AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial

Douglas Mossman, MD, Stephen G. Noffsinger, MD, Peter Ash, MD, Richard L. Frierson, MD, Joan Gerbasi, JD, MD, Maureen Hackett, MD, Catherine F. Lewis, MD, Debra A. Pinals, MD, Charles L. Scott, MD, Karl G. Sieg, MD, Barry W. Wall, MD, and Howard V. Zonana, MD

Statement of Intent and Development lated to competence to stand trial. It is expected that Process any clinician who agrees to perform forensic evalua- This document is intended as a review of legal and tions in this domain have appropriate qualifications. psychiatric factors to give practical guidance and as- sistance in the performance of competence to stand Overview trial evaluations. This Guideline was developed Adjudicative competence, or competence to stand through the participation of forensic psychiatrists trial, is a legal construct that usually refers to a crim- who routinely conduct evaluations of competence to inal defendant’s ability to participate in legal pro- stand trial and have expertise in this area. Some con- ceedings related to an alleged offense. Although no tributors are actively involved in related academic precise U.S. statistics are available, the best estimates endeavors. The process of developing the Guideline suggest that the frequency of evaluations of compe- incorporated a thorough review that integrated feed- tence to stand trial has risen significantly in recent back and revisions into the final draft. This Guide- years.1 The often-cited 1973 estimate by McGarry2 line was reviewed and approved by the Council of the put the number of competence evaluations at 25,000 American Academy of Psychiatry and the Law on to 36,000 each year in the United States. Estimates October 17, 2007. Thus it reflects a consensus from 19983 and 20004 put the annual number of among members and experts about the principles competence evaluations at 50,000 and 60,000, re- and practice applicable to the conduct of evaluations spectively. The frequency of these evaluations makes of competence to stand trial. This Practice Guideline determining whether a defendant meets a jurisdic- should not be construed as dictating the standard for tion’s criteria for competence to stand trial a core skill this type of evaluation. It is intended to inform prac- in forensic psychiatry. tice in this area. This Guideline does not present all This document provides practical guidance to psy- acceptable current ways of performing these forensic chiatrists who agree to perform forensic evaluations evaluations, and following this Guideline does not of adjudicative competence. Psychiatrists in active lead to a guaranteed outcome. Differing fact pat- private sector, public sector, or academic practice de- terns, clinical factors, relevant statutes, administra- veloped this Practice Guideline after an in-depth re- tive and case law, and the psychiatrist’s judgment view of relevant professional publications and case determine how to proceed in any individual forensic law and after comparing actual practices of clinicians evaluation. in a broad range of geographic and work settings. The Guideline is directed toward psychiatrists and Interested members of the American Academy of other clinicians who are working in a forensic role in Psychiatry and the Law (AAPL) have also reviewed conducting evaluations and providing opinions re- the document and have provided substantive and

Volume 35, Number 4, 2007 Supplement S3 Practice Guideline: Evaluation of Competence to Stand Trial editorial suggestions. The contents of and recom- mid-17th century in England.6 According to some mendations in this Guideline address only evalua- commentators, the requirement for mental compe- tions of competence to stand trial and not other types tence originally arose in English courts as a reaction of evaluations that psychiatrists undertake. to those defendants who, rather than enter a plea of The Guideline distinguishes between the legal re- guilt or innocence, stood mute. In such cases, courts quirements of various jurisdictions and the principles impaneled juries to decide whether the accused was of ethics that govern clinicians’ actions. Differences “obstinately mute, or whether he be dumb ex visita- in jurisdictional rules concerning discovery, hearsay tione Dei [by visitation of God]” (Ref. 7, Book 4, evidence, and other legal matters may require psychi- Chap 25, p 477). Those defendants found “obsti- atrists to adopt different practices. nately mute” were subjected to peine forte et dure,a procedure (continued, albeit rarely, as late as the 18th century) in which increasingly heavy weights Definitions were placed on the defendant’s chest until he re- Competence to stand trial: the legally determined sponded or died.7,8 Defendants found mute ex visi- capacity of a criminal defendant to proceed with tatione Dei, however, were spared this ordeal. This criminal adjudication. Jurisdictional statutes and category originally referred to individuals who were case law set out the criteria for competence to literally deaf and mute, but over time, it came to stand trial. include persons with mental illness.1 Adjudicative competence: The terms “adjudicative By the time Blackstone wrote his famous Com- competence,” “competence to proceed with ad- mentaries, competency in defendants was regarded as judication,” “competence to stand trial,” and intrinsic to the fairness of a trial process in which the “fitness to stand trial” are used interchangeably use of attorneys was often forbidden. Thus, common throughout the Guideline. Competence to stand law held that a defendant who was “mad” should trial is the phrase that U.S. criminal courts have “not to be arraigned...because he is not able to traditionally used to designate the set of legal plead to [the charge] with that advice and caution concerns that will be discussed herein. As some5 that he ought,” nor should he undergo trial, “for how have noted, however, these concerns encompass can he make his defense?” (Ref. 7, Book 4, Chap. a defendant’s participation, not only in a court- 289). In a late 18th-century case in England, the trial room trial, but in all the other proceedings in the was postponed until the defendant “by collecting to- course of a criminal prosecution. Also, for most gether his intellects, and having them entire, criminal defendants whose cases are disposed of . . . shall be able to model his defense and to ward off through guilty pleas and without trials, the terms the punishment of the law” (Ref. 9, p 307). adjudicative competence and fitness to proceed Historically, courts and commentators in English- are more relevant and appropriate than is com- speaking jurisdictions have offered several reasons for petence to stand trial. requiring mental fitness of criminal defendants dur- Collateral data: information about the defendant ing their legal proceedings. A defendant who lacked that comes from sources other than the defen- competence might fail to communicate exculpatory dant’s statements during the psychiatrist’s inter- information to defense counsel.10 If trials are con- view. Such sources include police reports, medi- ceived of as contests, then a courtroom battle in cal records, statements by the defendant’s which an accused could not present evidence in his attorney, and reports from the defendant’s family own defense seems like combat between unequal ad- members. versaries: one overpowering, the other defenseless.9 The requirement for adjudicative competence also has been justified as a way to avoid cruel treatment of I. Background defendants: “It would be inhumane, and to a certain extent a denial of a trial on the merits, to require one A. History of the Competence Requirement who has been disabled by the act of God from intel- Anglo-American legal doctrine concerning com- ligently making his defense to plead or to be tried for petence to stand trial extends back at least as far as the his life or liberty” (Ref. 11, p 328).

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In an era when even poor criminal defendants that Dusky could not “properly assist” counsel be- have access to legal counsel, the practical require- cause of suspicious thoughts, including a belief that ment that an accused be able to formulate his own he was being “framed.” Yet, the trial court found that defense no longer holds in many cases. Nonetheless, Dusky was competent to stand trial. He was con- the U.S. Supreme Court still regards the competence victed of rape, and the Eighth Circuit Court of Ap- requirement as an important safeguard that assures peals affirmed his conviction. the fairness, accuracy, and dignity of the trial The U.S. Supreme Court held, however, that the process.12 trial court’s determination that Dusky was oriented One of the earliest and most cited English formu- and could recall events was not sufficient to establish lations for judging adjudicative competence appears his competence to stand trial. Instead, the Court in King v. Pritchard, 173 Eng. Rep. 135 (1836),13 in stated that the test for his competence to stand trial which the court instructed a jury first to consider was “whether he [had] sufficient present ability to whether a defendant was “mute of malice or not; consult with his lawyer with a reasonable degree of secondly, whether he can plead to the indictment or rational understanding—and whether he [had] a ra- not; thirdly, whether he is of sufficient intellect to tional as well as factual understanding of the proceed- comprehend the course of proceedings on the trial.” ings against him” (Ref. 16, p 402). Taking note of During the 19th century, U.S. jurisdictions contin- “the doubts and ambiguities regarding the legal sig- ued English common law tradition, explicitly recog- nificance of the psychiatric testimony in this case and nizing the competence requirement and formulating the resulting difficulties of retrospectively determin- their own tests for it. In 1899 one federal appeals ing the petitioner’s competency of more than a year court noted that requiring defendants to be compe- ago” (Ref. 16, p 403), the Supreme Court remanded tent at trial was a fundamental protection guaranteed the case to the trial court to ascertain Dusky’s present by the U.S. Constitution: “It is not ‘due process of competence to stand trial and to retry him if he was law’ to subject an insane person to trial upon an found competent. indictment involving liberty or life” (Ref. 14, p 941). Several points about the Dusky standard deserve In the early 20th century, another federal appeals noting (see Ref. 1): court articulated the following test for deciding whether a defendant is competent: Adjudicative competence hinges on a defen- dant’s present mental state, in contrast with Does the mental impairment of the prisoner’s mind, if such there be, whatever it is, disable him...from fairly present- other criminal forensic assessments (e.g., assess- ing his defense, whatever it may be, and make it unjust to go ments of criminal responsibility or of compe- on with his trial at this time, or is he feigning to be in that tence to waive Miranda rights at the time of ar- condition...?[Ref. 10, p 298]. rest), which refer to past mental states. A later test asked courts to consider whether the de- The Dusky Court was silent about what condi- fendant was “capable of properly appreciating his tions may make a person incompetent to stand peril and of rationally assisting in his own defense” trial Although mental illness, mental retardation, (Ref. 15, p 725). and neurologically based impairments in cogni- tion would all be plausible candidates, the Dusky B. Landmark U.S. Cases standard leaves open the possibility that other factors, such as cultural differences or immatu- 1. The U.S. Constitutional Standard rity, could justify a finding of incompetence. In 1960, Dusky v. U.S., 362 U.S. 402 (1960),16 Most jurisdictions’ statutes require the presence established what is usually taken to be the minimal of some mental abnormality for a finding of in- constitutional standard for adjudicative fitness in the competence, thereby limiting the range of con- United States. The appellant, Milton Dusky, faced a ditions for which defendants may be found in- charge of unlawfully transporting a girl across state competent to stand trial. For example, the lines and raping her. A pretrial psychiatric evaluation Insanity Defense Reform Act (IDRA) of 198417 rendered a diagnosis of “schizophrenic reaction, holds that a criminal defendant in federal court is chronic undifferentiated type.” A separate psychiat- incompetent to stand trial if a preponderance of ric report and psychiatric testimony at trial stated the evidence shows that he “is presently suffering

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from a mental disease or defect rendering him plea). In stating that the Dusky definition of compe- mentally incompetent to the extent that he is tence to stand trial encompasses such decision-mak- unable to understand the nature and conse- ing, Godinez suggests that the courts (and therefore quences of the proceedings against him or to as- the psychiatrist) may have to evaluate at least some of sist properly in his defense.”18 a defendant’s decision-making abilities when making 21 The attention of the courts (and, implicitly, the judgments about adjudicative competence. attention of the psychiatrist) is directed to the 2. Required Hearings defendant’s “ability” to consult rationally with an attorney, rather than the defendant’s willing- Six years after establishing the constitutional stan- ness to consult rationally. dard for adjudicative competence, the United States Supreme Court issued a decision regarding when a The term “reasonable” connotes flexibility in de- hearing on competence should occur. Pate v. Robin- termining competence, while the phrase “ratio- son, 383 U.S. 375 (1966),22 concerned a man found nal as well as factual understanding” requires the guilty of homicide. Two to three months before the courts and psychiatrists to consider broadly how trial, a psychiatrist had examined Robinson and the defendant exercises his cognitive abilities. found that he understood the charges against him Evaluating clinicians are given no guidance con- and could cooperate with counsel. During the trial, cerning what level of capacity justifies a finding however, defense counsel asserted that Robinson was of competence. In stating that the defendant not competent to stand trial and asked for additional must have “sufficient present ability” to work psychiatric testimony on the matter. The trial court with his attorney, the Court leaves it to the trial refused the request, despite uncontroverted testi- court to decide, in a given case, whether a defen- mony about Robinson’s history of head injuries, dant’s abilities suffice for a finding of adjudica- hearing voices, hallucinating, and “pronounced irra- tive competence. tional behavior” (Ref. 22, p 386). A subsequent decision, Drope v. Missouri, 420 The Supreme Court ruled that the refusal was im- U.S. 162 (1975),19 amplified on the requirement in proper, holding that the Due Process Clause of the Dusky for the defendant to be capable of consultation Fourteenth Amendment requires trial courts to hold with an attorney, stating that a criminal defendant a suitable hearing on competence to stand trial when- must be able “to assist in preparing his defense” (Ref. ever there is a “bona fide doubt” (Ref. 22, p 385) 19, p 171). In Godinez v. Moran, 509 U.S. 389 about a defendant’s adjudicative capacity. Bona fide (1993),20 the Supreme Court declared explicitly that doubt sets a low threshold for holding a competence states may adopt criteria for competence that are hearing, implying that, to protect all defendants’ more elaborate than Dusky’s formulation. However, rights to a fair trial, many competent defendants may the Court stated that “the Due Process Clause does have to undergo evaluation, to avoid the prosecution not impose these additional requirements” (Ref. 20, of a defendant who is not competent. 19 p 402). Drope v. Missouri, dealt with what level of evi- In observing that “all criminal defendants...may dence should trigger a hearing regarding a defen- be required to make important decisions once crim- dant’s competence. Drope faced a charge of raping inal proceedings have been initiated” (Ref. 20, p his wife. Before trial, defense counsel filed a motion 398), the majority opinion in Godinez appears to for a continuance, attaching a psychiatrist’s report interpret Dusky as requiring that a defendant have stating that Drope needed psychiatric treatment. On certain decision-making capacities to be deemed the second day of trial, Drope shot himself in a sui- competent to stand trial. As examples, Godinez notes cide attempt and was hospitalized for three weeks. that standing trial often requires defendants to make The trial continued in his absence. Although Drope’s choices about whether to have a jury trial, to testify, attorney moved for a mistrial, the trial court denied and to cross-examine witnesses. Before trial, defen- the motion, stating that Drope shot himself volun- dants may have to decide whether and how to put on tarily in a specific effort to avoid trial. Drope was a defense and whether to raise an “affirmative de- convicted. After a series of appeals, the U.S. Supreme fense” (e.g., a claim of self-defense or an insanity Court heard his case.

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In a unanimous decision that reversed Drope’s held before the convicting jury. To impose a death conviction and remanded his case for a new trial, the sentence under Texas law, jurors had to find that a Supreme Court held that the trial court had violated defendant was likely to commit future criminal acts the defendant’s due process right to a fair trial by not of violence that would constitute a continuing threat suspending the trial to hold a hearing on his compe- to society. At the sentencing hearing the psychiatrist tence. Referring to Pate v. Robinson,22 the Court testified that, based on his pretrial competence exam- found that data available at the time of the trial—the ination, Smith lacked remorse, was untreatable, and psychiatrist’s report, the defendant’s suicide attempt, was destined to commit more violent criminal acts. and his wife’s testimony—were sufficient to raise The testimony supported the death penalty, and the genuine doubts about Drope’s competence. The Su- jurors imposed it. preme Court said: After unsuccessful appeals in state courts, a federal district court vacated Smith’s death sentence, finding The import of our decision in Pate v. Robinson is that evi- dence of a defendant’s irrational behavior, his demeanor at that the trial court made a constitutional error in trial, and any prior medical opinion on competence to admitting the psychiatrist’s testimony at the penalty stand trial are all relevant in determining whether further phase. The U.S. Court of Appeals affirmed, as did inquiry is required, but that even one of these facts standing alone may, in some circumstances, be sufficient. There are, the U.S. Supreme Court. of course, no fixed or immutable signs which invariably The Supreme Court found that the psychiatrist’s indicate the need for further inquiry to determine fitness to use of the competency evaluation violated Smith’s proceed; the question is often a difficult one in which a wide right to avoid self-incrimination, because the Fifth range of manifestations and subtle nuances are implicated [Ref. 19, p 180]. Amendment applied to the sentencing as well as the guilt phase of the trial. Because the psychiatrist had Although Drope may have appeared competent at neither advised Smith of his right to remain silent nor the beginning of his trial, the Supreme Court held warned him that his statements could be used during that “a trial court must always be alert to circum- capital sentencing, Smith’s death sentence was over- stances suggesting a change that would render the turned. The Court also held that admitting the psy- accused unable to meet the standards of competence chiatrist’s testimony at the penalty phase had violated to stand trial” (Ref. 19, p 181). Because Drope’s Smith’s Sixth Amendment right to assistance of coun- absence at trial precluded courtroom observations sel. Defense counsel had not known in advance that the about his demeanor and ability to engage with his psychiatric examination would encompass the question attorney, the proper course would have been to sus- of future dangerousness, and thus Smith was prevented pend the trial until Drope could undergo evaluation. from receiving legal advice about the competence exam- ination and its possible consequences. 3. Competence Evaluations and the Fifth Amendment In Buchanan v. Kentucky, 483 U.S. 402 (1987),24 In virtually all jurisdictions, a defendant may be the Supreme Court expressly limited the protections ordered to undergo a mental health evaluation as a in Smith to situations in which the defendant did not prelude to a hearing on his competence to stand trial. initiate the psychiatric examination or attempt to Such evaluations may implicate a defendant’s Fifth introduce psychiatric evidence at trial. Buchanan was Amendment protection against self-incrimination, one of three youths charged with the murder of a because defendants may admit to certain actions ei- young woman. At his murder trial, his attorney at- ther spontaneously or in response to the psychiatrist’s tempted to establish the affirmative defense of “ex- question. Whether a court can convict a defendant treme emotional disturbance,” calling a social worker based on information in a competence assessment as his sole witness. During her testimony, the social became the subject of two U.S. Supreme Court cases. worker read from several reports and letters concern- Estelle v. Smith, 451 U.S. 454 (1981),23 arose from ing evaluations of Buchanan’s mental condition that the murder conviction and death sentence of Ernest had been prepared following an arrest on a previous Smith who, while being held in jail before trial, had burglary charge. On cross-examination, the prosecu- undergone a court-ordered psychiatric examination tor had the social worker read another report from a to assess his competence to stand trial. After being psychological evaluation that defense counsel and found competent, he was found guilty of murder and the prosecutor had jointly requested and that had then underwent a separate sentencing proceeding been prepared while Buchanan had been institution-

Volume 35, Number 4, 2007 Supplement S7 Practice Guideline: Evaluation of Competence to Stand Trial alized before the murder trial. When defense counsel riod, a jury heard conflicting expert testimony about objected on the basis that the evaluation concerned Medina’s mental condition. He had made several only Buchanan’s competence to stand trial and had verbal and physical outbursts during the hearing; on nothing to do with his emotional disturbance, the one occasion, he overturned a table. prosecutor responded that the report dealt with the The jury found Medina competent to stand trial, same matters raised by having the social worker read and following a trial at which he raised the insanity other reports from earlier evaluations. Defense coun- defense, a different jury found him guilty and recom- sel also argued that the psychological report would mended the death sentence. The trial court imposed violate Buchanan’s Fifth and Sixth Amendment the death penalty for the murder convictions and rights because an attorney had not been present dur- sentenced Medina to prison for the remaining ing the evaluation, and no one had told Buchanan offenses. that the results could be used against him at trial. The In appeals to the California and U.S. Supreme trial judge allowed the social worker to read an edited Courts, Medina argued that the statutory presump- version of the report, commenting, “You can’t argue tion of competence and placing the burden of proof about his mental status at the time of the commit- on the defendant violated his right to due process. ment of this offense and exclude evidence when he The California Supreme Court rejected these con- was evaluated with reference to that mental status” tentions, and the U.S. Supreme Court, after granting (Ref. 24, p 412). certiorari, affirmed. Reasoning that preventing and The Supreme Court held that using the report dealing with crime is primarily the business of states solely to rebut psychological evidence had not vio- (rather than the federal government), and, finding lated Buchanan’s Fifth and Sixth Amendment rights that there is “no settled tradition on the proper allo- as established in Estelle v. Smith. The privilege against cation of the burden of proof in a proceeding to self-incrimination was not violated, because the de- determine competence” (Ref. 25, p 446), the Court fendant had requested a psychological evaluation. In concluded: addition, unlike the situation in Smith, Buchanan’s attorney himself had requested the mental health Once a State provides a defendant access to procedures for making a competency evaluation,...weperceive no basis evaluation and presumably discussed it with his cli- for holding that due process further requires the State to ent. Smith had put defense counsel on notice that, if assume the burden of vindicating the defendant’s constitu- he intended to present such a mental-state defense, tional right by persuading the trier of fact that the defen- he could anticipate the use of psychological evidence dant is competent to stand trial [Ref. 25, p 449]. in rebuttal. Four years later, however, the U.S. Supreme Court ruled unconstitutional an Oklahoma law that 4. Burdens of Persuasion and Standards of Proof presumed that a defendant was competent to stand Legal decisions in the 1960s and 1970s made it trial unless he proved otherwise by clear and convinc- clear that trial courts must be vigilant about the com- ing evidence. Cooper v. Oklahoma, 517 U.S. 348 petence of criminal defendants. Yet it was not until (1996)12 challenged the conviction and death sen- the 1990s that the U.S. Supreme Court clarified, in tence of a man whose competence had been consid- two separate cases, who bears the burden of persua- ered on five separate occasions. Cooper spent time in sion in a competence hearing and the level of proof a psychiatric facility after an initial finding of incom- needed to show that a defendant lacks adjudicative petence and then was ruled competent despite con- competence. flicting testimony by mental health experts. One In the first case, Medina v. California, 505 U.S. week before trial, Cooper’s lawyer reported that the 437 (1992),25 a defendant faced several criminal defendant was still behaving oddly and refusing to charges, including three counts of first-degree mur- communicate. On the first day of trial, Cooper’s bi- der. Defense counsel requested and the trial court zarre behavior prompted the trial court judge to hold granted a hearing on his client’s competence, which another competence hearing that included testimony took place pursuant to a California statute that pre- of several lay witnesses, a psychologist, and Cooper sumes defendants are competent and gives the party himself (who remained in prison overalls for the trial claiming incompetence the burden of proving it by a because he thought regular clothes were “burning” preponderance of the evidence. Over a six-day pe- him). On the witness stand, Cooper expressed fear

S8 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial that the lead defense attorney wanted to kill him, and appointed psychiatrists opined that Jackson’s deficits during the hearing, Cooper talked to himself and to left him unable to understand the nature of the an imaginary “spirit” who, he said, gave him counsel. charges against him or to participate in his defense, The trial judge concluded: and that his ability was unlikely to improve. The trial My shirtsleeve opinion of Mr. Cooper is that he’s not nor- court found Jackson incompetent to stand trial and mal. Now, to say he’s not competent is something else. I committed him to the Indiana Department of Men- think it’s going to take smarter people than me to make a tal Health until he could be certified sane. decision here. I’m going to say that I don’t believe he has carried the burden by clear and convincing evidence of his Jackson’s defense counsel asked for a new trial and incompetency and I’m going to say we’re going to go to trial contended that Jackson’s commitment, given the un- [Ref. 12, p 352]. likelihood of his improvement, amounted to a life In his appeals, Cooper claimed that Oklahoma’s sentence in the absence of any conviction. As such, presumption of competence and its requirement that Jackson’s confinement violated his Fourteenth a criminal defendant establish incompetence by clear Amendment right to due process and equal protec- and convincing evidence placed too heavy a burden tion and his Eighth Amendment protection from on the defendant and therefore violated his right to cruel and unusual punishment. After the trial court due process. After a lower court rejected his argu- and the Indiana Supreme Court rejected these argu- ment, the U.S. Supreme Court heard the case and ments, the U.S. Supreme Court heard Jackson’s case. agreed with Cooper. The Court interpreted early En- The Court held that when Jackson was committed glish and U.S. case law as suggesting that the com- because he was deemed incompetent to stand trial, he mon-law standard of proof for incompetence is only had been subjected to a more lenient standard for a preponderance of the evidence (that is, more likely confinement but a more stringent standard for re- than not), and that the preponderance standard was lease than those persons who are committed under being used in federal courts and 46 of the states. civil statutes, and this imbalance constituted a viola- Holding that regulation of the procedural burden tion of the Fourteenth Amendment’s Equal Protec- falls within the Due Process Clause of the Fourteenth tion Clause. The Court also held that indefinite com- Amendment, the Court concluded that the standard mitment of a pretrial defendant solely because of his of clear and convincing failed to safeguard the fun- incompetence to stand trial violated Jackson’s right damental right not to stand trial while incompetent, to due process. Writing for the Court, Justice Black- because it allowed criminal courts to try defendants mun stated that a trial-incompetent defendant might who had shown that they were probably incompe- not “be held more than the reasonable period of time tent. The Court noted that “difficulty in ascertaining necessary to determine whether there is a substantial whether a defendant is incompetent or malingering probability that he will attain that competency in the may make it appropriate to place the burden of proof foreseeable future” (Ref. 26, p 738). If treatment on him, but it does not justify the additional onus of could not restore a defendant to competence, the an especially high standard of proof” (Ref. 12, p state must either initiate civil commitment proceed- 366). ings or release the defendant. In two U.S. Supreme Court cases, the right of a 5. Pretrial Management of Mentally Disabled Defendants pretrial defendant to refuse antipsychotic medica- As the Supreme Court addressed questions related tions has been examined. Riggins v. Nevada, 504 U.S. to standards and procedures for determining a defen- 127 (1992),27 concerned a man charged with murder dant’s incompetence to stand trial, it also issued rul- and robbery who, a few days after his apprehension, ings regarding pretrial management of mentally dis- told a jail psychiatrist that he was hearing voices and abled defendants. Jackson v. Indiana, 406 U.S. 715 having trouble sleeping. Riggins reported that he had (1972),26 concerned “a mentally defective deaf mute previously taken the antipsychotic drug thioridazine, with a mental level of a preschool child” (Ref. 26, p and the psychiatrist prescribed the drug, gradually 717) who, at age 27 years, faced two separate robbery increasing the dose to 800 mg a day. charges involving a combined value of nine dollars. A few months later, Riggins underwent evaluation Upon receiving guilty pleas from Jackson, the trial and was found competent to stand trial. The defense court followed Indiana procedures for determination then moved for suspension of the thioridazine (and of his competence to stand trial. The court- phenytoin, which Riggins was also receiving) during

Volume 35, Number 4, 2007 Supplement S9 Practice Guideline: Evaluation of Competence to Stand Trial the trial, arguing that his taking the drugs “infringed district court’s decision to authorize forced medica- upon his freedom and that the drugs’ effect on his tion, but found that Sell was not dangerous while demeanor and mental state during trial would deny institutionalized. Therefore, in accepting Sell’s case him due process” (Ref. 27, p 130). The defense also for review, the U.S. Supreme Court had to decide argued that Riggins had a right to show jurors his whether psychotropic medication can be forced on a “true mental state” in the presentation of a planned nondangerous defendant solely to render him com- insanity defense. The trial court denied the motion petent to stand trial. to terminate the medication, the trial continued, In developing criteria for imposing competence- Riggins was found guilty, and he received the death restoring medication on unwilling defendants, the sentence. Court turned to Washington v. Harper, 494 U.S. 210 After Riggins’ Nevada appeals failed, the U.S. Su- (1990),29 (which had dealt with involuntary medica- preme Court granted certiorari to “decide whether tion of prison inmates) and Riggins.27 Taken to- forced administration of antipsychotic medication gether, said the Court, these cases implied that: during trial violated rights guaranteed by the Sixth . . . the Constitution permits the Government to involun- and Fourteenth Amendments” (Ref. 27, pp 132–3). tarily administer antipsychotic drugs to a mentally ill de- The Court found that due process would have been fendant facing serious criminal charges to render that de- satisfied if the trial court had found that antipsy- fendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have chotic medication was medically appropriate and es- side effects that may undermine the fairness of the trial, sential for the sake of Riggins’ safety or the safety of and, taking account of less intrusive alternatives, is signifi- others, taking into account “less intrusive” alterna- cantly necessary to further important governmental trial- tives. The Court also stated that the state might have related interests [Ref. 28, p 179]. been able to justify medically appropriate involun- Before imposing involuntary medication, said the tary medication for Riggins if the trial court had Sell majority, trial courts must address four points: found that no less-intrusive measures would have permitted adjudication of his case. Whether the government has an interest in pros- However, the trial court’s ruling requiring Riggins ecuting the defendant, by considering the seri- to keep taking antipsychotic medication neither es- ousness of the charges; how long the defendant tablished that thioridazine would ensure that he has already been confined (time that would could be tried nor showed that safety considerations count against a possible sentence); and whether or some other compelling concern outweighed his the defendant might, if not treated, be confined interest in being free of unwanted drugs. Thus, to a psychiatric hospital for a lengthy period, forced administration of antipsychotic medication which “would diminish the risks that ordinarily during trial may have violated his trial-related rights attach to freeing without punishment one who under the Sixth and Fourteenth Amendments. The has committed a serious crime” (Ref. 28, p 180). Supreme Court reversed his conviction and re- Whether the proposed medication would “be manded his case for further proceedings. substantially likely” to render the defendant Riggins left open the question of whether a defen- competent without causing side effects that dant can be forcibly medicated solely to render him would interfere with his ability to work with his competent to stand trial. Eleven years after Riggins, attorney. 28 Sell v. U.S., 539 U.S. 166 (2003), provided the Whether there is a less intrusive treatment that answer. Charles T. Sell, a dentist, was charged in would restore the defendant’s competence. May 1997 with submitting false insurance claims. After he was found incompetent to stand trial, Sell Finally, whether the proposed involuntary med- refused to accept the antipsychotic medication that ication would be “medically appropriate, i.e., in his doctors believed would be likely to restore his the patient’s best medical interest in light of his competence. A federal magistrate and a district court medical condition” (Ref. 28, p 181; emphasis in judge both authorized administration of medication original). over Sell’s objections, ruling that Sell’s behavior in The Court also held that, before ordering forced the hospital showed that he posed a danger to others. medication to restore competence, trial courts A divided panel of the court of appeals affirmed the should consider other possible grounds for forced

S10 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial medication, including a patient’s dangerousness to application. The federal court of appeals reversed, himself or others and situations in which the pa- however, holding that the district court should have tient’s refusal to take medication poses a risk to his held a hearing regarding Moran’s competence before health. If medications were authorized on these accepting his guilty plea and his decision to waive grounds, it would not be necessary to decide whether counsel. Further, the court of appeals held that com- to force medication to restore trial competence. The petence to waive constitutional rights requires a Court commented: higher level of mental functioning than that needed to stand trial. The correct standard for such a waiver . . . [M]edical experts may find it easier to provide an in- formed opinion about whether, given the risk of side ef- required that the defendant have the capacity to fects, particular drugs are medically appropriate and neces- make a “reasoned choice” among the available sary to control a patient’s potentially dangerous behavior alternatives. (or to avoid serious harm to the patient himself) than to try to balance harms and benefits related to the more quintes- Rulings from various federal circuit courts had dis- sentially legal questions of trial fairness and competence agreed about whether a higher standard of compe- [Ref. 28, p 182]. tence was necessary for pleading guilty or waiving the In Sell, the Court ruled that the existing orders for right to counsel, and the U.S. Supreme Court forced medication could not stand, because lower granted certiorari in Godinez to resolve the matter. A courts had not adequately considered trial-related Court majority, per Justice Thomas, “reject[ed] the side effects, the impact on the sentence of Sell’s al- notion that competence to plead guilty or to waive ready-lengthy confinement, and any potential future the right to counsel must be measured by a standard confinement that might lessen the importance of that is higher than (or even different from) the Dusky prosecuting him. The Court therefore remanded standard” (Ref. 20, p 398), and cited the language of Sell’s case for further proceedings in accordance with Dusky as the proper criterion in these situations. its ruling. When a defendant waives the right to counsel, he must do so “competently and intelligently.” To be 6. Standards for Waiving Constitutional Rights competent to waive counsel, however, the defendant Whether there should be a separate, higher stan- need only have the capacity to make an “intelligent dard of competence for defendants who want to and voluntary” decision to choose self-representa- waive their constitutional rights to counsel and enter tion. The defendant need not have the “technical a plea of guilty was settled in Godinez v. Moran,20 in legal skills” or heightened mental abilities necessary which the U.S. Supreme Court stated that fitness to to represent himself capably in a criminal proceed- stand trial implies competence to waive counsel and ing. The Court also found that the decision to plead plead guilty. After being charged with three counts of guilty is “no more complicated than the sum total of first-degree murder, Moran had initially pleaded not decisions that a defendant may have to make during guilty, and two psychiatrists who evaluated Moran the course of a trial, such as whether to testify, opined that he was depressed but competent to stand whether to waive a jury trial, and whether to cross- trial. Moran then told the Nevada trial court that he examine witnesses for the prosecution” (Ref. 20, p wanted to change his plea to guilty and dismiss his 398). The Supreme Court therefore upheld Moran’s attorneys—his purpose being to prevent the presen- conviction and death sentence. Moran’s later appeals tation of mitigating evidence at his sentencing. The were unsuccessful, and the state of Nevada executed trial court found that Moran understood the charges him in March 1996. against him, was capable of assisting his lawyers, had waived his right to counsel knowingly and intelli- II. Special Topics in Recent U.S. Case Law gently, and had entered his guilty pleas freely and voluntarily. Moran was subsequently sentenced to A. Mental Conditions and Adjudicative death on all three murder counts. Incompetence In a postconviction appeal hearing, a trial court As explained in the previous section, the U.S. Su- rejected Moran’s claim that he had been mentally preme Court has construed the Sixth and Fourteenth incompetent to represent himself. The Nevada Su- Amendments as forbidding trial of incompetent de- preme Court denied Moran’s appeal for dismissal, fendants and as requiring courts to hold hearings and a federal district court rejected his habeas corpus about a defendant’s fitness for trial whenever suffi-

Volume 35, Number 4, 2007 Supplement S11 Practice Guideline: Evaluation of Competence to Stand Trial cient doubt about competence arises. There is no understood legal proceedings and the appeals bright-line threshold about what constitutes suffi- process.39 cient doubt, but the Court has recommended that although the defendant had brain damage caused trial courts consider “a defendant’s irrational behav- by multiple head injuries and drug addiction, he ior, his demeanor at trial, and any prior medical was competent because the he had assisted coun- opinion” (Ref. 19, p 180) in weighing whether to sel in preparing for trial; had given appropriate hold a hearing on competence. responses in interviews; and had written letters to In applying Drope, federal appeals courts have the jury, counsel, and his wife and because nei- faulted trial courts for failure to hold hearings on ther the defendant’s family nor counsel had competence to stand trial in cases in which: doubted his competence.40 The defendant could not communicate intelli- Despite the presence of structural brain abnor- gently, had a family history of mental distur- 30 malities and a history of behavioral problems, the bance, and had sustained a severe head injury. defendant was fit because a prosecution psychia- 41 The trial judge was informed that the defendant trist had testified to that effect. had several mental disorders, had undergone Although the defendant had mild mental retar- many psychiatric hospitalizations, and probably dation and organic brain damage and had en- had used antipsychotic medication, and defense gaged in substance abuse, the opinion of the gov- counsel had repeatedly asked for assistance from ernment’s mental health experts, the defendant’s 31 mental health experts. own coherent testimony, his confession to po- The defendant who displayed odd, self-defeating lice, and his two escapes all had represented evi- 42 behavior in court had believed his lawyer and the dence that he was competent. judge were part of a conspiracy.32 Although he had narcolepsy, the defendant had The defendant claimed to have experienced au- testified coherently at trial, and the trial court had verified that, throughout the trial, he had ditory and visual hallucinations at the time of the 43 offense, his family had a history of mental illness, taken notes and conversed with counsel. psychiatrists found that he had severe paranoid Although the defendant gave “rambling and of- schizophrenia, and the judge had written a letter ten nonresponsive answers to questions that he to the state department of corrections expressing was asked,” most of the his statements showed concern about his competence.33 “that he simply wanted his day in court and wanted an opportunity to tell his story his Appellate courts have been clear, however, that 44 “the presence of some degree of mental disorder in way.” the defendant does not necessarily mean that he is B. Competence and Criminal Responsibility incompetent to...assist in his own defense” (Ref. 34, p 445). Neither a past nor a current mental dis- Courts have also repeatedly distinguished between order—be it mental retardation, mental illness, findings regarding fitness for trial (which reflects a brain damage, or substance abuse—necessarily defendant’s present mental capabilities during adju- makes a defendant incompetent.35–37 Thus, for ex- dication) and criminal responsibility (which is re- ample, appeals courts have ruled that: lated to a defendant’s mental state when the alleged offense took place), holding that these are indepen- Despite indications of grandiose or paranoid de- dent determinations on distinct ultimate issues.45,46 lusions, the defendant was competent because an A finding that a defendant is competent to stand trial examining psychologist found no need for treat- cannot not prevent him from trying to establish an ment and a psychiatrist testified that the defen- insanity defense, and such a finding is not admissible dant understood the legal proceedings and could at trial.47 assist counsel.38 despite a history of depression, severe learning C. Attorney’s Failure to Challenge Competence impairment, and suicidal tendencies, the defen- Occasionally, forensic clinicians encounter refer- dant was competent because he showed that he rals for competence evaluations that seem frivolous,

S12 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial because the defendant is obviously competent. Cli- tive assistance of counsel and grounds for reversal of nicians should recognize, however, that when a de- a criminal conviction. fendant displays signs of a competence-impairing Hull v. Kyler, 190 F.3d 88 (3rd Cir. 1999),50 con- mental disorder, defense counsel is obligated to cerned another defendant charged with murder who question whether the client can proceed with was found incompetent soon after his arrest and was adjudication.48 hospitalized for four years. The trial court found the The leading case in this area is Curry v. Zant, 371 defendant competent based on testimony from a S.E.2d 647 (Ga. 1988),49 a Georgia Supreme Court court-appointed psychiatrist who had seen the defen- habeas corpus ruling that set aside the guilty plea and dant three months earlier and who said the defendant death sentence of a defendant charged with commit- could understand proceedings and assist counsel “at ting murder in the course of a rape and burglary. The that time.” Defense counsel did not cross-examine first of two attorneys appointed to represent the de- the expert and conceded competence, and the defen- fendant believed that his client had a severe mental dant pleaded guilty to murder. In finding defense illness, and the trial court told this attorney that it counsel ineffective, the appeals court noted that dur- would grant funds for an independent evaluation of ing his hospital stay, at least eight doctors had found the defendant’s competence to stand trial. On its the defendant incompetent because of mental retar- own motion, the trial court also had clinicians at a dation and schizophrenia and that an evaluation two state hospital evaluate the defendant. The hospital’s weeks before the court-appointed expert had found examining physician reported that the defendant was no change in him from previous examinations. “not hitting on all cylinders” and had a borderline Woods v. State, 994 S.W.2d 32 (Mo. Ct. App. 51 personality disorder, but might be malingering and 1999), concerned a defendant with a manic-de- manipulative. pressive disorder who tried to commit suicide the on A second appointed attorney ultimately repre- day of his sentencing. The defendant seemed as de- sented the defendant, who entered a plea of guilty at pressed as usual to the attorney when she talked with trial and subsequently received the death sentence. him after the suicide attempt, and she thought he was The attorney never asked for the independent evalu- competent. “This was not counsel’s call,” said the ation because, given his observations of the defen- appeals court (Ref. 51, p 39), and ruled that counsel dant and the report from the state hospital, he felt was ineffective in her failure to seek a competence that a second evaluation “would be futile” (Ref. 49, p evaluation after the suicide attempt. In the Matter of Fleming, 16 P.3d 610 (Wash. 649). At the habeas corpus hearing, however, a psy- 52 chologist testified that the defendant had not been 2001) (en banc), concerned the potential impact of competent to waive his right to trial and that infor- findings by a defense expert, who was retained to mation from “an independent evaluation would have investigate the possibility of a diminished-capacity been invaluable to a jury trying his case” (Ref. 49, p defense, but who thought that the defendant was 648). The Georgia Supreme Court believed that the incompetent to stand trial. Defense counsel did not second attorney had been conscientious. He had inform the trial judge of the expert’s opinion, and the thoroughly discussed with the defendant and his defendant pleaded guilty to a burglary charge. The family the decision to plead guilty and had prepared Washington Supreme Court held that the defense well for the trial’s sentencing phase. Nonetheless, attorney’s failure to inform the judge constituted in- concluded the court, the attorney’s failure to get a effective assistance of counsel because the defendant second psychiatric evaluation constituted ineffective “might have been found incompetent and should assistance of counsel, because a second opinion have had a competency hearing before entering a plea might well have provided crucial information about of guilty” (Ref. 52, p 615). incompetence and insanity, and may have resulted in death penalty mitigation. D. Personality Disorders Personality disorders usually are not conditions 1. Other Cases that render defendants incompetent to stand trial, Recent cases from other jurisdictions support the and numerous appellate cases affirm convictions of view that a defense attorney’s failure to investigate defendants whom trial courts found competent de- bona fide signs of incompetence constitutes ineffec- spite their personality problems. However, several

Volume 35, Number 4, 2007 Supplement S13 Practice Guideline: Evaluation of Competence to Stand Trial cases suggest that personality disorders could cause overcome the trial court’s previous doubts about the adjudicative incompetence and that failure to recog- defendant’s competence. Holding that the trial judge nize this possibility could result in reversal of a erred when he failed to conduct an evidentiary hear- conviction. ing on the defendant’s competence, the Kentucky Supreme Court reversed the defendant’s conviction. 1. State Court Cases The court remanded the case for an evidentiary hear- In State v. Stock, 463 S.W.2d 889 (Mo. 1971),53 ing on the defendant’s competence to stand trial, the Missouri Supreme Court held that the trial court indicating that the defendant might be retried were had erred in failing to hold a hearing concerning the he found competent. (A subsequent Kentucky case, defendant’s competence to stand trial for selling mar- Thompson v. Commonwealth, 56 S.W.3d 406 (Ky. ijuana. After conviction but before sentencing, the 2001),55 overruled the portion of Hayden that re- defense attorney moved for a new trial because he quired vacating a defendant’s sentence, holding that had just learned that Stock had previously received a retrospective hearing on whether a defendant had psychiatric treatment. At a hearing on the motion, been competent was permissible.) the treating psychiatrist testified that his former pa- tient “had schizoid traits...andatendency to be 2. Federal Court Cases withdrawn, hostile, and sometimes paranoid” (Ref. Two cases illustrate the potential role that person- 53, p 893). A court-appointed physician examined ality disorders may play in federal court determina- the defendant and submitted a written report that tions of competence. said that the defendant had “a personality disorder In U.S. v. Wayt, 24 Fed.Appx. 880 (10th Cir. characterized by general inadequacy,” but that this 2001), a Wyoming federal court indicted Glen Wayt “would not interfere with his ability to participate in on charges of conspiracy and distributing metham- his defense in a trial” (Ref. 53, p 893). Defense coun- phetamine, and eventually he pleaded guilty to the sel contested the court-appointed physician’s conclu- conspiracy charge. Before Wayt had entered his plea, sion. However, the trial court believed that the pe- the district (trial) court had heard testimony from riod during which competence could be considered two experts, one of whom testified that although had lapsed, and concluded—without holding a hear- Wayt understood the proceedings against him, his ing—that there was no basis for finding that the ac- drug-induced paranoia would significantly affect his cused lacked the mental capacity to proceed. The ability to assist counsel and prevent him from pro- Missouri Supreme Court found, however, that the viding adequate information for his defense. Wayt defendant was entitled under the state’s statutes to a appealed the district court’s decision finding him hearing on his competence: “the trial court appar- competent to stand trial, contending that the court ently considered that it had reasonable cause to be- incorrectly concluded, as a matter of law, that a per- lieve that the appellant had a mental disease or defect sonality disorder derived from long-term substance excluding fitness to proceed, because it exercised its abuse cannot constitute a “mental disease or defect” discretion and appointed a private physician to make under federal statute 18 U.S.C. § 4241, which sets an examination and report” (Ref. 53, p 894). forth criteria of adjudicative incompetence. The gov- Hayden v. Commonwealth, 563 S.W.2d 720 (Ky. ernment countered that a personality disorder indeed 1978),54 concerned the appeal of a Kentucky defen- should not be considered to be “a mental disease or dant after his conviction for manslaughter and rob- defect” for the purpose of finding a defendant in- bery. Before trial, defense counsel had expressed competent to stand trial. doubt about his client’s competence. An examining The appeals court accepted neither the appellant’s psychiatrist thought the defendant had a schizoid nor the government’s position.56 Before trial, the dis- personality, would probably decompensate into a trict court considered the evidence before it and con- psychotic episode when under stress, and could par- cluded that even if Wayt had a personality disorder ticipate only in trial procedures that were “very con- with paranoid features, the disorder, in his particular crete” and in which participants used only “ex- case, did not meet the statutory criteria for finding tremely” simple phrases to express simple ideas (Ref. that Wayt was incompetent to stand trial. “Contrary 54, p 722). Though the defendant had testified at to Mr. Wayt’s contentions,” wrote the appeals court, trial, this did not constitute evidence sufficient to “the district court’s ruling does not convey a gener-

S14 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial alized legal rule that personality disorders do not stand the testimony of witnesses against him so as to be able qualify for consideration” when a defendant’s com- to assist in his own defense [Ref. 59, p 976]. petence is in question (Ref. 56, p 883). This language Decisions from Ohio and New York liken the situa- seems to imply that had the district court based its tion of a hearing-impaired defendant with that of a decision on such “a generalized legal rule,” it would defendant who cannot understand English: have been in error, which, in turn, implies that a Clearly, a non-English speaking defendant could not mean- personality disorder could be a “mental disease or ingfully assist in his/her own defense without the aid of an defect” for the purpose of finding a defendant in- interpreter. A hearing impaired person is similarly deprived competent to stand trial. of due process in court proceedings conducted without as- A district court ruling in U.S. v. Veatch, 842 sistance [Ref. 60, p 509]. F.Supp. 480 (W.D. Okla. 1993),57 illustrates how a A defendant who cannot hear is analogous to a defendant who cannot understand English, and a severely hearing- court might conclude that a personality disorder ren- impaired defendant cannot be tried without adopting rea- ders a defendant incompetent to stand trial. The sonable measures to accommodate his or her disability [Ref. court heard testimony that the defendant’s “paranoid 61, p 672]. thinking and mistrust of the judicial system in gen- The Arizona Supreme Court said that without some eral prevented him from participating in the pro- form of assistance, hearing-impaired defendants ceeding with the requisite degree of rationality” (Ref. were forced to view “proceedings from a soundproof 57, p 482). The defendant believed, for example, that booth” (Ref. 62, p 733). “his current incarceration was the direct result of the Once the trial court decides that a hearing-im- persistence of the government in persecuting him for paired defendant requires some assistance, the trial other acts.” Although Veatch understood what was court has broad discretion in accommodating the happening in his criminal proceedings, “his severe defendant’s right to that assistance. However, two personality disorder, which both experts agree is cases illustrate the potential sensitivity that trial wrought with paranoid, narcissistic and antisocial courts must display concerning the competence of traits, rendered him incapable of effectively assisting defendants with hearing impairments. counsel in his defense or conducting his own defense. Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct. In sum, the defendant’s irrational thoughts pre- App. 1986),63 appealed the second-degree murder vented him from being competent to stand trial” conviction of a deaf and mute defendant who, as a (Ref. 56, p 482). 17-year-old student, stabbed a teacher. Before trial, the judge considered the opinions of seven experts E. Defendants With Impaired Hearing before concluding that Holmes was competent, and For several decades, courts have held that defen- took “every possible precaution to assure that dants with impaired hearing are constitutionally en- Holmes’ due process rights were protected” (Ref. 63, titled to special accommodations during legal pro- p 232). At trial, Holmes admitted that he had ceedings. In 1925, an Alabama appeals court ruled stabbed the victim, but claimed self-defense. that a hearing-impaired defendant: Holmes’ lawyer tried to show that Holmes had . . . must not only be confronted by the witnesses against stabbed the teacher because the teacher had held him, but he must be accorded all necessary means to know Holmes around the upper body, effectively cutting and understand the testimony given by said witnesses. The off Holmes’ air supply, and that his client had be- constitutional right [to confront one’s accuser] would be lieved he would be injured or killed if not released by meaningless and a vain and useless provision unless the testimony of the witnesses against him could be understood the teacher. But when the defense attorney tried to by the accused. Mere confrontation of the witnesses would question Holmes about what he thought would have be useless, bordering upon the farcical, if the accused could happened if the teacher had continued to exert pres- not hear or understand their testimony [Ref. 58, p 387]. sure, Holmes could not respond. The trial judge More recently, a Louisiana court held, in State v. noted that Holmes could not answer questions cru- Barber, 617 So.2d 974 (La. Ct. App. 1993),59 that: cial to his defense, and subsequently, Holmes’ attor- ney moved for a hearing to present psychological . . . the Constitution requires that a defendant sufficiently testimony concerning Holmes’ ability to present the understand the proceedings against him to be able to assist in his own defense. Clearly, a defendant who has a severe defense of self-defense. However, the trial judge de- hearing impairment, without an interpreter, cannot under- clined to conduct another hearing on Holmes’ com-

Volume 35, Number 4, 2007 Supplement S15 Practice Guideline: Evaluation of Competence to Stand Trial petence to stand trial. The appeals court held that method of communication (which involved use of Holmes’ problems in testifying had raised a bona fide gestures, American Sign Language, and a system of doubt about his competence to stand trial and that “home signing” established among his family mem- the trial court abused its discretion in denying bers) precluded having interpreters function as inter- Holmes’ motion. The appeals court vacated Holmes’ mediaries between him and legal personnel. No men- conviction and sent the case back to the trial court for tal health expert ever evaluated the defendant. The a reevaluation of Holmes’ competence to stand trial. trial court based its finding on the testimony of a The kinds of courtroom accommodations that master’s-level social worker who also had an associ- would preserve a hearing-impaired defendant’s con- ate’s degree in sign language. In another case (U.S. v. viction appear in Shook v. State, 552 So.2d 841 Jones, 2006 U.S. Dist. LEXIS 9257 (E.D. Tenn. (Miss. 1989), writ of habeas corpus denied, Shook v. 2006))66 involving a hearing-impaired defendant Mississippi, 2000 U.S. Dist. LEXIS 8851 (N.D. who could not understand standard sign language, a Miss. 2000).64 In this appeal, a deaf defendant who federal district court declared that the defendant was had been convicted for aggravated assault and firing “physically incompetent” (Ref. 66, p 17) to stand into a dwelling contended that (1) he should not trial under the Dusky standard. have been tried until he had learned sign language, and (2) he had been tried while he was physically F. Amnesia (and possibly mentally) incompetent. Many U.S. cases have addressed whether trying a The appeals court rejected both claims. Concern- defendant who cannot remember the events that led ing the first, the court noted that Shook could read to his arrest constitutes a denial of due process or of and that an interpreter had “kept him well informed the right to effective assistance of counsel. The most- as the trial progressed. He is a high school graduate cited case in this area is Wilson v. U.S. 391 F.2d 460 and was a college student. During the trial he was (D.C. Cir. 1968).67 Wilson and an accomplice stole kept advised of what was being argued and what the a car and held up a pharmacy. Police pursued the pair testimony was” (Ref. 64, pp 844–5). The second in a high-speed chase that ended when the alleged claim, said the appeals court, was “totally refuted by thieves’ vehicle left the road and crashed into a tree. the facts” (Ref. 64, p 845). At the trial, the judge had The accomplice died, and Wilson fractured his skull appointed an interpreter who sat at defense counsel’s and ruptured several blood vessels in his brain. He table during the trial and wrote notes to the defen- remained unconscious for three weeks, and at the dant. Lay witnesses had testified that they could com- time of trial, he could remember nothing that had municate with Shook, and he could communicate happened from the afternoon of the robberies until with them. The trial court also had allowed members he had regained consciousness. However, his mental of the defendant’s family to be with the defendant at condition was otherwise “normal,” and he had only counsel table to assist in communication, even minor neurological sequelae (partial paralysis and a though they might have been witnesses in the case. At slight speech defect). The trial court found Wilson a subsequent habeas corpus hearing, a federal court competent to stand trial, and he was found guilty of affirmed that Shook’s criminal trial proceedings had assault with a pistol and robbery. Wilson appealed adequately protected his due process rights because his conviction on the grounds that he had been in- the trial court had taken all reasonable measures to competent to stand trial and that his being tried compensate for Shook’s hearing impairment and had while amnesic had violated his constitutional rights. also delayed the trial while Shook underwent a com- The appeals court remanded the case to the trial petence evaluation at the state hospital. court for more extensive posttrial findings about Hearing and communication impairment may be whether Wilson’s amnesia had indeed deprived him the basis for a court’s finding of incompetence to of his rights to a fair trial and effective assistance of stand trial, even when no evidence is presented con- counsel under the Fifth and Sixth Amendments. The cerning the defendant’s mental disorder. For exam- appeals court held that to have a fair trial, a defendant ple, State v. Burnett, 2005 Ohio 49 (Ohio Ct. App. must be competent under the Dusky standard. A trial 2005),65 affirmed the trial court’s finding that a “deaf court would have to predict before trial at a compe- mute” defendant was incompetent to stand trial. The tence hearing whether an amnesic defendant has the defendant’s concrete thinking and idiosyncratic capacities required under Dusky. But after a trial has

S16 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial taken place, continued the appeals court, “the trial Courts have remanded or reversed in cases in which judge should determine whether the defendant has in the amnesia had diverse causes, including traumatic fact been able to perform the functions” (Ref. 67, p brain injury,67 “a psychotic type of regression,”78 463) required by Dusky. Further, the trial court drugs administered by a sheriff,79 self-administered should “make detailed written findings” (Ref. 68, p narcotics,80 and psychogenic causes.81,82 463) concerning how the defendant’s amnesia had However, these cases held only that memory im- actually affected the fairness of the trial, taking into pairments may entitle defendants to trial court as- account six factors: sessments of their competence to proceed with adju- The effect of the amnesia on the defendant’s abil- dication or to postconviction reviews of whether ity to consult with and assist his lawyer; their amnesia had adversely affected their defense. In a 1967 case (Bradley v. Preston, 263 F.Supp. 283 the effect of the amnesia on the defendant’s abil- (D.C. Dist. 1967), cert. den. 390 U.S. 990 (1967)),83 ity to testify; the court stated that it was “unable to locate any case how well the evidence could be extrinsically re- to support the contention that amnesia does preclude constructed, including evidence relating to the mental competency as a matter of law” (Ref. 83, p alleged offense and any plausible alibi; 285), nor was there any record of a court’s holding a defendant incompetent to stand trial solely because the extent to which the government assisted the of amnesia. In subsequent years, courts have consis- defense in this reconstruction; tently hewed “to the well-accepted principle that a the strength of the prosecution’s case, including loss of memory of the alleged offense does not in and the possibility that the accused could, but for his of itself preclude fitness to proceed” (Ref. 81, p 566; amnesia, establish an alibi or other defense; and see also Ref. 84). “[C]ases without exception reject “[a]ny other facts and circumstances which the notion that an accused possesses that ability [to would indicate whether or not the defendant had stand trial] only if he is able to remember the circum- a fair trial” (Ref. 67, p 464). stances of the crime with which he is charged” (Ref. 85, p 301). Though many other courts have adopted features By itself, amnesia is only one factor for the trial of the reasoning and approach in Wilson to the prob- court to consider when determining whether a defen- lem of the amnesic defendant (e.g.,, Refs. 68–73), dant is competent and will receive a fair trial.86 In- some have declined to do so (e.g., Refs. 74–76). deed, courts have held this, even in cases in which U.S. v. Stubblefield, 325 F.Supp. 485 (D.C. Tenn. defendants’ cognitive problems arose from gunshot 1971),77 illustrates the potential impact of the fourth wounds to the head.87–90 In one of these cases, State point. The court held that a defendant’s memory v. McClendon, 437 P.2d 421 (Ariz. 1968),87 the Ar- impairment and incapacity to testify were such as to izona Supreme Court concluded that limited amne- require the prosecution to help the defense in recon- sia would not totally incapacitate the defense or pre- structing evidence relating to the crime charged and vent the defendant from assisting counsel in various possible defenses. To this end, the court or- numerous ways, commenting, “We believe that a de- dered the prosecution to open its files to defense fendant is entitled to a fair trial, but not necessarily to counsel and to keep those files open continually a perfect trial” (Ref. 87, p 425). McClendon noted throughout the trial. that amnesia was nothing more than a failure of Wilson clearly implies that amnesia for the events memory concerning facts or events to which an indi- that led to an arrest could be a ground for a finding of vidual has been exposed, that everyone’s memory is incompetence and that a trial court may have to ex- marked by some postevent distortion, that no one’s amine whether a defendant is incompetent prospec- memory is ever complete, and that therefore, every- tively (before trial) and/or retrospectively (after adju- one is amnesic to some degree. The ruling in McClen- dication has occurred). Thus, appellate courts have don also voiced a persistent concern of the courts in reversed convictions or remanded cases after finding this area: that defendants could easily feign amnesia that amnesia, coupled with other factors, may have and that discovery and proof of feigning and malin- prevented the defendant from intelligently testifying gering are difficult, especially if a defendant refuses to or remembering matters needed to make his defense. take the stand.

Volume 35, Number 4, 2007 Supplement S17 Practice Guideline: Evaluation of Competence to Stand Trial

G. The Pro Se Defense and understanding and that he had voluntarily exer- 94 1. Historical Background cised his informed free will. The Nevada Supreme Court has held that the record should establish that a The notion that an attorney should represent a defendant has been made aware of the dangers and criminal defendant is a recent historical develop- disadvantages of self-representation.95 ment. Western literature contains many important To make a knowing and intelligent decision to historical accounts of individuals (e.g., Socrates and represent oneself, the defendant must have the men- Thomas More) who defended themselves against tal competence to make a valid waiver of the right to various types of criminal charges. Old English law counsel. In the United States, a self-representing traditionally denied the aid of counsel to felony de- criminal defendant has the right to have “a fool for a fendants, and only after an 1836 act of Parliament client,” and the wisdom of representing oneself does were persons accused of felonies granted the full right not have a legal bearing on whether a decision to to legal representation.91,92 proceed pro se is intelligent and knowing.96 Further, In the United States, the Sixth Amendment estab- when trial courts assess whether a defendant is mak- lished a criminal defendant’s right to be represented ing a knowing and intelligent decision to defend by attorneys. Though a 1932 decision91 mandated himself, it does not consider his lack of skill or tech- counsel in death penalty cases under the Due Process 93 nical legal knowledge to be relevant, because it is the Clause, it was not until 1963 that the U.S. Su- defendant who will experience the consequences of a preme Court held that the Sixth Amendment guar- 97,98 antees indigent felony defendants the right to court- conviction. Even in capital cases, defendants appointed counsel in state criminal trials. who are competent to stand trial and who know- ingly, intelligently, and voluntarily waive the right to U.S. law does not require criminal defendants to 99 use lawyers in criminal proceedings, however. In an attorney are entitled to represent themselves. Faretta v. California, 422 U.S. 806 (1975),92 the Exactly what trial courts must do when a defen- U.S. Supreme Court recognized a constitutionally dant asks to proceed pro se appears to vary between, protected right, derived from the Sixth Amendment and even within, jurisdictions. In a 1987 case (People v. Burnett, 234 Cal. Rptr. 67 as made applicable to the states by the Fourteenth, 100 that lets a defendant proceed without counsel in a (Cal. Ct. App. 1987)), a California court of appeal state criminal prosecution if the defendant voluntar- held that when a trial court has doubts about a de- ily and intelligently elects to do so. The Faretta court fendant’s competence to represent himself, the court held that the right to self-representation is implicit in must make a careful inquiry into the matter, ordi- the structure of the Sixth Amendment, which states narily by ordering a psychiatric evaluation. In a 2001 case, however (People v. Williams, 111 that “the accused [and not his attorney] shall enjoy 101 the right to be informed of the nature and cause of Cal. Rptr. 2d 732 (Cal. Ct. App. 2001)), another the accusation; to be confronted with the witnesses California court of appeal deemed a defendant’s against him; [and] to have compulsory process for waiver of counsel and request for self-representation obtaining witnesses in his favor.” to have been voluntary, knowing, and intelligent, even though the defendant’s lawyer and a psycholo- 2. Legal Criteria for Permitting a Pro Se Defense gist said that self-representation would be “a disas- Because pro se defendants relinquish many of the ter.” The defendant was convicted. The trial court traditional benefits associated with the right to coun- had neither questioned Williams about whether his sel, Faretta requires that accused persons knowingly request to represent himself was voluntary, knowing, and intelligently forgo those relinquished benefits and intelligent, nor made any expressed finding on before being permitted to represent themselves. Sub- those points. Yet the court of appeal found that Wil- sequent cases have held that when the defendant liams had been competent to stand trial and had chooses self-representation, the record should show executed a form acknowledging that he was advised that “he knows what he is doing and his choice is of various problems associated with self-representa- made with eyes open” (Ref. 92, p 835). A Connect- tion. Thus, Williams’ conviction stood. icut appeals court held that a trial record sufficiently The Indiana Supreme Court has held that, gener- supported a valid waiver of right to counsel when it ally, trial courts should respond to a defendant’s re- showed that the defendant was literate, competent, quest for self-representation by having a pretrial

S18 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial hearing to determine the defendant’s competence to of his right to counsel had been valid, knowing, vol- proceed pro se and to establish a record of the defen- untary, and intelligent, although the defendant had a dant’s waiver of his right to counsel.102 narcissistic personality disorder.112 The Florida Supreme Court has held that a trial However, trial courts must recognize when mental court must determine whether a defendant is com- illness actually affects a defendant’s competence and petent to choose pro se representation and has know- ability to choose self-representation. Granting a de- ingly and intelligently waived the right to counsel.103 fendant’s request to proceed pro se was held improper Some jurisdictions have spelled out specific factors in a case in which the defendant said that his five to be considered when deciding whether a waiver of different public defenders were incompetent and in counsel is valid. The Rhode Island Supreme Court which his disruptive behavior and claims of ineffec- suggested that trial courts consider: (1) the defen- tive assistance raised questions about his understand- dant’s background, experience, behavior at the hear- ing of legal proceedings.113 The Michigan Supreme ing, age, education, and physical and mental health; Court held that a defendant was properly found to be (2) the defendant’s contact with lawyers before the incompetent to represent himself at trial when he hearing; (3) the defendant’s knowledge of the pro- wanted his appointed lawyer dismissed for “lack of ceedings and the sentence that may be imposed; (4) evidence” and told the trial judge that this evidence whether standby council has been appointed and is consisted of a “mask ruling of Jesse James’ case con- available; (5) whether mistreatment or coercion have cerning the Supreme Court” (Ref. 114, p 860). If a occurred; and (6) whether the defendant is trying to defendant wants to represent himself, but his state- manipulate the events of the hearing.104 A Wisconsin ments or behavior give the trial judge sufficient cause appellate court held that the trial court must consider to doubt his competence to make a knowing, intel- the defendant’s education, literacy, fluency in En- ligent waiver of counsel, the court must appoint an glish, and any physical or psychological disability attorney to represent the defendant, and the attorney that may significantly affect communication.105 must serve until the question of competence is resolved.115 3. Deportment and Rationality of Pro Se Defendants Although the legal literature contains numerous Although the Faretta decision permits a criminal appellate cases and articles about pro se defendants, defendant to act pro se, it is not a license to abuse the mental health publications contain very little empir- dignity of the courtroom, and a trial judge may ter- ical research on such individuals. In what they believe minate self-representation by a defendant who does was the first effort to characterize pro se defendants not behave acceptably. Thus, several appellate deci- systematically, Mossman and Dunseith116 found sions (e.g., Refs. 106–109) have found that trial that, although newspaper descriptions of individuals courts properly revoked the right to self-representa- who represented themselves often contained indicia tion in cases in which pro se criminal defendants en- of mental problems, a substantial fraction of pro se gaged in disruptive behavior at trial. defendants had rational reasons for wanting to rep- Several courts have held that a history or current resent themselves. In a few cases, pro se defendants presence of mental illness is not, by itself, a reason to were skillful and successful in representing them- deny the right to self-representation. In a 1975 Texas selves and took advantage of opportunities (e.g., es- case (Stepp v. Estelle, 524 F.2d 447 (5th Cir. tablishing rapport with jurors) that are not available 1975)),110 the appeals court found that the fact that to attorney-represented defendants. the defendant had attempted suicide two or three days before his trial did not by itself mean that he H. Malingering lacked the appropriate mental capacity. In a 1981 Many defendants referred for evaluations of com- Arizona case, the court held that granting of the de- petence to stand trial are found to be malingering. fendant’s request to represent himself at trial was not Two reports from the 1990s suggest that at least ten an error, although the defendant had history of men- percent of defendants referred for competence eval- tal illness, had been confined several times in mental uations attempt to feign mental problems that would institutions, and was at times disruptive in court.111 impair competence.117,118 Judges persistently In an appeal of a capital murder conviction, the Ne- raise the possibility of malingering as a reason for vada Supreme Court held that the defendant’s waiver skepticism about the defendant’s having a genuine

Volume 35, Number 4, 2007 Supplement S19 Practice Guideline: Evaluation of Competence to Stand Trial mental disorder.119,120 In at least two federal cases, a willfully disguised handwriting sample, that courts appeals courts have held that deliberate efforts to have held are forms of obstruction that justify a sen- feign mental problems could be grounds for im- tence enhancement. In upholding the district judge’s posing a longer prison term under federal sentenc- ruling, the appeals court was not saying “that every ing guidelines. instance of feigned mental illness justifies an en- U.S. v. Greer, 158 F.3d 228 (5th Cir. 1998)121 hancement for obstruction of justice.” Greer’s con- concerned the sentencing of a defendant found guilty duct, however, represented “a sustained pattern of of kidnapping and several firearms charges. The bi- appearing considerably more impaired than he was, zarre behavior that Greer exhibited after his arrest led and when he was told that certain actions would not to stays at two federal facilities. Psychiatrists at both convince the experts that he was in fact insane, he facilities concluded that he was competent and ma- modified his behavior” (Ref. 121, p 241). lingering mental illness, though he also had “a per- Greer argued that enhancing sentences of defen- sonality disorder with antisocial and borderline ten- dants who feign incompetence interfered with their dencies that could not be treated” (Ref. 121, p 231). constitutional right not to be tried while incompe- On the first day of his trial, Greer tried to flush his tent, because defense attorneys would be reluctant to clothing down the holding-cell toilet and spat up seek evaluations of their clients. But the appeals court blood. Evaluation at a local hospital suggested that countered this by saying that: the blood came from self-inflicted mucosal abrasions . . . defense counsel should warn his client that feigning likely induced by Greer’s gagging himself with his incompetency, whether to create doubt as to his compe- inch-long fingernails. Outside the presence of the tency so as to prod his attorney into requesting competency hearings or to convince the court that he cannot stand trial, jury, the district court (trial) judge told Greer that he will trigger a [sentence] enhancement. The defendant and was a malingerer and that he should “get with the his attorney need not choose between a competency hear- program, and stop acting like a fool” (Ref. 121, p ing and avoiding an obstruction enhancement (Ref. 121, 232). During testimony toward the end of the day, pp 237–8). however, Greer leapt up from his chair and shouted, Greer also argued that because his faking had been a leading to his removal from the courtroom. manifestation of his personality disorder, he had not During a meeting before the second day of the acted “willfully” in trying to mislead the trial court. trial, Greer used an obscenity and tried to hit his The appeals court responded that before imposing a lawyer. On learning about this occurrence, the trial sentence enhancement for malingering, the trial judge ruled that Greer had “consciously, deliberately, court must be certain that the defendant’s conduct and voluntarily” (Ref. 121, p 233) waived his right to was a “calculated attempt to derail justice.” However, be present during trial. The trial continued with the appeals court noted that the criminal justice sys- Greer absent from the courtroom, and he was con- tem consistently holds persons “who are ‘antisocial’ victed on all counts against him. The government or ‘borderline’” accountable for their criminal con- then recommended that, because Greer had faked duct. “Thus, the mere fact that a defendant suffers mental illness before and during his trial, he should from a personality disorder does not make him im- receive a two-level enhancement of his prison sen- mune to a [sentencing] enhancement” (Ref. 121, p tence, as is required under the federal sentencing 239). guidelines when a defendant “willfully” attempts to In the second case, defendant Dammeon Binion obstruct justice. The trial judge agreed, and Greer (U.S. v. Binion, 132 Fed.Appx. 89 (8th Cir. 2005), received a 210-month sentence. Without the en- cert. denied, 546 U.S. 919 (2005))122 faced a charge hancement for obstruction of justice, the maximum of being a felon in possession of a firearm. He filed a sentence would have been 185 months. pro se motion requesting an examination of his com- Greer appealed the enhancement, but lost. The petence to stand trial, which a magistrate judge appeals court acknowledged that the sentencing granted. Binion underwent evaluation at the U.S. guidelines did not specifically list malingering as an Medical Center for Federal Prisoners in Springfield, action meriting a longer sentence. However, feigning Missouri, where doctors concluded that he had no mental symptoms was similar in purpose to other present mental illness and that his reports of past actions aimed at avoiding punishment, such as lying symptoms sounded implausible. The evaluating psy- on the stand about one’s mental state, or submitting chiatrist believed that Binion’s dishonesty probably

S20 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial was a form of recreation, and that Binion did not mation obtained during the evaluation will not be seem to be planning his false complaints for a specific used for purposes unrelated to fitness for trial, unless material gain. After Binion entered a guilty plea, a the defendant places his mental condition at issue presentence investigation report recommended a during his defense or during sentencing. Binion sentence enhancement because Binion’s fabrication pleaded guilty without claiming a mental illness de- of mental illness had necessitated a labor-intensive, fense, yet the court used psychiatrists’ findings and time-consuming, costly evaluation. Although Binion opinions to enhance his sentence. As Darani124 objected, the district court added a two-level increase points out, the Binion ruling raises important ques- to Binion’s charge for obstruction of justice and sen- tions of ethics for psychiatrist: tenced him to six and one-half years in prison fol- [I]s it necessary to inform the defendant that information lowed by two years of supervised release. gathered as part of the evaluation may be used for purposes In appealing his sentence, Binion argued that the outside of the competency evaluation? Would it also follow two-level increase violated the U.S. Supreme Court’s that the defendant should be advised that uncooperative- 123 ness or feigning of symptoms could lead to a finding of ruling in U.S. v. Booker, 543 U.S. 220 (2005). In obstruction of justice and, therefore, a harsher sentence? Booker, which addressed the application of federal [Ref. 124, p 128]. sentencing guidelines, the Court held that, under the Sixth Amendment, no fact other than a prior convic- III. Agency Relationships tion could be used to support a sentence exceeding Defense attorneys, prosecutors, and trial courts the maximum one authorized by the offense ele- may all request that a criminal defendant undergo an ments established by a guilty finding, unless that fact evaluation of his competence to stand trial. Before was admitted by the defendant or was proved to a beginning a competence evaluation, the psychiatrist jury beyond a reasonable doubt. should know who requested it, because the source of The appeals court disagreed with Binion’s claim, the referral may affect how the psychiatrist will report however. Although the appeals court believed that findings and the psychiatrist’s obligation to maintain the sentencing error under Booker was clear, Binion confidentiality. had not cited relevant Supreme Court decisions or Every state has some mechanism that allows crim- the Sixth Amendment when objecting to his sen- inal courts to obtain an evaluation of a defendant’s tence. He therefore had failed to preserve his claim competence to stand trial.125 When performing under Booker, and he could not show that the sen- court-ordered evaluations, psychiatrists should an- tencing error affected his substantial rights, because ticipate that they will report their findings and opin- he could not show a reasonable probability that he ions to the court and that their reports will be avail- would have received a more favorable sentence had able to the defendant’s lawyer and the prosecutor. In the trial court followed Booker. all U.S. jurisdictions, statutes or case law prohibit The appeals court also held that the facts in Bin- using information obtained during a competence ion’s case supported the trial court’s conclusion that, evaluation to prove criminal culpability, unless the by faking a mental illness, Binion had knowingly defendant places his mental state at issue.23,126 If the obstructed justice to affect his case favorably. Binion defendant later testifies, however, some courts may filed a pro se motion requesting an evaluation for permit the prosecution to use contents of a compe- competency to stand trial, and the examining psychi- tence report for impeachment purposes if the report atrist told him that the evaluation was to determine affords evidence of the defendant’s prior inconsistent whether he was competent to proceed with adjudi- statements.127–129 For this reason, whenever possi- cation. Binion clearly knew why he was undergoing ble, a competence report should not mention poten- evaluation, and the appeals court concluded that the tially incriminating information obtained from in- trial court did not err in finding that Binion had tried terviewing a defendant. to hinder his prosecution by malingering and in en- Courts may request a competence evaluation for hancing his sentence accordingly. reasons other than wanting to obtain an expert opin- Like Greer, Binion raises concerns for psychiatrists ion about a defendant’s ability to proceed with adju- about how courts may use their findings. Ordinarily, dication. For example, requests for competence eval- a psychiatrist who undertakes an evaluation of adju- uations occasionally reflect the court’s desire to dicative competence does so in the belief that infor- facilitate prompt treatment of a severely impaired

Volume 35, Number 4, 2007 Supplement S21 Practice Guideline: Evaluation of Competence to Stand Trial defendant. Rather than arrange for inpatient treat- adjudicative competence has been questioned (that ment of a mentally ill defendant by using civil com- is, in cases in which the defendant will not enter or mitment procedures, courts may arrange for inpa- has not yet entered an insanity defense), an examin- tient treatment based on incompetence to stand trial. ing psychiatrist should not tell prosecutors the defen- Sometimes courts confuse questions of criminal re- dant’s detailed account of the offense, incriminating sponsibility with questions of competence to stand information obtained from collateral sources, or in- trial.130,131 In such cases, the psychiatrist can clarify formation about the defendant’s trial strategy. In with the court the specific assessment question and such situations, the examining psychiatrist should can recommend additional (or different types of) comment only on the defendant’s functional capac- evaluations, if indicated. ities without disclosing the detailed information that When retained by the defense, the psychiatrist the defendant or collateral sources revealed during should communicate data and opinions completely interviews. For example, the psychiatrist would com- and honestly to the retaining attorney. In many ju- ment on whether a defendant could give a rational risdictions, verbally communicated opinions of de- and coherent account of the events that led to his fense experts are covered under attorney work-prod- arrest or could formulate a realistic defense plan. The uct doctrine,132,133 which means that if the expert’s psychiatrist would not disclose specific information, opinions are not helpful to the defense, they are not however, such as what the defendant said concerning discoverable by the prosecution or the court, though his actions on the day of the alleged offense. (Further a subsequent defense decision to retain other experts consideration of incriminating collateral data ap- and have them testify may obviate this protection.134 pears later, in Section VI.B.) The psychiatrist may want to clarify with the retain- From time to time, psychiatrists may sense that ing defense attorney whether privilege protects the courts or attorneys are using their expertise or information obtained during the forensic evaluation findings for reasons other than establishing and whether the attorney has discussed this matter whether a defendant is competent to stand trial. with the defendant. The defense-retained psychia- For example, the prosecution sometimes questions trist should know whether information obtained a defendant’s adjudicative competence, seeking to during a competence evaluation would later be dis- delay proceedings and get additional time to pre- coverable by the prosecution. In cases in which the pare the state’s case, to avoid a possible insanity defense desires mental health expertise related to acquittal, or to bring about confinement of a men- matters besides competence (e.g., information that tally impaired defendant when there is insufficient might address criminal responsibility or aid in plea evidence to convict him.137,138 Judges may order bargaining) and believes that these other matters are competence evaluations to avoid having to release covered in competence evaluations, the psychiatrist defendants on bail or as a way of confining defen- can educate the defense attorney about the limited dants accused of minor charges who do not meet scope of competence examinations and recommend criteria for civil commitment.139 Defense attor- additional types of evaluations. The defense-retained neys may invoke the incompetence evaluation pro- psychiatrist also may actively consult with and advise cess to get more time for trial preparation, to allow the defense attorney, a role explicitly countenanced the passage of time to weaken the prosecution’s by the U.S. Supreme Court in Ake v. Oklahoma, 470 case, or to seek psychiatric data that may help with U.S. 68 (1985).135 Some attorneys prefer to engage plea negotiations or with obtaining a disposition consultants who are not psychiatrists, and some ex- more favorable than imprisonment.138,139 Al- perts feel that consultants should not testify because though addressing such matters is properly the of the risk that the consultant’s identification with concern of the judicial system, psychiatrists may the defense would lead to excessive advocacy.136 prefer to decline referrals or withdraw from cases In unusual circumstances, prosecution-retained in which they sense potential misuse of their experts may face special ethics-related concerns. A expertise. psychiatrist’s duty to be honest and to strive for ob- Evaluating a defendant in a case in which the pros- jectivity requires communicating findings and opin- ecution plans to seek the death penalty raises addi- ions completely and honestly to the retaining attor- tional concerns regarding ethical behavior for court- ney. But in cases in which only the defendant’s appointed, defense-retained, and prosecution-

S22 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial retained psychiatrists. When there is a bona fide ity, and some states permit combining evaluations of doubt about a defendant’s competence to stand trial, competence and criminal responsibility in the same a criminal court is constitutionally obligated to ar- document. This practice may create ethics-related range for a hearing, which frequently requires input problems for a prosecution-retained or court-ap- from mental health experts. These experts must real- pointed psychiatrist when it appears that an evaluee ize that, under Buchanan v. Kentucky (discussed in is incompetent to stand trial and is revealing poten- Section I),24 if the defendant later raises his psychi- tially incriminating information. Some jurisdictions atric status during trial or sentencing, the prosecu- provide legal protection concerning potentially in- tion may use mental state findings and detailed be- criminating information obtained from incompetent havioral data that psychiatrists obtained during a defendants. In the absence of such protections, how- competence evaluation to persuade jurors to impose ever, we recommend that the psychiatrist complete the death penalty.140 only an evaluation that informs the retaining party of The psychiatrist has a duty to pursue objectivity, the defendant’s incompetence, not of the defendant’s regardless of the identity of the retaining party. Pros- mental condition at the time of the alleged offense. ecution or court-retained psychiatrists should be par- ticularly careful to follow the standards of ethics and IV. Ethics legal guidelines that protect the defendant’s rights.141,142 A. The Ethics Framework The American Psychiatric Association’s Ethical The ethics framework that guides forensic psychi- 143 Principles (§ 4, Annotation 13) and the AAPL Eth- atric evaluations has several sources. The Hippocratic ics Guidelines (Ref. 144, Section III) preclude evalu- tradition in medical ethics informs physicians that ation of a defendant before he is afforded access to their primary duties are beneficence and nonmalefi- defense counsel. While it is not necessary that the cence, which implies that clinical efforts should be to defendant have actually conferred with counsel be- help patients and, above all, to do no harm (primum fore the evaluation, appointed counsel must be avail- non nocere).146 Within the Hippocratic framework, able for the defendant to have a consultation, either one might regard competence evaluations as benefit- directly or by telephone, before or during the com- ing defendants by protecting them from being tried petence evaluation. As is the case with evaluations of and convicted when they cannot assist counsel or criminal responsibility,145 it is best that the defense participate rationally in their defense. In addition, attorney know about an upcoming competence eval- determinations that defendants are competent to uation before the psychiatrist initiates the evaluation. stand trial may allow them to proceed to trial and A nondefense psychiatrist should not evaluate a gain an acquittal. criminal defendant’s adjudicative competence until In many instances, however, undertaking a com- the trial court has issued an order for the evaluation. petence evaluation appears to conflict with tradi- If a defendant needs emergency medical or psychiat- tional Hippocratic obligations because findings sup- ric evaluation or treatment, however, a psychiatrist porting competence to stand trial may enable the may ethically provide such services before the defen- criminal court to try, convict, and impose punish- dant has had access to counsel. ment on the defendant. Moreover, the lack of a phy- Section 7-4.4(b) of the America Bar Association’s sician-patient relationship during most evaluations Criminal Justice Mental Health Standards138 recom- of trial competence suggests that Hippocratic obliga- mends that the defendant’s mental condition at the tions may not be relevant or should not apply in the time of the alleged offense not be combined in any way that they do in contexts in which an evaluation evaluation to determine adjudicative competence takes place solely for purposes of treatment. Indeed, unless the defense requests it or unless good cause is the psychiatrist is not the patient’s caregiver; the psy- shown. The Standards also recommend that judicial chiatrist’s goal is not to treat or diminish the suffering orders make a clear distinction between these two of a patient, but to provide the court or retaining legal issues and the reasons for evaluation.130 Not all attorney with psychiatric expertise that will assist in a jurisdictions follow this practice, however. Many legal determination. For this reason, many psychiatrists states have psychiatrists conduct joint evaluations of regard evaluating trial competence as a task for which competence to stand trial and criminal responsibil- the physician’s traditional concerns about helping pa-

Volume 35, Number 4, 2007 Supplement S23 Practice Guideline: Evaluation of Competence to Stand Trial tients and alleviating their pain are not paramount. the obligation to release information only under When psychiatrists function as medicolegal experts, the proper legal compulsion (§ 4, No. 2); values that assume primacy include truth-telling, objec- the obligation to disclose only the information tivity, and respect for the humanity of the eval- 142,147,148 that is relevant to a given situation and to avoid uee. The physician’s responsibility to “assist offering speculation as fact (§ 4, No. 5); in the administration of justice” receives endorsement in guideline E-9.07 of the American Medical Associa- the obligation not to evaluate (for purposes other tion’s Code of Ethics.149 than providing treatment) a person charged with Though they are not functioning as treating phy- criminal acts before that person has had access to sicians when they assess adjudicative competence, counsel (§ 4, No. 13); and psychiatrists still should act responsibly concerning the obligation to refrain from offering a profes- their evaluees’ health needs, in a manner analogous sional opinion about an individual without con- to ethics guidelines for work-related independent ducting or attempting to conduct a personal ex- medical examinations set out by the American Med- amination (§ 7, No. 3). ical Association. That is, psychiatrists should con- duct objective psychiatric evaluations, even though B. Conflicting Roles they will not be monitoring evaluees’ health over When conducting evaluations of adjudicative time or providing treatment. AMA opinion competence, psychiatrists apply their skills to satisfy 150 E10.03 states, “a limited patient-physician rela- legal needs rather than clinical goals. Psychiatrists tionship should be considered to exist during isolated who function in forensic roles therefore have a pri- assessments” of a defendant’s competence to stand mary duty to serve the criminal justice system prop- trial. Within this limited relationship, a psychiatrist erly rather than to serve the interest of defendants.142 may elect to tell an evaluee about important health In general, treating psychiatrists should try to avoid information or problems discovered during an exam- conducting forensic evaluations on their own patients; ination or to recommend that an evaluee seek treat- ideally, independent, nontreating psychiatrists should ment from a qualified caregiver. If necessary (e.g., if perform such evaluations.144,151 In the context of eval- the evaluee is confined in jail and needs treatment uations of competence to stand trial, role conflicts can urgently or poses a high risk of harming himself or arise when a psychiatrist who has been treating a patient someone else), a psychiatrist should facilitate the serves as the forensic psychiatrist, because the responsi- evaluee’s receiving further evaluation and follow-up bility to “do no harm” within a physician-patient rela- care. In such cases, the psychiatrist should also notify tionship may not be consonant with the forensic psy- the defendant’s attorney and, if the evaluation was chiatrist’s obligation to be objective and truthful, initiated by the court or prosecution, the court.138 In regardless of the effect on the ultimate legal outcome for taking such health-related actions for a defendant- the defendant. Performance of these evaluations by a evaluee, the psychiatrist should disclose the mini- psychiatrist who has been treating a patient can also mum information necessary to permit appropriate adversely affect the therapeutic relationship, especially if management. the defendant-patient disagrees with the psychiatrist’s Since 1987, AAPL has promulgated ethics guide- opinion. In addition, a treating psychiatrist may be lines for psychiatrists that are applicable to evalua- aware of a great deal of potentially damaging, incrimi- tions of adjudicative competence. The Principles of nating, or embarrassing information that he or she Medical Ethics With Annotations Especially Applicable could elicit in the role of psychiatrist. Finally, evaluating to Psychiatry published by the American Psychiatric adjudicative competence may require a psychiatrist to Association (APA)143 also contains guidelines that interview persons outside of the treatment relationship, are of particular importance to psychiatrists conduct- and reporting a defendant’s competence may involve ing assessments of competence to stand trial. These disclosure of information obtained in the course of psy- chiatric treatment. If the psychiatrist were also the treat- include: ing physician, such collateral contact or disclosure of the obligation to practice within the bounds of personal health information might raise concerns about one’s professional competence (§ 2, No. 3); breaching doctor-patient confidentiality.152

S24 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

The problem of having treating psychiatrists serve involuntary medications for competence restoration as psychiatrists arises most often in public (govern- under certain circumstances.28,154 The use of psycho- ment-operated) psychiatric hospitals. Indeed, stat- tropic drugs to bring about trial competence nonethe- utes in many states require public institutions and less remains a controversial subject. Some critics argue their clinicians to function simultaneously as treat- that so-called chemical competence is artificial, that in- ment providers, competence restorers, and compe- voluntary psychotropic medication may not be effec- tence assessors. Trying to fulfill these multiple roles tive, and that side effects of psychotropic medication may require psychiatrists to satisfy conflicting obli- may prevent an involuntarily treated defendant from gations. As treating physicians, psychiatrists have fi- receiving a fair trial.155–157 Although most psychiatrists duciary relationships to act in their patients’ best support providing appropriate treatment to psychotic medical interests, yet at the same time, psychiatrists’ defendants (involuntarily, if necessary), forced treat- statutorily prescribed duty to provide data and opin- ment for competence restoration confronts treating ions to courts may run counter to the patient’s per- physicians with the potential problem in ethics of “dual ception of his or her best interest. If sufficient foren- loyalty.”158 On the one hand, a treating physician’s eth- sic mental health expertise is available, it may be ical duty is to act in ways that benefit the patient. On the possible to eliminate (or at least mitigate the impact other hand, when medication is forced on a defendant- of) these role conflicts by assigning the evaluating patient to make him fit for prosecution, the govern- and treating roles to different clinicians at a mental ment is seeking to have the patient medicated irrespec- health facility, and the authors recommend doing so. tive of his wishes, with the goal of making the patient In some settings and situations, however, psychi- eligible for prosecution and the possibility of punish- atrists cannot avoid acting as both treatment provid- ment, and doctors are participating in this process.159 ers and psychiatrists. In inpatient settings to which The American Psychiatric Association nonetheless ad- patients have been referred under court order for vocates the forced use of medications when they are competence restoration and where the principal goal medically appropriate and represent the best hope of of treatment is to render patients competent to stand restoring adjudicative competence.160 trial, treatment is guided by assessments of whether C. Scope of Participation patients are moving toward competence. Under The American Medical Association’s Code of Eth- these circumstances, treating psychiatrists cannot 161 and should not ignore the impact of their treatment ics (Opinion 9.07) states, “As a citizen and as a on patients’ competence-related mental capacities. professional with special training and experience, the In addition, records created to document treatment physician has an ethical obligation to assist in the frequently are relevant to and used in formulating an administration of justice.” The legal basis for expert assessment of an inpatient’s adjudicative compe- participation in legal proceedings is articulated in tence. Finally, statutes sometimes specify that the Federal Evidence Rule 702 (“Testimony by Ex- individual (or institution) who provides treatment perts”), which states: must submit a report concerning the patient’s com- If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to petence, and courts sometimes require the testimony determine a fact in issue, a witness qualified as an expert by of the treating psychiatrist. When the separation of knowledge, skill, experience, training, or education, may evaluating and treating roles is impractical or is pre- testify thereto in the form of an opinion or otherwise, if (1) cluded by courts’ expectations, psychiatrists should the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, disclose their potential dual roles at the beginning of and (3) the witness has applied the principles and methods treatment and should remind defendant-patients of reliably to the facts of the case.162 their dual functions at key points (e.g., before an Most states and other jurisdictions have a compa- upcoming court hearing) during the course of clini- rable rule governing expert testimony in general. cal care. Concerning expert psychiatric testimony, the Crim- In most states, a legal finding of adjudicative in- inal Justice Mental Health Standards of the American competence may lead to court-ordered treatment Bar Association state that: (and usually, psychiatric hospitalization) to restore 153 . . . expert testimony, in the form of an opinion or other- the defendant’s competence. As noted in Section wise, concerning a person’s present mental condition or I, recent court decisions have approved the use of mental condition in the past should be admissible whenever

Volume 35, Number 4, 2007 Supplement S25 Practice Guideline: Evaluation of Competence to Stand Trial

the testimony is based on and is within the specialized Psychiatrists should make sure that they have ad- knowledge of the witness and will assist the trier of fact [Ref. 138, § 7-3.9, p 117]. equately considered sufficient relevant data in for- mulating their opinions on competence. They Psychiatrists with specialized training and experience should arrange with courts or retaining attorneys to in the forensic setting may consult, and indeed are obtain any additional information needed to arrive at encouraged to consult, within the criminal justice an accurate opinion. They should note in their re- system regarding competence to stand trial. By serv- ports if they have requested but have not received ing as experts, psychiatrists can help legal decision- information (e.g., hospital records or information makers understand how mental illness affects a de- from defense counsel) that may be relevant to their fendant’s ability to assist an attorney and negotiate conclusions. the adversarial process of a criminal trial. Despite their best efforts to remain objective, fo- Psychiatrists who undertake examinations of ad- rensic experts are human and cannot avoid develop- judicative competence should conduct these evalua- ing biases. One source of highly significant bias that tions properly. They should know the legal defini- forensic experts have identified in criminal cases is tions of competence to stand trial in the jurisdictions working exclusively for either the defense or the pros- where they practice. They should understand the es- ecution.163 This source of bias may be avoided by sential elements of a competence evaluation and accepting referrals for competence evaluations from should have sufficient professional education, train- both defense and prosecuting attorneys. Counter- ing, and experience to acquire the clinical data rele- transference can also represent a significant source of vant to an evaluation of competence to stand trial. bias.164 Techniques for addressing possible counter- They should know how to apply their specialized transference include discussion of cases with col- knowledge in a way that permits them to address the leagues or supervisors, presenting one’s work to specific legal issues related to adjudicative compe- peers, and taking time to think about potential coun- tence (Ref. 138, § 7-3.10, p 130). At the same time, tertransference reactions before reaching a final psychiatrists are ethically obliged to refrain from opinion. testifying about matters that lie outside their expertise.152,161 E. Confidentiality, Notice, and Assent When beginning an examination of competence D. Honesty and Objectivity to stand trial, the psychiatrist should attempt to com- Psychiatrists should strive to provide courts with municate the following to the evaluee: opinions and testimony that are honest and as objec- tive as possible (Ref. 144, § IV). When retained by the reason for the evaluation; one side in a criminal matter, experts may feel or the party who has appointed or retained the actually experience pressure to arrive at an opinion psychiatrist; that is useful to the retaining party. The pressure may the lack of confidentiality of the interview and manifest itself in several ways, including the retaining findings; party’s assuming what the expert’s opinion will be, withholding of information by the retaining party, the persons who will receive the psychiatrist’s excessive flattery of the retained expert, subtle or report; overt bribery, or extortion.149 Psychiatrists should the possibility of the psychiatrist’s testifying guard against the potential for bias or distortions of about the results of the evaluation; and their opinions that may arise unintentionally out of a desire to satisfy the retaining attorney. The U.S. Su- the right of the evaluee to decline to answer par- preme Court decision in Ake v. Oklahoma135 en- ticular questions, with a warning that the psychi- dorses a psychiatric expert’s acting as a consultant to atrist may have to report noncooperation or re- the defendant’s attorney. Advocacy for one’s opinion fusal to answer questions to the retaining is ethical if the opinion is based on careful, thought- attorney or to the court. ful, disinterested examination of available data Psy- In addition to the verbal warning, the psychiatrist chiatrists should not knowingly give false or mislead- may also provide evaluees with a written document ing testimony. summarizing these points and ask the interviewee to

S26 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial sign it. Psychiatrists who are “covered entities” or court, however, the psychiatrist may choose to ask employees of covered entities (as defined in 45 CFR defense counsel to encourage the defendant’s par- 160.103, the section of the federal regulations gov- ticipation. Psychiatrists who have not been re- erning the Health Insurance Portability and Ac- tained by the defense may also want to tell the countability Act of 1996 (HIPAA))165 should also evaluee that noncooperation may have legal con- consider whether they must offer the evaluee a copy sequences.166 For example, in many states, a de- of the covered entity’s privacy statement. fendant’s refusal to undergo a competence evalua- When a psychiatrist serves strictly as an psychia- tion may lead to psychiatric hospitalization for trist, he or she should also tell the defendant-evaluee prolonged observation, to allow psychiatrists to at- that he or she is not the defendant’s treating physi- tempt to reach an opinion regarding competence. cian—that is, the psychiatrist is not there to “help” If retained by the defense attorney, psychiatrists the evaluee. Despite hearing such warnings, even a are ethically obliged to safeguard the contents of the competent evaluee may come to view the psychiatrist opinion within the constraints of the law (Ref. 143, § as a therapists during the course of an examination. If 4). Defense-retained experts should not discuss their this occurs to a significant degree during a forensic evaluations with opposing experts or opposing coun- examination, the psychiatrist should remind the sel unless the defense attorney approves such a dis- evaluee that the psychiatrist is functioning only as a cussion or the expert is legally compelled to reveal the psychiatrist, not as the evaluee’s therapist or treat- results. ment provider. According to the AAPL Ethics Guidelines for the F. Knowledge of the Jurisdiction’s Standard Practice of Forensic Psychiatry,144 absent a court order, Though most jurisdictions have standards for psychiatrists should not perform forensic evaluations competence to stand trial that are consonant with for the prosecution or the government of criminal Dusky,16 there are minor jurisdictional differences. defendants who have not consulted with legal coun- An evaluating psychiatrist should know the legal def- sel. This principle would apply to evaluations of ad- inition of competence in the jurisdiction where the judicative competence. Many defendants referred for defendant is facing prosecution. competence evaluations are too impaired to under- stand why the evaluation is taking place or otherwise G. Interaction with Other Professions lack the capacity to consent to the examination. In Psychiatric expert witnesses should be polite and these circumstances, a court order or the expressed respectful in their dealings with opposing counsel permission of the defendant’s attorney make it ethi- and opposing experts. Experts should generally avoid cally acceptable for the psychiatrist to proceed with disclosure of personal information about opposing the evaluation. experts, as such revelations do little to advance the Occasionally, defendants engage in little or no interests of ascertaining truth in the courtroom.167 conversation with psychiatrists. In some of these Experts may share with retaining attorneys informa- cases, the psychiatric expert still obtains enough in- tion about opposing experts that is relevant to the formation about adjudicative competence to render matter at hand and that could arise in cross-exami- an opinion with reasonable medical certainty. How- nation. Before doing so, however, experts should ever, experts’ reports or testimony should clearly de- consider the relevance of the information and scribe any paucity or lack of direct communication whether the potential disclosure would constitute a with the defendant and should state how limited in- lapse in objectivity or unreasonable advocacy. teraction with the defendant may have affected the opinion. H. Fees Competence evaluations require a personal ex- A psychiatrist may charge a different fee for work amination of the defendant. If the defendant re- in the forensic setting than for clinical work. It is fuses a court-ordered competence evaluation, the ethical and often desirable for a psychiatrist to re- psychiatrist should try to explain to the defendant quest payment of a retainer fee or to receive payment that the court has ordered the evaluation and that before conducting a forensic evaluation. A psychia- the defendant’s refusal to participate will be com- trist who serves as an expert witness should clarify the municated to the court. Before so informing the fee arrangement with the retaining attorney before

Volume 35, Number 4, 2007 Supplement S27 Practice Guideline: Evaluation of Competence to Stand Trial beginning the forensic evaluation. If psychological When providing expert testimony, psychiatrists consultation, imaging studies, or laboratory tests are may, and often should, act as advocates for their needed to support an opinion, the psychiatrist opinions. However, experts should not overstate the should discuss the need for the examinations with the certainty of their findings and should acknowledge retaining attorney before arranging for them to be the limitations of their opinions. Evaluations of com- performed. petence to stand trial involve assessments of defen- Some jurisdictions or courts pay a fixed fee for dants’ capacities for logical communication and fac- forensic evaluations. The amount is often insuffi- tual and rational understanding of the proceedings cient to cover the costs of tests such as MRI or psy- against them. These capacities typically are present to chological testing that may be necessary for a compe- various degrees, rather than being completely un- tent evaluation. If fixed fees represent inadequate compromised or missing. Thus, many defendants compensation for one’s time and expertise, the psy- display relative strengths and weaknesses in the men- chiatrist may (consciously or unconsciously) be re- tal capacities needed for adjudicative competence. sentful or have other reactions that would result in Ideally, an expert should describe the strengths and failure to perform an adequate evaluation. Clarifying weaknesses of the defendant, regardless of whether compensation before accepting the referral may help the jurisdiction allows or requires an opinion on the the psychiatrist to decide whether to undertake the ultimate issue. In so doing, the expert provides the evaluation.145 information needed for the trial court to make an Psychiatrists should not perform evaluations of independent ruling on a defendant’s competence. adjudicative competence (or for that matter, any type J. Complaints of Ethics Violations of forensic evaluation) on a contingency-fee basis— that is, with the fee conditional on the outcome of The AAPL refers complaints of unethical behavior the evaluation or of the litigant’s legal case (Ref. 144, by its members to the American Psychiatric Associa- § IV). Though contingency payments may be appro- tion for resolution. Usually, the APA district branch priate for attorneys, such fee arrangements may under- where the accused individual is a member reviews such complaints. Those regarding nonmembers of mine the psychiatrist’s objectivity and are unethical. the AAPL or APA are usually filed with the medical I. Acknowledging Limitations of the Evaluation board where the psychiatrist practices. Although expert witnesses have traditionally re- Any limitations of an opinion should be expressed ceived quasi-legal immunity for their testimony, a in the written report and, when possible, during tes- few physician experts have been held accountable timony. When the psychiatrist has requested materi- through sanctions by professional organizations and als (e.g., records of past treatment) that are not re- through tort liability actions.168 In recent appellate ceived in time to be considered in writing the report, cases, courts have ruled that psychiatrists practicing he or she may still render an opinion if one can be in a forensic capacity can be found negligent for re- rendered with reasonable medical certainty. The psy- vealing confidential information to nonparties169 chiatrist may also tell the courts or retaining attor- and for inappropriate conduct during an evalua- neys that he or she reserves the right to alter an opin- tion,170 though the psychiatrists had no doctor- ion should the additional materials become available. patient treatment relationship with the evaluees. If the requested materials are necessary to reach a conclusion about competence, however, the psychi- V. Cultural Considerations atrist should not offer opinions until the materials are received and examined. If the required data are ulti- A. The Cultural Context of Adjudicative mately not accessible, the psychiatrist may inform Competence the referral source that the evaluation is incomplete. When psychiatrists consider competence to stand Psychiatrists should be willing to disclose limita- trial, they usually think the phrase refers to a legal tions in their training or experience and to subject concept or to a mental capacity that a criminal de- their testimony to scrutiny and critique by peers. fendant may have or lack. Competence to stand trial AAPL has a standing committee established for the is also a cultural notion, however, or at least a notion purpose of peer review. that reflects a set of cultural values.

S28 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

Notwithstanding awareness of and sensitivity to heart. For reasons other than psychopathology, the situations of criminal defendants (who typically therefore, such persons may be wary or suspicious of are much less fortunate than most persons), most defense attorneys who purport to be on their side and North American psychiatrists share and identify with say that they are trying to help them. Even defen- the dominant culture’s view of criminal proceedings. dants who have always lived in North America may In the dominant culture’s view, criminal proceedings come from social, class, religious, or ethnic contexts are adequately fair (though far from perfectly fair) that give them attitudes and perspectives that differ efforts at rendering just decisions about the guilt of from the well-educated, predominantly upper-mid- accused criminals. These efforts come about through dle-class attorneys and judges who control legal pro- an adversarial process that gives the accused many ceedings—contexts that also differ from the fortu- rights, among which is the right to confront and nate, upper-middle-class backgrounds and lives of challenge one’s accusers. Firmly embedded in Anglo- most psychiatrists. American legal tradition, the right to confront would Though North American criminal courts honor be meaningless were the defendant not physically their roots in English common law, the histories of and mentally present in court, aware of the proceed- the United States and Canada are those of nations ings against him, and capable of responding ratio- forged from ongoing multicultural diversification. nally. Competence to stand trial thus embodies a Much of North America’s recent population growth cultural notion that the legal system is reasonably has come from immigrants, whose arrival insures fair, that accused persons will get fair treatment that cultural diversity will not diminish. Shifts in and a reasonable chance to defend themselves, and ethnic diversity are not just about the number of that the dignity and fairness of criminal proceed- persons and the cultures from which they come, but ings are vindicated when an accused person is a ca- the impact of cultural differences, too. An increas- pable adversary of the prosecution.171 ingly multicultural America is generating new de- A message implicit in popular television programs mands, challenges, and stresses for many areas of hu- from Perry Mason to Law and Order is that criminal man endeavor, including psychiatric assessment and defendants may be bad because of the crimes they the law. commit, but not because they retain attorneys and Judges, attorneys, and legislators must understand challenge the state’s evidence against them. In Anglo- the interplay between social, political, and cultural American legal tradition and in mainstream North forces that shape the development and implementa- American culture, the act of raising a criminal de- tion of the law. In providing forensic services, psy- fense is not a challenge to dominant social mores, but chiatrists must recognize and understand the nu- an affirmation of them. By raising a defense, an ac- ances of the multicultural population with whom cused criminal reinforces cultural values that encour- they interact in the criminal justice system. To do age innovation and individual expression, that en- this, psychiatrists must have available and use a rep- dorse speaking one’s mind and verbally challenging ertoire of behavior, attitudes, procedures, and poli- one’s opponents, and that treat the state as having cies that allow them to work effectively in cross- limited power that must be kept in check. cultural situations. By developing culturally sensitive Things that North American psychiatrists take for clinical and evaluative practices, psychiatrists can im- granted as essential features of fair criminal proceed- prove their evaluative skills and awareness of their ings may puzzle and seem strange to individuals who personal assumptions, while reducing barriers to ac- come from social backgrounds that endorse confor- curate psycholegal determinations. mity or deference to authority. When such individ- uals become criminal defendants in North America, B. Cultural Competence they may have difficulty saying things that disagree In the clinical area, cultural competence is a req- with authority, or they may be reluctant to ask for uisite for sensitive, effective delivery of service. Cul- clarification of explanations and procedures that they tural competence includes acceptance and respect for do not understand.172 Individuals who come from persons’ differences, continuous self-assessment re- countries or cultures where governmental systems are garding one’s own cultural assumptions, attention to all-powerful or corrupt may believe that persons in or how cultural differences affect the dynamics of ther- appointed by authority do not have their interests at apeutic encounters, ongoing development of cultural

Volume 35, Number 4, 2007 Supplement S29 Practice Guideline: Evaluation of Competence to Stand Trial knowledge, and development of resources and flexi- reluctance to speak openly with defense counsel may bility to provide services to minority populations.173 not reflect paranoia, but an expectation that disclos- According to Davis,174 a culturally competent clini- ing information would be pointless or would make cian integrates knowledge and information about in- matters worse for the evaluee and loved ones. dividuals and groups of people into clinical encoun- 2. Acceptance of Cultural Identity ters, service approaches, and techniques that fit an individual’s cultural background, thereby enhancing Psychiatrists must strive to feel comfortable with the quality and appropriateness of health care. The and accepting of an evaluee’s cultural identity. They notion of a culturally competent clinician expresses need not jettison their own values and ideas in this the hope that better knowledge of folkways, tradi- process. Yet if the psychiatrist approaches an inter- tions, customs, helping networks, and rituals can al- view with prejudicial and hostile ideas regarding the low clinicians and organizations to provide services evaluee’s ethnic membership, the forensic assessment that better meet patients’ needs.175 and conclusions may be jeopardized. A psychiatrist’s unexplored or unconscious fears about an evaluee’s C. Culturally Competent Evaluations culture may interfere with data gathering and objec- tivity and ultimately may affect conclusions. Preju- Psychiatrists can find several articles176–179 and an 172 dice-based difficulties in establishing cultural respect entire text that describe the effect of cultural dif- may contribute to the evaluee’s conclusion that he ferences on forensic practice and that discuss ways should not trust or be honest with the psychiatrist. that experts can improve the cultural competence of Such conclusions may be reinforced by those who their assessments. The general mental health litera- seem (or are) resentful, ignorant, or uncomfortable ture contains hundreds of articles on delivering cul- when interacting with persons from cultures differ- turally sensitive care. It is beyond the scope of this ent from their own. Guideline to summarize this ever-developing body of literature. The following points illustrate how recog- 3. Knowledge, Skills, and Attributes nizing the potential impact of cultural background Saldan˜a175 has identified several areas of knowl- and social differences may allow psychiatrists to pro- edge that can improve clinicians’ efforts to work with vide more accurate descriptions of defendants’ adju- persons from difference cultures. Adapted for the fo- dicative competence and, in turn, more useful infor- rensic context, these include: mation for courts. knowledge of the patient’s culture, including his- 1. Common Interview Situations tory, traditions, values, and family systems; In North America, the most commonly occurring awareness of how experiencing racism and pov- cross-cultural interview situation involves an evaluee erty may affect behavior, attitudes, and values; from an ethnic minority group and a psychiatrist knowledge of how ethnically different evaluees from mainstream U.S. culture. As earlier discussion may seek help and express mental distress; in the section suggests, the cross-cultural component adds complexity to the forensic psychiatric evalua- awareness of how language, speech patterns, and tion if the evaluee evinces a cultural value system communication styles differ among cultural concerning legal proceedings that differs from the communities; value system of the examining clinician. Suspecting recognition of how professional values may con- that this is the case may require the psychiatrist to flict with or accommodate the emotional and become acquainted with the evaluee’s social back- legal needs of evaluees from different cultures; ground and specific cultural assumptions. and Culture does not exist in a vacuum; it manifests awareness of how community and institutional itself in specific environments and is actuated by psy- power relationships affect persons in different chological factors and specific circumstances. Under- cultures. standing rules of moral conduct within the evaluee’s culture may help the psychiatrist interpret the eval- 4. Communication Styles uee’s behavior, attitudes, or choices concerning his Cultures differ in their nonverbal communication defense. To return to an earlier example, an evaluee’s styles as well as the type of contact deemed accept-

S30 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial able. Common cultural differences in nonverbal 6. Language and Testing communication styles include: Although it might be ideal for defendants to be Personal space: how far away to stand when assessed in their native languages, it is often impossi- talking. ble to do so. Moreover, given the way that criminal justice proceedings are conducted in North America, Tone and volume: how loudly to speak in ordi- it may be important to assess how a defendant who is nary conversation. not a native English speaker can communicate and Making eye contact: whereas in the United understand criminal proceedings conducted in En- States, middle-class individuals are taught to glish. Interpreters can help bridge the language gap look at each other and provide feedback (e.g., for defendants who do not speak English well or are smiling or nodding), in other cultures not mak- not comfortable or confident about their English ing eye contact is a way of showing deference or skills. However, psychiatrists should recognize that respect. the interaction between psychiatrist and evaluee is altered by involving a third party in the evaluative Gesturing: hand and arm movements that may dialogue. Interpreters may introduce other forms of seem excessive to North Americans may be ordi- bias related to their own perspectives. Such bias may nary for persons of other backgrounds. be introduced through translation choices that omit, Physical contact: North Americans touch inter- add, condense, or replace some of the content ex- locutors less than do persons of many other cul- pressed by the interviewer or the evaluee. tures. As a result, we may come across as aloof to Section VIII of the Guideline describes various others; to us, persons from other cultures may instruments for conducting structured interviews of appear intrusive or uninhibited. competence evaluees. It is often the case that these instruments have been neither translated nor normed 5. Transference and Countertransference in languages other than standard American English. Though we usually regarded transference and Individuals from other cultures vary in their use of countertransference as clinical, psychodynamic phe- local or idiomatic terms that may not correspond nomena, they affect all types of human interactions, well with a particular way of translating an instru- 164 ment, making it important to be sure that an evaluee including forensic evaluations. Acknowledging actually understands the concepts and knowledge ar- the potential cultural contributions to transference eas being assessed. Also, it may be misleading to in- and countertransference may help psychiatrists rec- terpret test results from evaluees of other cultures ognize how these phenomena arise and their possible according to norms established by administering the influence on the evaluation. Here are some examples tests to North Americans. of how transference and countertransference may oc- cur in forensic assessments: 7. The Examination Context When the both the psychiatrist and the defen- Finally, the backgrounds of some individuals from dant belong to the same racially or culturally other cultures may leave them unfamiliar with what defined minority, some defendants may over- psychiatrists do or with the basic idea of a medical identify with the psychiatrist and disclose in- interview that explores thoughts, feelings, and be- criminating information or information not liefs. Some individuals may not previously have un- relevant to the assessment. Some psychiatrists dergone formal testing and may not understand its may overidentify with defendants at the ex- purpose or uses. In such cases, psychiatrists may have pense of objectivity. to make special efforts to explain the purpose of in- terviewing and testing, along with the potential rel- Culture-bound syndromes may go unrecog- evance of these procedures to the evaluee’s situation. nized, may be misread, or may be devalued. Racial and ethnic differences influence the pre- sentation of psychiatric disorders, but uncon- VI. The Interview scious processes may interfere with the commu- Evaluations of adjudicative competence are clini- nication needed to sort through such matters. cal assessments of a defendant’s ability to participate

Volume 35, Number 4, 2007 Supplement S31 Practice Guideline: Evaluation of Competence to Stand Trial in criminal proceedings. Competence evaluations are he or she should arrange (with the prior agreement of neither retrospective (as are evaluations of criminal the referring attorney or court) to use interpreters or responsibility) nor prospective (as are postconviction other individuals who can facilitate communication. evaluations); they focus on the defendant’s present The interview should always be conducted in a secure functional level, and they emphasize the evaluee’s location. mental functioning and capacities rather than the Although the primary purpose of a competence psychiatric diagnosis. evaluation is neither diagnosis nor treatment, the ex- amination should follow the American Psychiatric As- A. Preparing for the Interview sociation Practice Guideline for the Psychiatric Evalu- Before interviewing a defendant, the psychiatrist ation of Adults.180 The goal is to learn whether and should learn about the state’s allegations and the rea- how mental symptoms impair competence-related sons or actions that led the referring attorney or court abilities. The relevance of even severe symptoms to to question the defendant’s competence. He or she the question of competence varies from case to case. should review copies of relevant court orders, avail- Nevertheless, it is still valuable to obtain enough in- able discovery materials (including the arrest reports formation about a defendant’s condition to allow prepared by police), criminal court filings, and in- identification of the diagnoses that are relevant to the dictments. When available, transcripts or recordings expert’s opinion. In cases in which the psychiatrist of hearings, depositions, or interrogations may con- believes that the defendant lacks adjudicative compe- tain information relevant to understanding a defen- tence, diagnostic information will inform the judg- dant’s current mental condition and competence. ments about the defendant’s restorability and the Collateral records, including medical and psychiatric proper setting for restoration. treatment records, can provide a longitudinal view of a defendant’s mental illness and can thereby shed C. Providing Notice diagnostic light on current symptoms. Reviewing The psychiatrist should begin the interview with these materials may also help the psychiatrist to de- the notifications described in Section IV.E. of the cide whether collateral interviews will be necessary. A Guideline. If the clinical examination is taking place defendant’s attorney will often have information that for multiple purposes (i.e., to evaluate criminal re- is not otherwise available, such as what has happened sponsibility), the psychiatrist should tell the defen- during previous attorney-client contacts and the rea- dant of these additional uses of information obtained sons that the attorney believes the defendant may be during the interview. To find out whether evaluees incompetent to stand trial. Information about the have understood this information, many psychia- quality of the attorney-client relationship may be es- trists ask evaluees to paraphrase what they have told pecially valuable, as is information about behavioral them about the nature, purpose, and conditions of disturbances that the attorney has observed. the interview. The defendant’s repeating the infor- mation tells the psychiatrist whether the defendant B. General Considerations has understood what the examination is about and The psychiatrist should interview the defendant simultaneously provides an initial indication of how for enough time and with enough thoroughness to well the defendant can assimilate verbally communi- permit assessment of the functional characteristics cated information. relevant to the jurisdiction’s legal criteria for adjudi- cative competence. If reasonable attempts to examine D. Obtaining Background Information the defendant fail because of lack of cooperation or After hearing about the reason for the examina- other factors, the he or she should report such limi- tion, some defendants immediately begin telling the tations to the referral source, recognizing that poor psychiatrist about their legal situations and how they performance or lack of participation are not, by incurred their criminal charges. However, in many themselves, determinative of incapacity. In cases in interviews, focusing initial questions on the defen- which the psychiatrist anticipates that language bar- dant’s background, including personal and family riers, religious beliefs, sensory impairments (e.g., history, current living arrangements, academic his- hearing impairments), or other communication fac- tory, and occupational history, accomplishes several tors will create impediments to accurate assessment, things:

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It helps the psychiatrist establish rapport while repeating and recalling items, and assessment of ori- simultaneously providing a helpful perspective entation). Although these inquiries yield data helpful on the defendant’s intelligence and social in reaching a psychiatric diagnosis, they may also functioning. help the psychiatrist to assess the defendant’s mental While gathering this information, the psychia- strengths, along with any vulnerabilities that stem trist can also assess the defendant’s behavior and from cognitive limitations or psychiatric syn- verbalizations, which may permit inferences dromes—the objective being to identify, character- about mood, self-control, thought content, men- ize, and quantify the severity of any substantive psy- tal organization, and concentration. chopathology that might impair trial participation or courtroom demeanor. The psychiatrist can compare the defendant’s In evaluating defendants suspected of malinger- version of events with information available from ing, the psychiatrist may focus the interview, asking independent, verifiable sources. Such a compar- for more details about symptoms and looking for ison may help the psychiatrist to assess the defen- inconsistencies between reporting and behavior.181 dant’s willingness and ability to report back- Collateral information may help guide the psychia- ground information accurately. trist’s inquiries and place in perspective any responses Taking a social history may provide insight into that suggest deception. how the defendant establishes or sustains rela- tionships, which may help the psychiatrist gauge F. Questions Specific to Adjudicative the defendant’s capacity to relate to the defense Competence attorney. The distinguishing feature of a competence Inquiry into the defendant’s medical, psychiat- evaluation is the assessment of the functional abil- ric, and substance use history may aid the psychi- ities needed to proceed with criminal adjudica- atrist in reaching a diagnosis and may direct the tion. To make such an assessment, the psychiatrist psychiatrist to additional sources of collateral asks questions that will lead to a determination of data about the defendant. whether competence-related abilities are “suffi- ciently present.” Bonnie182 has characterized these The defendant’s psychiatric history helps the abilities as falling into two key functional do- psychiatrist compare how the defendant reports mains: “competence to assist counsel” and “deci- current symptoms with symptoms reported in sional competence.” past episodes of illness. Competence to assist counsel encompasses the Asking the defendant about earlier experiences defendant’s abilities to understand criminal with the criminal justice system (including pre- charges, the implications of being a defendant, vious arrests, charges, and convictions) provides the adversarial nature of criminal proceedings, the psychiatrist with clues about the defendant’s and the role of defense counsel. Competence to first-hand experience with and knowledge of assist also includes the defendant’s ability to work criminal proceedings. with and relate pertinent information to defense E. Mental Status Examination counsel. A systematic mental status examination provides Decisional competence refers to the ability for the psychiatrist with specific information about psy- the defendant to participate autonomously in chiatric symptoms, thought content, mood, mem- making important decisions that arise in the ory, information processing, and concentration that course of adjudication. Among these decisions may not be apparent in more conversational portions are whether to testify, whether to plead guilty, of the interview. Typically, a psychiatrist’s mental and, if the case goes to trial, what strategy should status examination supplements clinical observations be used. and the evaluee’s spontaneous reports, by including Examinations of adjudicative competence are con- questions about several types of symptoms (e.g., cur- cerned with defendants’ case-specific capacity to pro- rent mood, possible delusional beliefs, and percep- ceed with criminal adjudication, as distinguished tual disturbances) and brief tests (e.g., arithmetic, from their general legal knowledge, actual current

Volume 35, Number 4, 2007 Supplement S33 Practice Guideline: Evaluation of Competence to Stand Trial knowledge about the case, or willingness to proceed perceptions and expectations of defense counsel; with adjudication. A defendant’s ignorance of some and aspects of how the legal system works, the charges description of the quality and quantity of previ- faced, or possible penalties does not necessarily imply ous interactions with defense counsel. incompetence. The defendant may simply not have been provided this information, but may be able to Along with gathering specific information about incorporate and use information in making decisions the defendant’s grasp of factual knowledge, the psy- after being told these things. To distinguish mere chiatrist can make inquiries and observations that ignorance from incapacity to learn, the psychiatrist will help elucidate: may use structured interviews (discussed later) or the defendant’s capacity for and willingness to other teaching and retesting approaches that involve engage in appropriate, self-protective behavior; instruction on factual legal matters. In cases in which if present, the extent and impact of the defen- the psychiatrist has learned that a defendant has had dant’s self-defeating behavior, and the reasons problems in collaborating with defense counsel, the for the behavior; psychiatrist should try to learn whether the defen- dant could work with an attorney and participate in the defendant’s ability to retain and apply new defense planning, but has chosen not to do so for information effectively; reasons not related to mental illness, mental retarda- the defendant’s capacity to pay attention at trial tion, or developmental limitations. and remember what has occurred; Assessing and documenting a defendant’s func- the defendant’s capacity to use information to tional status usually requires asking specific questions make reasonable decisions related to his defense; that systematically explore the defendant’s general and knowledge about criminal proceedings, his under- standing of matters specific to his legal case, and his whether the defendant has sufficient impulse ability to relate to defense counsel. Areas that the control to maintain proper courtroom decorum. psychiatrist typically assesses during an interview in- Questions should be open-ended and not assume clude the defendant’s: involvement in the alleged offense. Often, however, de- knowledge about the roles of principal court- fendants may do better at displaying their understand- room personnel (the judge, jury, witnesses, de- ing of and capacities to manipulate information when discussing concrete matters arising in their own cases. fense attorney, and prosecutor) and of the eval- For example, they may not be able to provide good uee’s role as a defendant; definitions of legal terms, but they may demonstrate awareness of being charged with a crime and fac- their understanding of key legal concepts by describing ing prosecution; how they anticipate that events will unfold as the case knowledge of specific charges, the meanings of proceeds. Having defendants recount past experiences those charges, and potential penalties if in the courtroom may also reveal details about how well convicted; they understand their current legal circumstances. Competence interviews should reach beyond de- knowledge about what specific actions the state fendants’ factual understanding of legal terms and alleges (“what the police say you did” to generate procedures to examine the ability to reason about the the charges); cases and appreciate the legal situation.183,184 Evalu- ability to behave properly during court proceed- ating reasoning ability may include questions that ings and at trial; assess how well the defendant distinguishes between information with more or less legal relevance, and the capacity to appraise the impact of evidence (e.g., defendant’s capacity to weigh advantages and disad- adverse witness testimony) that could be vantages of available legal options. In assessing the adduced; defendants’ appreciation of their circumstances, psy- understanding of available pleas and their impli- chiatrists should analyze the rationality of the defen- cations, including plea bargaining; dants’ beliefs about how they expect the case to pro-

S34 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial ceed, how they perceive their relationship with their discover clinical information that supports a de- attorneys, and how they anticipate being treated by fendant’s claim of amnesia. The psychiatrist can the legal system. Psychiatrists should keep in mind still assess the defendant’s capacity to consult that delusional beliefs may seriously influence a de- with the attorney and understand the criminal fendant’s reasoning or appreciation of the situation, process (which may remain well intact), along while leaving factual understanding and knowledge with the defendant’s ability to evaluate the pros- of the legal system unimpaired.185 ecution’s evidence depicting alleged conduct at Although this Guideline cannot anticipate all the the time of the offense. The psychiatrist should situations that psychiatrists may encounter, the fol- also attempt to obtain information from the de- lowing comments address some of the special cir- fendant and collateral sources that will delineate cumstances that they encounter: the scope and likely cause of the defendant’s amnesia. Competence to stand trial relates to a defendant’s capacity to proceed with adjudication on a specific criminal charge. Defendants who might not be G. Eliciting the Defendant’s Account of Events That Led to the Charge competent to undergo trial in a complex tax case might be competent to proceed with adjudication A key factor in many defendant-attorney interac- of a misdemeanor assault. tions is the defendant’s ability to provide a rational, consistent, and coherent account of the offense to his Occasionally, psychiatrists may encounter defen- attorney. Most of the members of this Practice dants with multiple charges who are incompe- Guideline committee, along with others,139 recom- tent to proceed on some charges but are compe- mend that psychiatrists assess this ability by asking tent to proceed on others. Thus, for an evaluee evaluees to describe their versions of events before, facing multiple charges, a psychiatrist should an- during, and after the alleged offense. Psychiatrists ticipate what behavioral and cognitive abilities should also ask defendants to describe how their ac- will be necessary for a defense on each charge and tivities have been or will be described by victims or should formulate questions to assess the evaluee’s witnesses and (especially) by the police. Having a capacity to accomplish these tasks. defendant relate his or her recollection of the events Individually tailored interview techniques may that led to the arrest helps the psychiatrist assess help with certain types of evaluees. For example, (among other things) the defendant’s understanding using illustrations of a courtroom or sketches of of the reasons for the charges and his or her ability to crime scenes may help defendants who have lim- communicate key information to defense counsel. ited verbal capacity to convey what they know, The defendant’s description of events often provides understand, and appreciate. information about whether he or she rationally per- ceives the reasons for the prosecution and can realis- In evaluating individuals with mental retarda- tically appraise available defenses (including the in- tion, psychiatrists may want to devote extra time sanity defense). Hearing the defendant’s description to explaining concepts and testing defendants’ of events leading to the allegations may also help the knowledge later, to find out how well these indi- psychiatrist to assess the defendant’s memory and viduals can retain information and apply it to ability to identify others who might testify on the their specific legal circumstances. defendant’s behalf. As explained in Section II, amnesia for the period If a psychiatrist is barred from a direct inquiry surrounding an alleged offense does not preclude about the offense or does not want to make such an the defendant’s being competent to stand trial on inquiry (discussed later), an alternative action would that offense. In some cases, a defendant’s com- be to contact the defense attorney to ask how well the ments or collateral information signal the psychi- defendant has been able to communicate details re- atrist that a claim of amnesia is not genuine. In lated to the alleged offense. When seeking such in- such cases, the psychiatrist can record and later formation, however, psychiatrists should remember adduce the information concerning the defen- that attorneys owe their allegiance to their clients and dant’s actual capacity to recall and relate events should have this in mind when formulating their that led to his arrest. In other cases, psychiatrists responses.

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When asked by psychiatrists to describe the events which the psychiatrist can determine quickly that a that led to their arrest, some defendants decline to defendant is not competent, the psychiatrist often answer because they fear that what they say will be has elicited or been told the defendant’s version of used against them or because their attorneys have the events that led to his arrest before realizing that instructed them not to discuss the matter. In such the defendant may not be competent. Also, getting a cases, the psychiatrist can ask about a defendant’s defendant’s version of arrest-related events as close as reason for withholding information. The psychiatrist possible to the time those events occurred is the best also can ask whether the defendant recalls and can way to learn what a defendant did and why. Defen- relate this information to defense counsel. The de- dants’ memories (like those of everyone else) may fendant’s responses, coupled with other information fade with time, are reconstructive, and reflect the from the interview, may help the psychiatrist decide current state of mind. For many psychotic defen- whether the defendant has the capacity to communi- dants—that is, those most likely to merit the insanity cate satisfactorily with defense counsel. For example, defense—obtaining their version of events before if a defendant calmly explains that he recalls arrest- they receive competence-restoring treatment can ad- related events clearly and that counsel has forbidden dress the possibility that, once their rationality im- him from discussing his actions, and if the defendant proves, they will recast their actions and motives into also gives a logical, reality-based description of what behavior and reasons that seem more plausible, but the police allege against him, that defendant has that are also less exculpatory. demonstrated satisfactory ability to communicate If a psychiatrist believes that asking the defendant with defense counsel (not to mention good capacity about his or her version of events is important, the to follow his attorney’s instructions). psychiatrist can deal with concerns about having to Though many psychiatrists follow the practice of testify about the defendant’s statements by preparing asking defendants for their account of events, some a response that will alert the court to the matters that experts believe that, when conducting an evaluation are at stake. For example, if the prosecution asks the of adjudicative competence only, an psychiatrist psychiatrist to testify at a competence hearing about should assess whether an evaluee understands what what the defendant said concerning the alleged of- the police and witnesses say he did, but should not fense, the psychiatrist may wish to respond, “Before I ask the defendant to give his own version of arrest- answer that question, I must ask whether the defense related events. One reason is that, even if the report attorney or the court objects, because if I do answer, omits what the defendant said about the alleged of- I may reveal information that will incriminate the fense, some jurisdictions allow a testifying psychia- defendant or that might compromise his defense trist to be asked in court about what the defendant strategy.” said. Even if the psychiatrist’s testimony is barred from being used later as direct evidence to convict the H. Psychological Testing defendant, some jurisdictions may still allow the testimony to be adduced as a “prior inconsistent Melton and colleagues believe that “[r]outine ad- statement” to impeach a defendant who testifies at ministration of conventional psychological tests (i.e., his trial.128,186,187 Also, testifying about a defendant’s measures of intelligence and personality) is unlikely statements concerning events that led to the arrest to be a cost-efficient means of gathering information could undermine the defense by revealing infor- in most competency cases” (Ref. 1, p 153). Although mation about potential legal tactics to the some psychologists regard conventional psychologi- prosecution.188 cal testing as an essential element of a competence Obviously, one way to avoid these potential prob- evaluation,189 and although most forensic psycholo- lems is not to ask the defendant what he recalls about gists recommend IQ testing,190 this Guideline takes why the police arrested him. In many cases, however, the same position as do Melton and colleagues.1 Psy- this approach is not practicable because (for exam- chiatrists can usually ascertain the crucial psycholog- ple), a court has ordered examinations of competence ical data relevant to functioning as a competent crim- and criminal responsibility, which psychiatrists usu- inal defendant directly from interviewing defendants ally perform during the same interview or set of in- and evaluating information provided by collateral terviews. Except in those unusual circumstances in sources.

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Psychological testing can play an important role Some competence-assessment instruments use in clarifying some diagnostic questions or in evaluat- standardized scoring systems that make possible ing cognitive disability, however, especially when comparisons between a specific defendant’s per- records are scant and interview findings are ambigu- formance and the performances of groups of pre- ous. Other circumstances in which testing may prove viously evaluated defendants. useful include those in which there is a question of When using a structured instrument, the psychia- neuropsychological impairment or mental retarda- trist should be familiar with the instrument’s instruc- tion. Neuropsychological testing often can help the tions for administration and should follow those in- mental health professional to sort out and character- structions as closely as possible. Although a flexible ize subtle cognitive impairments—for example, approach to administration may seem desirable, too problems in a defendant’s abilities to consider alter- much deviation from proper test procedure may re- natives or process complex verbal information. duce the instrument’s reliability and validity and may Because a substantial fraction of competence eval- make it difficult to assess the evaluee’s performance uees feign or exaggerate emotional or cognitive im- in relation to the instrument’s published norms. pairment, psychiatrists may find that the MMPI-2 The designers of structured instruments do not and tests specifically designed to detect malingering intend that the instruments be used as diagnostic are frequently useful. Although interpretation of tests that decide whether an individual is capable of MMPI results is beyond the knowledge and skills of proceeding with adjudication. Rather, the instru- most psychiatrists, psychiatrists can learn to admin- ments’ designers recommend that psychiatrists treat ister and score several of the available measures de- test results as one source of information, interpreting signed specifically to assess malingering. those results in light of the full clinical interview and other available data. A discussion of several currently I. Instruments Specifically Designed to Aid available assessment instruments appears later in the Assessment of Adjudicative Competence Guideline. Over the past four decades several instruments for assessing adjudicative competence have been devel- VII. Collateral Data oped, including structured interviews with standard- ized instructions for scoring and interpreting a defen- A. Value and Scope dant’s responses. A discussion of several currently In most competence evaluations, collateral data available assessment instruments appears in Section can help psychiatrist formulate and support their VIII. Use of these instruments is not mandatory. In opinions. By providing additional perspectives on some cases, attempting to use a structured compe- the defendant, collateral sources help the evaluating tence-assessment tool will be impossible (e.g., when psychiatrist gain a more comprehensive understand- the evaluee is catatonically mute or has a manic psy- ing of the information about the defendant’s current chosis) or pointless (e.g., when examining a defen- mental state and mental abilities than was derived dant who is also an attorney). Psychiatrists should be from the interview. Often, defendants’ accounts of familiar with the strengths and weaknesses of these symptoms, past treatment, and other relevant events instruments in various evaluation contexts (Pinals et differ substantially from the reports of witnesses or al.191). Some potential advantages of structured in- other informants. Defendants may deny or not want struments include the following: to discuss their participation in an offense, or they Using a structured instrument assures that the may claim to have amnesia for events related to the psychiatrist will consistently cover relevant topic offense. Collateral sources may corroborate or fail to confirm elements of the defendant’s account of his areas. symptoms and functioning, which may help in as- Some defendants who are reluctant to discuss sessing the defendant’s accuracy and truthfulness their personal situation may respond to hypo- about his mental condition. thetical inquiries such as those used in the assess- Because the competence evaluation focuses on the ment tool developed by the MacArthur defendant’s current mental state and ability, it gen- group.184 erally requires less evaluation of collateral data than

Volume 35, Number 4, 2007 Supplement S37 Practice Guideline: Evaluation of Competence to Stand Trial does a retrospective evaluation (e.g., evaluations of defendant’s medical records, provided that the de- criminal responsibility). At a minimum, however, fendant is competent to authorize the release. Those the psychiatrist should review police records when who have been retained by the defense or prosecution they are available and the indictment concerning al- should not contact opposing counsel or other per- leged incidents leading to the criminal charges. sons who could provide collateral data before con- sulting with the retaining attorney. After obtaining B. Incriminating Information approval of retaining counsel, defense- or prosecu- Psychiatrists must recognize that the collateral tion-retained psychiatrists may then interview collat- data that they obtain may occasionally include in- eral sources. Court-appointed psychiatrists may want criminating information that was previously un- to speak with both the prosecution and defense known to the prosecution. The prosecution and the attorneys. trial court can initiate an evaluation of adjudicative Ideally, when using collateral sources of informa- competence, and the defendant may not invoke his tion, the psychiatrist should personally review any or her right against compelled incrimination to avoid 188 critical information that is summarized or referred to submitting to a competence examination. Al- in other documents and should not simply accept though most states prohibit introduction of informa- another clinician’s summary of original documents. tion from the competence evaluation into the trial Besides obtaining original sources when appropriate, itself, in other states this protection extends only to the psychiatrist may identify missing information statements made by defendants. Attorneys in states that may help formulate the forensic opinion. For that do not have protective provisions may insert language in a court order to limit the use of report example, the psychiatrist may realize that educational information from a competence assessment. Despite records would serve to verify mental retardation these safeguards, concerns about the possibly incrim- when it appears that cognitive limitations affect a inating effect of collateral data lead some psychia- defendant’s competence to stand trial. trists to favor focused assessments of adjudicative If requested information did not arrive before sub- competence in which only limited collateral infor- mission of the report, the psychiatrist should note mation is presented. If an psychiatrist chooses to use this in the report, along with the reason that the collateral sources in conducting an evaluation of ad- psychiatrist did not have access to the information. judicative competence, such sources serve primarily In some cases, the psychiatrist may want to include in for obtaining or supplementing information about the report a statement reserving the right to change past or current psychiatric symptoms, but not for an opinion, should any conflicting information sub- gaining information that might facilitate prosecution sequently become available. and criminal conviction. D. Managing Collateral Information C. Obtaining Collateral Information All material reviewed by the psychiatrist is consid- In many cases, the referring attorney or court will ered confidential and under the control of the court obtain documents containing collateral information or the attorney providing it, and it should not be and will provide these to the examining psychiatrist. disclosed or discussed without the consent of the When retained by either the prosecuting or defense attorney, the psychiatrist may include a statement in referring party. The psychiatrist should realize that the retainer agreement that the attorney will give the notations made on this material may be subject to psychiatrist access to all relevant information avail- direct and cross-examination if referred to during able and that the attorney will make reasonable ef- testimony. Material generated by the psychiatrist forts to obtain any additional information requested during an evaluation (e.g., interview notes, video- by the psychiatrist. Sometimes a court order is nec- tapes) is initially considered the work product of the essary to compel opposing counsel to produce infor- referring attorney. As such, it should not be disclosed mation deemed relevant by the psychiatrist. or discussed without the defendant’s, attorney’s, or When retained by the defense or directly by the court’s consent. The psychiatrist should furnish cop- court, the psychiatrist may obtain written consent ies of this material to the referring attorney or court, directly from the defendant for the release of the however, if requested to do so.

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E. Common Types of Collateral Information Jail and prison records may document behavioral problems, medical treatment, and mental health in- 1. Written Records terventions during incarceration. These records also Police reports and the indictment describing the will describe total length of incarceration and com- instant offense (or equivalent information that for- pliance with custodial requirements (e.g., disciplin- mally document the allegations and charges), should ary actions or time spent in administrative segrega- be reviewed, paying particular attention to police tion). When available, prison work and school documentation of underlying facts and the corre- records may provide further information about past spondence between this documentation and any functioning. statements by the defendant about events that led to Personal records can also help a psychiatrist cor- the charges. Statements made by the defendant, vic- roborate or disprove statements made during the in- tim, and witnesses can provide valuable background terview. For example, records of sophisticated finan- information to facilitate discussion with the defen- cial transactions would argue against the presence of dant about his understanding of the charges and ev- mental retardation. Diaries or journals may provide idence against him. When provided, a defendant’s insights into a defendant’s prearrest level of cognitive arrest and plea history can be helpful in learning functioning. about his experiences with the legal system. 2. Collateral Interviews Psychiatric, substance abuse, and medical records may help the psychiatrist understand the defendant’s Useful information may be obtainable in inter- psychiatric symptoms and diagnosis, past responses views with several persons other than the defendant. to treatment, and previous levels of psychiatric im- The psychiatrist retained by the court or the de- pairment. These records may also help clarify ele- fense attorney may speak directly with the defense ments of the family history that may prove useful in attorney to obtain information about counsel’s rea- sons for the referral and experiences relevant to the arriving at a diagnosis. 1,192 School records may shed light on when psychiatric defendant’s ability to assist in the defense. If re- symptoms (especially cognitive impairment) first de- tained by the prosecution, the psychiatrist can re- veloped or were identified and can help the psychia- quest permission through the prosecutor to speak trist evaluate a defendant’s reports concerning possi- with the defense attorney. A brief interview with the ble mental retardation or borderline intellectual defense attorney may provide valuable information function. Special education records, including psy- about the attorney’s specific concerns about the de- fendant’s competence and examples of the defen- chological testing, are specifically helpful in evaluat- dant’s limitations related to trial proceedings. ing claims of mental retardation. Other sources such as family members, friends, Employment records may corroborate or contra- and employers can provide information about a de- dict a defendant’s account of impairment from psy- fendant’s level of functioning and visible symptoms. chiatric disability and level of work performance. Though the potential for self-incrimination is not Disciplinary actions and improvement plans may generally at issue, it may be important to inform the provide additional insights into a defendant’s past interviewee of the intended use and nonconfidential problems and functioning. nature of the information. Interviewees should re- Military records may also corroborate or contra- ceive an explanation similar to the one that the de- dict a defendant’s account concerning past levels of fendant receives (see Section IV.E.), with the added functioning and the time of onset and the severity of warning that providing information to the psychia- psychiatric symptoms. The data found in military trist may lead to his or her being called to testify in records include descriptions of medals received, hon- court. Besides providing a verbal warning, the psy- ors earned, promotions, disciplinary actions, and the chiatrist may also ask an interviewee to sign a written type of military discharge. nonconfidentiality statement. Other expert evaluations and testimony by other mental health experts can help in assessing the con- sistency of the defendant’s reports and scores on psy- VIII. Assessment Instruments chometric testing. Expert evaluations and testimony One of the first instruments specifically designed relating to previous crimes may also be considered. for assessing adjudicative competence was Robey’s

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Checklist for Psychiatrists.193 When Robey’s check- nesses include nonstandardized administration, non- list appeared in 1965, psychiatrists who were evalu- standardized scoring, limited empirical validation, ating defendants often rendered opinions based on and no norms. the presence of symptoms, without reference to legal The Georgia Court Competency Test (GCCT) is a criteria for adjudicative competence.194–196 In sub- popular screening instrument originally developed sequent years, forensic experts have developed a va- for rapid identification of defendants who are obvi- riety of instruments that range from screening tools ously competent. The GCCT evaluates a defendant’s and checklists to elaborate guides for conducting en- factual knowledge about general criminal court pro- tire evaluations. Descriptions of several of these in- cedure and factual knowledge related to the defen- struments, all amenable to use by psychiatrists, ap- dant’s specific case.201,202 The original version of the pear in the following sections. GCCT had 17 questions grouped as follows: The Competency to Stand Trial Screening Test 7 questions about an illustration of the layout of (CST) is a 22-item, sentence-completion test devel- a courtroom (e.g., “Where does the judge sit?”); 5 oped as part of a research project conducted by the 2,197 questions about functions of courtroom person- National Institute of Mental Health. Each item nel (e.g., “What does a witness do?”); of the CST is scored from 0 to 2, with higher scores indicating higher levels of legal comprehension. The 2 questions about the defendant’s current CST has standardized administration (completion charges; takes about 25 minutes) and standardized scoring. 1 question about helping the defense attorney; Examples of test items include, “When I go to court, 1 question about the alleged crime; and my lawyer will...”and“Whenthey say a man is innocent until proven guilty, I . . ..“The CST is a 1 question about the consequences about being screening test; if the total CST score is less than 20, found guilty of the alleged crime. further evaluation with the Competency Assessment The test’s instructions allow the examining clinician Instrument (described in the next section) is recom- to assign scores to the defendant’s responses which, mended. Strengths of the CST include ease of ad- added together, yield a sum between 0 and 50. The ministration and a high true-negative rate. Weak- sum is then doubled to obtain a final score between 0 nesses include low validity due to a high rate of false and 100. positives, difficulty assessing defendants who have a A 1992 modification of the GCCT by the Missis- high degree of cynicism about the system,198 and sippi State Hospital (GCCT-MSH) has 21 ques- limited and unproven reliability of the test. Also, the tions. The GCCT-MSH includes questions about test provides a numerical result rather than a detailed ability to assist counsel (“What is your attorney’s description of a defendant’s abilities. A subsequent name?”), and expectations of appropriate courtroom version of this measure, the Competency to Stand behavior in addition to questions contained in the Trial Assessment Instrument (CAI), appeared in original GCCT. A score of 70 or higher on the 1980. GCCT (or GCCT-MSH) suggests that a defendant The Competency to Stand Trial Assessment Instru- has adequate factual knowledge of courtroom pro- ment (CAI) is a semistructured comprehensive inter- ceedings, but does not necessarily imply that the de- view developed by McGarry and colleagues199 that fendant is competent to stand trial. yields five-point Likert scale scores (1, total incapac- Strengths of the GCCT include its ease of admin- ity, to 5, no incapacity) on 13 areas of competence- istration, which takes about 10 minutes, and ability related functioning (e.g., capacity to testify rele- to make a rapid assessment of the defendant’s factual vantly, appraisal of available legal defense). The CAI knowledge about how courtroom personnel function came from the same National Institute of Mental and why he was charged. The GCCT’s weaknesses Health study as the CST. When a majority of scores include questionable content validity (a full one- are 3 or lower, inpatient hospitalization for restora- third of the questions are about the drawing of the tion or observation is potentially helpful. The courtroom) and lack of meaningful assessment of a strengths of the instrument include its usefulness in defendant’s ability to assist in his defense. Users of structuring an interview200 and its provision of sam- the GCCT-MSH should also recognize that it is fo- ple interview questions and case examples. Its weak- cused on factual understanding and offers limited

S40 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial insight into a defendant’s rationality or appreciation essary for a proper defense than in cases in which the of his legal situation. defendant is unlikely to testify. The IFI-R scoring Although the GCCT was never officially pub- manual205 is available online. lished, it has become one of the more commonly Limited research on the IFI suggests that its results used screening tools for competency to stand trial.203 correlate strongly with experts’ and judges’ ultimate Many currently circulated versions of the GCCT- conclusions about adjudicative competence.207,208 MSH include the Atypical Presentation Scale (APS) Additional strengths of the IFI include its interdisci- by Gothard and colleagues,118 an eight-item screen- plinary nature and relatively short administration ing tool for detection of feigned psychosis. Although time (45 minutes). Its weaknesses include the prac- intended only as a screening instrument for malin- tical difficulty of having an attorney present at each gering, the APS has acceptable sensitivity and speci- evaluation and the limited amount of research on its ficity (more than 80% when a score of 6 is used as the validity and reliability. cutoff).118 The Computer-Assisted Determination of Compe- The Interdisciplinary Fitness Interview (IFI) and tency to Stand Trial (CADCOMP) is a 272-item ob- the IFR-Revised (IFI-R) are semistructured inter- jective test that assesses social history, psychological views designed for joint administration by an attor- functioning, and legal knowledge.209 The test takes ney and a mental health professional,204,205 although about 90 minutes to complete and produces a com- they may be administered by a mental health profes- puter-generated narrative report. The report is not sional alone.206 The IFI contains questions that spe- meant to be conclusory but to form the basis for cifically address capacity to assist in one’s defense and subsequent clinical interviews. Weaknesses of the one’s factual and rational understanding of the pro- CADCOMP include administration time (complete ceedings. It examines current psychopathology re- testing includes assessment of reading level with the lated to six types of symptoms (rated as present or Wide Range Achievement Test, orientation to the absent) and psycholegal abilities in the following computer, and the clinical interview after the test), areas: reliance on the defendant’s self report, and unfeasi- ability to appreciate charges; bility of administration in certain settings (e.g., a jail). ability to disclose relevant information; The Competence Assessment for Standing Trial for courtroom demeanor; Defendants With Mental Retardation (CAST*MR) was developed specifically for evaluating adjudicative ability to understand the adversarial nature of competence in defendants with mental retarda- proceedings; tion.210,211 The developers of the CAST*MR be- quality of the relationship between defendant lieved that the open-ended questions used in other and attorney; instruments (e.g., the CAI) might not properly assess appreciation of legal options and consequences; mentally retarded individuals with limited ability to and express themselves. The developers also thought that the vocabulary of other tests might be too advanced ability to make reasoned choices concerning legal for mentally retarded defendants and that the em- options and consequences. phasis on psychiatric symptoms might not be appro- Psychiatrists score aspects of these psycholegal abili- priate for such defendants. ties on a scale of 0 (no or minimal incapacity) to 2 The CAST*MR has 50 items divided into three (substantial incapacity). The Influence of Decision sections and takes 30 to 45 minutes to administer. Scale is used to record a rating (also 0, 1, or 2) of the The majority of questions are multiple choice. The importance that the psychiatrist accorded each di- first two sections require a fourth-grade reading level. mension in forming the opinion. The rationale for The first section includes 25 questions assessing basic the Influence of Decision Scale is that the signifi- legal knowledge (“What does the judge do?”) and the cance of a given factor should vary depending on the second section uses the same format to assess the facts specific to the defendant’s case. Thus, for exam- defendant’s ability to assist in his or her defense. The ple, a defendant’s courtroom demeanor is viewed as last section has 10 items designed to assess the defen- more important in cases in which testimony is nec- dant’s account of events surrounding the charges

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(e.g., “What were you doing that caused you to get test’s Professional Manual. The total scores for items arrested?”). A weakness of the CAST*MR is that it 1 through 8, 9 through 16, and 17 through 22 pro- does not assess the defendant’s understanding of legal vide indices of a defendant’s understanding, reason- proceedings in depth. Also, the recognition format of ing, and appreciation, respectively. Tables in the the test may result in overestimation of a defendant’s MacCAT–CA Professional Manual and the test ad- abilities. ministration booklet help the psychiatrist to see how In 1989, the MacArthur Research Network on an evaluee’s performance on these indices compares Mental Health and the Law began the MacArthur with large groups of competent and incompetent de- Adjudicative Competence Project, the purpose of fendants who underwent evaluation during the de- which was to measure psychological abilities relevant sign of the MacCAT–CA. Scores from the under- to competence to proceed to adjudication (rather standing, appreciation, and reasoning scales are not than just competence to stand trial).212 The project combined for a total score, however. emphasized appreciation and rationality as impor- Results of research using the MacCAT–CA sug- tant features of adjudicative competence and favored gest that it compares favorably with other measures assessment of the defendant’s abstract as well as case- of competence to stand trial with regard to validity, specific knowledge base. reliability, and ease of administration.213 The The ultimate product of the MacArthur Adjudi- strengths of the MacCAT-CA include its derivation cative Competence Project was the MacArthur Com- from a psycholegal theory of competence, assessment petence Assessment Tool-Criminal Adjudication (Mac- of multiple psycholegal abilities, assessment of the CAT–CA), a 22-item test that takes 30 to 45 minutes capacity to assimilate new information, standardized to administer. It has three sections: administration, objective criterion-referenced scor- ing, and availability of normed data for the purpose Items 1 through 8 assess the defendant’s under- of comparison. Also, an emerging body of literature standing (e.g., role of the defense attorney, ele- on MacCAT–CA performance by adolescents may ments of the offense, pleading guilty). These permit meaningful assessment of minors’ compe- items include educational components that allow tence to proceed with adjudication in juvenile evaluation of a defendant’s ability to grasp basic, court.214,215 orally presented information about legal Weaknesses of the MacCAT–CA include its lim- proceedings. ited focus on the complexity of the defendant’s case, Items 9 through 16 assess the defendant’s reason- the defendant’s memory of events, and legal de- ing (e.g., concepts such as self-defense, possible mands such as appropriate behavior in court. Al- provocation, and ability to seek information that though the MacCAT–CA was designed for and eval- informs a choice). uated in individuals with low-average intelligence, its verbal demands may exceed the expressive capabili- Items 17 through 22 address the defendant’s ap- ties of mentally retarded defendants who nonetheless preciation of his specific circumstances (e.g., his understand their charges and can converse satisfacto- beliefs about the likelihood of being treated fairly rily with counsel. Evaluees with severe thought dis- and his rationale for these beliefs). orders, memory impairment, or problems with con- In administering the MacCAT–CA, the psychia- centration may not be able to complete assessments trist has the evaluee listen to and answer questions with the instrument. The MacCAT–CA also does about a hypothetical criminal case in which two men not formally address dubious claims of amnesia or get into an argument at a bar, one man hits the other malingering. Pinals and colleagues191 provide a valu- with a pool cue, and an aggravated assault charge able discussion of the practical advantages of using results. The MacCAT–CA uses the bar fight vignette the MacCAT-CA, along with the problems that psy- for the first 16 test items (i.e., those items dealing chiatrists may encounter if they try to administer the with understanding and reasoning); the third sec- instrument to all competence evaluees. tion, appreciation, concerns the defendant’s beliefs As with all other instruments for evaluation of about his case, rather than the vignette. adjudicative competence, the MacCAT–CA is not Each MacCAT–CA item is scored 0, 1, or 2, using supposed to function as a stand-alone assessment of instructions and examples of responses from the competency to stand trial. Rather the test’s creators

S42 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial intend that the MacCAT–CA be regarded as an as- ers safeguard “the integrity and security of test mate- sessment tool that “should enhance the thoroughness rials” (Ref. 221, No. 9.11), by, for example, prevent- and quality of clinical investigations of adjudicative ing persons who are not authorized to administer competence” (Ref. 212, p 143). tests from obtaining the content of specific test items The Evaluation of Competency to Stand Trial- and instruction manuals. Also, psychologists often Revised (ECST-R) is a recently developed compe- are urged not to release raw test data—an individual tence-assessment instrument that became available evaluee’s responses—if doing so would create a risk for purchase in 2005. Eighteen items and three scales that the data would be misused or misrepresented of the ECST-R address the defendant’s factual and (Ref. 221, No. 9.04). It is permissible, however, to rational understanding of legal proceedings and abil- release raw data in response to a court order. Psychi- ity to consult with counsel, which are the criteria for atrists’ official ethics guidelines do not discuss this adjudicative competence propounded in Dusky.16 question. If psychiatrists choose to use competence- Another 28 test items address various “atypical” assessment instruments, they should take appropri- styles of symptom presentation, including feigning ate precautions to preserve the instruments’ value of psychosis, nonpsychotic disorders, and cognitive and integrity.148 impairment. Instruments designed specifically for assessing The ECST-R is intended for use with adults facing competence to stand trial have variable reliability, charges in criminal court, including individuals with validity, and usefulness. Designers of these instru- IQs in the 60 to 69 range. The designers of the ments intend that they be used in concert with, ECST-R believe that their instrument is superior to rather than as a substitute for, a more comprehensive other structured assessment tools because they struc- clinical examination. When the results of clinical ex- tured the ECST-R to track the three elements of amination appear discordant with the results of a adjudicative competence described in Dusky, rather competence-assessment measure, the evaluating cli- than a theoretical, nonjudicial conceptualization of nician must resolve the conflict, which may involve adjudicative competence. Unlike other assessment obtaining additional information necessary to render instruments, the ECST-R includes scales that screen an opinion with a reasonable degree of medical for feigned or exaggerated mental problems. The certainty. ECST-R designers believe that their studies of the Psychiatrists should recognize that most compe- ECST-R provide error rates relevant to test admissi- tence assessments give little or no consideration to bility under evidentiary rules laid out in the U.S. the commonly encountered question of malingering. Supreme Court’s decision in Daubert v. Merrell Dow, Assessment of problems such as reported amnesia, 509 U.S. 579 (1993).216 neurocognitive impairment, and mental retardation Data supporting the design, use, and accuracy of may require additional testing. the ECST-R appear in the test’s instruction manual. Ideally, regular use of assessment instruments As of late 2006, four articles217–220 that evaluate the would enhance clinical evaluations by giving psychi- ECST-R had appeared in peer-reviewed academic atrists reliable, valid data. Given the limitations of journals. existing instruments and their potential for being at- Whether to use structured assessment instruments tacked as inadequate in Daubert-type hearings, how- ever (see, e.g., State v. Griffin, 869 A.2d (Conn. for adjudicative competence remains a matter of per- 222 sonal choice for psychiatrists. When psychiatrists use 2005), psychiatrists should not overvalue the in- these instruments, however, they should be aware of formation that they provide. Instead, psychiatrists their responsibility to maintain the security of the should interpret results of testing in light of all other text’s contents. The value of many psychological tests data obtained from clinical interviews and collateral and assessment instruments rests in part on the pub- sources. lic’s ignorance of their specific contents. If, for exam- ple, test items from intelligence scales were publicly available, evaluees could obtain and study the ques- IX. Formulating the Forensic Opinion tions, and those scales would no longer be indicators In formulating an opinion about adjudicative of individuals’ native intelligence. For this reason, competence, the psychiatrist usually considers three psychologists’ ethics guidelines prescribe that test us- questions:

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What symptoms does the defendant have, and potential bases for insanity defenses.145 However, what is the defendant’s psychiatric diagnosis? mental disorders that are not severe are still permis- What is the relationship, if any, between the sible bases for findings of incompetence to stand symptoms or diagnosis and the mental capabili- trial. While the U.S. Supreme Court does not regard the insanity plea as a constitutional right that states ties required under the jurisdiction’s standard for 228 competence to stand trial? must make available to defendants, A criminal de- fendant has a constitutional right to be tried only while If the defendant appears incompetent to proceed competent.22,229 It thus makes sense not to have an with adjudication, how likely is it that appropri- absolute lower limit on “seriousness” of disorders that ate restoration services would restore his compe- could constitute the basis of a finding that a defendant is tence, and what is the appropriate, least restric- incompetent to stand trial. tive setting for such services? In theory, therefore, any diagnosis or symptom cluster could be the cause of a defendant’s incompe- A. Psychiatric Symptoms or Diagnosis tence. In practice, however, few defendants who have 1. General Considerations neither an Axis I diagnosis nor a diagnosis of mental As explained in Section I, the substantive consti- retardation are incompetent. Though some person- tutional standard for adjudicative competence (as ar- ality disorders may affect a defendant’s competence ticulated in Dusky16) does not make having a mental abilities (e.g., magical thinking in an individual with disorder a requirement for finding a defendant in- schizotypal personality disorder), any psychiatrist competent. With minor variations in language or who believes that a defendant is not competent terminology, every U.S. jurisdiction uses the Dusky should carefully consider whether an Axis I diagnosis standard. Though several jurisdictions do not require is present. In all cases, psychiatrists should record a predicate mental illness, federal courts and most observations about symptoms and render opinions states require the establishment of a formal diagnosis. about diagnoses with a view toward how those symp- Therefore, psychiatrists working in jurisdictions toms affect the defendant’s functioning. The partic- with statutes that require a predicate diagnosis ular diagnoses or symptoms that affect the defen- should indicate such a diagnosis in individuals whom dant’s trial-related abilities should receive further they believe are not competent. explanation in the opinion section of the psychia- Most adult defendants found incompetent to trist’s report. It may not be possible to make a defin- stand trial meet criteria for a mental disorder as de- itive diagnosis if there is not a clear history or there fined in the recent editions of the American Psychi- are new ambiguous symptoms. atric Association’s DSM (DSM). Psychotic disorders are the most common diagnoses among criminal de- 2. Special Diagnostic Consideration fendants referred for competence evaluations and When a defendant claims amnesia for an alleged subsequently found incompetent to stand trial. Stud- crime, questions about competence to stand trial are ies have shown that among defendants who undergo likely to arise. From a practical and theoretical stand- evaluations of adjudicative competence, 45 to 65 point, true inability to remember circumstances sur- percent of those with schizophrenia or other psy- rounding an alleged offense certainly impairs the de- chotic illnesses,207,223–226 23 to 41 percent of those fendant’s ability to assist in his defense. For example, with affective or organic disorders,223,226 and 12.5 to a defendant may be the only person who has knowl- 36 percent of individuals with mental retarda- edge of an alibi that could form the basis of an ac- tion223,224,227 are found incompetent. quittal. In the previous section, Wilson v. U.S.67 and Also, in a study by the MacArthur Foundation other case law surrounding the criminal courts’ han- Research Network on Mental Health and the Law 65 dling of amnesic defendants was reviewed. Courts percent of defendants hospitalized for restoration to generally have held that a defendant’s amnesia is not competence were found to have a diagnosis of schizo- a bar, per se, to understanding criminal proceedings phrenia, and 28 percent had an affective disorder.184 or standing trial. In many jurisdictions, insanity statutes require the In evaluating claims of amnesia, the psychiatrist presence of a severe mental disorder and exclude di- should consider the purported genesis of the mem- agnoses of substance abuse or personality disorders as ory deficit and collateral information (e.g., hospi-

S44 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial tal records or reliable witness statements from the interviews with family, friends, police, custodial time surrounding the alleged offense) in attempt- officers, and others who have had contact with ing to determine the plausibility and genuineness the defendant; and of the amnesia. Medical records may also provide a previous history with the criminal justice sys- the psychiatrist with data that help determine tem without any evidence or suspicion of incom- whether the defendant’s presenting symptoms are petence. compatible with his medical history. Findings from psychological testing (including assessments If the psychiatrist suspects that a defendant is ma- of malingering) may also help the psychiatrist to lingering but cannot confirm it with a high level of evaluate a defendant’s assertions about amnesia. confidence, the psychiatrist may conclude (and state Mental retardation is a diagnosis commonly asso- in the forensic report) that the defendant should un- ciated with a finding of incompetence to stand tri- dergo a psychiatric hospitalization, where around- al.223,224,227 Before making that diagnosis, the psy- the-clock professional observation may help clarify chiatrist should be familiar with relevant definitions whether reported symptoms are genuine or feigned. of mental retardation. For example, in the DSM-IV- 230 B. Relationship Between Psychiatric Impairment TR, the criteria for a diagnosis of mental retarda- and Trial-Related Abilities tion include: Once the presence of indicia of mental disorder is an IQ of approximately 70 or below; established, the psychiatrist focuses on any relation- deficits or impairments in at least two areas of ship between signs or symptoms of any mental con- present adaptive functioning; and dition and the defendant’s trial-related abilities. Knowing a defendant’s psychiatric history may help an onset before age 18 years. to substantiate noted symptoms or to clarify their With respect to adjudicative competence, how- diagnostic significance, but a history of impairment ever, the psychiatrist should remember that, theoret- does not imply that a defendant currently is incom- ically at least, an isolated low IQ score—without any petent to stand trial. The psychiatrist must decide deficits in adaptive functioning—may form the basis whether any current mental symptoms are causing of an opinion that a particular defendant is not com- impairment in the defendant’s trial-related abilities. petent to stand trial. Because U.S. jurisdictions use competence stan- Evaluation of juvenile defendants with respect to dards that closely follow the Dusky decision,16 foren- competence to stand trial presents several compli- sic clinicians can use Dusky’s three prongs—factual cated problems, as described in Section XI. understanding of the proceedings, rational under- The diagnostic rules of DSM-IV-TR allow en- standing of the proceedings, and ability to consult try of a diagnosis of malingering as a V code on with counsel—as a guide for thinking about how a Axis I. A substantial fraction of defendants malin- defendant’s psychiatric impairments affect adjudica- ger incompetence to avoid prosecution. For exam- tive competence. ple, Gothard and colleagues231 report a 12.7 per- 1. Factual Understanding cent rate of feigned mental disorder among their competence referrals. To evaluate factual understanding of the legal pro- Malingering has very negative connotations, and ceedings, the psychiatrist assesses a defendant’s an opinion that a defendant is feigning or exaggerat- knowledge about the charges, the roles of various ing can adversely affect the defendant’s treatment in courtroom participants, possible penalties, the con- ensuing criminal proceedings. Because of this, one cept of plea bargaining, the adversarial nature of the should not offer a diagnosis of malingering lightly. legal process, and legal rights during the trial process. Psychiatrists should base diagnoses of malingering on Defendants who lack some factual knowledge re- solid evidence rather than mere clinical suspicion. garding aspects of the trial process may still be com- Potential sources of confirmatory evidence include: petent if the psychiatrist can show that the defendant could learn the necessary information and that any psychological testing or specialized instruments noted deficits are not due to psychiatric impairment. for detecting malingering; As an illustration, consider a defendant who does medical, psychological, and/or custodial records; not know the maximum number of years attached to

Volume 35, Number 4, 2007 Supplement S45 Practice Guideline: Evaluation of Competence to Stand Trial a possible sentence. Once provided the information, ney to assess the defendant’s ability to assist counsel. however, the defendant accurately states the poten- Potentially useful information provided by defense tial length of imprisonment that might follow con- counsel may include the defendant’s behavior with viction. In this situation, the defendant’s initial def- the attorney, the defendant’s ability to follow in- icits only indicate a lack of information rather than structions provided by the attorney, the defendant’s any impairment stemming from a mental disorder. behavior during any prior courtroom proceedings, Conditions that can result in a defendant’s having a and other effects of psychiatric symptoms on the de- competence-impairing lack of factual understanding fendant’s interactions with counsel. A defendant include cognitive deficits from mental retardation, who refuses to speak with his attorney because he head trauma, medical illnesses, severe depression, delusionally believes his attorney is an undercover and thought disorders, such as those experienced by FBI agent working for the prosecution provides an persons with schizophrenia. example of how a psychiatric symptom can impede Psychiatrists should also recognize those situations collaboration with defense counsel. The psychiatrist in which defendants appear to have a factual under- may have to determine whether a defendant’s refusal standing of the trial process but actually do not. For to assist counsel is a result of voluntary noncoopera- example, some individuals with mental retardation tion or an impaired ability to cooperate caused by a who have undergone competence training may pro- mental disorder. vide memorized answers to questions about trial facts The psychiatrist should also assess the defendant’s without developing an understanding of the issues. A capacity to make legal decisions in collaboration with defendant’s ability to answer questions about hypo- defense counsel and to participate in other activities thetical courtroom scenarios that differ from his case that counsel may require. Examples of such activities may tell the psychiatrist whether the defendant has include the defendant’s ability to plea bargain, to an actual factual understanding of the legal process or waive a jury trial, and to testify. The psychiatrist is simply parroting words learned by rote. should focus on how well the defendant can appre- 2. Rational Understanding ciate the situation, manipulate information related to the trial process, and work with counsel in making Some defendants may have an adequate factual rational decisions. grasp of trial-related matters yet have irrational be- In conducting this three-prong analysis, psychia- liefs about the legal process that render them incom- trists should be familiar with and should keep in petent to stand trial. Consider, for example, a defen- mind the exact statutory language in their jurisdic- dant who has grandiose religious delusions and who tions. In general, a finding of competence to stand therefore believes that no earthly court can punish trial requires only that the defendant have sufficient him. This defendant may have an accurate factual present ability rather than perfect ability to satisfy the understanding of the legal process as it applies to requirement of Dusky. The psychiatrist can best aid “ordinary” humans but cannot recognize that he the court by synthesizing specific information about faces potential imprisonment if found guilty. In this and providing clear examples of the nature and sever- situation, the psychiatrist should describe how the ity of a defendant’s deficits and by showing how these delusions affect the defendant’s ability to participate deficits relate to the prongs of the Dusky test. rationally in the legal process. By contrast, a defendant may display indicia of C. Potential for Restoration: Least Restrictive mental illness (including signs or symptoms of a psy- Alternative chosis) that do not impair rational understanding of Although not required by the Dusky standard, the trial process. For example, a defendant’s persis- 26 tent delusional belief that his ex-wife had an affair 10 most statutes (following Jackson v. Indiana ; see Sec- years ago may cause no impairment in his ability to tion I) explicitly require that the psychiatrist formu- understand and proceed with adjudication on a bur- late an opinion about whether restoration of compe- glary charge. tence is likely within some statutorily designated time frame (usually linked to the severity of the po- 3. Ability to Assist Counsel tential penalty for the alleged crime) and whether In many evaluations of adjudicative competence, restoration services should take place in an inpatient the psychiatrist should contact the defendant’s attor- or outpatient setting.

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In addressing the probability of restoration in a in suggesting that psychiatrists should exercise cau- specific case, the psychiatrist should consider several tion in providing feedback to courts concerning [the factors, including: likely success of] competency restoration” (Ref. 209, p 377). A recent Alabama study226 found few differ- whether the defendant’s incompetence results ences between defendants who the psychiatrist pre- from a “treatable” deficit such as lack of prior dicted were restorable or nonrestorable. Those differ- exposure to information about the trial process ences that did exist reflected mainly nonpsychiatric or psychiatric symptoms caused by an illness that variables such as criminal record, current criminal typically responds to medication, as opposed to a charge, and understanding of the legal process. The static and relatively irremediable condition such most recent study of this topic, from Ohio,240 as mental retardation; showed that two types of incompetent evaluees had the defendant’s previous psychiatric treatment probabilities of being restored that were well below and responses to treatment; and average: chronically psychotic defendants with histo- ries of lengthy inpatient hospitalizations and defen- the character of presenting symptoms and cur- dants whose incompetence stems from irremediable rent scientific knowledge about how well those cognitive disorders (such as mental retardation). Psy- symptoms respond to treatment. chiatrists should recognize, however, that courts may regard a “low” but greater-than-zero probability of When assessing restorability, psychiatrists should success to be “substantial” enough to warrant a trial bear in mind that research on competence restora- tion shows that most individuals referred for treat- of restoration. ment after being found incompetent do in fact be- If successful restoration appears likely, psychia- come competent to stand trial.232–236 Summarizing trists in some jurisdictions must also render an opin- previous research findings in the mid-1990s, Nichol- ion about the range of services that will be necessary son and colleagues concluded that “the ability of cli- to restore the defendant to competence. Restoration nicians to predict competency restoration is poor, at usually involves two simultaneous processes: educa- tion about the court process and treatment (usually, least when compared with the base rate of failed res- 241 toration” (Ref. 209, p 373). Studies of defendants with psychotropic medication ) of psychiatric from Los Angeles,232 Michigan,233 Ohio,234,235 and symptoms that are interfering with the defendant’s Oklahoma236 have shown that most defendants hos- competence-related abilities. The potential sites for pitalized for competence restoration regain their restoration treatment services may vary depending competence. Because of the high base rate of success- on local customs, state law, court (juvenile versus ful restoration, it is difficult to determine which de- adult), and jurisdiction (e.g., federal versus state) and fendants have very low likelihoods of achieving com- may be available in inpatient facilities, outpatient petence if provided with treatment.237–239 settings, or jails. In states that allow both inpatient An Illinois study found that clinicians were wrong and outpatient restoration services, the psychiatrist in predicting the treatment outcomes of 85 percent may have to form an opinion about which treatment of the defendants who ultimately were not restored setting represents the least-restrictive alternative— to competence,238 and Florida researchers concluded that is, which setting is necessary to maximize the that a discriminant function they developed had “lit- chances of restoration while preserving the defen- tle or no better than chance utility in predicting” dant’s liberty rights to the greatest extent possible. In restorability (Ref. 239, p 73). A retrospective Okla- most jurisdictions, the psychiatrist may recommend homa study209 found that having a previous criminal inpatient treatment, even for defendants who do not record and alcohol use at the time of the offense meet statutory criteria for inpatient commitment. modestly increased the likelihood of competence res- For example, in the case of a psychotic defendant toration; impairment in psycholegal ability, having who has a history of a good response to treatment in psychotic symptoms, and aggression toward others the hospital followed by repeated episodes of sub- after arrest correlated with failure to attain compe- stance abuse and noncompliance with medication tence. Nonetheless, the study’s authors concluded while living in the community, a recommendation that their results were “consistent with prior research for inpatient restoration services may be appropriate.

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X. Preparing the Written Report explicit opinion on the ultimate legal issue (i.e., whether the defendant is competent to stand trial). A A. General Considerations suggested report outline appears at the end of this Because competence evaluations often do not re- section. sult in courtroom testimony, a written report usually is the chief product of the psychiatrist’s evaluative C. Introductory Material efforts. The report provides the referring party with Besides providing the defendant’s name and the the psychiatrist’s opinions relevant to adjudicative legal identification of the case, the report should competence and the basis for those opinions. The identify the referring or requesting party, and state report must provide a meaningful response to the the purpose of the evaluation. The report may refer- competence inquiry and direct the response to the ence the jurisdiction’s legal standard for adjudicative particular problems that led to the evaluation. Be- competence. It should provide the date, location, cause the report’s principal users are attorneys, the and length of any interview(s) conducted. (For ex- psychiatrist should describe data and express opin- ample: “I examined the defendant at the Gevalt ions in jargon-free language that a layperson can County Jail on June 30, 2006, for three hours.”) The understand.192 When the report must include introduction should include descriptions of how the clinical or technical terms that a well-informed defendant received information about the interview’s nonclinician might not understand, the report purpose and lack of confidentiality and how well the writer should provide parenthetical or other forms defendant understood that information. The report of explanatory language (e.g., “haloperidol, an an- also should list all data sources used for the evalua- tipsychotic medication”). tion, including records and other materials that the The psychiatrist’s report should serve an organiz- psychiatrist has read, the names of collateral infor- ing function that helps readers grasp the significance mants (besides the principal examinee), the psycho- of information gathered from the clinical interview and collateral sources. Whatever format the writer logical tests or assessments administered, and any chooses, the written presentation should convey all other sources of information. relevant information concisely, allowing the reader to apprehend the facts and reasoning the expert used D. Background Material in formulating the opinion. The report should be a The background sections typically need not be as stand-alone document, that is, a document that pro- detailed or extensive as the background section of vides or reproduces the data needed to support the reports on criminal responsibility or nonforensic opinions that the psychiatrist expresses. The report evaluations completed for treatment purposes. In- should also state clearly any limitations or qualifica- stead, background sections should include just those tions of which the psychiatrist is aware. For example, facts that are pertinent to adjudicative competence if a defendant’s poor cooperation leaves the psychia- and (in the case of incompetent defendants) restora- trist with some doubt about the defendant’s diagno- tion. In the background section and subsequent por- sis, if the psychiatrist had limited access to important tions of the report, the psychiatrist should not reveal collateral information, or if the psychiatrist requested incriminating information gleaned from what the but did receive records that might alter the opinion, defendant said about the alleged offense, because the report should describe these limitations. prosecuting attorneys often receive a copy of the re- port. Even if the law prohibits the use of the compe- B. Report Formats tence report at trial or sentencing, courts may permit There is no single correct style or format for the its entrance if the defendant later testifies and his report. Available examples include the Group for the prior statements are inconsistent with his testimony. Advancement of Psychiatry report format242 and the Findings from a physical examination, imaging outline suggested by Melton and colleagues.1 Many studies, or laboratory tests should be included when state forensic mental health systems have manuals they play a role in guiding the psychiatrist’s opinion. describing a preferred style for reporting the results of If the psychiatrist has used psychological testing or a competence evaluation. Jurisdictions vary in assessment instruments, the report should include whether the psychiatrist’s report should provide an dates of administration of the initial and repeated

S48 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial tests, along with comments about nonstandard in- G. Diagnosis structions or administration. A few psychiatrists (e.g., Ref. 244) argue that psy- chiatric diagnoses generally should not appear in fo- E. Description of Mental Status rensic reports. In the context of adjudicative compe- The report should contain clinical data regarding tence, they argue that the legal issue is not whether an the nature of the defendant’s mental and emotional individual has a recognized mental disorder. Rather, condition that are specifically relevant to the compe- the question is whether a mental condition (which tency analysis.243 All findings relevant to adjudica- need not be an officially recognized disorder) pre- tive competence should appear in the report, irre- vents the individual from functioning properly as a spective of the weight or priority that the clinician defendant. accords to any specific finding. The psychiatrist This guideline disagrees with the position of should also comment on any contradictions or in- those who are against including psychiatric diag- consistencies. A mental status examination is an im- noses in forensic reports. Although we acknowl- portant component of a competence report, but it edge that the position has some merit in that it does not by itself provide a description of those func- encourages appropriate circumspection, psychiat- tional abilities and limitations that are relevant to ric diagnoses serve valuable purposes in reports on adjudicative competence. A defendant who is psy- adjudicative competence. chotic or has amnesia for events is not necessarily First, the federal standard and standards in many incompetent to stand trial.184 jurisdictions require that the psychiatrist state whether the defendant has a mental disorder (some- times using the phrase “mental disease or defect”). F. Description of Functioning Related to Adjudicative Competence Providing a diagnosis assures that the psychiatrist satisfies the statutory guidelines for competence eval- Competence reports should go beyond describing uations. Specifying the diagnosis identifies a defen- signs and symptoms of mental impairment and dant’s symptom pattern as matching the profession’s should discuss how those signs and symptoms affect recognized definition of a mental disorder, though functional abilities relevant to the legal construct of the psychiatrist may have to explain this to the court. competence. The heart of a competence report is a Second, including diagnoses helps the psychiatrist description of the defendant’s abilities and deficits tell nonclinicians what kinds of problems a defen- concerning the tasks that the defendant must per- dant has and why those problems affect the defen- 189 form during a criminal defense. Using compe- dant’s competence-related function. If, for example, tence-assessment instruments during the interview a defendant does not cooperate with his attorney can facilitate enumeration and description of these because he irrationally perceives the attorney as plot- 212 key abilities and deficits, because those instru- ting against him, informing the reader that the de- ments help focus the psychiatrist’s attention on what fendant has paranoid schizophrenia helps the reader the defendant knows and can do related to working understand that the defendant’s fears stem from a with counsel in preparation for or participation in well-known form of mental illness and not from criminal proceedings. Psychiatrists should not base quirkiness or unwillingness to cooperate. their opinions on the results of these instruments Third, for defendants who appear incompetent, alone, however. Information obtained from the use the specification of a diagnosis and communicating it of competence-assessment instruments may not be in the forensic report helps to support an psychia- automatically admissible in court191 and may affect trist’s opinion about whether the defendant is restor- admissibility of other information. Often, the best able. To return to the example in the previous para- use of information from assessment instruments is to graph, knowledge that a defendant’s fears about his provide specific examples that illustrate the defen- attorney are signs of paranoid schizophrenia, coupled dant’s strengths or weaknesses with respect to reason- with knowledge of that disorder’s typical response to ing and understanding, along with other types of pharmacotherapy, would support the psychiatrist’s data that allow the psychiatrist to convey key infor- opinion that the defendant is likely to become com- mation about the defendant. petent if provided with a course of treatment.

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Psychiatrists take different approaches in relating only information necessary and relevant to the legal clinical diagnoses to competence to stand trial. Some question at issue. Therefore, it may not be necessary experts believe that a formally recognized diagnosis is or appropriate to provide a full multiaxial diagnosis not necessary when a description of a defendant’s in the opinion section. The report should define and mental condition reflects symptom clusters or syn- explain the diagnosis to the extent that it is relevant dromes that meet the relevant jurisdictional require- to the defendant’s presentation and affects the defen- ments for the presence of a mental disorder. This dant’s trial-related capacities. Guideline recommends, however, that when possi- ble, psychiatrists should offer officially recognized H. The Opinion diagnoses in one of the formats described in the cur- After presenting the relevant history, examination rent edition of the DSM. A report should include the findings, and diagnostic assessment, the psychiatrist findings that support the psychiatrist’s diagnosis, must offer an opinion and carefully explain the rea- perhaps referring to criteria in the DSM. If the psy- soning process used to formulate the opinion.246 chiatrist uses a diagnosis that does not appear in the In several publications, the authors have recom- current DSM or International Classification of Dis- mended that mental health professionals confine eases, the psychiatrist should support the diagnosis their reports or testimony on adjudicative compe- with citations to relevant publications. After render- tence to a description of the evaluee’s functional ca- ing a less-specific diagnosis (e.g., “psychotic disorder pacities and refrain from giving an explicit opinion not otherwise specified”), psychiatrists may want to on the ultimate issue of whether a defendant is com- include a differential diagnosis of more specific dis- petent to stand trial. They believe that the ultimate orders, explaining the reasons why each disorder is a question of a defendant’s legal competence calls for a possibility. If the diagnosis turns on a fact in dispute court’s interpretation of a legal matter and is there- (for example, whether the defendant’s symptoms fore beyond the special expertise of the forensic cli- were induced by intoxication), the psychiatrist nician.1,247,248 Because one cannot give a clinical or should provide an explanation of how the disputed operational definition of what is fair or unfair in a fact affects the differential diagnosis. particular case, the psychiatrist has no clear guidance In jurisdictions where a diagnosis is not required, a in making the judgment.139 Moreover, it is the re- description of symptoms that affect the defendant’s sponsibility of courts, not mental health profession- competence to stand trial may suffice. Acceptable als, to decide whether the degree of disability mani- practices include, at a minimum, providing a narra- fested by a defendant is severe enough that it would tive description of a scientifically based disorder, be unfair to subject the defendant to criminal symptom cluster, or syndrome. Psychiatrists should proceedings. always keep in mind that “official” DSM diagnoses In some jurisdictions, psychiatrists are barred are often more than a decade old and do not include from expressing ultimate-issue opinions, or they are newly recognized syndromes or illnesses. Yet refer- directed to offer only opinions about the defendants’ ence to specific, recognized diagnoses helps the ex- competence-specific capacities in language from the pert organize patterns of symptoms and explain the jurisdiction’s competence statute. For example, stat- conclusions drawn. (For further discussion of the utes in Ohio249 and South Carolina250 instruct psy- methodological value of psychiatric diagnoses in tes- chiatrists to state whether a defendant understands timony, see the APA’s Task Force Report on the Use of the nature and objective of the proceedings against Psychiatric Diagnoses in the Legal Process.245) him or her and can assist counsel in preparing a de- Comprehensive psychiatric evaluations produced fense, but do not ask psychiatrists to provide their for clinical purposes usually include a five-axis DSM opinion on the ultimate issue of whether the defen- diagnosis. But a report concerning adjudicative com- dant is competent to stand trial. In other jurisdic- petence is often delivered to nonclinicians—typically tions (e.g., Rhode Island,251 South Dakota,252 and a judge, defense attorney, and prosecutor. Although Texas253), however, statutes or case law allow or di- defendants are told at the outset of the examination rect psychiatrists to address the ultimate issue ex- that the interview is not confidential, it is still impor- plicitly. Irrespective of statutory requirements, tant to respect a possibly incompetent defendant’s some courts and attorneys prefer ultimate-issue privacy rights. A competence report should contain testimony.254,255

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Given the preceding considerations, many psychi- when the opinion does not suggest incompetence, atrists refrain from expressing their opinions on the the report may include a discussion of restorability ultimate issue unless the jurisdiction requires it (see, and commitment status if the psychiatrist believes e.g., 18 U.S.C. § 4247(c)(4)(A)(2007 Supp.)). the court might conclude that the defendant is (Adopting this practice may require some prior dis- incompetent. cussion with the judges in the jurisdiction where the psychiatrist works who may otherwise question why I. Other Considerations psychiatrists have stopped addressing the ultimate Reports should be free of gratuitous comments issue in their reports.) However, the forensic report about defendants’ behavior, need for incapacitation, should describe how diagnostic conclusions arise dangerousness, or lack of remorse. In general, reports from clinical findings and how the clinical findings on adjudicative competence should not take up other arise from the defendant’s mental disorder (if any), legal matters (such as future dangerousness or con- thereby delineating the factual basis for the conclu- 256 siderations that may make up a presentencing evalu- sions relevant to adjudicative competence. Psychi- ation) unless that jurisdiction’s case law or statutes atrists also should explain how their findings affect require comments about these matters. In cases in the defendant’s competence-related abilities by link- which the court has requested an opinion about an- ing those findings to elements of the jurisdiction’s other psycholegal matter (e.g., criminal responsibil- competence standard. Whatever form the psychia- ity) and where it is appropriate to provide such an trist’s opinion takes, the written report should ex- opinion (e.g., the psychiatrist believes the evaluee is plain the psychiatrist’s reasoning and the connec- competent and can validly consent to an evaluation tions between clinical findings and the behavioral of criminal responsibility), a separate report about components of adjudicative competence. In some that other matter should be submitted. cases in which a defendant faces more than one charge, the psychiatrist may have to determine com- J. Signature petence for each alleged offense. All the professionals involved in preparing the re- Psychiatrists should generally state their opinions port should sign the document. Such individuals with a “reasonable degree of medical certainty” or a may include supervisors and reviewers, as well as the “reasonable degree of medical probability,” depend- principal psychiatrist. Under the psychiatrist’s signa- ing on the language used in the jurisdiction. Some- ture, the report may summarize special qualifications times, the psychiatrist may not be able to render an that characterize the psychiatrist’s professional status opinion with a reasonable degree of medical certainty (e.g., academic degrees, board and society member- or probability. When no opinion is reached, the re- ships, and academic degrees in related subspecialties) port should clearly communicate this result along (Table 1). with any suggestions for additional data that could allow the psychiatrist or the court to reach an opin- ion. On some occasions, the psychiatrist may want to XI. The Adjudicative Competence point out that more information would increase the of Minors level of confidence in the opinion. When this is the case, the report should specify the types or sources of A. Minors Facing Prosecution in Adult Court information that would help. Juvenile defendants may face proceedings in both When the opinion suggests lack of adjudicative adult and juvenile courts. In almost all states, statu- competence, the report should provide an opinion torily defined procedures—variously called waiver, concerning restorability and the appropriate setting bind-over, certification, or transfer—permit prose- for such restoration. It should also identify any addi- cution of minors in adult criminal court under cer- tional requirements for reports in the jurisdiction tain circumstances. A minor facing prosecution as an where the evaluation is conducted. For example, in adult receives all the due process protections enjoyed some jurisdictions (e.g., Massachusetts257), a psychi- by adult criminal defendants and therefore is evalu- atrist is required to discuss the defendant’s eligibility ated under the same competence standard used for for civil commitment proceedings, along with the adults in the jurisdiction. Many states have manda- basis for the opinions concerning these matters. Even tory waiver statutes that require that all minors

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Table 1 Competence to Stand Trial Report: Sample Format 1. Identifying information 2. Source of referral, reason for referral, and statement of the charges 3. Relevant legal standards and criteria 4. Informed consent/statement of nonconfidentiality 5. Dates and durations of examinations 6. Sources of information: third-party information including records reviewed, collaterals sources interviewed 7. Relevant background information (a) Family history (b) Personal history (c) Education history (d) Employment history (e) Religious history (f) Military history (g) Sexual, marital, and relationship history (h) Medical history (i) Drug and alcohol history (j) Legal history (juvenile and adult crimes and civil matters) (k) Psychiatric history 8. Relevant physical examination, imaging studies, and laboratory tests 9. Psychological testing and assessment instruments administered; dates completed as well as any repeated testing, including notation regard- ing any nonstandard instruction or administration 10. Current mental status examination (during the evaluation) 11. Competency examination data 12. Clinical conclusions and diagnoses that are relevant to competency 13. Medicolegal conclusions including expert opinion competency if formulated 14. Opinion on restorability and commitability, if formulated 15. Formulation and basis for the expert opinion(s) charged with certain offenses (e.g., homicides) un- approaches, more states began addressing compe- dergo prosecution as adults if they are older than a tence in juvenile court. Currently, more than two- specified minimum age. Youths transferred pursuant thirds of states have either statutes or appellate deci- to such statutes may well be candidates for compe- sions on competence to stand trial in juvenile tence assessment. For youths who undergo evalua- court.259 Just one state (Oklahoma) has explicitly tion before a waiver hearing, a finding of incompe- decided that minors need not be competent to face tence will probably forestall transfer to adult court. adjudication in juvenile court.260 Even in states B. Minors Facing Juvenile Delinquency without statutes or clear case law requiring compe- Proceedings tence to proceed in juvenile court, some juvenile court judges have begun asking for competence The question of the trial competence of juveniles assessments. in the court system is complex. Juvenile courts were 16 founded in the early 20th century on a rehabilitation Most jurisdictions apply a variant of the Dusky model, with the intent that proceedings would be standard to the assessment of juveniles’ competence, therapeutic rather than punitive. In a series of cases but there is considerable variation in other details. beginning with In re Gault, 387 U.S. 1 (1967),258 Some states require that the incompetence stem from however, the U.S. Supreme Court recognized a clear mental illness or mental retardation and not from punitive impact of juvenile courts and required that simple immaturity alone. Others states envisage minors in juvenile delinquency proceedings receive modifications of juvenile court procedures to aid im- many of the due process protections afforded to adult paired defendants. Many legal questions have yet to criminal defendants. Yet the Court has never explic- be resolved: itly held that juveniles must be competent to proceed with adjudication in juvenile court. Should courts recognize or allow different levels When a rapid increase in juvenile violent crime in of competence for different types of cases?4 Need the 1980s and early 1990s led to even more punitive a minor who faces a shoplifting charge (and only

S52 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

a stern warning from a judge) be as capable as a safeguards when faced with a decision about whether minor who faces several months of detention? to plead guilty. Should competence assessments factor in the Studies consistently show that juvenile delin- quents have high rates of diagnosable mental ill- availability and use of surrogate decision-makers 268,269 (such as parents) who could assist the minor in ness. However, compared with adults, psy- preparing a defense? chopathology is less common in adolescents, both in the delinquent population and in those adoles- What time limits should apply in cases requiring cents found incompetent to proceed with adjudi- “restoration” of competence for immature defen- cation.270 Research is mixed with regard to the dants? What should the juvenile court to do if a strength of psychopathology as a risk factor for youth is incompetent because of immaturity? incompetence.214,265,271 May the juvenile court detain or commit the Although one might suppose that a youth would youth and wait for years until he matures? have learned about legal processes from previous con- tacts with the juvenile court, research suggests that C. Factors Affecting the Competence of Minors adolescents are not necessarily well informed about 214,264 Cognitively and emotionally, adolescents are not the process. simply smaller, younger versions of adults. Factors Of course, many never-arrested juveniles have lit- that may affect a minor’s competence to stand trial tle or no experience with police, lawyers, or juvenile include the following. courts. Most never-arrested adults gain some knowl- One of the most robust research findings has been edge of how the legal system works from movies and that age less than 14 years is a strong indicator of television programs, but many preadolescent or early likely incompetence.214,261–265 A large percentage of adolescent children have not seen these types of me- delinquents under that age (up to about half, de- dia depictions, or if they have seen them, they have pending on definition of impairment) are either clin- not understood them well. Thus, many juveniles will ically incompetent or have impairments in function- not have adult-like capacities or the types of vicarious ing that are likely to have a serious affect on experiences that would allow them to understand competence. A somewhat smaller fraction of 14- and plea bargaining and possible defense strategies or to 15-year-olds is impaired, and 16- and 17-year-olds recognize the significance of certain types of evidence tend to perform comparably to adults. or testimony. In minors younger than 16 years, low IQ is a sec- A final factor is the competence standard pertinent ond robust indicator risk factor for incompe- to a particular case and whether the court may mod- tence.214,262,263,265 Below-average intelligence am- ify its procedures to take into account the juvenile plifies the effect of young age, which is particularly defendant’s limitations. significant, given that delinquents on average score lower on IQ tests than do their nondelinquent peers. D. Assessment Learning disabilities also contribute to limited cog- The evaluation of a juvenile encompasses many of nitive capacities. the same areas of inquiry and procedures as the eval- Younger adolescents may exhibit developmental uation of an adult. The following paragraphs high- immaturity hold naı¨ve views seldom heard from ma- light some of the salient differences in and special ture adult defendants. An example would be a 10- features of assessments of minors. year-old who believes, “The judge always finds the truth, so I don’t have anything to worry about.” 1. Breadth of the Referral Question Even when a young adolescent has age-appropri- As with any forensic evaluation, the psychiatrist ate intellectual capacities, developmental factors can must know the specific forensic question and legal adversely affect maturity of judgment, such as risk- standard at issue. Because of jurisdictional differ- taking, impulsiveness, immature time perspectives, ences, an evaluation for competence to proceed in and attitudes toward authority.214,266,267 For exam- juvenile court or an evaluation conducted before a ple, a 13-year-old who has internalized his parents’ waiver hearing may involve not just an assessment of dictum to “always admit when you’ve done wrong” competence per se. Such evaluations may also involve may have trouble appreciating and using appropriate recommending alterations in procedures to respond

Volume 35, Number 4, 2007 Supplement S53 Practice Guideline: Evaluation of Competence to Stand Trial to a youth’s limitations, to improve deficiencies in adults, such as learning disabilities, attention deficit competence, or to respond to other considerations hyperactivity disorder, and pervasive developmental related to how to deal with the case. To make such disorders. If deficiencies in competence are present, suggestions, the psychiatrist should be aware of the the psychiatrist must determine whether appropriate alternatives, such as the types of altered court proce- competence-restoring interventions are available. dures available for borderline competent youth, the Because few minors are incompetent as a result of availability of treatment, and access to educational psychotic disorders, nonpharmacologic interven- services. tions that include educational efforts or courtroom 2. Consent: Presence of an Attorney accommodations for learning disabilities or limita- tions of attention are often recommended. Although obtaining consent from a minor may raise complex problems, consent is generally not re- 4. Structured Interviews quired for court-ordered evaluations, and assent is In cases in which the juvenile’s intelligence ap- generally sufficient for evaluations conducted at the pears to be a limiting factor, structured compe- request of a defense attorney. Providing notice of the tence assessments may be very useful for delineat- nature of the evaluation is similar to providing notice ing how the minor’s limitations impair specific to an adult defendant. trial-related knowledge and capacities. The Mac- Attorneys may ask to be present during the evalu- CAT–CA (discussed in Section VIII.G.) is begin- ation. Although their right to be present varies ning to receive research attention in adolescent among jurisdictions, allowing the attorney to be populations214,215,265 and may be helpful in illu- present gives the psychiatrist an opportunity to ob- minating competence capacities. Other structured serve defendant-attorney interaction. Having the at- scales have weaker research support in the adoles- torney present may also help the attorney understand cent population. Formal IQ testing can provide the areas in which his client needs remediation, more important data in cases in which a clinical evalua- careful explanation, or other informational interven- tion is not sufficient for assessing a juvenile’s func- tions. The psychiatrist should not let the attorney tional intellectual capacity. interfere with the conduct of the evaluation, how- ever, and should stop the evaluation if preventing 5. Collateral Data attorney interference becomes difficult. In addition to the collateral data used in evaluating 3. Interview an adult, school records (including Individualized In some publications, the authors have provided Educational Plans, or IEPs), pediatrician records, detailed suggestions for conducting evaluations of and treatment records can illuminate the causes of juvenile defendants.272,273 Interviews of older ado- present difficulties in complex juvenile cases. An in- lescents of normal intelligence tend to be similar to terview of the youth’s attorney, parents, guardian, interviews of adults. With younger adolescents and and case worker may not only provide useful history preadolescents, interviewing techniques may have to about the minor but also help inform the psychiatrist be adapted to the defendant’s developmental level, of complex social arrangements or other background and psychiatrists who lack training in interviewing information that an immature youth has trouble children should not accept such cases. explaining. The psychiatrist should use vocabulary appropri- ate to the minor’s cognitive capacity. In some cases, 6. Reports nonverbal techniques (e.g., touring the juvenile court Reports of evaluations of juveniles follow the same with the minor and utilizing charts and photographs) general principles as reports about adults. Reports may be helpful. Developmental limitations, such as regarding juveniles may be more extensive when the immature judgment, concrete thinking, naı¨ve con- request for evaluation goes beyond a simple determi- ceptions of the legal process, a shortened sense of the nation of competence to include suggestions for re- future, and dependence on authority all may inter- mediation, altered legal procedures, or treatment. In fere with a minor’s competence. The psychiatrist such cases, the report should provide relevant data must also assess the evaluee for disorders with con- and explain the psychiatrist’s reasoning for the con- siderably higher prevalence rates than are found in clusions and recommendations.

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E. Restoration petent by mood disorders. Courts send most crimi- As is true of adults who are incompetent to stand nal defendants found incompetent to psychiatric trial, adjudication of juveniles who are incompetent hospitals for restoration, that is, for psychiatric treat- pauses while their competence is restored. For those ment and/or education aimed at enabling the defen- youth who are incompetent because of a treatable dants to proceed with adjudication. At any point, condition, such as psychosis or a knowledge deficit roughly 4,000 U.S. defendants are hospitalized for 139,159 that can be remedied with education, competence- this purpose. restoration procedures are similar to those employed A brief explanation may be necessary regarding the with adults (discussed in Section XII). In one study use of the word restoration in this context. Courts of incompetent juveniles in Florida, most were found typically apply this term to the potential treatment of to be mentally retarded, and over half the incompe- any defendant who is not competent, and to simplify tent juveniles were ultimately returned for trial.270 exposition, the Guideline follows this practice. How- A juvenile court that finds a youth incompetent ever, some incompetent defendants (e.g., some per- because of factors associated with immaturity, when sons with intellectual deficits or limited education) there is an expectation that the child or adolescent have never been competent and are therefore not will “grow into” competence with the passage of having any previous condition restored. In their time, faces a difficult choice. Courts are reluctant to cases, competence-creating services might better be detain a youth simply to wait for him to grow up. termed education or habilitation. With some minors, intensive educational approaches B. Timely and Effective Restoration can accelerate improving judgment for the specific In Jackson v. Indiana, 406 U.S. 715 (1972),26 the decisions at issue, such as weighing whether to accept U.S. Supreme Court held that a defendant found a plea bargain. Juveniles considered dangerous be- incompetent to stand trial may not be held indefi- cause of a mental illness may meet the jurisdiction’s nitely for treatment. There must be a prospect for the civil commitment standard. However, although na- defendant’s successful restoration within a reason- tional statistics are currently unavailable, clinical ex- able time, and “his continued commitment must be perience suggests that many nondangerous youth justified by progress toward that goal” (Ref. 26, p who are found incompetent based on immaturity are 738). One can therefore interpret Jackson as placing released with referrals for outpatient services. on forensic hospitals some responsibility for develop- XII. Restoration of Competence to ing efficient and effective treatment programs to Stand Trial comply with the limited periods allowed for restoration. A. Number and Description of Competence Restorees Studies examining the variables that lead to suc- cessful restoration have yielded mixed findings. As noted in the introduction, the number of com- Some studies have suggested that factors associated petence evaluations performed in the United States with failure of efforts at competence restoration and appears to have increased over the past few decades. greater lengths of hospital stay include severe impair- Not surprisingly, the increase has led to a corre- ment in psycholegal ability, aggression toward others sponding increase in the number of defendants after arrest, and more severe psychopathology. A his- adjudicated incompetent to stand trial. In 1973, 2 tory of criminality and substance abuse at the time of McGarry estimated that approximately 9,000 de- the offense are associated with successful restora- fendants were found incompetent. If recent esti- tion.209,238,276 Other research suggests that the use of mates concerning frequency of competence evalu- psychotropic medications to treat psychotic symp- ations (60,000 a year) are correct and if around toms is the only reliable correlate of competence one-fifth of evaluees are deemed incompe- restoration.239 tent,1,223,274,275 it implies that around 12,000 U.S. defendants are found incompetent to stand C. Setting trial each year. In most jurisdictions, competence restoration Psychoses and mental retardation are the most fre- takes place in inpatient settings. In 2003, Miller153 quent causes of adjudicative incompetence.207,246,274 reported that in 18 states, judges were required to A smaller number of defendants are rendered incom- hospitalize defendants adjudicated as incompetent to

Volume 35, Number 4, 2007 Supplement S55 Practice Guideline: Evaluation of Competence to Stand Trial stand trial, and an additional 21 states permitted hos- fendants underwent formal clinical competence as- pitalization of incompetent defendants. Only five sessments by mental health professionals. states required that incompetent defendants meet In 1985, Davis278 described the competence-res- civil commitment criteria to be hospitalized for com- toration program at a maximum-security forensic petence restoration. Despite the availability of out- hospital in Columbus, Ohio. The hospital used patient restoration programs, few states regularly problem-oriented individualized treatment plans for used outpatient restoration. incompetent patients that followed the format used for most other psychiatric problems. Incompetence D. Methods of Restoration to stand trial was the first priority of the defendant- Restoration of competence to stand trial involves patient’s treatment and took priority over other psy- two simultaneous processes. First, clinicians must chosocial problems such as poor job skills, lack of address treatable underlying mental disorder. This education or housing, or residual psychosis. Accord- process does not differ from the treatment of mental ingly, each patient’s treatments plan listed the fol- disorders in nonforensic patients. It involves accurate lowing items that became a focus of treatment: assessment, appropriate medication when indicated, knowledge of the charge; and psychosocial rehabilitation. Second, incompe- tent defendants may need instruction in the legal knowledge of the possible consequences of the concepts and details of the trial process. Often, de- charge; fendants’ cognitive problems limit their capacities to ability to communicate rationally with defense benefit from instruction. For example, many men- counsel; tally retarded defendants have difficulty learning and knowledge of courtroom procedures; and retaining new information. Persons with schizophre- nia may have cognitive impairments along with their capacity to integrate and efficiently use the psychotic symptoms that interfere with their ability knowledge and abilities outlined herein in either to benefit from educational efforts. a trial or a plea bargain. A few articles have provided descriptions of non- The incompetent defendant-patients became pharmacologic aspects of successful competence- members of one of five groups, with specific treat- restoration programs. (Defendants in most of these ment programs designed for each group. For exam- programs were also exhibiting symptoms of major ple, patients placed in the “psychotic confused” mental illness and were probably receiving psycho- group were those whose thought disturbances inter- tropic medication in addition to the educational fered with their grasp of the legal process or their components of the program.) The following is a ability to communicate. Their treatment programing summary of these reports. focused on reality-testing skills and other standard In 1980, Pendleton277 described the competence- treatment approaches of psychosis. Treatment teams restoration program at Atascadero State Hospital monitored defendants’ progress in these groups, and (California), which had restored 90 percent of the a mock trial took place at the conclusion of the 205 criminal defendants admitted in 1978. Upon programing. arrival, defendants underwent evaluation with the Brown279 described competence restoration at the Competency to Stand Trial Assessment Instru- Alton (Illinois) Mental Health and Developmental ment199 (discussed in Section VIII.B.). This instru- Center. This program consisted of psychologist-led ment identified specific deficits in each defendant’s didactic groups that met daily for 30 to 45 minutes competence, and clinicians developed an individual- per session. The programing included discrete edu- ized treatment plan to address each deficit. Defen- cational modules that lasted several days each and dants attended a competence education class and that addressed topics such as the elements of criminal took a written competence test for which the passing charges, potential sentences, roles of courtroom par- score was 70 percent. Defendants then underwent ticipants, sequence of trial events, and consequences mock trial proceedings with real judges and attor- of pleas. Each module used handouts, videotapes, neys. After a passing the written competence test and and a mock trial, and participants took written tests successfully completing the mock trial exercise, de- at the end of each module.

S56 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

Table 2 Learning Formats in a Competence Restoration Curriculum come competent. Instead, the goal was to provide Education Basic knowledge of the trial process, consistent education toward competence restoration, including the roles of the courtroom to communicate that effort to the courts, and to personnel, pleas, plea bargaining, charges, sentencing, and how to assist make accurate competence assessments. An indepen- one’s attorney dent psychiatrist assessed each defendant’s progress Anxiety reduction Two one-hour sessions per week with a toward competence, applying the same evaluation psychologist to teach defendants criteria as were used to evaluate persons with normal anxiety management techniques suitable for use in court intelligence. Guest lectures Weekly meetings with court personnel (judges, defense attorneys, E. Proposed Elements of a Model Competence prosecutors, and probation officers) Restoration Program who speak to the defendants and 1. Systematic Competence Assessment answer questions Mock trials Role-playing by defendants of various Various factors can lead to trial incompetence, courtroom personnel in a scripted such as psychosis, mood symptoms, mental retar- mock trial, with discussions led by dation, or lack of information. Not all defendants clinical staff are incompetent for the same reason. Therefore, Video module Videotapes of actual courtroom proceedings watched by defendants, upon admission to a competence-restoration pro- with discussions led by clinical staff gram, defendants should undergo evaluation to Post-restoration Discussion of court experiences between identify the specific deficits or problems that result module incompetent defendants and in incompetence. defendants who have been to court Current legal events Review and discussion of news stories 2. Individualized Treatment Program involving criminal trials Defendants should have treatment regimens tai- lored to their specific problems. Deficits identified Noffsinger235 described educational modules used in the admission competence assessment should in the competence-restoration curriculum at North- appear in a defendant’s individual treatment plan coast Behavioral Health care in Cleveland, Ohio. and should be addressed by specific treatment The following table describes the program’s use of interventions. learning formats for various subject areas (Table 2). 3. Multimodal, Experiential Competence Restoration Wall and colleagues280 at the Rhode Island De- Educational Experiences partment of Mental Health designed a program for Defendants are best able to learn when teachers restoring adjudicative competence of individuals present the material in multiple learning formats. For with mental retardation. The program included the this reason, learning experiences should involve lec- following five modules presented in sequential order tures, discussions, readings, and videos. Participation over a variable period: charges, pleas, and potential in activities such as a mock trials and role-playing also consequences; the role of courtroom personnel; enhance learning. courtroom proceedings, trial and plea bargaining; 4. Education communicating with one’s attorney, giving testi- For most defendant-patients, competence restora- mony, and assisting in one’s defense; and tolerating tion should include education regarding: the stress of court proceedings. charges and their severity, Trainers met with defendants one to five days per week in sessions lasting for a few minutes to an hour sentencing, and reviewed each module a minimum of three pleas and plea bargaining, times. In the first phase of the program, defendants roles of courtroom personnel, received basic information about the legal system for adversarial nature of the trial process, and them to learn by rote. In the second phase, trainers again presented each module in sequential order, but understanding and evaluating evidence. asked defendants understanding-based questions in 5. Anxiety Reduction addition to knowledge-based questions. Learning anxiety-reduction techniques can help The program was not intended to guarantee that defendants deal with pretrial anxiety and the anxiety every defendant with mental retardation would be- that they may experience while in court.

Volume 35, Number 4, 2007 Supplement S57 Practice Guideline: Evaluation of Competence to Stand Trial

6. Additional Education Components for Defendants With and objective of the proceedings against them and to Low Intelligence participate rationally in preparing their defense. This Defendants whose incompetence stems from low Practice Guideline has described how psychiatrists intelligence can often become competent, but may should evaluate individuals concerning their compe- require additional exposure to the educational mate- tence to stand trial. The Guideline describes accept- rial. Their knowledge deficits can be remedied by able forensic psychiatric practice for such evalua- additional learning experiences, including repeated tions. Where possible, it specifies standards of exposure to information and individual instruction practice and principles of ethics and also emphasizes related in simplified terminology. the importance of analyzing an individual defen- 7. Periodic Reassessment of Competence dant’s case in the context of statutes and case law applicable in the jurisdiction where the evaluation Clinicians should periodically reassess defendants’ takes place. progress toward restoration to competence. Periodic The recommendations in the Guideline both re- assessment helps treatment teams know whether flect and are limited by evolving case law, statutory their interventions are working and whether addi- requirements, legal publications, and the current tional treatment elements should be added to pa- state of psychiatric knowledge. The authors have tients’ treatment plans. taken note of nationally applicable case law, federal 8. Medication constitutional standards, statutory language, and federal and state interpretations of the rights or stat- Because psychotic and mood disorders are fre- utes, recognizing that jurisdictions may differ in their quent causes of incompetence, patients with these specific interpretation or application of statutes or disorders should receive conscientious treatment general constitutional standards. The review of cases with appropriate biological therapy. For many in- concerning specific psychiatric diagnoses illustrates competent defendants, attempting restoration with- general U.S. trends, and psychiatrists must remain out providing proper antipsychotic or mood-stabiliz- cognizant of their jurisdictions’ interpretations of ing medication is an exercise in futility. statutes or constitutional requirements. By surveying 9. Capacity Assessments and Involuntary Treatment a variety of practices and approaches to data gather- Defendants adjudicated incompetent to stand ing and case analysis, the authors believe that this trial may also lack the capacity to give informed con- Guideline will stimulate additional collegial discus- sent for medication and other treatments. Because sion about what is necessary and sufficient for ade- pharmacotherapy often is a necessary component of quate evaluations of adjudicative competence. treatment to restore competence, clinicians must as- The notion that psychiatrists should apply exper- sess possible incompetence to make treatment deci- tise to competence assessments stems from the prin- sions in accordance with the policies of their local cipal that, before allowing a defendant to face crim- hospitals and jurisdictions. Defendants who refuse inal prosecution and possible punishment, courts medication should undergo evaluation of their com- need reasonable assurance—based, if necessary, on a petence to make treatment decisions. Procedures for careful, individualized evaluation—that the defen- overriding patients’ refusals vary from state to state, dant has adequate mental capacity to make a defense. and clinicians must be knowledgeable or have appro- At a minimum, a psychiatrist’s opinion about adju- priate legal advice, usually from the attorney gener- dicative competence should reflect an understanding al’s office in the state. Defendants who assent to tak- of the jurisdictional standard and of how the defen- ing medication but appear incompetent to make dant’s mental condition affects competence as de- such decisions should also undergo evaluation for fined with the jurisdiction. The psychiatrist’s report competence to make treatment decisions. should clearly describe the opinion and the reasoning that leads to it. Psychiatrists who provide mental health expertise concerning adjudicative competence XIII. Summary give trial courts information needed to assure that Competence to stand trial is a legal construct used defendants can appropriately protect themselves and to identify those criminal defendants who have the that criminal proceedings will be accurate, dignified, requisite mental capacity to understand the nature and just.

S58 The Journal of the American Academy of Psychiatry and the Law Table 3 Key Features of State Statutes Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Alabama ARCrp § 11.1 Cannot consult with counsel Psychiatrist or Substantial probability Not specified Dept. of MH/MR, or Indefinite, with to 11.8 with a reasonable degree psychologist of restoration in a outpatient (if annual review of rational understanding of appointed by reasonable time defendant is not the facts and legal commissioner of dangerous and can proceedings Dept. of MH/MR consent to Trial Stand to Competence of Evaluation Guideline: Practice treatment) Alaska Alaska Stat. § Cannot understand Qualified Substantial probability Not specified Custody of the 180 days; 360 days if 12.47.100 proceedings or assist with psychologist or of regaining Commissioner of defendant is oue3,Nme ,20 Supplement 2007 4, Number 35, Volume to 110 defense psychiatrist competence in a Health and Social charged with reasonable time Services violent crime and is presently dangerous Arizona Ariz. Rev. Cannot understand the nature Two or more mental Substantial probability Defendant is incompetent Program designated by The lesser of 21 Stat. § 13- and object of proceedings health experts, defendant will to refuse treatment and county board of months or the 4501 to 17 or assist with defense including at least regain competence should be subject to supervisors; Arizona maximum sentence one psychiatrist within 21 months involuntary treatment State Hospital; jail; for the offense of original finding outpatient program; of incompetence any court-approved facility Arkansas Ark. Code Cannot understand Qualified Not specified Not specified Custody of Director of One year Ann. § 5-2- proceedings or assist psychiatrist or Dept. of Human 301 to 311 effectively in own defense psychologist Services California Ca. Penal Cannot understand the nature Psychiatrist, licensed Substantial likelihood Defendant lacks capacity State hospital; public Felony: lesser of 3 Code § of criminal proceedings or psychologist, or that defendant will and needs treatment; or private facility; years or the 1367 to rationally assist counsel in any expert the regain mental without medication, outpatient program maximum sentence 1376 conducting defense court deems competence in the serious harm will result for the most serious appropriate foreseeable future offense. Misdemeanor: lesser of 1 year or the maximum sentence for the most serious offense Colorado Colo. Rev. Cannot understand the nature Not specified Substantial probability Not specified Custody of Dept. of Maximum term of Stat. § 16-8- and course of proceedings; that defendant will Human Services; confinement for 110 to 115 or participate or assist in be restored to outpatient treatment offenses charged defense; or cooperate with competency within at or under the defense counsel the foreseeable supervision of a future facility S59 S60 Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Connecticut Conn. Gen Stat. Cannot understand Psychiatrist or Substantial probability Involuntary medication Custody of the Maximum sentence § 54-54 to proceedings or assist in clinical team that the defendant, will render defendant Commissioner of that defendant 56d defense (psychiatrist, if provided with competent; no less Mental Health and could receive if psychologist, and treatment, will intrusive means to Addiction Services, convicted, or 18 either social regain competence achieve adjudication; Commissioner of months, whichever worker or nurse) within maximum proposed treatment is Children and is less h ora fteAeia cdm fPyhar n h Law the and Psychiatry of Academy American the of Journal The period of any narrowly tailored to Families or

placement order minimize intrusion on Commissioner of Trial Stand to Competence of Evaluation Guideline: Practice permitted liberty and privacy Mental Retardation, interests and will not or any appropriate cause unnecessary risk mental health to defendant’s health; facility or treatment seriousness of alleged program crime is such that state interest in achieving adjudication overrides defendant’s interest in self-determination Delaware Del. Code. Ann. Cannot understand the nature Not specified Not specified Not specified Delaware Psychiatric Not specified tit. 11, § 404 of proceedings, give Center evidence, or instruct counsel Florida Fla. Stat. Ann. § Does not meet Dusky criteria At least two mental Substantial probability Not specified Defendants are Felony: 5 years; 916.12-145; health that defendant’s committed for misdemeanor: Fla. R. Crim. professionals, illness will respond restoration only if 1 year P. 3.210 to unless one opines to treatment and incompetent and 215 that the defendant defendant will civilly committable. is incompetent regain competence Otherwise, and findings are in reasonably restoration occurs in stipulated to foreseeable future community, correctional facility, or another facility. Georgia Ga. Code Ann. § Cannot participate Not specified Substantial probability Not specified Dept. of Human One year 17-7-130; intelligently in defendant’s of attaining Resources Echols v. trial competence to State, 255 stand trial in S.E.2d. 92 foreseeable future (Ga. Ct. App. 1979) Hawaii Haw. Rev. Stat. Lacks capacity to understand Three qualified Substantial likelihood “Detention, care, and Custody of the Not specified § 700-403 to proceedings or assist in psychiatrists in of becoming fit to treatment” may Director of Health 406; State v. defense felony cases and proceed in the includee a court order Kotis, 984 1 qualified future authorizing involuntary P.2d 78 (Haw. psychiatrist in administration of 1999) nonfelony cases antipsychotic drugs Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Idaho Idaho Code Lacks capacity to understand Psychiatrist or Substantial probability Defendant lacks capacity State hospital, Two hundred seventy Ann. § 18- proceedings or to assist psychologist defendant will be fit to give informed institution, mental days 210 to 212 with defense to prodceed within consent health center or foreseeable future Dept. of Corrections Illinois 725 Ill. Comp. Cannot understand nature One or more Likelihood of attaining Not specified Dept. of Human One year Stat. 5/104- and purpose of licensed fitness within 1 year Services, or other 11 to 104- proceedings or assist in physicians, if provided with appropriate public

23 defense clinical treatment or private facility or Trial Stand to Competence of Evaluation Guideline: Practice psychologists, or treatment program psychiatrists Indiana Ind. Code § Cannot understand Two or 3 Substantial probability Not specified Division of Mental Six months

oue3,Nme ,20 Supplement 2007 4, Number 35, Volume 35-36-3 to proceedings and assist in disinterested of attaining Health and 4 preparation of defense psychiatrists or competence in Addiction psychologists; at foreseeable future least 1 must be psychologist Iowa Iowa Code § Cannot appreciate charge, Psychiatrist or Substantial probability Somatic treatment is Dangerous defendants: Lesser of maximum 812.3 to understand proceedings, or psychologist accused will regain necessary and Dept. of Human term of 812.9 assist effectively in defense capacity within a appropriate to restore Services or Dept. of confinement for reasonable time defendant and Corrections for alleged criminal defendant will not placement at Iowa offense, or 18 consent; director of Medical and months facility may request Classification order authorizing Center. Others: treatment outpatient treatment Kansas Kan. Crim. Cannot understand nature Psychiatrist or Substantial probability Not specified State security hospital; Six months Proc. Code and purpose of psychologist of attaining any appropriate Ann. § 22- proceedings, or cannot competence in county or private 3301 to make or assist in making a foreseeable future institution 3306 defense Kentucky Ky. Rev. Stat. Cannot appreciate nature and Psychiatrist or Substantial probability Not specified Treatment facility; Misdemeanor: 60 Ann. § consequences of psychologist of attaining forensic psychiatric days; felony: not 504.060, proceedings or participate competency in 360 facility; Cabinet for specified 504.090 to rationally in defense days Health and Family 110 Services facility Louisiana La. Code Lacks capacity to understand Sanity commission Mental capacity is Not specified Jail; Feliciana Forensic Maximum sentence Crim. Proc. proceedings or to assist in likely to be restored Facility defendant could Ann. art. defense within 90 days as a receive if convicted 641-649 result of treatment Maine Me. Rev. Stat. Cannot understand nature State Forensic Substantial probability Not specified Custody of Dept. of One year Ann. tit. 15, and object of charges, Service; defendant will be Health and Human § 101-B; comprehend condition in independent competent in Services State v. reference thereto, or psychiatrist or foreseeable future Lewis, 584 cooperate with counsel to psychologist S61 A.2d 622 conduct a rational, (Me. 1990) reasonable defense S62 Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Maryland Md. Code Ann., Cannot understand the nature Health Dept. or Not specified Not specified Facility that Health Ten years for capital Crim. proc. § 3- of proceedings and assist in community Department case, 5 years for 101 to 3-108; defense forensic screening designates felony Sangster v. State, program 541 A.2d 637 (Md. Ct. App. h ora fteAeia cdm fPyhar n h Law the and Psychiatry of Academy American the of Journal The 1988)

Massachusetts Mass. Gen. Laws Does not meet Dusky criteria One or more Not specified Not specified If civilly commitable, Maximum time of Trial Stand to Competence of Evaluation Guideline: Practice ch. 123, § 15-17; qualified hospitalization for imprisonment that Commonwealth physicians treatment person would serve v. Vailes, 275 psychologists for before becoming N.E.2d 893 initial evaluation eligible for parole (Mass. 1971) for most serious charge Michigan Mich. Comp. Laws Cannot understand nature Center for Forensic Likelihood of To maintain the Dept. of Mental Lesser of 15 months § 330.2020 to and object of proceedings Psychiatry; facility Defendant’s competence of the Health or any or one-third of 330.2044 or assist rationally in certified by Dept. attaining defendant to stand trial, inpatient mental maximum sentence defense of Mental Health competence, if pending and during health facility if treatment for trial commitment is statutory time frame necessary for effective treatment Minnesota Minn. R. Crim. P. Cannot consult with defense Licensed physician Substantial probability Not specified Defendant is civilly Three years, except Rule 20.01 counsel with reasonable or consulting that with treatment committed; place is for murder, for degree of rational psychologist, or otherwise the not specified which time frame understanding or cannot knowledgeable, defendant will ever is not specified understand proceedings trained, and attain competence and participate in defense practicing in the diagnosis/treatment of the alleged impairment Mississippi Miss. Uniform Rules Cannot consult with lawyer Psychiatrist or Substantial probability Defense attorney may Mississippi State Within a reasonable of Circuit and with reasonable degree of psychologist of becoming authorize treatment Hospital or other time County Court rational understanding; competent in the appropriate mental practice Rule lacks rational and factual foreseeable future health facility 9.06; Gammage understanding of v. State, 510 proceedings So.2d 802 (Miss. 1987) Missouri Mo. Rev. Stat. § Cannot understand Psychiatrists, Substantial probability Not specified Commitment to the Not specified 552.020 proceedings and assist in psychologists, or of attaining fitness Director of the defense physicians with to proceed in Dept. of Mental Ͼ1 year’s training forseeable future Health or experience in treating the mentally retarded or mentally ill Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Montana Mont. Code Cannot understand At least 1 qualified Appears that Overriding justification Dept. of Public Health If court determines Ann. § 46- proceedings and assist in psychiatrist, defendant will for medically and Human that so much time 14-103, defense licensed clinical become fit to appropriate treatment Services, for has elapsed since 202, 206, psychologist, or proceed in placement in the commitment of 221, and advanced-practice reasonably appropriate mental the defendant that 222 RN foreseeable future health or residential it would be unjust facility to resume the

criminal Trial Stand to Competence of Evaluation Guideline: Practice proceedings, the court may dismiss the charge

oue3,Nme ,20 Supplement 2007 4, Number 35, Volume Nebraska Neb. Rev. Cannot understand nature Physician, Substantial probability Not specified State hospital for the Six months initial, Stat. § 29- and object of the psychiatrist, or of becoming mentally ill or other maximum length 1823 proceedings, comprehend psychologist competent in the appropriate state- not specified own condition in reference foreseeable future owned or -operated to such proceedings, and facility make a rational defense Nevada Nev Rev. Stat. Does not meet Dusky criteria Two psychiatrists, 2 Substantial probability Involuntary Committed to Lesser of 10 years or § 178.399 psychologists, or that treatment can administration of Administrator of longest period of to 178.460 1 psychiatrist and restore competence medication if Division of Mental incarceration 1 psychologist, and that defendant appropriate for Health and provided for certified by will attain treatment to restore Developmental alleged crime Division of competence or competence Services, or Mental Health receive outpatient treatment and pronouncement of Developmental judgment in Services of the forseeable future Department of HHS New N.H. Rev. Does not meet Dusky criteria Psychiatrist on staff Reasonable likelihood Not specified State mental health Twelve months Hampshire Stat. Ann. § of any public that defendant can system; secure 135:17 institution, or be restored to psychiatric unit; or private competence outpatient treatment psychiatrist through appropriate treatment within 12 months New Jersey N.J. Stat. Ann. Cannot understand At least 1 qualified Substantially probable Not specified Custody of Initial 3 months, § 2C:4-5, proceedings and assist with psychiatrist or that defendant Commissioner of maximum time 4-6 defense licensed could regain Human Services for frame not indicated psychologist competence within inpatient treatment if foreseeable future defendant is dangerous, or outpatient treatment S63 S64 Table 3 Continued Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration New Mexico N.M. Stat. § Does not meet Dusky criteria Psychologist, Probability of Not specified Dept. of Health in a Maximum sentence 31-9-1 to psychiatrist, or defendant’s secure, locked defendant would 31-9-1.5 other professional attaining facility have received if recognized by competence within convicted district court as an 9 months of expert original finding of h ora fteAeia cdm fPyhar n h Law the and Psychiatry of Academy American the of Journal The incompetence

New York N.Y. Crim. Cannot understand Two qualified Not specified Not specified Facility designed by Two-thirds of Trial Stand to Competence of Evaluation Guideline: Practice Proc. Law § proceedings and assist with psychiatrists Commissioner of maximum term for 730.10 to defense (psychiatrist or Mental Health or highest-class felony 730.70 psychologist); if 2 MR/DD charged psychiatrists disagree, a 3rd psychiatrist is appointed North N.C. Gen. Cannot understand nature Impartial medical Likelihood of Not specified Civil commitment to Maximum term of Carolina Stat. § 15A and object of proceedings, experts, including defendant’s gaining hospital or other confinement for the 1001-1009 comprehend situation in forensic capacity to institution; if given crime charged or 5 reference to the psychiatrists proceed, to the bail, custody of years proceedings, and assist approved under extent that the designated person or (misdemeanor) or with defense in a rational rules of the hospital, institution, organization 10 years (felony) or reasonable manner Commission for or individual can agreeing to from date of Mental Health, make such a supervise defendant incapacity to Developmental judgment proceed Disabilities, and Substance Abuse Services North Dakota N.D. Cent. Cannot understand Psychiatrist or Whether defendant Not specified Civil commitment Maximum period for Code § proceedings and assist with licensed will attain fitness to which the 12.1-04-04 defense psychologist proceed or ability defendant could be to 04-09 to effectively sentenced communicate with counsel in the foreseeable future Ohio Ohio Rev. Cannot understand nature Psychiatrist, or Likelihood of being Medication is necessary State hospital; MR/DD Thirty or 60 days for Code Ann § and objective of licensed clinical restored to to restore competence; facility; community misdemeanors; 6 2945.37-39 proceedings and assist with psychologist who competence within defendant lacks mental health or months for lesser defense satisfies the 1 year if treated capacity to give Mental retardation felonies; 12 months satutory criteria or informed consent or facility; psychiatrist for major felonies works for a refuses medication or other MI/MR certified forensic professional center Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Oklahoma Okla.Stat. tit. Cannot understand nature of Psychiatrist, Whether person can Court shall order Dept. of Mental Lesser of maximum 22, § charges and proceedings, psychologist, or attain competence defendant to undergo Health and sentence for most 1175.1 to and effectively and licensed mental within reasonable treatment, therapy, or Substance Abuse serious offense 1175.8 rationally assist with health period of time if give training that will Services charged, or 2 years defense professional with given treatment, restore competence forensic training therapy, or training Oregon Or. Rev. Stat. Cannot understand nature of Psychiatrist or Substantial probability Not specified State hospital; So much time has

§ 161.360 proceedings, assist and psychologist in foreseeable outpatient treatment; elapsed that it Trial Stand to Competence of Evaluation Guideline: Practice to 161.370 cooperate with counsel, future that secure intensive would be unjust to and participate in defense defendant will have community inpatient resume criminal capacity to stand facility for juveniles proceedings

oue3,Nme ,20 Supplement 2007 4, Number 35, Volume trial Pennsylvania Pa. Stat. Ann. Cannot understand the nature At least 1 Substantial probability Court is reasonably Not specified Lesser of maximum § 7402- or object of proceedings psychiatrist of attaining certain that involuntary sentence imposed 7406 and participate and assist competence in the treatment will restore for the crime in defense foreseeable future competence charged or 10 years. For murder, no limit on restoration period Rhode Island R.I. Gen. Cannot understand character Physician Whether defendant Not specified Dangerous defendants: Two-thirds of Laws § and consequences of will regain facility established maximum sentence 40.1-5.3-3 proceedings, or cannot competence within pursuant to § 40.1- for most serious properly assist with defense maximum period of 5.3-1, or to general offense charged placement wards of the Institute of Mental Health; outpatient treatment South S.C. Code Cannot understand Two psychiatrists Substantial probability Not specified Appropriate facility of Maximum period to Carolina Ann. § 44- proceedings or assist designated by the of attaining Dept. of Mental which the person 23-410 to defense Dept. of Mental competence in Health or Dept. of could have been 460 Health or Dept. of forseeable future Disabilities and sentenced if Disabilities and Special Needs convicted as Special Needs charged South Dakota S.D. Codified Cannot understand nature Psychiatrist or Substantial probability Not specified Human Services Maximum penalty Laws § and consequences of psychologist that in the Center; state allowable for most 23A- proceedings and assist foreseeable future developmental serious charge 10A-1 properly in defense defendant will centers; adjustment to 16 attain capacity to training center permit the trial to mental health proceed center; or other facility approved by Dept. of Human Services S65 S66 Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Tennessee Tenn. Code Does not meet Dusky criteria Community mental Not specified Not specified Forensic services unit Not specified Ann. § 33- health center, or community-based 7-301 to licensed private service 302 practitioner, or outpatient evaluation by h ora fteAeia cdm fPyhar n h Law the and Psychiatry of Academy American the of Journal The state hospital

Texas Tex. Code Does not meet Dusky criteria Psychiatrist or Whether defendant Medication is medically Community, mental Maximum term for Trial Stand to Competence of Evaluation Guideline: Practice Crim. Proc. psychologist will obtain appropriate and in health or MR facility offense on which Ann. art. competence in defendant’s best defendant would 46B.001 to foreseeable future interest; state has be tried 171 compelling interest in defendant’s being competent; no less invasive means of obtaining competence; medication will not unduly prejudice the defendant’s rights or defense theories at trial Utah Utah Code Unable to have rational and At least 2 mental Substantial probability Not specified Dept. of Human Maximum period of Ann. § 77- factual understanding of health experts not that the defendant Services incarceration that 15-1 to 6 proceedings him or involved in the may become defendant could potential punishment, or current treatment competent in receive if convicted cannot consult with of the defendant forseeable future counsel and participate in proceedings with a reasonable degree of rational understanding Vermont Vt. Stat. Ann. Does not meet Dusky criteria Designated mental Not specified Not specified Custody of Indeterminate, as tit. 13, § health Commissioner of long as person is 4814-4822 professional Developmental and civilly committable Mental Health Services Virginia Va. Code Cannot understand Psychiatrists, Restorable in Not specified Outpaitent; hospital Lesser of maximum Ann. § proceedings or assist psychologists or foreseeable future designated by the sentence if 19.2-169.1 attorney with defense master-level Commissioner of convicted of to 169.3 psychologists Mental Health, charges or 5 years Mental Retardation and Substance Abuses Services Table 3 Continued. Statutory Provision for Involuntary Treatment for Where Restoration Maximum Time for Jurisdiction Source of Law Definition of Incompetence Who May Evaluate Test for Restorability Competence Restoration May Occur Restoration Washington Wash. Rev. Cannot understand nature of At least 2 qualified Futher treatment is For serious offenses State hospital; other Maximum possible Code § proceedings and assist with experts or likely to restore facility as determined penal sentence for 10.77.010 to defense professional persons competence by department or any offense charged, 10.77.092 under guidance and or 180 days control of professional person West Virginia W. Va. Code Cannot participate One or more Substantial likelihood Not specified Mental health facility Nine months

§ 27-6A-1 to substantially in defense and psychiatrists, or that defendant will Trial Stand to Competence of Evaluation Guideline: Practice 5 understand nature and psychiatrist and attain competence consequences of trial psychologist within 6 months Wisconsin Wis. Stat. § Cannot understand the One or more Likelihood that Court may order Dept. of Health and Lesser of 12 months

oue3,Nme ,20 Supplement 2007 4, Number 35, Volume 971.13 proceedings or assist with psychiatrists defendant, if defendant to receive Family Services for or maximum defense having specialized treated, may be medication for duration placement in sentence for most knowledge and restored to of criminal proceedings appropriate serious offense deemed competence within institution appropriate by statutory time court to evaluate period and report on defendant Wyoming Wyo. Stat. Cannot comprehend Licensed Substantial probability Not specified State hospital or other Not specified Ann. § 7- situation, understand the psychiatrist, or that accused will facility designated 11-301 to nature and object of other physician regain fitness to by the court 303 proceedings, conduct with forensic proceed defense rationally, or training, or cooperate with counsel to licensed use available defenses psychologist with forensic training U.S. Federal 18 U.S.C.S. § Cannot understand nature Psychiatrist or Substantial probability Sell v. U.S. (2003) Custody of Attorney Initial hospitalization 4241 and consequences of psychologist that in the General for for four months; proceedings and assist foreseeable future, treatment in a thereafter, for properly with defense defendant will suitable facility “reasonable period become competent of time” US Military U.C.M.J. § Cannot understand nature of A board of 1 or Same as federal law Sell v. U.S. (2003) Same as federal law Same as federal law 876b; proceedings or conduct or more persons; R.C.M. 706, cooperate intelligently in each member 909; 18 defense must be physician U.S.C.S. § or psychologist; 4241 normally, at least one member is psychiatrist or psychologist S67 Practice Guideline: Evaluation of Competence to Stand Trial

References 49. Curry v. Zant, 371 S.E.2d 647 (Ga. 1988) 50. Hull v. Kyler, 190 F.3d 88 (3rd Cir. 1999) 1. Melton GB, Petrilla J, Poythress NG, et al: Psychological Eval- 51. Woods v. State, 994 S.W.2d 32 (Mo. Ct. App. 1999) uations for the Courts: A Handbook for Mental Health Profes- 52. In the Matter of Fleming, 16 P.3d 610 (Wash. 2001) (en banc) sionals and Lawyers (ed 2). New York: Guilford Press, 1997 53. State v. Stock, 463 S.W.2d 889 (Mo. 1971) 2. McGarry AL: Competency to Stand Trial and Mental Illness. 54. Hayden v. Commonwealth, 563 S.W.2d 720 (Ky. 1978) Washington, DC: National Institute of Mental Health, 1973 55. Thompson v. Commonwealth, 56 S.W.3d 406 (Ky. 2001) 3. Skeem JL, Golding SL, Berge G, et al: Logic and reliability of 56. United States v. Wayt, 24 Fed.Appx. 880 (10th Cir. 2001) evaluations of competence to stand trial. Law Hum Behav 22: 57. United States v. Veatch, 842 F.Supp. 480 (W.D. Okla. 1993) 519–47, 1998 58. Terry v. State, 105 So.386 (Ala. Ct. App. 1925) 4. Bonnie RJ, Grisso T: Adjudicative competence and youthful 59. State v. Barber, 617 So.2d 974 (La. Ct. App. 1993) offenders, in Youth on Trial: A Developmental Perspective on 60. People v. Doe, 602 N.Y.S.2d 507 (N.Y. Crim. Ct. 1993) Juvenile Justice. Edited by Grisso T, Schwartz RG. Chicago: 61. State v. Schaim, 600 N.E.2d 661 (Ohio 1992) University of Chicago Press, 2000, pp 73–103 62. State v. Natividad, 526 P.2d 730 (Ariz. 1974) 5. Poythress NG, Nicholson R, Otto RK, et al: The MacArthur 63. Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct. App. 1986) Competence Assessment Tool—Criminal Adjudication: Profes- 64. Shook v. State, 552 So.2d 841 (Miss. 1989), writ of habeas sional Manual. Odessa, FL: Psychological Assessment Resources, corpus denied, Shook v. Mississippi, 2000 U.S. Dist. LEXIS 1999 8851 (N.D. Miss. 2000) 6. Winick BJ, DeMeo TL: Competency to stand trial in Florida. 65. State v. Burnett, 2005 Ohio 49 (Ohio Ct. App. 2005) Univ Miami L Rev 35:31, 1980 66. United States v. Jones, 2006 U.S. Dist. LEXIS 9257 (E.D. Tenn. 7. Blackstone W: Commentaries on the Laws of England. Oxford: 2006) Clarendon Press, 1765–1769 67. Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968) 8. Slovenko R: Psychiatry and Law. New York: Little, Brown, 1974 68. United States v. Rinchack, 820 F.2d 1557 (11th Cir. 1987) 9. Frith’s Case, 22 How. State Trials 307 (1790) 69. United States v. Borum, 464 F.2d 896 (10th Cir. 1972) 10. United States v. Chisolm, 149 F. 284 (C.C.S.D. Ala. 1906) 70. United States v. Davis, 1999 U.S. App. LEXIS 1030 (10th Cir. 11. Jordan v. State, 135 S.W. 327 (Tenn. 1911) 1999) 12. Cooper v. Oklahoma, 517 U.S. 348 (1996) 71. State v. Ferguson, 547 P.2d 1085 (Ariz. Ct. App. 1976) 13. King v. Pritchard, 173 Eng. Rep. 135 (1836) 72. State v. Gilbert, 640 A.2d 61 (Conn. 1994) 14. Youtsey v. United States, 97 F. 937 (6th Cir. 1899) 73. State v. Martens, 521 N.W.2d 768 (Iowa Ct. App. 1994) 15. United States v. Boylen, 41 F.Supp. 724, 725 (D. Or. 1941) 74. United States v. Swanson, 572 F.2d 523 (5th Cir. 1978) 16. Dusky v. United States, 362 U.S. 402 (1960) 75. State v. Owens, 807 P.2d 101 (Kan. 1991) 17. Pub. L. No. 98-473, 98 Stat. 2057 (1984) 76. People v. Palmer, 31 P.3d 863 (Colo. 2001) 18. 18 U.S.C. § 4241(d)(2007 Supp.) 77. United States v. Stubblefield, 325 F.Supp 485 (D.C. Tenn. 19. Drope v. Missouri, 420 U.S. 162 (1975) 1971) 20. Godinez v. Moran, 509 U.S. 389 (1993) 78. People v. Stanhope, 254 N.E.2d 512 (Ill. 1969) 21. Burt MN, Philipsborn JT: Assessment of client competence: 79. Carter v. State, 21 So.2d 404 (Miss. 1945) a suggested approach. Champion 22:18–26, 55–8, 1998 80. Hansford v. United States, 365 F.2d 920 (D.C. Cir. 1966) 22. Pate v. Robinson, 383 U.S. 375 (1966) 81. State v. Madden, 33 P.3d 549 (Haw. Ct. App. 2001) 23. Estelle v. Smith, 451 U.S. 454 (1981) 82. Casey v. State, 924 S.W.2d 946 (Tex. Crim. App. 1996) 24. Buchanan v. Kentucky, 483 U.S. 402 (1987) 83. Bradley v. Preston, 263 F.Supp. 283 (D. D.C. 1967), cert. den. 25. Medina v. California, 505 U.S. 437 (1992) 390 U.S. 990 (1968) 26. Jackson v. Indiana, 406 U.S. 715 (1972) 84. Purver JM: Amnesia as affecting capacity to commit crime or 27. Riggins v. Nevada, 504 U.S. 127 (1992) stand trial. ALR 3d. 46:544, 1972 28. Sell v. United States, 539 U.S. 166 (2003) 85. Morrow v. State, 423 A.2d 251 (Md. Ct. Spec. App. 1980) 29. Washington v. Harper, 494 U.S. 210 (1990) 86. State v. Kleypas, 40 P.3d 139 (Kan. 2001) 30. United States v. Nichelson, 550 F.2d 502 (8th Cir. 1977) 87. State v. McClendon, 437 P. 2d 421 (Ariz. 1968) 31. Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991) 88. Rector v. State, 638 S.W.2d 672 (Ark. 1982), later app. 659 32. Torres v. Prunty, 233 F.3d 1103 (9th Cir. 2000) S.W.2d 168 (Ark. 1983), cert. den. 466 U.S. 988 (1984) 33. Tiller v. Esposito, 911 F.2d 575 (11th Cir. 1990) 89. State v. Forsyth, 547 N.W.2d 833 (Iowa Ct. App. 1996) 34. Wolf v. United States, 430 F.2d 443 (10th Cir. 1970) 90. State v. Leming, 3 S.W.3d 7 (Tenn. Crim. App. 1998) 35. Penry v. Lynaugh, 492 U.S. 302 (1989) 91. Powell v. Alabama, 287 U.S. 45, 60 (1932) 36. Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995) 92. Faretta v. California, 422 U.S. 806 (1975) 37. United States v. Leggett, 162 F.3d 237 (3d Cir. 1998) 93. Gideon v. Wainwright, 372 U.S. 335 (1963) 38. United States v. Morrison, 153 F.3d 34 (2d Cir. 1998) 94. State v. Taylor, 776 A.2d 1154 (Conn. App. Ct. 2001) 39. Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000) 95. Vanisi v. State, 22 P.3d 1164 (Nev. 2001) 40. Moody v. Johnson, 139 F. 3d 477 (5th Cir. 1998) 96. Barnes v. State, 528 S.W.2d 370 (Ark. 1975) 41. United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994) 97. Com. v. Martin, 683 N.E.2d 280 (Mass. 1997) 42. Oats v. Singletary, 141 F.3d 1018 (11th Cir. 1998) 98. State v. Vermillion, 51 P.3d 188 (Wash. Ct. App. 2002) 43. People v. Baugh, 832 N.E.2d 903 (Ill. App. Ct. 2005) 99. Sherwood v. State, 717 N.E.2d 131 (Ind. 1999) 44. Lawrence v. State, 169 S.W.3d 319 (Tex. Crim. App. 2005) 100. People v. Burnett, 234 Cal. Rptr. 67 (Cal. Ct. App. 1987) 45. United States v. Gold, 790 F.2d 235 (2d Cir. 1986) 101. People v. Williams, 111 Cal. Rptr. 2d 732 (Cal. Ct. App. 2001) 46. United States v. Williams, 998 F.2d 258 (5th Cir. 1993) 102. Dobbins v. State, 721 N.E.2d 867 (Ind. 1999) 47. United States v. Santos, 131 F.3d 16 (1st Cir. 1997) 103. Gore v. State, 784 So.2d 418 (Fla. 2001) 48. Blum GL: Adequacy of defense counsel’s representation of crim- 104. State v. Briggs, 787 A.2d 479 (R.I. 2001) inal client—issues of incompetency. ALR 5th. 70:1, 1999 105. State v. Coleman, 644 N.W.2d 283 (Wis. Ct. App. 2002)

S68 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

106. People v. Manson, 139 Cal. Rptr. 275 (Cal. Ct. App. 1977), 140. Slobogin C: Mental illness and the death penalty. Ment Phys cert. denied, 435 U.S. 953 (1978) Disabil Law Rep 24:667–77, 2000 107. People v. Davis, 234 Cal. Rptr. 859 (Cal. Ct. App. 1987) 141. Appelbaum PS: The parable of the forensic psychiatrist: ethics 108. State v. Plunkett, 934 P.2d 113 (Kan. 1997) and the problem of doing harm. Int J Law Psychiatry 13:249– 109. People v. Eady, 755 N.Y.S.2d 463 (N.Y. App. Div. 2003) 59, 1990 110. Stepp v. Estelle, 524 F2.d 447 (5th Cir. 1975) 142. Appelbaum PS: A theory of ethics for forensic psychiatry. J Am 111. State v. Hartford, 636 P.2d 1204 (Ariz. 1981), cert. denied, 456 Acad Psychiatry Law 25:233–47, 1997 U.S. 933 (1982), reh. denied, 456 U.S. 1001 (1982), and later 143. American Psychiatric Association: The Principles of Medical app., 651 P.2d 856 (Ariz. 1982) Ethics: with Annotations Especially Applicable to Psychiatry 112. Bridges v. State, 6 P.3d 1000 (Nev. 2000) (2001 rev). Washington, DC: American Psychiatric Association, 113. State v. Rose, 809 A.2d 534 (Conn. App. Ct. 2002) 2001 114. People v. Anderson, 247 N.W.2d 857 (Mich. 1976) 144. American Academy of Psychiatry and the Law: Ethics Guidelines 115. United States v. Purnett, 910 F.2d 51 (2d Cir. 1990) for the Practice of Forensic Psychiatry. Adopted May 1987; re- 116. Mossman D, Dunseith NW Jr: “A fool for a client”: print por- vised October 1989, 1991, 1995, and 2005 trayals of 49 pro se criminal defendants. J Am Acad Psychiatry 145. Giorgi-Guarnieri D, Janofsky J, Keram E, et al: AAPL Practice Law 29:408–19, 2001 guideline: for forensic psychiatric evaluation of defendants rais- 117. Rogers R, Sewell KW, Goldstein AM: Explanatory models of ing the insanity defense. J Am Acad Psychiatry Law 30(Suppl): malingering: a prototypical analysis. Law Hum Behav 18:543– S3–S40, 2002 52, 1994 146. MacKinnon B: On not harming: two traditions. J Med Phil 118. Gothard S, Rogers R, Sewell KW: Feigning incompetency to 13:313–28, 1988 stand trial: an investigation of the Georgia Court Competency 147. Shuman DW, Greenberg SA: The expert witness, the adversary Test. Law Hum Behav 19:363–73, 1995 system, and the voice of reason: reconciling impartiality and 119. Perlin ML: The Jurisprudence of the Insanity Defense. Durham, advocacy. Prof Psychol 34:219–24, 2003 NC: Carolina Academic Press, 1994 148. Mossman D: Forensic psychiatry and forensic psychology: eth- 120. Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, J., dissenting) ics, in Encyclopedia of Forensic and Legal Medicine. Edited by 121. United States v. Greer, 158 F.3d 228 (5th Cir. 1998) Payne-James J, Byard RW, Corey TS, et al. Oxford, UK: 122. United States v. Binion, 132 Fed.Appx. 89 (8th Cir. 2005), cert. Elsevier, 2005, pp 359–64 denied, 546 U.S. 919 (2005) 149. Gutheil TG, Simon RI: Attorneys’ pressures on the expert wit- 123. United States v. Booker, 543 U.S. 220 (2005) ness: early warning signs of endangered honesty, objectivity, and fair compensation. J Am Acad Psychiatry Law 27:546–53, 1999; 124. Darani S: Behavior of the defendant in a competency-to-stand- discussion 554–62 trial evaluation becomes an issue in sentencing. J Am Acad Psy- 150. American Medical Association. Available at www.ama-assn.org. chiatry Law 34:126–8, 2006 Accessed September 29, 2007 125. Fisher WH, Packer IK, Grisso T, et al: From case management to 151. Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: court clinic: examining forensic system involvement of persons role conflict in serving as both psychotherapist and expert wit- with severe mental illness. Ment Health Serv Res 2:41–9, 2000 ness. Am J Psychiatry 154:448–56, 1997 126. Golding SL, Roesch R: Competency for adjudication: an inter- 152. American Medical Association Council on Ethical and Judicial national analysis, in Law and Mental Health: International Per- Affairs. Report 12-A-04, Medical Testimony (December 2004). spectives (vol 4). Edited by Weisstub DN. New York: Pergamon, Chicago: AMA, 2004 1988, pp 73–109 153. Miller RD: Hospitalization of criminal defendants for evaluation 127. People v. Stanfill, 229 Cal. Rptr. 215 (Cal. Ct. App. 1986) of competence to stand trial or for restoration of competence: 128. People v. Robinson, 61 Cal. Rptr. 2d 587 (Cal. Ct. App. 1997) clinical and legal issues. Behav Sci Law 21:369–91, 2003 129. Randleman v. State, 837 S.W.2d 449 (Ark. 1992) 154. United States v. Gomes, 387 F.3d 157 (2d Cir. 2004) 130. Grisso T: Evaluating Competencies: Forensic Assessments and 155. Sell v. United States, No. 02-5664, Brief Amicus Curiae, Amer- Instruments (ed 2). New York: Plenum Press, 2003 ican Civil Liberties Union of Eastern Missouri in Support of 131. Geller JL, Fisher WH, Kaye NS: Effect of evaluations of compe- Petitioner, 2002 U.S. Briefs 5664, December 19, 2002 tency to stand trial on the state hospital in an era of increased 156. Sell v. United States, No. 02-5664, Brief for Amicus Curiae community services. Hosp Community Psychiatry 42:818–23, American Psychological Association, 2002 U.S. Briefs 5664, De- 1991 cember 19, 2002 rd 132. United States v. Alvarez, 519 F.2d 1036 (3 Cir. 1975) 157. Sell v. United States, No. 02-5664, Brief Amicus Curiae of the 133. Maryland v. Pratt, 398 A.2d 421 (Md. 1979) Center for Cognitive Liberty and Ethics in Support of the Peti- 134. Noggle v. Marshall, 706 F.2d 1408, 1414 (6th Cir. 1983) tioner, 2002 U.S. Briefs 5664, December 19, 2002 135. Ake v. Oklahoma, 470 U.S. 68 (1985) 158. Annas GJ: Forcible medication for courtroom competence–the 136. Diamond BL: The forensic psychiatrist: consultant versus activ- case of Charles Sell. N Engl J Med 350:2297–301, 2004 ist in legal doctrine. Bull Am Acad Psychiatry Law 20:119–32, 159. Mossman D: Is prosecution “medically appropriate”? N Engl J 1992 Crim Civil Confine 31:15–80, 2005 137. Sadoff RL: Practical ethical problems of the forensic psychiatrist 160. Sell v. United States, No. 02-5664, Brief for the American Psy- in dealing with attorneys. Bull Am Acad Psychiatry Law 12:243– chiatric Association and American Academy of Psychiatry and 52, 1984 the Law as Amici Curiae Supporting Respondent, 2002 U.S. 138. American Bar Association Criminal Justice Standards Commit- Briefs 5664, January 22, 2003 tee: ABA Criminal Justice Mental Health Standards. Washing- 161. American Medical Association: Opinion E-9.07, Medical Testi- ton, DC: American Bar Association, 1989 mony. Chicago: AMA, 1994, E-9.07, August 29, 2005 139. Gutheil TG, Appelbaum PS: Clinical Handbook of Psychiatry 162. Fed. Rules Evid. 702 and the Law (ed 3). Philadelphia: Lippincott Williams & 163. Commons ML, Miller PM, Gutheil TG: Expert witness percep- Wilkins, 2000 tions of bias in experts. J Am Acad Psychiatry Law 32:70–5, 2004

Volume 35, Number 4, 2007 Supplement S69 Practice Guideline: Evaluation of Competence to Stand Trial

164. Sattar SP, Pinals DA, Gutheil T: Countering countertransfer- 189. Borum R, Grisso T: Establishing standards for criminal forensic ence: a forensic trainee’s dilemma. J Am Acad Psychiatry Law reports: an empirical analysis. Bull Am Acad Psychiatry Law 30:65–9, 2002; discussion 70–63 24:297–317, 1996 165. Health Insurance Portability and Accountability Act of 1996, 190. Lally SJ: What tests are acceptable for use in forensic evalua- Pub. Law No. 104-191 (1996) tions?—a survey of experts. Prof Psychol 34:491–8, 2003 166. Miller RD, Maier GJ, Kaye M: The right to remain silent during 191. Pinals DA, Tillbrook CE, Mumley DL: Practical application of psychiatric examination in civil and criminal cases: a national the MacArthur competence assessment tool-criminal adjudica- survey and an analysis. Int J Law Psychiatry 9:77–94, 1986 tion (MacCAT-CA) in a public sector forensic setting. J Am 167. Appelbaum PS: In the wake of Ake: the ethics of expert testi- Acad Psychiatry Law 34:179–88, 2006 mony in an advocate’s world. Bull Am Acad Psychiatry Law 192. Grisso T: Center for Studies of Antisocial and Violent Behavior 15:15–25, 1987 (U.S.). Evaluating competencies: forensic assessments and in- 168. Binder RL: Liability for the psychiatrist expert witness. Am J struments. New York: Plenum Press, 1986 Psychiatry 159:1819–25, 2002 193. Robey A: Criteria for competency to stand trial: a checklist for 169. Pettus v. Cole, 57 Cal. Rptr. 2d 46 (Cal. Ct. App. 1996) psychiatrists. Am J Psychiatry 122:616–23, 1965 170. Dalton v. Miller, 984 P.2d 666 (Colo. Ct. App. 1999) 194. Vann CR, Morganroth F: Psychiatry and the competence to 171. Miller RD: Criminal competence, in Principles and Practice of stand trial. Univ Det Law J 42:75–85, 1964 Forensic Psychiatry (ed 2). Edited by Rosner R. London: Arnold, 195. Hess JH, Thomas HE: Incompetence to stand trial: procedures, 2003, pp 213–32 results, and problems. Am J Psychiatry 119:713–20, 1963 172. Tseng W, Matthews D, Elwyn TS: Cultural Competence in 196. McGarry AL: Competence to stand trial and due process via the Forensic Mental Health: A Guide for Psychiatrists, Psycholo- state hospital. Am J Psychiatry 122:623–31, 1965 gists, and Attorneys. New York: Brunner/Routledge, 2004 197. Lipsitt PD, Lelos D, McGarry AL: Competency for trial: a 173. Cross T, Bazron B, Dennis K, et al: Towards a Culturally Com- screening instrument. Am J Psychiatry 128:105–9, 1971 petent System of Care: A Monograph on Effective Services for 198. Brakel SJ: Presumption, bias, and incompetency in the criminal Minority Children Who Are Severely Emotionally Disturbed process. Wisc Law Rev 1974:1105–30, 1974 (vol 1). Washington, DC: Georgetown University Child Devel- 199. Harvard Medical School Laboratory of Community Psychiatry: opment Center, 1989 Competency to stand trial and mental illness. New York: Jason 174. Davis K: Race, health status and managed health care, in Cul- Aronson, 1974 tural Competence for Health Care Professionals Working With 200. Grisso T: Five-year research update (1986–1990): evaluations African American Communities: Theory and Practice. Edited by for competence to stand trial. Behav Sci Law 10:353–69, 1992 Brisbane FL. Bethesda, MD: Center for Substance Abuse Pre- 201. Wildman RW, Batchelor ES, Thompson L, et al: The Georgia vention, 1998 Court Competency Test: an attempt to develop a rapid quanti- 175. Saldan˜a D. Cultural Competency: A Practical Guide for Mental tative measure for fitness for trial. Milledgeville, GA: Forensic Health Service Providers. Austin, TX: Hogg Foundation for Services Division, Central State Hospital, 1978 Mental Health, University of Texas at Austin, 2001 202. Johnson WG, Mullett N: The Georgia Court Competency 176. Griffith EE: Ethics in forensic psychiatry: a cultural response to Test-R, in Dictionary of Behavioral Assessment Techniques. Ed- Stone and Appelbaum. J Am Acad Psychiatry Law 26:171–84, 1998 ited by Hersen M, Belleck AS. New York: Pergamon, 1987, pp 177. Griffith EE: Personal narrative and an African-American per- 80–92 spective on medical ethics. J Am Acad Psychiatry Law 33:371– 203. Archer RP, Buffington-Vollum JK, Stredny RV, et al: A survey of 81, 2005 psychological test use patterns among forensic psychologists. J 178. Candilis PJ, Martinez R, Dording C: Principles and narrative in Personality Assess 87:84–94, 2006 forensic psychiatry: toward a robust view of professional role. 204. Golding SL, Roesch R, Schreiber J: Assessment and conceptual- J Am Acad Psychiatry Law 29:167–73, 2001 ization of competency to stand trial: preliminary data on the 179. Pinals DA, Packer IK, Fisher W, et al: Relationship between race Interdisciplinary Fitness Interview. Law Hum Behav 8:321–34, and ethnicity and forensic clinical triage dispositions. Psychiatr 1984 Serv 55:873–8, 2004 205. Golding SL: Interdisciplinary Fitness Interview—Revised 180. American Psychiatric Association: Practice Guideline for Psychi- (Training Manual and Interview Procedure). State of Utah Di- atric Evaluation of Adults. Am J Psychiatry 152(Suppl 11):63– vision of Mental Health, 1993 80, 1995 206. Skeem J, Golding SL, Emke-Francis P: Assessing adjudicative 181. Resnick PJ: Malingering, in Principles and Practice of Forensic competency: using legal and empirical principles to inform prac- Psychiatry. Edited by Rosner R. New York: Chapman and Hall, tice, in Handbook of Forensic Psychology. Edited by 1994, pp 417–26 O’Donohue W, Levensky E. New York: Elsevier, 2004, pp 175– 182. Bonnie RJ: The competence of criminal defendants: beyond 211 Dusky and Drope. Univ Miami L Rev 47:539–601, 1993 207. Nicholson RA, Kugler KE: Competent and incompetent crimi- 183. Bonnie RJ: The competence of criminal defendants: a theoretical nal defendants: a quantitative review of comparative research. reformulation. Behav Sci Law 10:291–316, 1992 Psychol Bull 109:355–70, 1991 184. Hoge SK, Poythress N, Bonnie RJ, et al: The MacArthur Adju- 208. Schreiber J, Roesch R, Golding S: An evaluation of procedures dicative Competence Study: diagnosis, psychopathology, and for assessing competency to stand trial. Bull Am Acad Psychiatry competence-related abilities. Behav Sci Law 15:329–45, 1997 Law 15:187–203, 1987 185. Gutheil TG, Bursztajn H: Clinicians’ guidelines for assessing 209. Nicholson RA, Barnard GW, Robbins L, et al: Predicting treat- and presenting subtle forms of patient incompetence in legal ment outcome for incompetent defendants. Bull Am Acad Psy- settings. Am J Psychiatry 143:1020–3, 1986 chiatry Law 22:367–77, 1994 186. People v. Kashney, 472 N.E.2d 164 (Ill. App. Ct. 1984) 210. Everington C: The Competence Assessment for Standing Trial 187. People v. Pokovich, 15 Cal. Rptr. 3d 503 (Cal. Ct. App. 2004) for Defendants with Mental Retardation (CAST-MR): a valida- 188. People v. Jablonski, 126 P.3d 938 (Cal. 2006) tion study. Crim Just Behav 17:147–68, 1990

S70 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Competence to Stand Trial

211. Everington C, Dunn C: A second validation study of the Compe- 236. Nicholson RA, McNulty JL: Outcome of hospitalization for tence Assessment for Standing Trial for Defendants with Mental defendants found incompetent to stand trial. Behav Sci Law Retardation (CAST-MR). Crim Just Behav 22:44–59, 1995 10:371–83, 1992 212. Poythress NG: Adjudicative Competence: The MacArthur 237. Roesch R, Golding S: Competency to Stand Trial. Urbana, IL: Studies. New York: Kluwer Academic/Plenum Publishers, 2002 University of Illinois, 1980 213. Otto RK, Poythress NG, Nicholson RA, et al: Psychometric 238. Cuneo DJ, Brelje TB: Predicting probability of attaining fitness properties of the MacArthur Competence Assessment Tool— to stand trial. Psychol Rep 55:35–9, 1984 Criminal Adjudication. Psychol Assess 10:435–43, 1998 239. Carbonell JL, Heilbrun K, Friedman FL: Predicting who will 214. Grisso T, Steinberg L, Woolard J, et al: Juveniles’ competence to regain trial competency: initial promise unfulfilled. Forensic Rep stand trial: a comparison of adolescents’ and adults’ capacities as 5:67–76, 1992 trial defendants. Law Hum Behav 27:333–63, 2003 240. Mossman D: Predicting restorability of incompetent criminal 215. Ficke SL, Hart KJ, Deardorff PA: The performance of incarcer- defendants. J Am Acad Psychiatry Law 35:34–43, 2007 ated juveniles on the MacArthur Competence Assessment Tool- 241. Pinals DA: Where two roads meet: competence to stand trial Criminal Adjudication (MacCAT-CA). J Am Acad Psychiatry restoration from a clinical perspective. N Engl J on Criminal & Law 34:360–73, 2006 Civil Confinement 31:81–108, 2005 216. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 242. Group for the Advancement of Psychiatry, Committee on Psy- (1993) chiatry and Law: Misuse of Psychiatry in the Criminal Courts: 217. Rogers R, Grandjean N, Tillbrook CE, et al: Recent inter- view-based measures of competency to stand trial: a critical Competency to Stand Trial. New York: Group for the Advance- review augmented with research data. Behav Sci Law 19:503– ment of Psychiatry, 1974 18, 2001 243. Roesch R, Zapf PA, Golding SL: Defining and assessing compe- 218. Rogers R, Jackson RL, Sewell KW, et al: An examination of the tency to stand trial, in Handbook of Forensic Psychology (ed 2). ECST-R as a screen for feigned incompetency to stand trial. Edited by Weiner IB, Hess AK. New York: John Wiley & Sons, Psychol Assess 16:139–45, 2004 1999, pp 327–49 219. Rogers R, Jackson RL, Sewell KW, et al: Assessing dimensions of 244. Morse SJ: Law and mental health professionals: the limits of competency to stand trial: construct validation of the ECST-R. expertise. Prof Psychol 9:389–99, 1978 Assessment 10:344–51, 2003 245. Halleck SJ, Hoge SK, Miller RD, et al: The use of psychiatric 220. Rogers R, Sewell KW, Grandjean NR, et al: The detection of diagnoses in the legal process: task force report of the American feigned mental disorders on specific competency measures. Psy- Psychiatric Association. Bull Am Acad Psychiatry Law 20:481– chol Assess 14:177–83, 2002 99, 1992 221. American Psychological Association: Ethical Principles of Psy- 246. Grisso T: Competency to Stand Trial Evaluations: A Manual for chologists and Code of Conduct (effective June 1, 2003). Wash- Practice. Sarasota, FL: Professional Resource Exchange, 1988 ington, DC: American Psychological Association, 2003 247. Cruise KR, Rogers R: An analysis of competency to stand trial: 222. State v. Griffin, 869 A.2d 640 (Conn. 2005) an integration of case law and clinical knowledge. Behav Sci Law 223. Warren JI, Fitch WL, Dietz PE: Criminal offense, psychiatric 16:35–50, 1998 diagnosis, and psycholegal opinion: an analysis of 894 pretrial 248. Plotnick S, Porter J, Bagby M: Is there bias in the evaluation of referrals. Bull Am Acad Psychiatry Law 19:63–9, 1991 fitness to stand trial? Int J Law Psychiatry 21:291–304, 1998 224. Reich J, Wells J: Psychiatric diagnosis and competency to stand 249. Ohio Rev. Code Ann. § 2945.38(G)(3)(2006) trial. Compr Psychiatry 26:421–32, 1985 250. S.C. Code Ann. § 44-23-420(2006) 225. Roesch R, Eaves D, Sollner R, et al: Evaluating fitness to stand 251. R.I. Gen. Laws § 40.1-5.3-3(f)(2006) trial: a comparative analysis of fit and unfit defendants. Int J Law 252. S.D. Codified Laws § 23A-46-2(a)(2004) Psychiatry 4:145–57, 1981 253. Tex. Code of Crim. Proc. Ann. art. 46B.025(2006) 226. Hubbard KL, Zapf PA, Ronan KA: Competency restoration: an 254. Poythress NG: Psychological issues in criminal proceedings: ju- examination of the differences between defendants predicted re- dicial preference regarding expert testimony. Law Hum Behav storable and not restorable to competency. Law Hum Behav 10:175–94, 1983 27:127–39, 2003 255. Redding RE, Floyd MY, Hawk GL: What judges and lawyers 227. Miller RD, Germain EJ: The retrospective evaluation of compe- think about the testimony of mental health experts: a survey of tency to stand trial. Int J Law Psychiatry 11:113–25, 1988 the courts and bar. Behav Sci Law 19:583–94, 2001 228. Clark v. Arizona, 126 S. Ct. 2709 (2006) 256. Cooper DK, Grisso T: Five year research update (1991–1995): 229. Bishop v. United States, 350 U.S. 961 (1956) 230. American Psychiatric Association: Diagnostic and Statistical evaluations for competence to stand trial. Behav Sci Law 15: Manual of Mental Disorders (Text Revision): DSM-IV-TR (ed 347–64, 1997 4). Arlington, VA: American Psychiatric Publishing, 2000 257. Mass. Gen. Laws ch. 123, § 15(c)(2003) 231. Gothard S, Viglione DJ, Meloy JR, et al: Detection of malinger- 258. In re Gault, 387 U.S. 1 (1967) ing in competency to stand trial evaluations. Law Hum Behav 259. Redding RE, Frost LE: Adjudicative competence in the modern 19:493–505, 1995 juvenile court. Virginia J Soc Policy Law 9:353–409, 2001 232. Lamb HR: Incompetency to stand trial; appropriateness and 260. G.J.I. v. Oklahoma, 778 P.2d 485 (Okla. Crim. App. 1989) outcome. Arch Gen Psychiatry 44:754–8, 1987 261. Savitsky JC, Karras D: Competency to stand trial among adoles- 233. Mowbray CT: A study of patients treated as incompetent to cents. Adolescence 1974:349–58, 1984 stand trial. Soc Psychiatry 14:31–9, 1979 262. Cowden VL, McKee GR: Competency to stand trial in juvenile 234. Rodenhauser P, Khamis HJ: Relationships between legal and delinquency proceedings: cognitive maturity and the attorney- clinical factors among forensic hospital patients. Bull Am Acad client relationship. J Fam Law 33:629–61, 1995 Psychiatry Law 16:321–32, 1988 263. Cooper DK: Juveniles’ understanding of trial-related informa- 235. Noffsinger SG: Restoration to competency practice guidelines. tion: are they competent defendants? Behav Sci Law 15:167–80, Int J Offend Ther Comp Criminol 45:356–62, 2001 1997

Volume 35, Number 4, 2007 Supplement S71 Practice Guideline: Evaluation of Competence to Stand Trial

264. McKee GR, Shea SJ: Competency to stand trial in family court: 272. Grisso T: Forensic Evaluation of Juveniles. Juvenile’s compe- characteristics of competent and incompetent juveniles. J Am tence to stand trial. Sarasota, FL: Professional Resource Press, Acad Psychiatry Law 27:65–73, 1999 1998, pp 83–126 265. Warren JI, Aaron J, Ryan E, et al: Correlates of adjudicative 273. Barnum R: Clinical and forensic evaluation of competence to competence among psychiatrically impaired juveniles. J Am stand trial in juvenile defendants, in Youth on Trial: A Develop- Acad Psychiatry Law 31:299–309, 2003 mental Perspective on Juvenile Justice. Edited by Grisso T, 266. Scott ES, Reppucci ND, Woolard JL: Evaluating adolescent de- Schwartz RG. Chicago: University of Chicago Press, 2000, pp cision making in legal contexts. Law Hum Behav 19:221–44, 193–224 1995 274. Warren JI, Murrie DC, Stejskal W, et al: Opinion formation in 267. Steinberg L, Cauffman E: Maturity of judgment in adolescence: evaluating the adjudicative competence and restorability of crim- inal defendants: a review of 8,000 evaluations. Behav Sci Law psychosocial factors in adolescent decision making. Law Hum 24:113–32, 2006 Behav 20:249–72, 1996 275. Cooper VG, Zapf PA: Predictor variables in competency to 268. Marsteller FA, Brogan D, Smith I, et al: The prevalence of psy- stand trial decisions. Law Hum Behav 27:423–36, 2003 chiatric disorders among juveniles admitted to regional youth 276. Scott CL: Commentary: a road map for research in restoration of detention centers operated by the Georgia Department of Chil- competency to stand trial. J Am Acad Psychiatry Law 31:36–43, dren and Youth Services. Atlanta, GA: Department of Children 2003 and Youth Services, 1997 277. Pendleton L: Treatment of persons found incompetent to stand 269. Teplin LA, Abram KM, McClelland GM, et al: Psychiatric dis- trial. Am J Psychiatry 137:1098–100, 1980 orders in youth in juvenile detention. Arch Gen Psychiatry 59: 278. Davis DL: Treatment planning for the patient who is incompe- 1133–43, 2002 tent to stand trial. Hosp Community Psychiatry 36:268–71, 270. McGaha A, Otto RK, McClaren MD, et al: Juveniles adjudi- 1985 cated incompetent to proceed: a descriptive study of Florida’s 279. Brown DR: A didactic group program for persons found unfit to competence restoration program. J Am Acad Psychiatry Law stand trial. Hosp Community Psychiatry 43:732–3, 1992 29:427–37, 2001 280. Wall BW, Krupp BH, Guilmette T: Restoration of competency to 271. McKee GR: Competency to stand trial in preadjudicatory juve- stand trial: a training program for persons with mental retardation. niles and adults. J Am Acad Psychiatry Law 26:89–99, 1998 J Am Acad Psychiatry Law 31:189–201, 2003

S72 The Journal of the American Academy of Psychiatry and the Law