in MO • Psychiatrists, Psychologists, Psychiatric Nurse Practitioners, LSCSWs, LMLPs, LCPs, LPCs, LCPCs, LCACs, and others • While CA does everything except child custody evaluations… • My practice is limited to evaluation & consultation • Forensic, Diagnostic & Risk Related Evaluations • Federal & State Courts, Federal agencies (DEA, ICE, DOE, etc), Police Depts, Clergy • More info, Vita, download this .ppt file and reference list at: www.clinical‐ assoc.com • Elizabeth Layton Mental Health Center evals since 1988 and Northeast Kansas Guidance Center before that
1 1/2/2018
Educational Objectives
• Describe how mental health professionals can best prepare for potential testimony in most any court situation. • Distinguish the role of eye witness versus expert witness testimony, and how to present such evidence effectively in either situation. • Identify key aspects in documentation when facing possible court involvement. • Clarify the role for therapists in providing Competency Evaluations as compared to other types of testimony or assessments.
Educational Objectives
• Recommend evaluation tools to consider in completing Competency Evaluations. • Increased awareness of the history of competency in the legal system • Increased understanding of the importance of utilizing assessments in addition to an interview in completing such an assessment • Increased knowledge regarding the most utilized assessments in determining competency • Increase knowledge for application of the necessary components of a useful report for Kansas Courts
2 1/2/2018
Nature and Method of Forensic Assessment
• State of the art • Paucity of scientific knowledge concerning human behavior in many contexts • Uncertainty in behavioral sciences • Gaps in current state of knowledge with respect to questions of law • Some questions asked by law are inherently unanswerable
Uncertainty in Behavioral Sciences
• Question of sufficient rigor to warrant admissibility of opinions • If admitted, how much weight should they be given? • Scientific vs clinical opinions • Generalizability of findings • Often seen as more art and intuition than science by legal community
3 1/2/2018
Gaps in current state of knowledge with respect to questions of law
• Lots of research on children and divorce • Little is directly applicable to child custody disputes or matters of policy • Lots of research on training persons with MR in self‐help and social skills • Little research on training women with moderate MR in use of contraception or avoiding sexual abuse – relevant to a court’s question of involuntary sterilization
Some questions asked by law are inherently unanswerable
• How will it impact a child to spend one versus two weeks a year with a particular parent?
4 1/2/2018
Paradigm Conflicts
• Legal vs behavioral philosophies • Free Will vs Determinism • If you have a seizure and hit someone you are not held responsible • If you have a mental disease that accounts for a symptom is it the same? • A compulsion to act because of OCD?
• Probability vs Certainty • Group statistics and individual statistics • Comparing one person to a group • Soft variables – not easily defined • Quantification of behaviors or events
5 1/2/2018
Professionals as Experts
• Limited area of expertise • Qualifying the expert – Voir Dier • Exclude purely moral or legal opinions • Discuss limitations of testimony • Discuss validity and level of certainty of opinions
Frye
• Frye v United States 1923 • Until 1993 dominant rule of evaluating clinical testimony • Attempt to admit polygraph into evidence • “Sufficiently established to have gained general acceptance in the particular field to which it belongs”
6 1/2/2018
Frye
• Seen as overly conservative by some • May exclude novel but reliable evidence • Seen as too lax by others • Easy to get in unreliable evidence whenever it achieves acceptance despite lack of scientific credibility (e.g. clinical predictions of dangerousness)
Daubert
• US Supreme Court 1993 • Daubert v Merrell Dow Pharmaceuticals • “an inference of assertion ... derived by scientific method” • Court should decide whether the reasoning or methodology properly can be applied to facts in issue” • Dr. Abel’s test 2002 – 2005 • Kansas is a Daubert State as of 7‐1‐2014 (Previously Frye)
7 1/2/2018
Specific Assessments and Methods
• Competency to Stand Trial • Competency to consent to search or seizure • Mental status at time of offense (MSO) • Conservator over finances • Guardianship to make treatment decisions
Specific Testimony Related to Treatment
• Has the person progressed? • Have they internalized the relevant concepts? • Do they just say what they think you want to hear? • Have they exhibited behavioral changes? • Can they continue on their own from this point? • Will they need other treatment or support?
8 1/2/2018
Specific Assessments and Methods
• “Psychological Evaluations” • Substance Abuse Evaluations • Sex Offender Evaluations • Sexual Predator Evaluations • Parenting Evaluations • Domestic Violence Evaluations • Child Custody Evaluations • Juvenile Waive to Adult • Competency to stand trial • Competency to confess
Competency to consent to search or seizure
• 4th amendment issue – was the person competent to consent • No cause is needed in a voluntary search • Focused on extent to which police coerced the consenter • Interaction of police behavior and subject’s vulnerabilities
9 1/2/2018
Competency to consent to search or seizure
• Welsh S. White Miranda’s warning protections 2001 • J. Vijoen et al. An examination of the relationship between competency to stand trial, competency to waive interrogation rights and psychopathology 26 L and Hum Beh 481 (2002) • Recent Supreme Court decision says if both persons present then both must consent if both have interest. If only one present then he/she can consent
Mental state at time of offense
• Often involved in the “insanity defense” • Or, as we say in Kansas……. • So long and thanks for all the Thorazine…. • Kansas is one of a handful of Mens Rea states
10 1/2/2018
Insanity Defense • M’Naughten Standard • Daniel M’Naughten 1843 • Jan 20, 1843 28 y/o Glasgow woodturner • Shot Edward Drummond on a London Street • Drummond died 3 months later • Mistook Drummond for England Prime Minister Robert Peel • Defense was insanity
M’Naughten Trial
• 9 medical witnesses • Extreme paranoia and delusions • Thought the Tori party was responsible for all his troubles and personal difficulties • No medical opinion to the contrary • Lord Chief Justice Tindal directs verdict of acquittal
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Did he … • Have competent use of his understanding? • Know that the act was wicked and wrong? • Know that it was a violation of the law of God and man? • Have the capability to distinguish right from wrong?
• If not, then acquit the prisoner • Verdict was not guilty on grounds of insanity • Sent to mental institution to live the rest of his life
Queen was not happy
• Queen worried about attacks on her own life • Public and press were on Queen’s side • Referred to Parliament • House of Lords said “must be clearly proved that, at the time of the act, party was laboring under such defects of reason or disease of the mind so as to not know the nature and quality of the act or, if he did know, that he did not know it was wrong (legal not moral).”
12 1/2/2018
Agreed
• Had the jury had those instructions, M’Naughten would have presumably been convicted • All were satisfied with this new definition • Rule becomes solidly established over the next 150 years • American jurisdictions added “irresistible impulse” • Policeman at your elbow theory
American Law Institute (ALI)
• 1962 ALI published model penal code • Insanity Defense “Not responsible for criminal conduct if at the time of such conduct as a result of mental disease of defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform to the requirements of the law.”
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ALI Definition
• Addressed both cognitive (appreciate) and volitional (conform) prongs • Eventually adopted by Feds and some states • 1981 – Hinkley tries to assassinate President Reagan • 1982 Acquittal under ALI definition ‐ followed by public outrage
Insanity Reform Act of 1984
• Congress established a statutory defense of insanity for federal trials • Return to M’Naughten • Retained “appreciate” from ALI • Inability to control (volition) was gone • American Bar Assn and ApA suggested insufficient evidence to support volition
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Hinckley Backlash
• States experimented with guilty but mentally ill – wanted to narrow the insanity defense • Moved burden of proof to the defense • Montana, Idaho, Utah and then Kansas became the fourth state to go with Mens Rea • Raymond L. Spring – Washburn Law Professor & past Dean persuaded legislature that jury confusion would be eliminated by going with the new approach 1995 K.S.A. 22‐3220
Mens Rea
• Guilty Mind – a culpable mental state • Establishes criminal responsibility • State bears burden of proving mens rea • US Supreme Court has upheld mens rea issues in Montana – not ruled directly on mens rea but State Supreme Courts of Idaho, Montana, Utah and Kansas found it constitutional.
15 1/2/2018
Stats
• Insanity defense offered in 2% of criminal trials • Successful in only 10% of those • It is rare • In Kansas, verdict triggers automatic hospitalization
Challenge
• State v. Bethel 66 P.3d 840 (Kan 2003) • Supreme court upheld that abolishing insanity defense did not violate due process • Some feel this was erroneous on the part of the Court • Reality is, that for practical purposes, it abolished insanity as a defense in KS
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Kansas Case
• February 2000 Girard Kansas • 911 call – three victims – all shot • John Bethel admitted shooting his father, a nurse and another victim who happened to be in the house • Drug induced psychosis and major depression – not definitive on paranoid schizophrenia
Bethel
• Found guilty on 2 counts premeditated murder and 1 count capital murder • 2 fifty year terms sequential and 1 fifty yearr concurrent = 100 years in prison • Could plead insanity if it still existed – asserted it was a fundamental principal of our justice system • Appealed to US Supreme Court which was denied
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Interpretation
• If you shoot someone and know you are shooting a person then you have mens rea • It is irrelevant that you were delusional and thought you were in a war zone and that this fellow was going to kill you • If you knew you were killing a human being then it is murder
Mens Rea is Lacking
• A person squeezes their hands tightly together believing that they are squeezing a lemon • They are in reality strangling a human • This would meet the defense criteria and mens rea would be lacking
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Guardianship
• Delegation, by the state, of authority over an individual’s person or estate to another party • Can be limited to respect autonomy • General (plenary) or specific • Guardian for person • Competency to make treatment decisions • Conservator (or committee) for estate
Guardianship
• Hearings often lack procedural rigor • If granted, does not expire and burden is on individual to initiate restoration proceedings if change is sought • Procedural laxity is matched only by the ambiguity of specific standards • Focus is on functional approach not mental status or diagnosis
19 1/2/2018
Guardianship
• Detailed evaluation of specific functions • Necessary in limited guardianships • Note less restrictive alternatives • Some formal tests available • Community Competency Scale • Real life survival skills • 16 areas, judgment, emergencies, manage money, communicate, memory
Juvenile Waive to Adult
• K.S.A. 38‐1636 • 8 factors considered • Seriousness of the alleged offense and whether protection of the community is an issue • Committed in an aggressive, violent, premeditated or willful manner • Against person or property
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Juvenile Waive to Adult
• Number of previous and unadjudicted offenses pending • Previous history of respondent – prior offender, antisocial behavior or violence • Sophistication or maturity of respondent as determined by consideration of home, environment, emotional attitude, pattern of living or desire to be treated as an adult
Juvenile Waive to Adult
• Whether facilities or programs available to the Court are likely to rehabilitate prior to expiration of Court’s jurisdiction • Whether the interests of respondent or community would be best served by criminal prosecution or extended jurisdiction juvenile prosecution
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Considerations
• Status offenders • Youth under court jurisdiction because of acts that would not be criminal if committed by an adult • Runaways • Curfew violations • Tobacco or alcohol possession / use • May signal other problems than delinquency
“Psychological Evaluations”
• A lack of communication • Courts order a “psychological evaluation” • Costs ranged from $40 to “thousands” • Judges upset that their intent was not met • Effort to categorize and specify types of evaluations so that what the courts wanted they received
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“Psychological Evaluations”
• “Years in the making” • Finally received approval though Johnson County Administrative Judge – Eventually adopted by numerous jurisdictions • Helps all parties know what to expect • Consumer friendly • Remains a system in process and not perfect but better that what was available • Improves communication
Communicating with the Courts
• Successful translation of clinical knowledge into a legally useful form • Formal • Informal • Conclusion – expert opinion • Provide data for Court to reach a decision • Clinicians are advocates of the DATA • Timeliness
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Experts never win or lose
• As an effective advocate of the data you may be called by either side or involved by the Court itself. • Even though you may be called by one side you are not ON that side
Know the RULES
• In order to be effective you must understand court procedure & parlance • You must understand the system • Know the players or find out about them • Let the attorneys involved know about you
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Sharing Information
• This happens in stages • Help the attorney craft his line of questions to you so as to best explain the data in an accurate and understandable way • Preliminary consultation • Preliminary report of findings • Written report
The Report
• If you write a good report, your chances of having to testify decrease significantly • You may have to show up anyway because most of the time your report is not admissible unless you are there to cross examine
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Written Report
• Be accurate (dates, times, spelling, etc) • Separate facts from inferences and assumptions – just because they told you they did something doesn’t mean it happened – “Mr. X reported that he …” • Unless you know it to be true do not say it in a way that can be interpreted as such
Written Report
• Stay within the scope of the referral • If it is a question of competence to stand trial – do not make comments about the presence of a personality disorder • Avoid information overload – in rare cases a long and detailed report is necessary – most times it is not and the reader (and your message) gets lost
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Written Report
• Provide enough information • Just a conclusion without leading the reader along your path of thinking inspires skepticism and mistrust and you come off as simply drawing conclusions • The report should state the information necessary, lead the reader along your thinking and make sense when you get to the end as to how you got there
Written Report
• Find out who the audience is – use language expected by the audience • Attorneys, judges and juries do not necessarily understand psychological jargon and it should be avoided • Your expertise shines through when you are able to explain complex concepts in ways others understand them
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Direct Testimony
• Voir Dire – qualifying as an expert • Have your vita in front of you • 4 copies of everything • Judge • Prosecutor • Defense • You
Voir Dire
• Attorney should step you through it • Formal education • Practical experience • Professional licenses/certifications • Professional memberships • Publications • Prior court /legal / forensic experience (case log of testimony)
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Voir Dire • Opposing atty questions • Ask directly about what you cannot do • Ask about only doing defense work • Does testimony only favor one outcome • Frequency questions • Question expertise / decrease trustworthiness • Once you are known this may be waived
Direct Testimony
• Inverted pyramid • Explain assessment process • Describe data produced • Inferences and uncertainty • Summary conclusion • Preparation of the atty is key • Educate him on how to elicit the information that should come out
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Direct Testimony
• Style differences • “Tell us Doctor…..” • Psychologist does all the work • Less prepared attys • Series of questions style • Well chosen questions to simplify information • Psychologist usually responds “Yes” • Some combination of the two styles
Cross ‐ Examination
• This is how you learn • Learn to improve your process from the start – wording on forms – what you say – what you don’t say – everything that has happened prior to the testimony and how you respond to testimony • Consider it an education from someone who charges hundreds of dollars an hour • They may seek you out in the future
30 1/2/2018
Cross ‐ Examination
• PREPARE, PREPARE, PREPARE • If you anticipate a highly adversarial experience then prepare even more • Tab your file – organize your papers • Re‐read your deposition if it was taken • Prepare responses to what may seem to be contradictory responses
Cross ‐ Examination
• Remember – you are there for the DATA • Not on anyone’s side • Acknowledge controversial points • Concede indefensible ones • This builds your credibility – you truly become seen as an expert the Court relies on rather than a hired gun for one side
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Cross ‐ Examination • You are an educated person • The attorneys are educated • They may have spent just as much time preparing as you did – do not underestimate them • They hired a psychologist to coach them on what they don’t know and to write specific questions • Concede the limits of your testimony • If you are out on a limb – they will quickly saw it off for you
Cross ‐ Examination
• Confusion vs Stupidity • Doctor, we’re talking about schizophrenia here. Can you help me understand in clear and simple terms what schizophrenia is and what really causes it? • Is there a clear and simple answer? • Atty usually will make a face and give verbal clues that you have failed his task no matter what your answer
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Confusion vs Stupidity
• State that it is a complex topic • Narrow the focus • Admit ignorance while appearing well informed • “But doctor what about the Smith study?” • The studies having the most relevance here are by Jones. I’m not familiar with the study you cite but would be happy to review it during a recess
Yes or No Questions
• Doctor, aren’t predictions of dangerousness highly inaccurate? • Cuts you off – a simple yes or no please • Explain that a yes or no answer would be inappropriate to the question and possibly misleading • Appeal to the judge if he insists
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Focus on Uncertainty
• Hasn’t the validity of that test been questioned in the literature? • Explain how no test is perfectly valid • That is why multiple tests are used and that all of the information as a whole should be considered not just one specific test • Isn’t diagnosis unreliable in this area – if I ask 3 doctors might I get 3 different answers? • Correct misstatements – refer to DSM 5 criteria
Subjective Opinion
• Doctor, you emphasize the importance of research. Have you been involved in research or undertaken an investigation into the reliability and validity of your clinical opinions and judgments or is this just, as you have said, subjective opinion • Discuss scientific process and training, awareness of own values in interpreting data, etc. Doing this is part of our training
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But others say….
• Learned treatise approach • Attorney has you confirm that journals or authors are authoritative • Attorney quotes published research to the contrary of expert’s opinion • Refuse to acknowledge source as authority – risky • Deal with the contradictions – best way
Learned Treatise Approach
• Alert Court to possible misuse of source • Highlights the importance of training in this area to properly interpret findings • Atty steps you through point by point – even having you read some of it, then asks if it is a plausible alternative to your opinion • Be familiar with what is out there so you can use it properly
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Juror Studies
• Defense experts seen as less credible than prosecution experts • Often seen as hired guns – making large sums of money while prosecution experts were on salary from the state • Viewed as not having spent much time on the case • Saw the defendant only shortly before trial • Appear pompous and self centered
Juror Studies
• If the case was thought by the jury to be a novel claim or frivolous, then plaintiffs’ experts were seen as less believable than experts for the defense
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Juror Views of Defense Experts • Made no effort to relate their testimony to the rest of the evidence offered • Popped into the courtroom from a busy schedule and were isolated from the rest of the case • Sometimes felt they knew more about the area than the expert i.e. alcohol / drug use – jurors tend to believe their own knowledge rather than experts when they conflict
Juror Studies
• Clarity of presentation, familiarity with the facts of the case and impartiality were more important than educational credentials, appearance and personality although the latter were not unimportant
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Impression Management
• Dress appropriately • Conservative dress, suit or coat and tie • Familiarity with Courtroom Protocol • Act like you’ve been there before – know where to go, what to do, show confidence • Speak to the Jury or Judge • Eye contact, word choice • Fluid conversational tone • Clear and confident voice
Impression Management
• Maintain Composure • Pause – use what you know • Smile in the face of hostility • Lets jury know you view this as a tactic • Be polite and respectful • Do not appear apologetic • Ask attorney to repeat or clarify question
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Ultimate Question Issues
• “But I thought that was the Judge’s job” • Let the Court do its job and you do yours • Are you offering an opinion on whether someone’s freedom should be restricted OR are you describing threatening behaviors made by the defendant and the unsuccessful treatment attempts in the past as well as an informed opinion based on research as to his amenability to treatment in the future? • Judge or jury is the finder of fact – not you
Ultimate Question Issues
• Not to say that it is never appropriate • Competency to stand trial as an example • There are times when you offer opinions based on reasonable scientific certainty • Use the language of the law in your opinion
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Ultimate Question Issues
• If the law says that a juvenile can be waived to adult status if A, B and C are met, then…. • Focus your testimony on A, B and C • The court will then take that into account when deciding if the juvenile should be waived
We have focused on the Objective Role but is there a time for an advocate role? • Yes, but be sure and know which role you are in and make sure everyone else knows it as well.
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Fact versus Expert Witness
• Fact • Testifies to what are believed to be facts of the case • No special knowledge or training • Says what was seen or what he knows to be factual • IS NOT allowed to give opinion • Paid a state rate of usually about $20 per day • Expert • Has special knowledge or talent relevant to the case • IS allowed to opine and is given weight as Court sees fit • Paid a professional rate
Advocate Role Versus Evaluator Role
• You can testify as a therapist in a case but that testimony is by nature advocative. It is not objective. You represent your client’s/patient’s best interest. • Which highlights the importance of defining who the client is from the start. Is the Client an ‘agency or system’ or is it the individual? • What about when court mandated therapy is paid for by the state with mandated reports to a Court Service Officer? • An evaluator has no other role with the client/patient. He is objective and does not have a “side” but is usually hired by one side based on his professional opinion. Role is as an aid to the Court.
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What can you say and what is the basis?
• Attendance • Participation level • Internalized therapeutic concepts • Learned specific behaviors • Exhibited specific behaviors • Subsequent changes you have documented • i.e. you see mom and you see son – you have noticed progress in child based on changes mom has made
Subpoenas (Summons to Appear)
• READ IT CAREFULLY • Duces Tecum? Bring the Chart (copy?, EMR?) • Who is asking? Patient’s Atty? – Other Atty? • Talk to patient – ask them to notify their atty • How to proceed? • Motion to Quash • Does patient understand what this means • You MUST respond but you do not have to provide what is asked • Assertion of privilege • Inform as to your role
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“Work Product”
• The work‐product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. • AKA • work‐product rule • work‐product immunity • work‐product privilege • work‐product exception • NOT Discoverable • Limitations must be followed to keep something defined as work product
The best preparation is done up front
• Did you go over exceptions to confidentiality and chart that the patient understood and agreed? • Did you discuss what you would tell a parent about a child’s care? • Did you discuss what you would tell a non‐custodial parent? • What you know versus what you are told
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You Should… • Tell the Truth, the Whole Truth • Convey Professionalism • Know and Respect the Formalities of the Court • Speak Slowly, Loudly, Clearly and without Hesitation • Answer Concisely • Let the Attorney do his/her job • State what you know and what you do not • Maintain Composure • Maintain Eye Contact with Judge, Jurors • Do not hesitate to check your notes
Cross‐Examination
• Clarify if you are being misquoted or mischaracterized • Explain why a certain interpretation is accurate or why it is not • Don’t get led down a path you do not want to travel • Isn’t it good practice to.. • Doesn’t a good clinician always… • Do not cut off the attorney and do not be cut off • Do not allow rapid fire questions • Can you repeat that • Pause • Let me check my notes
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Cross‐Examination
• Watch for • Intentional Ambiguity • Multiple questions – 2‐Part questions • Implying impropriety • Implications of being bought • I, like all of the professionals in the courtroom today, am being compensated for my time and expertise. • Rattling, Intimidation • Slow the pace • Don’t attack when being attacked but do not necessarily ignore either • Stay composed
Records
• Keep records of which you can be proud • Never change records • You can add an addendum • Safety in numbers – chart your consultation on a case with a colleague
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Competency to Stand Trial Evaluations
Dusky v. United States (1960)
• Milton Dusky, a 33 year old man, was charged with assisting in the kidnapping and rape of an underage female. He was clearly suffering from schizophrenia but was found Competent to Stand Trial and received a sentence of 45 years. • On petition to the US Supreme Court, the petitioner requested that his conviction be reversed on the grounds that he was not competent to stand trial at the time of the proceeding.
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Dusky v. United States (1960)
• The court ruled that to be competent to stand trial defendant must have a: • “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him." • The court made clear that a brief mental status exam was insufficient. His case was remanded for retrial, at which time his sentence was reduced to 20 years.
Dusky v. United States (1960) – Two Prongs •The defendant's capacity to understand the criminal process, including the role of the participants in the process
•The defendant's ability to function in that process, primarily through consultation with counsel in the preparation of a defense
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Key points of Dusky
• Present Ability • “At this moment in time” which may be different than their mental state at the time of the offense • Capacity versus Willingness • The focus is not on whether someone will work with their attorney to benefit their own defense but whether they are capable of doing so • “To a reasonable degree” • The threshold for competency is low
Pate v. Robinson (1966)
• Added procedural safeguards to the standard for competency to stand trial.
• US Supreme Court ruled that failure to provide the defendant with a hearing to determine competency, when sufficient evidence suggested the need, is a violation of the defendant's 6th amendment right to a fair trial.
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Drope v. Missouri (1974)
• In 1974, the Court ruled in Drope v. Missouri that competence at the beginning of a hearing is not necessarily indicative of competence throughout the legal proceedings. • Furthermore, the Court specified what evidence was relevant to whether a hearing of competency is warranted; this evidence included a defendant's irrational behavior, demeanor at trial, and expert's prior medical opinion • Drope is often referred to as the ‘Third Prong’ of Dusky
United States v. Duhon (W.D. La. 2000)
• United States v. Duhon. 104 F. Supp. 318 2d 663 (W.D. La. 2000) • The court rejected the hospital's opinion that a mentally retarded defendant was CST • Ruled that his factual understanding of the proceedings was insufficient. • Hospital staff had merely taught him to memorize and retain some basic information, and that he lacked the ability to consult with an attorney with a reasonable degree of rational understanding as well as to have a rational understanding of the proceedings.
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Cooper v. Oklahoma (1996)
• US Supreme Court ruled unanimously that to impose the higher standard of clear and convincing evidence violated due process by allowing the State to put to trial a defendant who was more likely than not, incompetent. • The consequence to the State of an erroneous finding of incompetence when a defendant is malingering was termed "modest." • It was thought that not even an accomplished malingerer could ''feign incompetence successfully for a period of time while under professional care." • The defendant's “fundamental right to stand trial only while competent outweighs the State's interest in the efficient operation of the criminal justice system."
Medina v. California (1992)
• In CST, the defendant is presumed competent and the burden of proof is on the defendant by preponderance of the evidence. • Medina argued that competency statute's burden of proof and presumption provisions violated due process. • US Supreme Court held that the State is permitted to require that a defendant claiming incompetence to stand trial bear the burden of proving so by the preponderance of the evidence
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Levels of Evidence
• Reasonable suspicion • Reason to believe • Probable cause • Some credible evidence • Substantial evidence • Preponderance of the evidence • Clear and convincing evidence • Beyond reasonable doubt
Kansas Statutes
• Article 33: Competency Of Defendant To Stand Trial • Statute 22‐3301: Definitions. • (1) For the purpose of this article, a person is "incompetent to stand trial" when he is charged with a crime and, because of mental illness or defect is unable: • (a) To understand the nature and purpose of the proceedings against him; or • (b) to make or assist in making his defense. • (2) Whenever the words "competent," "competency," "incompetent" and "incompetency" are used without qualification in this article, they shall refer to the defendant's competency or incompetency to stand trial, as defined in subsection (1) of this section. • History: L. 1970, ch. 129, § 22‐3301; July 1.
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KSA 22‐3302: Proceedings to determine competency • (1) At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting attorney may request a determination of the defendant's competency to stand trial. If, upon the request of either party or upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant. • (2) If the defendant is charged with a felony, the hearing to determine the competency of the defendant shall be conducted by a district judge.
• (3) The court shall determine the issue of competency and may impanel a jury of six persons to assist in making the determination. The court may order a psychiatric or psychological examination of the defendant. To facilitate the examination, the court may: (a) If the defendant is charged with a felony, commit the defendant to the state security hospital or any county or private institution for examination and report to the court, or, if the defendant is charged with a misdemeanor, commit the defendant to any appropriate state, county or private institution for examination and report to the court, except that the court shall not commit the defendant to the state security hospital or any other state institution unless, prior to such commitment, the director of a local county or private institution recommends to the court and to the secretary of social and rehabilitation services that examination of the defendant should be performed at a state institution; (b) designate any appropriate psychiatric or psychological clinic, mental health center or other psychiatric or psychological facility to conduct the examination while the defendant is in jail or on pretrial release
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or (c) appoint two qualified licensed physicians or licensed psychologists, or one of each, to examine the defendant and report to the court. If the court commits the defendant to an institution for the examination, the commitment shall be for not more than 60 days or until the examination is completed, whichever is the shorter period of time. No statement made by the defendant in the course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding. Upon notification of the court that a defendant committed for psychiatric or psychological examination under this subsection has been found competent to stand trial, the court shall order that the defendant be returned not later than five days after receipt of the notice for proceedings under this section. If the defendant is not returned within that time, the county in which the proceedings will be held shall pay the costs of maintaining the defendant at the institution or facility for the period of time the defendant remains at the institution or facility in excess of the five‐day period.
• (4) If the defendant is found to be competent, the proceedings which have been suspended shall be resumed. If the proceedings were suspended before or during the preliminary examination, the judge who conducted the competency hearing may conduct a preliminary examination or, if a district magistrate judge was conducting the proceedings prior to the competency hearing, the judge who conducted the competency hearing may order the preliminary examination to be heard by a district magistrate judge. • (5) If the defendant is found to be incompetent to stand trial, the court shall proceed in accordance with K.S.A. 22‐3303 and amendments thereto. • (6) If proceedings are suspended and a hearing to determine the defendant's competency is ordered after the defendant is in jeopardy, the court may either order a recess or declare a mistrial. • (7) The defendant shall be present personally at all proceedings under this section. • History: L. 1970, ch. 129, § 22‐3302; L. 1971, ch. 114, § 6; L. 1976, ch. 163, § 17; L. 1977, ch. 121, § 1; L. 1982, ch. 148, § 1; L. 1984, ch. 128, § 1; L. 1986, ch. 115, § 64; L. 1986, ch. 299, § 2; L. 1986, ch. 133, § 2; L. 1992, ch. 309, § 1; July 1.
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KSA 22‐3303: Commitment of incompetent; limitation; civil commitment proceedings; regained competency; credit for time committed.
• (1) A defendant who is charged with a felony and is found to be incompetent to stand trial shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution. A defendant who is charged with a misdemeanor and is found to be incompetent to stand trial shall be committed for evaluation and treatment to any appropriate state, county or private institution. Any such commitment shall be for a period of not to exceed 90 days. Within 90 days after the defendant's commitment to such institution, the chief medical officer of such institution shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future. If such probability does exist, the court shall order the defendant to remain in an appropriate state, county or private institution until the defendant attains competency to stand trial or for a period of six months from the date of the original commitment, whichever occurs first.
• If such probability does not exist, the court shall order the secretary of social and rehabilitation services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto. When a defendant is charged with any off‐grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21‐3504, 21‐3511, 21‐ 3518, 21‐3603 or 21‐3719, and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in subsection (e) of K.S.A. 59‐2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59‐ 2946, and amendments thereto. The other provisions of subsection (f) of K.S.A. 59‐2946, and amendments thereto, shall not apply.
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• (2) If a defendant who was found to have had a substantial probability of attaining competency to stand trial, as provided in subsection (1), has not attained competency to stand trial within six months from the date of the original commitment, the court shall order the secretary of social and rehabilitation services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto. When a defendant is charged with any off‐grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21‐ 3504, 21‐3511, 21‐3518, 21‐3603 or 21‐3719, and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in subsection (e) of K.S.A. 59‐2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59‐2946, and amendments thereto. The other provisions of subsection (f) of K.S.A. 59‐2946, and amendments thereto, shall not apply.
• (3) When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22‐3302 and amendments thereto to determine the person's present mental condition. Reasonable notice of such hearings shall be given to the prosecuting attorney, the defendant and the defendant's attorney of record, if any. If the court, following such hearing, finds the defendant to be competent, the proceedings pending against the defendant shall be resumed. • (4) A defendant committed to a public institution under the provisions of this section who is thereafter sentenced for the crime charged at the time of commitment may be credited with all or any part of the time during which the defendant was committed and confined in such public institution. • History: L. 1970, ch. 129, § 22‐3303; L. 1977, ch. 121, § 2; L. 1992, ch. 309, § 2; L. 2001, ch. 208, § 8; July 1.
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HB 2584 ‐‐ FAILED 5‐30‐14 • Sec. 4. (a) No evaluator shall be appointed by the court unless the court determines that such evaluator's qualifications include: • (1) Sufficient professional education and sufficient clinical training and experience to establish the clinical knowledge required for the specific type of evaluation being conducted; and • (2) sufficient forensic knowledge or experience necessary for understanding the relevant legal matter and for satisfying the specific purpose for which the evaluation is being ordered. • (b) (1) On and after January 1, 2016, any evaluator appointed by the court shall be credentialed by the institute for Kansas forensic examiners. • Any person working as an evaluator prior to January 1, 2016, shall have completed at least 24 hours of continuing education in forensics. Any person seeking initial appointment by the court as an evaluator on or after January 1, 2016, shall have completed at least 24 hours of continuing education in forensics and at least six months of supervised internship prior to performing any evaluation without supervision.
A Growing Trend
• The number of competency referrals has increased steadily over the past few decades. • Defense attorneys question their client's competency in 8%‐15% of felony cases (Hoge, Bonnie, Poythress, & Monahan, 1992) • In 1982 there was an estimated 25,000 annual referrals for competency evaluations (Steadman et al., 1982). • By 1998, this number had doubled with an estimated 50,000 annual referrals for competency evaluations in the United States (Skeem, Golding, Cohn, &Berge, 1998). • Grisso puts current estimates at over 60,000
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Mental Disorders & Competency
• If someone has a diagnosis of: • Mental Retardation • Severe and Persistent Mental Illness • Psychotic Disorder • Insert diagnosis of your choice here… • Can they be competent?
• YES – we are addressing a very narrow question
Is this the same as an Insanity Defense? • In a word, NO …and Kansas as well as a handful of other states no longer have an insanity defense per se – were you sleeping or surfing the net when we covered that last hour? OK, here’s the important point… • Mens Rea • If you think you are strangling the neck of a enemy combatant and you are actually strangling your spouse then you still know that you are strangling a person and may be culpable. • If you think you are squeezing an orange and it is actually your business partner’s neck, then you may not be culpable • Upheld by US Supreme Court in 2006 Clark v US
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Assessment Process
• Journal Entry issued by Court – READ IT • This is the Order of the Court that instructs you as to what to do and to whom to send results • Usually a release of information is not necessary as Journal Entry will specify (order) to whom the report should be sent. It never hurts to get one though. • I often get a release to examinee’s attorney and chat about concerns and who had them. • Obtain police reports, medical records or other helpful info the attorney or Court can provide • You need to know the charges and possible outcomes so you can gauge responses from examinee as to accuracy
Pondering the Assessment Process
• Can I just do a mental status exam? • No – Supreme Court said this was not sufficient in Dusky • Can I just do an Interview? • Yes – but hopefully you won’t after this presentation • Do I need to use a formal assessment? • No – but hopefully you will want to after this presentation • Aren’t the usual IQ test or personality test sufficient? • No • Are you suggesting those specialized assessment instruments? • I am
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Research
• Pirelli, Gottdiener & Zapf, A META‐ANALYTIC REVIEW OF COMPETENCY TO STAND TRIAL RESEARCH, Psychology, Public Policy, and Law 2011, Vol. 17, No. 1, 1–53
• Defendants diagnosed with a Psychotic Disorder were approximately eight times more likely to be found incompetent than defendants without a Psychotic Disorder diagnosis
Pirelli et al
• The likelihood of being found incompetent was approximately double for unemployed defendants as compared to employed defendants. • The likelihood of being found incompetent was also double for defendants with a previous psychiatric hospitalization compared to those without a hospitalization history. • Comparative data on 12 competency assessment instruments and three traditional instruments were also explored and the effect sizes associated with the competency measures were substantially larger than those for the traditional measures.
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Criterion Validity • A measure of how well one variable or set of variables predicts an outcome based on information from other variables, and will be achieved if a set of measures from a personality test relate to a behavioral criterion on which psychologists agree. • A typical way to achieve this is the extent to which a score on a personality test can predict future performance or behavior. • Another way involves correlating test scores with another established test that also measures the same personality characteristic.
Construct Validity
• The degree to which a test measures what it claims, or purports, to be measuring • Modern validity theory defines construct validity as the overarching concern of validity research, subsuming all other types of validity evidence
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Amnesia • Cima and colleagues found that 23 percent of male forensic inpatients charged with serious crimes had claimed either partial or total amnesia for their crimes (Cima M, Nijman H, Merckelbach H, et al: Claims of crime‐related amnesia in forensic patients. Int J Law Psychiatry 27:215–21, 2004). • Courts have taken different approaches to handling claims of amnesia at the time of the crime; none have considered amnesia to be a per se bar to competence to stand trial.
Wilson v. United States • Court holds that amnesia per se in a case where recollection was present during the time of the alleged offenses and where defendant has the ability to construct a knowledge of what happened from other sources and where he has the present ability to follow the course of the proceedings against him and discuss them rationally with his attorney does not constitute incompetency per se, and that a loss of memory should bar prosecution only when its presence would in fact be crucial to the construction and presentation of a defense and hence essential to the fairness and accuracy of the proceedings.
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Wilson v. United States
• D.C. Circuit Court of Appeals in this case Wilson v. U.S. The court in Andrews utilized many of the same factors as were used in Wilson to help in determining whether a defendant's amnesia renders him incompetent to stand trial. The Seventh Circuit did not, however, require the post‐trial review of the effect the defendant's amnesia had on his trial as Wilson does.
United States v. Andrews
• U.S. v. Andrews emphasizes that the remainder of the U.S. courts of appeal do not follow the approach taken by the D.C. Circuit Court of Appeals on this matter. The D.C. Circuit Court of Appeals is the only circuit to require a post‐trial review for the competency of individuals with amnesia at the time of their alleged crimes. In contrast to Wilson, the Seventh Circuit took the approach that the ordinary attention paid by judges to a defendant's competence throughout the course of a trial is sufficient.
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Special Populations
• Children, MR, Autism Spectrum, etc • Tend to acquiesce in responses • From the Dudley Moore movie Crazy People • Kathy: Who here wants to be an ad‐man? • [several hands go up] • Emory Leeson: Who here wants to be a fire engine? • [everyone raises their hands, with several standing and commenting things like "Ooh, I do!" and "Me! Pick me!"] • Extra care needed in discerning comprehension and accurate responses
Aphasia, Head Trauma, Neurological Deficits
• Grisso Model • Focus on the functional capacities demonstrated by the individual (i.e., what are the strengths and deficits of specific abilities as defined by legal standards?). • Causal explanations are offered for the deficits observed, such as mental disorder, situational state, malingering, and ignorance of legal process for example. • If a mental disorder is established, then the next step is the formulation of the link between the symptoms of the illness and the specific competency related deficits.
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Grisso‘s three elements for trial competency
• Functional capacities are the specific mental status characteristics of a defendant, including the strengths and weaknesses as related and defined by the legal standard. • Causal explanation includes the detailed causes of a defendant's functional level. Including a differentiation among various conditions (mental illness, ignorance or lack of information regarding the legal issues, situational state such as intoxication or malingering). • Determination of the prognosis for recovery, or establishment of trial competency, and the mechanism for facilitating that process.
Competency Instruments
• 13 competency assessment instruments over the past 4 decades • Intended to address a defendant’s psycholegal abilities • Range from informal checklists to structured, criterion– based scoring instruments:
• Competency Screening Test (CST; Lipsitt et al., 1971) • Competency to Stand Trial Assessment Instrument (CAI; Laboratory of Community Psychiatry, 1973) • Georgia Court Competency Test (GCCT/GCCT‐MSH; Nicholson, Briggs, & Robertson, 1988) • Interdisciplinary Fitness Interview (IFI/IFI‐R; Golding, 1993) • Fitness Interview Test (FIT/FIT‐R; Roesch, Zapf, Eaves, & Webster, 1998) • Computer‐Assisted Determination of Competency to Proceed (CADCOMP; Barnard et al., 1991)
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Competency Instruments
• Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST‐MR; Everington & Luckasson, 1992) • Metropolitan Toronto Forensic Service (METFORS) Fitness Questionnaire (MFQ; Nussbaum, Mamak, Tremblay, Wright, & Callaghan, 1998) • MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT‐ CA; Poythress et al., 1999) • Mosley Forensic Competency Scale (MFCS; Mosley, Thyer, & Larrison, 2001) • Evaluation for Competency to Stand Trial–Revised (ECST‐R; Rogers, Tillbrook, & Sewell, 2004) • Test of Malingered Incompetence (TOMI; Colwell et al., 2008) • Inventory of Legal Knowledge (ILK; Musick & Otto, 2010).
Traditional Assessments
• Still used despite being designed to measure intelligence or personality • Current practice standards encourage the use of specific competency assessment instruments (Grisso, 2003; Melton et al., 2007; Zapf & Roesch, 2009) • Many continue to use traditional measures in competency evaluations (Archer, Buffington‐Vollum, Stredny, & Handel, 2006; Borum & Grisso, 1995; Nicholson & Norwood, 2000; Ryba, Cooper, & Zapf, 2003; Skeem & Golding, 1998) • Most commonly used: MMPI‐2, WASI, WAIS & Brief Psychiatric Rating Scale (BPRS).
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Competency Screening Test (CST)
• Lipsit, Lelos, and McGarry 1971 • 22 item sentence completion test • Often used as initial screening tool • Scores range from 2 (competent answer) to 0 (incompetent answer) • Scores less than 20 suggest possible incompetence to stand trial • Criticized for having an extremely positive view of the legal process. • Produces large number of false positives, labeling defendants who are competent as incompetent. • Has high inter‐rater reliability and internal consistency with rater training
Competency Screening Test (CST)
• Examples ‐ When I go to court, the lawyer will: ‐ The way a court trial is decided: ‐ If the jury finds me guilty, I: ‐ While listening to the witnesses testify against me: ‐ When the jury hears my case, they will:
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Competency Screening Test (CST)
• Best used as a screening instrument that helps determine if further extensive assessment for competency to stand trail maybe necessary. • It takes approx. 25 minutes to complete. For an individual who has difficulty reading, the items can be read to them. • Brief version with 5 items • Highly correlated with verbal intelligence
• Research suggests that the CST should not solely be used by clinicians to make decision regarding a defendant's competency to stand trial
Competency Assessment Instrument (CAI) • Appraisal of role of: defense counsel, prosecuting attorney, judge, jury, defendant, witnesses. • The defendant should be able to identify the basic role of each of these players. For example: the prosecutor as foe, defense attorney as friend, judge as neutral, and the jury as the deciders of guilt or innocence. • The CAI is a semi‐structured interview that assesses 13 functions of competency to stand trial such as • (a) an appraisal of available legal defenses • (b) the planning of legal strategy • (c) the capacity to testify relevantly. • Each item is scored on a five‐point Likert scale. The CAI manual suggests that a defendant who scores consistently low (<3) should be remanded to an inpatient unit for further evaluation.
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CAI • The CAI was designed to assess competency in a community‐based evaluation as opposed to an institutionally based evaluation. • Research suggests that the CAI would not serve as a good assessment measure. • With respect to criterion‐related validity, some studies produced only moderate results. Schreiber et al., (1987) found that as many as 10% of the defendants found unfit by the hospital or court would be considered fit if decisions were based solely on the CAI. • The CAI’s primary contribution to competency to stand trial measures is methodological. Its development signaled the initial use of more structured interviews for competency evaluations that focused primarily on the legal issues as opposed to the defendants‘ mental disorders.
Interdisciplinary Fitness Interview (IFI)
• 5 item semi‐structured interview • Assesses the defendant’s abilities in specific legal areas • Evaluates 11 categories of psychopathological symptoms • Rated from 0 to 2 describing the degree of capacity demonstrated • Each item is assigned the weight it played in determining overall competence
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IFI • The IFI consists of three major sections that are rated separately • Section A: Legal Issues • Section B: Psychopathological Issues • Section C: Overall Evaluation of Competency. • The rationale behind the three sections of the IFI is the need for a defendant's competency to be considered within the context of his/her legal proceedings. In particular, different cases should vary in how much weight is assigned to the IFI’s three sections depending on case‐specific issues.
IFI
• Each section requires a different decision making process on behalf of the rater. • For Legal Issues • Five psycholegal abilities are considered on a three‐point likert scale with respect to incapacity of the defendant and the effects of those abilities on the overall decision of competence. • For Psychopathological Issues • The rater is required to rate ten symptoms on how they affect competency. • Finally, on Overall Evaluation of Competency • Examiners are asked to make a global judgment of competency, assign a confidence rating to that judgment, and comment on factors that contributed to that decision.
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IFI
• Different cases should vary in how much weight is assigned to the IFI’s three sections depending on case‐specific issues.
• Impractical nature of its administration questions its utility as an efficient measure of competency to stand trial.
• Research findings support the reliability of the measure, but data on its criterion‐related validity appear contaminated.
Georgia Court Competency Test (GCCT)
• (Wildman et al., 1980) • Most recent is the Mississippi State Hospital Revision • 21 items that represent three dimensions (increased from original 17) • General courtroom knowledge (Example: the jobs of the judge and lawyer) • Legal proceedings & current charges • Specific legal knowledge (Example: penalties, how to interact with defense counsel) • Isn’t as good as measuring non‐cognitive abilities such as ability to cooperate • Is significantly correlated with a number of independent competency measures
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GCCT
• Semi‐structured interview format with scoring criteria for each item • Cut score for competency recommendations (Georgia Court Competency Test ‐ Mississippi State Hospital [GCCT‐ MSH]; Johnson & Mullet, 1987). • In 1992, an eight‐item screen for feigning was added to the GCCT‐ MSH (Georgia Court Competency Test – 1992 Revision [GCCT]; Gothard, Rogers, & Sewell, 1995).
GCCT
• Problems continue with its validation • With respect to construct validity, research provides some evidence of independent factors on the GCCT; however, these factors do not appear to be stable nor representative of the underlying constructs of the Dusky standard. • The criterion related validity of the GCCT has been established with high rates of agreement between the GCCT and staff decisions of competency. • However, the high base rate of competent defendants in several of these studies calls to question its criterion‐related validity. • Despite one study with a lower base rate of competent defendants (Wildman, White, & Brandenburg, 1990), the criterion‐related validity of the GCCT remains questionable.
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Fitness Interview Test – Revised (FIT‐R)
• Based on Criminal Code of Canada
The Inventory of Legal Knowledge (ILK)
• Consists of 61 true‐or‐false items regarding the legal process • Designed to detect feigned deficits through assessing a defendant’s response style. • It is a measure of a defendant’s approach to inquiries about his or her legal knowledge, a measure of response style • Does not specifically assess abilities related to competence to stand trial. • Is not a test of adjudicative competence.
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The Test of Malingered Incompetence (TOMI)
• Designed to assess cognitive malingering in Adjudicative Competence evaluations • The TOMI has two 25‐item scales • General Knowledge • Legal Knowledge • Does not strictly aim to assess adjudicative competency abilities.
Competence Assessment for Standing Trial with Mental Retardation (CAST‐MR) • Assesses competence to stand trial for persons with intellectual disabilities • Based on Dusky criteria • Separate sections for Basic Legal Concepts, Skills to Assist Defense, and Understanding Case Events. • Persons with an Intellectual Disability tend to score lower on specialized assessments of competency
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Next Generation Tests
• MacCAT‐CA & ECST‐R • The MacCAT‐CA is a semi‐structured interview that was developed from a longer research interview, the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC‐CD; Hoge et al., 1997). • The ECST (Rogers, 1995) was developed in order to better address the psycholegal abilities put forth in Dusky v. United States and to provide clinicians with a standardized method of assessing feigned incompetence • These not only assess for the defendant’s current knowledge of the legal system, but attempt to educate the individual when he or she does not readily reply with the correct response
MacArthur Competence Assessment Tool‐ Criminal Adjudication (MacCAT‐CA) • Hoge, Bonnie, Poythress & Monahan, 1999 • Contains hypothetical situations that the defendant has to comment on • Includes information on four abilities ‐ understanding charges and trials ‐ appreciation of relevant information ‐ reasoning with information during decision making ‐ making a choice
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MacCAT‐CA
• Uses standardized questions in a semi‐structured interview format with criterion‐ based scoring to measure competence‐related abilities • Understanding, • Reasoning • Appreciation • Evaluates a defendant's ability to understand and assimilate new legal information through exposure to correct information and immediate retesting. • If the defendant incorrectly responds to questions about the legal process he or she is presented with the correct information and given a second chance to answer the item correctly • Poythress et al. (1998) asserted that this is an advantage over most contemporary competency measures which focus mostly on present, or factual knowledge, and not a defendant's ability to learn and make appropriate decisions
MacCAT‐CA
•The authors have emphasized that this instrument must be used as tool as opposed to a test of competence. The results must be interpreted in context of other relevant and specific data about the defendant’s case.
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Purpose: Evaluates a defendant's capacity to proceed to adjudication Format: Paper and pencil Age range: 18 years to 80 years Time: 25 to 55 minutes to administer; 10 minutes to score Qualification level: B
www.PARINC.com
4213-KT MacCAT-CA Introductory Kit includes MacCAT-CA Professional Manual and 20 Interview Booklets $247.00
4214-TM MacCAT-CA Professional Manual $58.00
4215-TB MacCAT-CA Interview Booklets (pkg/10) $101.00 4496-TB MacCAT-CA Interview Booklets (pkg/20) $194.00
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Evaluation of Competency to Stand Trial – Revised (ECST‐R) • The Evaluation of Competency to Stand Trial – Revised (ECST‐R) uses a semi‐structured interview format with 18 items and three scales, assessing factual and rational understanding of courtroom proceedings and ability to consult with counsel. It also uses a number of items and scales to screen for “feigned incompetence”
• Investigation of the ECST‐R as a measure of competence and feigning. Journal of Forensic Psychology, volume 10, issue 2, Mar‐Apr 2010, 91‐ 106, Kerry Norton and Nancy Ryba
ECST‐R • Developed by Rogers in 1995 and later revised (ECST‐R; Rogers & Tillbrook, 1998) • Goes beyond the MacCAT‐CA in that it emphasizes the defendant's relationship with his or her attorney and includes a screen for feigning. • Semi‐structured interview with items that are rated on levels of impairment due to psychotic symptoms and self defeating motivation • Includes questions establishing the basis of the attorney‐client relationship, followed by four sections: • (a) Nature of the Attorney‐Client Relationship • (b) Factual Understanding of Courtroom Proceedings • (c) Rational Understanding of Courtroom Proceedings • (d) Atypical Presentation
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Feigning Incompetence to Stand Trial
• Defendants may be tempted to feign incompetency, either to delay the proceedings or to possibly mitigate the eventual sentence, due to the gravity of their legal situation. • It is essential that competency measures systematically assess for feigned incompetency. • Unfortunately, competency measures have neglected to evaluate feigned incompetency • Only one first‐generation measure (the GCCT) and one second‐ generation measure (the ECST‐R) address this crucial issue.
ECST‐R E‐APS
• One primary reason for the development of the ECST was to provide clinicians with a standardized method to screen for feigned incompetency. • The ECST‐R Atypical Presentation Scale (E‐APS) includes 28 items that measure unusual presentation through several detection strategies. These detection strategies include: • Rare symptoms • Symptom combinations • Indiscriminant symptom endorsement • Symptom severity
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Purpose: Evaluates an individual's competency to stand trial Format: Paper and pencil Age range: 18 years to 79 years Time: 25-45 minutes to administer; 5 minutes to score Qualification level: C
5284-KT ECST-R Introductory Kit includes ECST-R Professional Manual, ECST-R Binder with Interview Booklet, 25 Record Forms, 25 Profile/Summary Forms, and Canvas Carrying Case $312.00
5285-TM ECST-R Professional Manual $97.00
10317-EM ECST-R e-Manual e-Manuals are limited to a single user and device. $97.00
9443-EQ ECST-R Binder $27.00 5286-TB ECST-R Interview Booklet $86.00
5287-RF ECST-R Record Forms (pkg/25) $97.00
5288-PF ECST-R Profile/Summary Forms (pad/25) $38.00
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Rare Symptoms and Symptom Combinations
• The rare symptom strategy "involves the over‐endorsement of symptoms and associated features that occur only occasionally in patients with mental disorders“ Rogers, 1997, p. 303). • According to Rogers, rare symptoms is one of the most robust strategies for the detection of feigning. • "Do people in the courtroom use telepathic powers to make you say things against your will?" • Symptom combinations involves the endorsement of symptom pairs that typically do not occur together in genuine patients. • “Do you feel so upset about court, that your memory plays tricks on you?”
Indiscriminant Symptom Endorsement & Severity of Symptoms Indiscriminate Symptom Endorsement (Rogers,1997) • This strategy assesses the overall proportion of symptoms endorsed by the defendant • If an unrealistically high proportion of symptoms are endorsed on the E‐APS, feigning should be suspected
Severity of symptoms (Rogers 1997) • On every item in which the defendant endorses a symptom, he is asked about the severity in relation to competency • He is asked if that symptom makes it difficult for them to participate in the legal process. • A high number of symptoms that allegedly impair competency could suggest feigning. • All of these interview‐based strategies for detecting feigning have been validated in research with both simulation designs and known group comparisons (Rogers, 1997).
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What do I use?
• Number one reason for finding of not competent to stand trial? • Psychosis • ECST‐R has the best focus on Psychosis • Concerns about Feigning? • ECST‐R has the E‐APS scale for feigning • Concerns about intellectual functioning? • Can be used with persons diagnosed as Mild MR • Does publisher discourage use as a measure of competency? • No
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Malingering
• Malingering must be considered, evaluated and ruled out in legal issues during assessment. • Structured Inventory of Malingered Symptomatology (SIMS) • Structured Interview of Reported Symptoms (SIRS) • Miller Forensic Assessment of Symptoms Test (M‐FAST)
Juveniles
• Many instruments appropriate for teens • Some studies suggests that : Average 14 y/o is no less capable than the average adult in reasoning and decision making regarding trial issues • They look at a very narrow slice of the pie
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From Grisso and MacArthur Foundation Juvenile Adjudicative Competence Project, 1998‐2005 • Research on Juveniles’ Competence
• % of Inadequate Understanding (Lower number is better): Ages 11‐13 14‐15 16‐17 18‐24 • Role of Prosecutor 58 32 20 13 • Role of Defense Attorney 22 10 8 10 • Role of Judge 55 52 46 50 • Rights given up when plead guilty 85 72 63 54
• Impairment in competence decreased by at least half for all age groups after “teaching” • Greater learning for facts than abstract concepts/ appreciation
Differences in Adults and Teens
• When asked how “Joe” should respond to police questioning:
• Youths tended to focus on how statement might allow “Joe” to go home now, and on being compliant to get leniency
• Adults tended more often to consider how one’s statement could increase or decrease penalties later in adjudicative process
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Juvenile Decision Making Processes •When asked how “Joe” should respond to plea bargain: •Youths tended to focus on length of time (e.g., “2 years is less than 6 years”) •Adults tended to wrestle with odds of winning or losing e.g., “If this is Joe’s first offense…”or “Depends on how he feels about the lawyer he got…”
Developmental Immaturity Influences Youths’ Decisional Capacities • Effects of immaturity on perceptions of authority • E.g., role of attorney (deciding what to tell) • E.g., acquiescent or oppositional responses style
• Effects of immaturity on weighing gains and losses • E.g., involvement of peers • E.g., judgment about short‐term vs. long‐term effects of decision
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California Welfare and Institutions Code Section 709
•California law recognizes lack of competency due to developmental immaturity •Timothy J. v. Superior Court, 150 Cal. App.4th 847, 58 Cal.Rptr.3d 746 (2007)
•Nothing like this in Kansas or most other states
Mueller, Kennedy, Taga Study 2004
• 60,000 Competency evaluations done yearly (Grisso) • 151 inpatient facilities in 43 states • Final data from 72 facilities in 39 states and DC • Facilities used average of 4 techniques
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4 assessments used on average
• CAI • GCCT • IFI • MacCAT‐CA • CST • CADCOMP • MMPI • IQ • Clinical Interview (standardized) • Clinical Interview (non‐standardized) • Other. Please list ______
•67 facilities (93%) used clinical interview • 54 used non‐standardized interviews • 32 used standardized interviews • 19 facilities used both
•43 facilities (60%) used a Traditional Assessment Instrument • 39 used IQ testing • 35 used MMPI
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• 49 facilities (68%) used a competency specific instrument • 38 used MacCAT‐CA • 17 used CAST‐MR • 11 used CAI • 10 used CST • 9 used GCCT • IFI & CADCOMP used at 1 facility each • 33 facilities (46%) used all three methods to assess CST • 22 facilities (31%) used two of three methods to assess CST • 16 facilities (22%) used one method (14 used interview alone)
Reports – Common Problems • Fogel et al. summarize several studies conducted over the surveyed decade that point to the deviation of competency reports from commonly accepted best practice standards. • Zapf, Hubbard, Cooper, Wheeles, and Ronan (2004) found that over 90% of the reports from an Alabama forensic center offered no information about defendants’ “appreciation” or “reasoning” abilities. • Robinson and Acklin (2010) developed a quality survey themselves and found that only one‐quarter of the reports written in their Hawaii sample received a score at or above 80% of the maximum possible score. Most reports omitted defendant’s age, charges, a description of evaluation procedures, or the rationale for the forensic opinion.
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The Checklist Manifesto by Atul Gawande
• Author of three bestselling books • Surgeon at Brigham and Women's Hospital in Boston • Staff writer for The New Yorker since 1998 • Professor at Harvard Medical School and Harvard School of Public Health. • Won a MacArthur Fellowship • Named one of the world's hundred most influential thinkers by Foreign Policy and TIME. • Director of Ariadne Labs, a joint center for health system innovation. • Co‐founder and chairman of Lifebox, a global not‐for‐profit implementing systems and technologies to reduce surgical deaths globally.
Can I ask about what was alleged?
• Information obtained as part of the competency evaluation cannot be used against he defendant in the criminal proceeding • Questions about defendant’s understanding of a ‘good’ outcome are acceptable in understanding his level of comprehension regarding any pleas offers and ability to weigh appropriate factors in decision making • You need to know if he understands what he has been charged with and whether it matches info you obtained from attorney or other source
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Philip Witt (2010) checklist to enhance the quality of competency evaluation reports.
1. Forensic referral question stated clearly. 2. Report organized coherently. 3. Jargon eliminated. 4. Only data relevant to forensic opinion included. 5. Observations separated from inferences. 6. Multiple sources of data considered, if possible. 7. Psychological tests used appropriately. 8. Alternate hypotheses considered. 9. Opinions supported by data. 10.Connection between data and opinions made clear.
What Judges Want in Reports 1. Summary of the Evaluation, Including a Current Diagnosis, if any, of the Defendant’s Mental Disorder and a Summary of the Defendant’s Mental Status 2. Statement of Purpose 3. Nature of Evaluator’s Contacts with the Defendant and Counsel 4. Statement of Information Accessed for the Evaluation 5. Method of Evaluation 6. Analysis of Competency of Defendant to Stand Trial or Plead Using the Current Legal Standard 7. Opinion as to Whether Defendant is Likely to be Restored to Competency Within a Reasonable or Statutorily Determined Period of Time 8. Recommendation as to Where Defendant Should be Restored, if Determined Incompetent 9. Summary of Assessment Conducted for Potential Malingering 10.Statement of Potential Future Dangerousness
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Ultimate Question
• The judge decides whether the defendant is competent to stand trial. • Studies suggest 90% of the time or higher the judge sides with the opinion of the examining psychologist or psychiatrist • There is some disagreement as to whether reports should answer the ultimate question. • Some judges prefer the report contain a statement as to a finding • I use the language…The court is encouraged to find the defendant competent/not competent to stand trial under KSA 22‐3302 ...
• Fogel, M. H., Schiffman, W., Mumley, D., Tillbrook, C., & Grisso, T. (2013). Ten Year Research Update (2001–2010): Evaluations for Competence to Stand Trial (Adjudicative Competence). Behavioral Sciences & the Law • Robinson, R., & Acklin, M. W. (2010). Fitness in paradise: Quality of forensic reports submitted to the Hawaii Judiciary. International Journal of Law and Psychiatry, 33, 131–137. • Viljoen, J. L., Wingrove, T., & Ryba, N. L. (2008). Adjudicative competence evaluations of juvenile and adult defendants: Judges’ views regarding essential components of competence reports. International Journal of Forensic Mental Health, 7, 107–119. • Witt, P. H. (2010). Forensic report checklist. Open Access Journal of Forensic Psychology, 2, 233–240.
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Characteristics of those found Incompetent
• Usually single males • Minorities • Low levels of education and intelligence • Unemployed • Previous involvement in legal and mental health systems • Exhibits symptoms of current serious mental disorder • Charged with more serious crimes
If Found Incompetent to Stand Trial
• Defendants typically go to a mental health institution – Larned in KS. • At the institution they are treated for restoration of competence. • If the treatment to restore competence is successful, the defendant will then stand trial. • Usually on a 90‐120 day call‐back • If it is determined that competence may never be restored: • Involuntary committed through civil commitment proceedings. • Charges dropped • Jackson v. Indiana 1972 prohibits indefinite confinement
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Restoring Competence
• Usually through psychoactive medication • Defendants who received treatment involving videos and instructions on courtroom procedures in addition to medication were found more likely to be competent (43%) upon re‐evaluation than those only receiving medication (15%) (Siegel & Elwork, 1990). • Educational interventions • Repetition
Sell v United States 2003
• Charles Sell, has a history of mental illness • Charged with submitting fictitious insurance claims for payment. • Evaluation ‐ deemed “currently competent”, but at risk to suffer “a psychotic episode” • Released on bail. • Additional counts of fraud, money laundering, intimidating a witness filed and so bail was revoked. • He was then indicted for attempting to murder the FBI agent that arrested him and an individual who was going to testify against him.
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Sell v United States 2003
• He asked the Magistrate to reconsider his competence. The magistrate found that He was incompetent to stand trial. • He was ordered to “be hospitalized for treatment for four months”. • The state hospital where he was being treated recommended that he take antipsychotic medication • He refused to do so. • The state sought to force him to take the medicine against his will. • Taking the medicine was likely to result in restored competence even though he was not considered dangerous at the time
Sell v United States
•Supreme Court Ruled:
•“The Constitution allows the Government to administer those drugs, even against the defendant’s will, in limited circumstances.”
•Drug induced competency is acceptable
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Final Thoughts
• Many instruments demonstrate practical use, adequate psychometric foundations and relevant norms to be used as tools in the CST evaluation process • However, screening tools and structured interviews are just that and not psychometric assessments and should not be presented as such • Must you use one of these formal assessment tools? There can be cases that are so clearly competent or not competent that none would be needed….however you rarely know that at ahead of time. • Most all evaluations are between these extremes
Final Thoughts
• It is for those cases that a formal tool is useful and indicated • Help address the possibility that someone might be falsely identified as competent or not competent • The tool is not the only component of the evaluation and should not be treated as such • Different instruments may be best in specific cases. The MacCATwith general scenarios may be more generalizable than the ECST‐R that is more specific to the case at hand. We all have a favorite but there is no clear ‘best in all cases winner’ to the exclusion of all others
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Final Thoughts
• There has been a polarization of forensic practitioners on acceptance versus rejection of competency measures • No valuable information, be it clinical acumen or standardized data, should be systematically ignored (Ziskin) • American Academy of Psychiatry and the Law Practice Guideline recommends the integration of competency interview findings with other sources of data in rendering evidence‐based competency determinations
Final Thoughts
• Reports must give an explanation as to why a decision is made • If a low score is noted, is it offset by possible malingering? • Identify the specific issues which you believe should lead the court to your encouraged conclusion • This also helps identify specific areas for those who work to restore competence • An understanding and proper use of such instruments can make you a better evaluator and increase credibility as well as certainty in the courtroom • I strongly encourage you to incorporate these into our CST process
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Time For Questions
To download this and other presentations www.clinical‐assoc.com • cappo@clinical‐assoc.com • Clinical Associates, P.A. • 8629 Bluejacket St. Suite 100 • Lenexa, Kansas 66214 • 913‐677‐3553
Lenexa, Hays, Wichita in KS & Kansas City, St. Louis in MO
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