as: Skeem, J., Golding, S..L. & Emke-Francis,P. (2004), Assessing adjudicative competency: Using
legal and empirical principles to inform practice. In
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Forensic psychology: A handbook for mental health and legal professionals. Pp.
Assessing Adjudicative Competency:
Using Legal and Empirical Principles to Inform Practice
Stephen L. Golding
A simplified form of competency to stand trial was recognized as early as the Thirteenth Century. Trial procedure of the day required that a defendant enter a plea, and when one could or did not, the issue was whether the defendant was Amute by malice@ as opposed to Amute by visitation by God@ (Roesch & Golding, 1980 p. 2). As sociopolitical conceptions of justice and scientific understanding of mental disorder matured, so did conceptualizations of competency. By the Eighteenth Century, Hale, in his Pleas of the Crown articulated the essential principle of competency: AIf it appear that [a defendant] is mad, the judge, in his discretion, may discharge the jury of him, and remit him to gaol [jail], to be tried after the recovery of his understanding@ (as quoted in Silten and Tullis, 1977, p. 1053). During that period, the trial of an incompetent defendant was viewed as an unjust adversarial contest, Ain which the defendant, like a small boy being beaten by a bully, is unable to dodge or return the blows@ [Frith=s Case, 1790]. In 1899, these principles were drawn into American case law when the conviction of a defendant was reversed on the basis that his epilepsy at trial and inability to provide information to counsel should have been considered and investigated (Youtsey v. United States, 1899).
The modern constitutional standard for competency to stand trial was established in Dusky vs. the United States (1960). In this case, the U.S. Supreme Court ruled that it was a fundamental violation of fairness and due process to proceed against a defendant who, by virtue of mental or physical impairment, did not possess “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or “ a rational as well as factual understanding of the proceedings against him” (at 402). Years later, the Court added that a defendant must also possess an ability to “assist in preparing his defense” (Drope v. Missouri, 1972, at 171). Competency to stand trial, now commonly referred to as adjudicative competency (Golding & Roesch, 1988; Bonnie, 1992), refers to a jurisprudential construct and an accompanying set of procedures that allows for the postponement of criminal proceedings for individuals who are unable to take part in their own defense because of Amental disease or defect.@ 
The evaluation of adjudicative competence is arguably the single most significant mental health inquiry pursued in criminal law (Nicholson & Kugler, 1991), in part because Amore defendants are evaluated for competency and more financial resources are expended for their evaluation, adjudication, and treatment than for any other class of forensic activities@ (Golding, 1992, p. 77). Thus, legal and mental health professionals who work at the interface between psychology and criminal law are likely to encounter issues related to adjudicative competency. This chapter is designed to familiarize these professionals with (a) modern conceptualizations of the competency construct and relevant legal procedures, (b) forensic assessment instruments specifically designed to operationalize adjudicative competency, and (c) basic recommendations for practice based on available research.
Conceptualizing Adjudicative Competency
Basic Nomological Aspects of Adjudicative Competency
Competency is a different construct than psychopathology or intelligence. The mere presence of some level of psychological disturbance or disability (e.g. psychosis or mental retardation), is only a threshold issue that must be established in order to ‘get one=s foot in the incompetency door’ (Bonnie, 1992; Golding & Roesch, 1988; Grisso, Appelbaum, Mulvey, & Fletcher, 1995; Skeem, Golding, Cohn & Berg, 1998). At the heart of the competency construct lies the linkage between such disturbance or disability and impairment in the abilities necessary to understand legal proceedings and participate in one=s defense (Skeem and Golding, 1998).
Adjudicative competency is also open construct that cannot be reduced to a fixed set of psycholegal abilities. The constitutional standard for competency, based on Dusky and Drope, may be understood as requiring that defendants be able “(1) to consult with defense counsel, (2) to otherwise assist with their defense, and (3) to have both a rational and factual understanding of the proceedings” (American Bar Association, 1989, p. 170). Given the vagueness of this standard, a few legislatures and courts have added lists of specific psycholegal abilities (e.g., appreciation of charges, capacity to disclose pertinent facts to counsel, reasoned choice of legal options) that decision-makers must consider in addition to the basic standard (e.g., Florida Rules of Criminal Procedure [FRCP], 2002; Utah Annotated Code, 2002; Wieter v. Settle, 1961). Nevertheless, most statutes merely restate the Dusky standard without elaboration (Zapf, 2002), and virtually all statutes include language that conveys competency as an open construct (e.g., “and any other factors deemed relevant;” FRCP, 2002, §3.211). This is consistent with the U.S. Supreme Court’s observation that @[t]here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated@ (Drope v. Missouri, 1972, at 180).
Thus, the psycholegal abilities for adjudicative competency vary, depending on such contextual demands of the case as the complexity of charges, types of evidence available to counsel without the defendant’s report, probable length of proceedings, qualities of the defense attorney, and likely defense strategy (see Grisso, 1988). When mental illness is linked with a psycholegal deficit, the essential question is whether that deficit:
“in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics results in a defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome” (Golding & Roesch, 1988, p. 79).
Given its open nature, the construct of adjudicative competency also embraces “other competencies” such as competency to plead guilty, to waive counsel and proceed pro se, and to confess, depending upon the case context. Until 1993, the issue of whether the constitutional standard for these “other competencies,” which involve the waiver of constitutional rights, was higher or different than the standard for competency to proceed (or stand trial) was an issue of debate in the legal and mental health literature. Some scholars (e.g., Bonnie, 1992; Roesch & Golding, 1980) had made a useful distinction between “foundational” abilities thought minimally necessary to proceed (e.g., basic understanding of the charges and adversary system; ability to disclose relevant information to counsel) and higher-order “decisional” capacities (e.g., to grasp legal alternatives and rationally choose among optional courses of action) required in more demanding case contexts that might involve waiving basic constitutional rights.
In Godinez v. Moran (1993), the U.S. Supreme Court held that the standard by which the various competency contexts (i.e., competency to plead guilty, to waive counsel, to stand trial with the assistance of counsel) are assessed can constitutionally be the same, though individual states may adopt higher or different standards for different contexts, if they wish. Thus, although jurisdictions are permitted to adopt specific standards or Atests@ comprised of different psycholegal abilities for different adjudicative competency contexts, there is no constitutional basis that requires them to do so. We return to this issue of “other competencies” after outlining basic procedural aspects of adjudicative competency.
Procedural Aspects of Adjudicative Competency
There are three uniform procedural stages associated with adjudicative competency: (a) raising the issue of competency, (b) evaluating competency, and (c) if the defendant is found incompetent, providing treatment and evaluating progress toward competency. Procedural protections and ethical standards of practice govern each stage of this process.
Raising the issue. Because conviction of an incompetent defendant violates due process, all officers of court (e.g., the judge, prosecution, and defense) are obligated to raise the issue whenever there is a Abona fide@ doubt as to a defendant’s competency (Pate v. Robinson, 1966) The issue may be raised at any time during proceedings, from indictment to sentencing. A Pate motion for an evaluation of competency can be denied only Aif frivolous, ... not in good faith, or does not set forth the grounds for believing that the accused may be incompetent@ (United States v, Bradshaw, 1982, at 712). Although states may place the burden of proof on the defendant (Medina v. California, 1992), defendants are required to prove incompetency only by a preponderance of the evidence (Cooper v. Oklahoma, 1996).
Despite the requirement of a bona fide doubt as to the defendant’s competency, the issue may often be raised for other reasons. For example, the issue may be raised when there is a “scintilla of evidence of psychiatric impairment” (Peszke, 1980, at 132), rather than any substantial doubt about competence per se. Similarly, the issue may be raised as a legal tactic to delay trial, to help establish a defense, or as a means of discovery by the prosecution (e.g., Roesch & Golding, 1979). Examiners who evaluate competency should attempt to ascertain why the issue was raised (Grisso, 1986), and should be aware of inappropriate motivations for raising the issue to avoid inadvertently participating in strategic schemes (Melton et al., 1987).
Evaluating and adjudicating competency. Once the court grants a motion for examination of a defendant’s competency, one or more examiners evaluate the defendant and submit a written report to the court. The courts have long realized that this competency evaluation process risks jeopardizing defendants’ right against self-incrimination, given that the process of examining psycholegal abilities inevitably involves possible confessions, admissions of fact, and statements that may contradict trial testimony. To protect against this risk, protections of defendant’s Fifth Amendment rights have been established. In all jurisdictions, information obtained during a court ordered competency evaluation may not be used by the prosecution at the guilt or sentencing phases of the trial unless the defendant is deemed to have placed his mental state into evidence (e.g., by raising an insanity defense).
Moreover, in light of the jurisprudential complexity and constitutional considerations involved in this issue (Estelle v. Smith, 1981), defense counsel must be notified of a competency evaluation and examiners must provide defendants with some form of Aforensic warning@ on the limited confidentiality associated with the competency evaluation (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Discussing the complex limitations of privilege in this context is difficult with defendants with overt psychosis, extreme depression or mania, or developmental disabilities. With these types of defendants, this is best approached not as a fixed warning or signed statement, but as a clinical process (e.g., a cycle of assessing understanding, providing information, eliciting and responding to questions, and re-assessing understanding; see Stiles, Poythress, Hall, Falkenbach & Williams, 2001). Similarly, when interviewing defendants facing severe penalties, care must be taken to discuss the potential implications of their (perhaps natural) tendencies to shade the truth, whether by exaggeration or minimization, both at trial and at sentencing.
In addition to these safeguards, experts must be mindful of these issues when writing their report to the court. This report is the tangible product of the evaluation process. Typically, the court will rely solely on such reports to adjudicate competency, with rates of examiner-judge agreement typically exceeding 90% (e.g., Hart & Hare, 1992; Reich & Tookey, 1986 ;Williams & Miller, 1981). Because hearings are relatively rarely held, examiners reports will often be the only basis for judicial decisions about competency. To permit the court to make informed decisions, examiners must clearly explicate the data and reasoning that underlie each of their conclusions. This concern, however, must be balanced against the risk of violating rights against self-incrimination. Generally, examiners should omit statements made by the defendant about novel facts related to the alleged crime unless these facts are absolutely essential for substantiating an opinion related to competency.
Treating and re-evaluating incompetent defendants. In most jurisdictions, the vast majority of defendants who are evaluated for adjudicative competency are deemed competent to proceed (approximately 70%, Nicholson & Kugler, 1991). Those found incompetent are usually committed to the public mental health system for treatment focused on attaining competency and returning the defendant to court.
For some defendants (e.g., those with irreversible brain damage, severe developmental disabilities, treatment resistant psychoses), competency is unlikely to be restored. Such defendants cannot be indefinitely institutionalized as incompetent. The U.S. Supreme Court has ruled that a defendant committed on the basis of incompetency Acannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future@ (Jackson v. Indiana, 1972, p. 738). Thus, committed defendants typically are re-examined on a regular basis to determine whether competency (a) has been attained, (b) is likely to be attained with continued treatment, or (c) is unlikely to be attained in the foreseeable future. The courts typically rely upon examiner’s reports to determine the probability that a defendant will regain competency. When a defendant is deemed “unrestorable,” the commitment based on incompetency must terminate. In this case, the charges are dismissed, often with the provision that prosecution may reinstate charges if the defendant ever attains competency, and civil commitment procedures are initiated.
Because solely treating the underlying mental disorder is not what constitutional law mandates, we recommend that clinicians who work in relevant forensic settings augment “treatment as usual” with individual and group strategies that specifically target the defendant’s functional deficits and lack of legal knowledge (Elwork, 1992). Ideally, the treatment targets will be deficits that formed the basis for finding the defendant incompetent. As noted earlier, adjudicative competency may embrace a broad range of competencies. Thus, clinicians must be prepared to address a range of deficits that extend beyond those that pertain narrowly to trial competency (e.g., behaving appropriately in the courtroom; understanding where courtroom personnel sit and what their function is). Unfortunately, the field’s understanding of effective methods for restoring adjudicative competency is in its infancy, and has recently had a slow rate of growth (see Mumley, Grisso, & Tillbrook, in press; Otto & Heilbrun, 2002). Future collaborations among researchers and practitioners may advance the field toward relatively systematic approaches for treating incompetency.
Treatment Refusal in the Competency Restoration Context
Legal developments. Currently, psychotropic medication appears to be the dominant mode for treating incompetent defendants. For a number of reasons, defendants may wish to refuse psychotropic medication. The legal principles that govern when they may do so are evolving. This began with Washington v. Harper (1990), where the U.S. Supreme Court ruled that individuals who have been lawfully convicted retain certain constitutional rights including Aa significant interest in avoiding unwanted administration of antipsychotic drugs@ (211). Nevertheless, an inmate may be involuntarily treated if he "is dangerous to himself or others and the treatment is in the inmate's medical interest" (Washington v. Harper, at 227). In Riggins v. Nevada (1992), the Court extended its analysis to pre-trial detainees.
Based on complaints of hearing voices and insomnia, Riggins was treated with Dilantin and high doses of Mellaril. Despite conflicting expert reports, he was found competent to stand trial while medicated. Two months later, defense counsel asked that Riggins= medication be suspended, arguing that continued administration infringed upon his freedom and that the drugs' effect on his mental state and demeanor during trial would deny him due process. Riggins also asserted that he had a right to show jurors his "true mental state" at trial to support of a defense of insanity. In response, the State argued that medication was needed to maintain Riggins= competency. The trial court denied Riggins' motion. Riggins continued to receive strong doses of Mellaril each day through the completion of his trial several months later. At trial, Riggins presented an insanity defense and testified on his own behalf. He was found guilty of capital murder and sentenced to death.
Ultimately, Riggins appealed his case to the U.S. Supreme Court, arguing that the medication had interfered with his ability to assist his counsel and had affected his mental state, appearance, and demeanor at trial, thereby prejudically affecting the jury=s interpretation of the evidence and his testimony. The Supreme Court reversed Riggins= conviction, observing:
Aonce Riggins moved to terminate administration of antipsychotic medication, the State became obligated to establish the need for Mellaril and the medical appropriateness of the drug. Although we have not had occasion to develop substantive standards for judging forced administration of such drugs in the trial or pretrial settings, Nevada certainly would have satisfied due process if the prosecution had demonstrated…that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others... Similarly, the State might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins' guilt or innocence by using less intrusive means. ... Because the record contains no finding that might support a conclusion that administration of antipsychotic medication was necessary to accomplish an essential state policy, however, we have no basis for saying that the substantial probability of trial prejudice in this case was justified (at 136-137).
Thus, the Court held that due process may be violated if, absent a compelling state interest, a defendant is forced to stand trial while on antipsychotic drugs that may negatively affect his demeanor and ability to participate in proceedings. An important subtext of Riggins, however, is found in Justice Kennedy's concurring opinion, which he wrote to express the view
that the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial absent an extraordinary showing, and to express doubt that the showing can be made, given our present understanding of the properties of these drugs...When the State commands medication during the pretrial and trial phases of the case for the avowed purpose of changing the defendant's behavior, the concerns are much the same as if it were alleged that the prosecution had manipulated material evidence...elementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or to assist his counsel. Based on my understanding of the medical literature, I have substantial reservations that the State can make that showing (pp. 140-142).
Justice Kennedy will soon have an opportunity to examine whether or not the state can make that showing, given that the U.S. Supreme Court recently granted certiorari in the case of Sell v. United States (2002). The American Psychiatric Association has filed an amicus brief to argue that Justice Kennedy=s Asubstantial reservations@ have been addressed by the new atypical antipsychotics. Sell was evaluated for competency after being charged with Medicaid fraud, and subsequently with conspiring and attempting to kill a witness against him and an FBI agent. The trial court found him incompetent, based on deficits associated with a persecutory delusional disorder. The institution charged with Sell’s restoration attempted to treat him with psychotropic medication. Sell asserted his right to refuse treatment, presenting evidence that, assuming he had a delusional disorder, it was unlikely to respond to psychotropic medication. Although the Eight Circuit Court found that Sell was not dangerous to himself or others, and hence could not be forcibly medicated under a strict Harper rationale, the court articulated a multipronged test for resolving the issue. Specifically, the court ruled that Sell could be forcibly medicated if the state showed a) a compelling interest in bringing the case to trial that outweighed the defendant's liberty interest, b) that there was no less intrusive alternative means to bring the defendant to trial, and c) that the treatment was Amedically appropriate,” i.e., likely to restore competency, with greater anticipated beneficial than adverse effects, and in the defendant=s best medical interests. Applying that standard, the Court approved involuntarily medicating Sell. Sell appealed.
Practice implications. As is evident from Justice Kennedy's concurring opinion in Riggins, when a defendant is restored to competency by medication, he or she may be disadvantaged at trial in the sense that:
1. the defendant may need to take the witness stand, but may appear very constrained, emotionally withdrawn, and without affect or remorse leading the trier of fact to an adverse inference about the credibility of other testimony that he was insane or otherwise psychologically disturbed at the time of the alleged offense (this was precisely the underlying issue in Riggins that was not directly addressed by the majority);
2. the psychotropic medications may produce adverse effects that alter consciousness, degree of awareness, and emotionality such that the defendant is cognitively confused and less involved in the trial proceedings, thereby reducing the effectiveness of his assistance of trial counsel (so called "iatrogenic incompetency");
3. that the psychotropic medications may alter the defendant's mental state such that he or she will appear distinctly different to court-appointed insanity defense examiners who may not have assessed the defendant prior to competency restoration (altering material evidence).
In light of these concerns, examiners should consider the following guidelines in a competency evaluation or restoration cases where treatment refusal is, or may be, an issue.
First, assess the defendant’s prior response to treatment in an effort to predict the nature of clinical change that is likely with treatment, including its beneficial and adverse effects. Second, assess the defendant’s history of refusing medication, including the bases for that refusal (see Grisso & Appelbaum, 1998a, 1998b). "Treatment refusal" is a longitudinal process that reflects not only a defendant's psychopathology, but also his or her subjective reactions to prior treatments, prior relationships with treating personnel, experience with adverse effects, and information or mis-information about medication. Even the process of determining this information in a collaborative atmosphere may have positive effects on a developing "treatment refusal" situation. Third, assess treatment needs, including (a) whether the defendant may be over- or under-medicated, and (b) the extent to which continued treatment is necessary to maintain competency (an issue particularly relevant during moves between jail and hospital settings). If the court should ultimately conclude that the defendant is competent only when medicated, this decision should be based upon an evaluation that addresses the issues outlined above and whether or not the side-effects manifested in this defendant are likely to compromise fundamental fairness. Fourth, inform the trier of fact of medication effects. Assuming that a “Riggins defendant” proceeds to trial, the judge and jury should be provided with a report or testimony about the effects of involuntarily administered medication on the defendant’s demeanor and behavior. Finally, if relevant, consider attempting to preserve evidence of a defendant’s pre-medication mental state, particularly if the defendant intends to raise a mental state defense.
“Other Competencies” Embraced by Adjudicative Competency
As noted earlier, based on the Godinez case, adjudicative competency may embrace such “other competencies” as competency to proceed pro se, to plead guilty, and to confess. In this section, we analyze Godinez and its practical implications for assessing these “other competencies.”
Competency to proceed pro se and to plead guilty. . For a variety of reasons, some defendants wish to represent themselves or plead guilty. Since the right to counsel and the right to trial are fundamental constitutional rights, a waiver of them must be “knowing and intelligent.” To assess this @ one must conduct an inquiry into whether the waiver was “made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” (Godinez v. Moran, 1993, p. 2682; Johnson v. Zerbst , 1938; Boykin v. Alabama, 1969).
In Faretta v. California (1975), the U.S. Supreme Court held that a defendant had a right to waive counsel, as long as the waiver was Aliterate, competent, and understanding” and the defendant was “voluntarily exercising his informed free will" (at 836). The wiseness of the defendant’s decision is not the issue. Trial courts have had a difficult time dealing with potentially incompetent defendants who seek to waive their right to counsel. While extremely disorganized and psychotic defendants are relatively easy cases, those with highly organized religious or paranoid delusions, suicidal ideation, or extremely idiosyncratic social, personal or political belief systems are not. Whether the standard for competence is higher or different in the pro se context, the courts and forensic examiners have a difficult time pragmatically, as well as scientifically, distinguishing between delusionally-influenced incompetent decision-making and idiosyncratically inspired (foolish) decisions (see Golding, Skeem, Roesch & Zapf, 1999) This is a fertile ground for politically expedient inconsistencies and the influence of one=s own personal belief systems. Simply put, there are too many possibilities for abuse.
The case of Goode v. Florida (1978) illustrates this point. Goode had a long history of treatment refractory psychosis, sexual assault and murder, and had been committed several times. Facing capital murder charges, Goode this time asserted his right to waive counsel in order to prevent his counsel from offering a mental state defense. While there was little doubt that Goode was mentally ill, there was considerable debate as to whether his volunteering for execution was a Arational@ decision. Nevertheless, Goode was permitted to volunteer for execution.
This interpretation of Faretta is most troublesome. Goode is not atypical in viewing his situation and his disorder as hopeless, and therefore wishing to die. What would the result have been if, absent the murders, Goode had sought approval from the courts for passive suicide because he had grown tired and dispirited after battling severe mental disorder until the age of 27? Clearly, all courts would have refused to cooperate, and would have committed him as mentally ill, dangerous to self, and incompetent to refuse treatment. Is it jurisprudentially consistent to reach a different result solely on the basis that he committed murder (while arguably insane) and wished to assert his Faretta right to represent himself and thereby block any attempt to adjudicate his case short of a death sentence?
This case also raises the essential practical issue with respect to competency to proceed pro se or to plead guilty. The issue is not whether a higher or different standard than Dusky applies, but rather, whether or not a full inquiry is made into a defendant's decisional capacities and their ability to make a "reasoned choice" given their mental disorder. The key element is the nature and quality of the defendant's cognitive functioning and decisional abilities.
In the Godinez case, when Moran=s competence was evaluated, the examination focused solely upon his capacity to stand trial with the assistance of counsel. While one examiner that Moran “may be inclined to exert less effort towards his own defense" (at 8) and another characterized Moran as "very depressed," both found him competent. When Moran appeared at trial three months later, seeking to discharge his public defender, waive his right to counsel, and plead guilty to all three charges of capital murder, the trial judge relied upon the prior competency evaluations and a rather perfunctory colloquy, to accept his waiver and guilty plea. At his sentencing hearing, Moran presented no defense, no witnesses, and no mitigating evidence. He, like Goode, volunteered for execution.
These details are offered to highlight the fact that the U.S. Supreme Court never addressed the practical issue in Godinez. Regardless of whether the standard of competence varies across contexts, how can an evaluation in one context generalize to another? Clearly, Moran=s mental state, like the change in context, may have changed. If so, a new inquiry into competency would be constitutionally required under Pate. Arguably, the central flaw in Godinez is the assumption hat competency assessed in a particular context and time frame generalizes across contexts. While other courts have accepted Godinez that the standard for competence is invariant across contexts, they have been less accepting of this central flaw. For example, in Miles v. Stainer (1997), the Ninth Circuit Court of Appeals overturned the conviction of a defendant who had been adjudicated competent and then later plead guilty. The court ruled that the lower court should have conducted another evaluation, specific to the context in which Miles pled guilty. Miles level of competency had been fluctuating as a function of his compliance with medication, and he had been on medication when initially evaluated and off medication when he pled guilty.
One way that forensic examiners can ensure that their evaluations in one context will not be mis-applied to some other context is to directly address the issue in their reports. Thus, such language as the following should be considered: AAt the time of this report, the defendant has a good relationship with his attorney and his capacity to engage in rational choice of trial strategies, with the assistance of counsel, was unaffected by his mental disorder. Should the context of his case change, I would need to re-evaluate this defendant in order to render a reliable and current opinion as to his competency.@
Competency to confess. In some contexts, adjudicative competency may embrace the defendant’s competency to confess. The broad parameters of the relationship between competency, mental illness and the admissibility of a defendant=s confession are reasonably clear. First, in Colorado v. Connelly (1986), the Supreme Court established that the interrogation in which the defendant alleges involuntariness, on any grounds, must be custodial in nature. Second, prior to any custodial interrogation, a defendant must be appraised of his or her rights under Miranda v. Arizona (1966). Third, since those rights are constitutional in nature, any waiver of those rights must be made in a voluntary, knowing, and intelligent manner (see above). Competency to confess becomes an issue when there is a nexus between a defendant=s mental disorder or disability and his ability to waive Miranda rights, voluntarily, knowingly and intelligently.
In the custodial interrogation context, the Avoluntariness@ criterion is judged by examining the Atotality of the circumstances@ (Fare v. Michael C. (1976) as they bear on whether the decision to waive the rights is “knowing and intelligent” and Ais a product of a free and deliberate choice rather than intimidation, coercion or deception” (Moran v. Burbine, 1986 at 421). Thus, under Connelly, although external coercion and custody are a necessary predicate for suppressing a confession on the grounds of voluntariness, a confession deemed Auncoerced@ may still be suppressed on grounds that it was not made knowingly or intelligently (State v. Clemens, 2001).
Since a large number of cases are Asolved@ by confession, it is common for competency examinations to involve some inquiry into a defendant=s competency to waive his or her Miranda rights. It should be acknowledged that a complete evaluation of this issue requires specialized training, knowledge and experience. Nevertheless, if evidence against a defendant involves his or her confession, a competency examiner should be sufficiently trained to screen the issue, and make a specialty referral if appropriate..
This screening inquiry may be conceptualized within the framework of a defendant=s capacity to disclose to counsel pertinent facts, events and states of mind (Golding, 1993). Specifically, it involves an evaluation of the defendant’s ability to provide an account of police behavior at the time of apprehension and interrogation, the defendant’s comprehension of the nature of the Miranda warning, the circumstances surrounding the interrogation, and the defendant=s Aconfession behavior@ (i.e. the nature of the statement, the influence of mental disorder on the nature of the statement, the defendant=s suggestibility and its effect on compliance with interrogation pressures). Police accounts of their behavior and the statements of defendants during custodial interrogation may be at variance with the defendant=s memory or independent evidence. A defendant's ability to recognize potential distortion in the testimony of police officers, especially where interrogation interviews are not recorded, can be essential to the defense.
Excellent guidance and methods can be found in the instruments developed by Grisso (1998; 1986). These are designed to assess the capacities of defendants (both adult and juvenile) to waive their Miranda rights in a meaningful fashion. Grisso's work is a substantial contribution because these instruments provide a specific means to assess the cognitive aspects of comprehension of Miranda rights and intelligence is too global a construct to be useful.
Evaluation of the circumstances surrounding an interrogation is a complex task involving specialized knowledge of police interrogation techniques (Inbau, Reid & Buckley, 1986; Kassin, 1997; Leo, 1996), an analysis of the relationship between crime scene evidence and a defendant=s statements, an analysis of the structure of the interrogator=s and the defendant=s language (see Shuy, 1998), and an evaluation of a defendant=s susceptibility to influence and coercion (see Gudjonsson, 1992; Gudjonsson & Sigurdsson, 1999). False confessions, once thought to be a puzzling rarity, are anything but rare, as demonstrated by the Innocence Project (see www.innocenceproject.org/docs/Master_List_False_Confessions.html ; see also Kassin, 1997; Rattner, 1988; Huff, Rattner & Sagarin, 1996).
Operationalizing & Assessing Adjudicative Competency
Over the past three decades, various professional groups have developed specialized instruments to improve the legal and clinical rigor of assessments of adjudicative competency. A small subgroup of these instruments (Golding, 1993; Poythress et al., 1999) assess key aspects of “other competencies” noted above, whereas most instruments focus on more traditional notions of trial competency. At the heart of each of these instruments lies an assessment of a particular set of functional competency abilities. A comprehensive list of such abilities, organized into 11 broad domains and 31 subdomains, is provided in Table 1, which will organize our discussion in this section of promising competency assessment tools for adults (see Grisso, Chapter 36 for juveniles). Notably, virtually all research on adjudicative competency has been conducted with male defendants. Given that the rate of felony convictions for females is growing at a rate more than twice that of males (Greenfeld & Snell, 1999), future research must address concerns about the generalizability of research findings and competency assessment measures to this population (see Poythress et al., 1998; Redding, 1997; Riley, 1998).
Insert Table 1
We recommend that examiners carefully choose a competency assessment tool to include routinely in their evaluations. We do so for two reasons. First, these tools been shown to improve the reliability (and perhaps validity) of competency evaluations (see Nicholson & Kugler, 1991; Poythress & Stock, 1980; Roesch & Golding, 1980; Skeem et al., 1998). This finding is not surprising, given that researchers and clinicians have long used tools that structure the data collection and decisional process to improve the reliability and validity of psychiatric diagnoses (see Luria & Guziec, 1981). Second, despite the advantage of competency assessment tools, examiners rarely use them. In fact, extant research indicates that examiners tend to rely on traditional clinical measures of personality and intelligence (e.g., the MMPI-2) much more often than competency assessment tools that directly target the legal question at issue (Grisso, 1987; Heilbrun & Collins, 1995; Skeem et al., 1998). For these reasons, we provide a relatively detailed review of tools associated with three alternative approaches to competency assessment: screening tools, structured and semi-structured interviews, and normed tests.
Given that most defendants are found competent, screening tests have been developed to identify clearly competent defendants and eliminate them from this costly process. These tools may be used in evaluation systems to “screen in” potentially incompetent defendants for further assessment. We review two of the most thoroughly researched and frequently used screening tools here.
Competency Screening Test. The Competency Screening Test (CST: Lipsitt, Lelos & McGarry, 1971) is a 22-item sentence completion task that addresses the defendant’s perceptions of counsel and aspects of the trial that might induce emotional reactions (Grisso, 1986). Repsonses are scored on a 3-point scale, with total scores of 20 and higher considered indicative of competency. Administration time is 25 minutes or less (see Nicholson, 1988; Shatin, 1979).
The CST has acceptable inter-scorer reliability and internal consistency, and significantly predicts examiner opinions and judicial determinations of competency (Lipsett et al., 1971; Nottingham & Mattson, 1981; Randolph et al., 1981; Schreiber, Roesch, & Golding, 1987), with rates of agreement ranging from 72% to 84% (Nicholson, Briggs & Robertson, 1988). Most classification errors are false positives, with rates as high as 53% (Ustad et al., 1995; see also Grisso, 1986; Schreiber et al., 1987). This troubling tendency to label many competent defendants as incompetent may be based in part on the CST’s scoring criteria, which discriminate against defendants who express doubt in judicial fairness or disagreement with attorney advice (Brakel, 1974; Roesch & Golding, 1987). Arguably, the criteria require defendants to respond in the way the court system should be, rather than the way in which it often is.
There is little or no support for the construct validity of the CST. Because the CST has an unclear factor structure (Bagby, Nicholson, Rogers, & Nussbaum, 1992; Nicholson et al., 1988; see also Roesch & Golding, 1980), the nature of the deficits assessed and their consistency with the construct of adjudicative competency are uncertain. Moreover, the measure bears little relation to more comprehensive measures of adjudicative competency (Schreiber, 1987). For these reasons, the CST is best viewed as a brief tool for identifying areas for further inquiry in a subsequent, full evaluation. Given its limited predictive utility and poor operationalization of the competency construct, it should not be used alone.
The GCCT (Wildman et al., 1978) and GCCT-MSH possess acceptable interrater reliability and internal consistency (Nicholson et al., 1988), and reasonable rates (75-81%) of predictive utility for staff competency decisions (Nicholson et al., 1988; Wildman et al., 1978; Wildman et al., 1990). Notably, Nicholson et al. (1988) found that the GCCT-MSH was more likely to correctly predict staff’s competency decisions than the CST. Nevertheless, like the CST, the GCCT and GCCT-MSH obtain high rates of false positives, with reported estimates as high as 68% (Nicholson et al., 1988).
The GCCT and GCCT-MSH also have questionable construct validity. Although some investigators have found a two factor (Wildman et al., 1978) or three factor (Bagby, et al., 1992; Nicholson et al., 1988, Bagby et al., 1992) structure for these measures, others have been unable to replicate these findings (Rogers et al, 1996; Ustad et al., 1996). Moreover, the three factors that several investigators have identified (general legal knowledge, courtroom layout, and specific legal knowledge) provide poor coverage of the competency construct, emphasizing factual knowledge to the exclusion of decisional capacities and the ability to consult with counsel (Bagby, et al. 1992). For these reasons, like the CST, the GCCT-MSH is best conceptualized as a checklist to note possible competency deficits for further assessment in a more thorough review (Rogers et al., 2001).
Structured and Semi-Structured Interviews
Assessment of adjudicative competency may simply begin with one of these interviews, which have been a staple in competency assessment for the past thirty years. These interviews delineate areas of inquiry for trained examiners, including potential probe questions and scoring criteria for capturing various competency deficits. Because semi-structured interview formats simulate attorney-client consultations, they provide direct examination of defendants’ relational abilities that may affect their ability to assist counsel. In this section, we review three well-researched interviews and note a fourth newcomer to the field.
Competency to Stand Trial Assessment Instrument. The Competency to Stand Trial Assessment Instrument (CAI, Laboratory of Community Psychiatry [LCP], 1973) was designed as a companion tool for the CST. This semi-structured interview covers 13 competency domains that are meant to assess the (a) ability to cooperate with counsel, (b) understanding of the nature and object of the proceedings, and (c) understanding of the consequences of the proceedings (LCP, 1973). Based on interview data, trained examiners rate each domain on a 5-point scale. Each domain is intended to be interpreted and integrated into a final opinion; scores are not summed, nor are norms available.
The scoring criteria and coverage of the CAI have been subjects of criticism. The scoring criteria are vague and must be extrapolated from case examples. Moreover, because the criteria assume that a defendant is effectively represented by a competent attorney in a fair court system (Brakel, 1974; Lipsett et al., 1974), they may be somewhat biased against cynical defendants (Grisso, 1986). Of greater concern is the CAI’s limited coverage of the competency construct. For example, such key competency domains as the defendant’s capacity for reasoned choice and understanding of the implications of a guilty plea are not represented (see Table 1). The CAI also fails to cover psychopathology, which must be linked with any competency deficits in order to support a finding of incompetency (Schreiber, Roesch & Golding, 1987), and contextual factors of the trial (Grisso, 1986).
Although the CAI possesses acceptable interrater reliability (LCP, 1973; Roesch & Golding, 1980), a meta-analysis suggests that it is only moderately predictive of independent examiners’ opinions on competency (r =-.52; Nicholson & Kugler, 1991). Also, based on a sample of 120 defendants, Schreiber, Roesch and Golding (1987) found that classifications of competency based on the CAI agreed with independent court rulings in 82% of cases, and with the consensus opinion of a “blue ribbon panel” of forensic experts in 78% of cases. The CAI found a greater proportion of defendants incompetent than the expert panel, suggesting that the measure may be prone to false positives in “gray area” cases where defendants are neither clearly competent nor incompetent.
Aside from moderate associations found between the CAI and other measures of competency (Schreiber et al., 1987), there are concerns about its coverage and construct validity. If used, it should be to help structure an assessment of psycholegal deficits and supplemented with an assessment of symptomatology and consideration of the case context. Its use cannot be recommended in “gray area” or challenging cases.
Interdisciplinary Fitness Interview. The Interdisciplinary Fitness Interview (IFI; Golding & Roesch, 1983) was developed in part to refine prior instruments like the CAI by adding psychopathological and trial-contextual substance to the legal content. The revised IFI (IFI-R; Golding, 1993) elaborated the original IFI concepts and methods. Although designed to be administered jointly by a examiner and attorney, the IFI may be administered by a examiner alone. This semi-structured interview assesses current psychopathology with respect to six relevant symptoms (rated as present/absent) and psycholegal abilities with respect to four overarching competency domains (the capacity to appreciate charges and disclose pertinent facts; courtroom demeanor and capacity to understand the adversarial nature of proceedings; quality of relationship with attorney; and appreciation of and reasoned choice with respect to of legal options and consequences). Each domain is composed of 3-5 functional abilities that are rated on a three point scale for degree of incapacity. The evaluator also rates each domain and symptom on a three point scale for its relevance to the competency decision in the defendant’s particular case, and then considers the likely demands of the defendant’s case. The interview procedure is designed as an idiographic measurement of competency, and hence no summed scores or normed data are provided.
Two aspects of the IFI’s scoring criteria have been criticized. First, Melton et al. (1987) have argued against the notion of rating the importance of each deficit in determining a defendant’s competency. They reason that, because importance ratings are a function not only of competency deficits and trial demands, but also of moral judgment regarding how much deficiency produces injustice in trying a defendant, evaluators may overstep their bounds in providing these ratings. Nevertheless, courts may find it useful to understand what weights an expert places on certain data in reaching their opinions. Grisso (1987) has also criticized the lack of standard scoring criteria for each IFI item, although a comprehensive scoring manual is available.
The IFI possesses acceptable inter-rater reliability at both the item (kappa= .40-.91) and overall judgment levels (kappa=.93; Golding, Roesch & Schreiber, 1984; see also Schreiber et al., 1987). Although the IFI has strong predictive utility for examiner opinions and judicial determinations of competency (Nicholson & Kugler, 1991; Schreiber et al., 1987), its ability to predict the consensus opinion of a “blue ribbon panel” of forensic experts is more impressive. Schreiber et al. (1987) found that IFI classifications were in agreement with those of this panel in 90% of cases. This finding arguably provides some support for the construct validity of the IFI, as does its moderate correlation with other competency assessment tools (Schreiber et al., 1987).
Despite the promising results of this relatively sophisticated study, little recent research has been conducted on the IFI. As discussed later, further research on the psychometric properties and comparative validity of the IFI-R may be particularly helpful in advancing the field. Nevertheless, available data support the view that the IFI is one of the most comprehensive and “tightly conceptualized of the structured competency assessment guides” (Melton et al., 1987, p. 84). As such, it may prove a useful tool to examiners.
Fitness Interview Test. The Fitness Interview Test (FIT, Roesch, Webster & Eaves, 1984) was developed to assess the Canadian conceptualization of fitness to stand trial, which at the time closely resembled the Dusky standard (McDonald, Nussbaum, and Bagby, 1991). This structured interview addresses legal understanding (24 items) and relevant psychiatric impairment (11 items) to arrive at a general opinion (1 item). Each item is rated on a 5-point scale for degree of incapacity.
Based on a sample of 255 pretrial defendants in Canada, McDonald, Nussbaum and Bagby (1991) found that the FIT possessed good interrater reliability and internal consistency. In fact, correlations among FIT legal items (average r= .72) were high enough to suggest that the measure over-sampled a single aspect of fitness, perhaps ‘basic legal knowledge,’ given the FIT’s strong association with the GCCT (r= -.71). Although the FIT was in good agreement with independent judgments of “fitness or unfit” (Kappa = .73), agreement was more limited when these independent judgments were classified as “fit,” “questionable” and “unfit” (Kappa =.49).
Following a revision of the Canadian criteria for fitness (C.C.C., S. 2, 1991; Regina v. Taylor, 1992), Roesch, Zapf, Eaves and Webster (1998) extensively revised the FIT to address these new criteria. Unlike the FIT, the FIT-R addresses only abilities to (a) understand the nature and object of the proceedings, (b) understand the possible consequences of the proceedings, and (c) confer with counsel and assist in a defense. Following a 30-minute structured interview designed to assess these abilities, the evaluator rates whether defendant can perform each of these three general competency abilities, determines whether the accused has a mental disorder, and arrives at an overall decision on competency.
Preliminary evidence supports the use of the FIT-R as a screening device. Specifically, based on a select sample of 57 pretrial defendants in Canada, Zapf and Roesch (1997) found that FIT-R classifications often (86%) agreed with independent hospital staff decisions. All disagreements were false positives, the rate of which (14%) was substantially lower than that often found with other screening tools (e.g., CST, GCCT). As the authors note, it is preferable for a screening tool to make false positive rather than false negative errors, given that the latter risks allowing an unfit defendant to proceed.
Additional research suggests that use of the FIT-R should be restricted to Canada. Unlike the criteria for fitness applied in the United States, the more “narrow” Canadian criteria do not require defendants to possess a rational understanding of the proceedings or a capacity for making reasoned choices among legal options (see Roesch, Hart & Zapf, 1996). To determine whether operationalizations of adjudicative competency in Canada differed from those in the United States, Zapf and Roesch (2001) administered the FIT-R and MacArthur Competency Assessment Tool- Adjudicative Competency (MacCAT-CA, Poythress et al., 1999) to 100 pretrial defendants in Canada. The two measures manifested modest agreement (Kappa=.53) in their overall classifications of defendants as competent or incompetent. However, as expected, given differences in Canadian and United States law, a larger proportion of defendants were deemed unfit to stand trial based on the MacCAT (48%) than the FIT-R (32%). This suggests that the FIT-R may be overly conservative in deeming defendants incompetent when applying United States conceptualizations of adjudicative competency, which include rationality.
In summary, although more research with larger samples is needed, the FIT-R appears to be a promising screening tool for Canadian settings. Notably, however, its reliability and construct validity have yet to be established.
Evaluation of Competency to Stand Trial. Rogers recently developed the Evaluation of Competency to Stand Trial (see Rogers et al., 2001) to (a) assess more explicitly than extant measures the three prongs of the Dusky standard, and (2) create a standardized format for assessing feigned incompetency. The ECST includes four multi-item scales: Consult-with-Counsel, Factual Understanding, Rational Understanding, Atypical Presentation (i.e., potential malingering).
After exploring the ECST’s reliability in two unpublished studies of small samples, several items were deleted to create the revised ECST (ECST-R; Rogers et al., 2001). The ECST-R has acceptable rates of interrater reliability (r =.97-1.0) and internal consistency (α > .72), according to a recent studies with larger samples. A study of 149 defendants suggests that the ECST-R has a two-factor structure: (a) factual understanding, and (b) rational understanding and ability to consult with counsel (Rogers et al., 2001). The items that loaded most strongly on the latter factor reference the impact of psychotic symptoms on competency abilities and may provide too narrow a view of rational understanding and ability to consult. Moreover, this structure is inconsistent with the three-pronged version of the Dusky criteria that the measure was designed to assess. Thus, although the ECST-R is a promising tool, the data currently are too preliminary to support a recommendation for its clinical use.
Standardized, Normed Assessment Tool
Until recently, structuring interviews was viewed as the chief means for increasing the reliability and validity of competency assessment. Indeed, most tools are semi-structured interviews that produce basic scores based on subjective ratings. Long ago, Grisso (1988; see also Grisso, 1992) called for a dramatically different approach to competency assessment. He argued for the creation of a competency assessment tool with such traditional psychometric properties as standardized administration, criterion-based scoring, and normative data. Moving the practice of competency assessment under the umbrella of traditional psychological testing would involve a shift from an idiographic (case-based) to a nomothetic (group-based) framework. As explained later, this move has important and controversial implications.
The MacArthur Research Network on Mental Health and the Law responded to Grisso’s call by developing the MacArthur Competency Assessment Tool-Criminal Adjudication (MacCAT-CA; Hoge, Bonnie, Poythress, & Monahan, 1999; Poythress et al., 1999). After the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD; Hoge, Poythress, et al., 1997), was pilot tested, refined, and field tested (Bonnie et al., 1997; Hoge, Bonnie, et al., 1997; Otto et al., 1998), the results were used to develop the streamlined MacCAT-CA. The MacCAT-CA was designed to assess three lower order constructs (understanding, reasoning, and appreciation), and two higher order constructs (foundational competency/competency to assist counsel, and decisional competency, see Bonnie, 1992) believed to comprise adjudicative competency.
These three lower order constructs organize the MacCAT-CA’s 22 items into three sections. The examiner begins by reading a hypothetical vignette to the defendant about a character who is charged with assault. This vignette grounds the first two sections (16 items). The first section assesses the defendant's ability to understand information about the legal system and the process. For each item, the defendant is asked a question related to the vignette and is awarded 2 points (items are rated 0, 1, 2) if he or she demonstrates full understanding. If the defendant earns less than 2 points, the examiner discloses the answer and asks the defendant to repeat the disclosure in his or her own words to assess separately the defendant's capacity to understand and his or her actual or pre-existing understanding. The second section (8 items) assesses the defendant's ability to reason, or ability to (a) consider two pieces of factual information and identify the most important or legally relevant piece of information that the character in the vignette should disclose to his lawyer, and (b) weigh and evaluate the character’s legal options.
The final section (6 items) assesses the defendant's ability to appreciate his or her own legal circumstances and situation. This section departs from the hypothetical vignette format to explore the defendant's beliefs and perceptions about his or her personal role as a defendant and how he or she will be treated during the course of adjudication. These items are scored on the basis of the reasons that the defendant provides for his or her judgment and whether they are plausible or implausible (i.e., grounded in reality or based on delusional beliefs). Administration of the MacCAT-CA requires approximately 25-55 minutes (Otto et al, 1998) and produces criterion-based scores that may be compared with normative data on 729 defendants who (a) have been adjudicated incompetent to stand trial, (b) are receiving mental health treatment in jail, or (c) are not receiving mental health treatment in jail.
The MacCAT-CA has been the subject of two main criticisms. First, Rogers et al. (2001) have argued that the measure fails to assess a defendant’s ability to consult with counsel. Instead, they argue, the MacCAT assesses reasoning abilities that relate only peripherally to the defendant’s ability to communicate and consult effectively with his or her attorney (i.e., the ability to identify relevant hypothetical information and to make decisions about plea-bargaining). Second, and more critically, the nomothetic approach that underlies the MacCAT-CA has been criticized as inappropriate to the inherently idiographic nature of adjudicative competency (see Roesch, Hart & Zapf, 1996; Veiel & Coles, 1999; Zapf, Skeem, & Golding, 2003). The nomothetic approach assumes that competency is a personal trait or ability that is relatively stable across situations. Because the construct of competency is context-dependent, involving the functioning of a person within the demands of a particular legal situation (Golding & Roesch, 1988), it may not be amenable to this approach. Moreover, the nomothetic approach tends to assume that the trait or ability of interest is additive or dimensional. In contrast, the construct of competency involves “facets of competency [that] are singly necessary and jointly sufficient” (Roesch et al., 1996) for defining competency. Stated otherwise, adjudicative competency is a conjunctive concept that requires the presence of several potentially unrelated capacities (Coles & Pos, 1985). Depending on contextual characteristics of the case (e.g., consideration of “competency for what?” Rogers & Mitchell, 1991), a deficit in even one area may be sufficient for a finding of incompetency. With a nomothetic approach, such a deficit may result in only a slightly lower score on a particular dimensional scale. Again, adjudicative competency is an “open” construct that cannot be reduced to an inflexible list of requisite abilities or limited set of measurement rules (Zapf et al., 2003).
Despite these concerns, it is clear that the MacCAT-CA’s structure and systematization are associated with relatively strong psychometric properties. These properties were examined based on the normative sample of 729 felony defendants (Otto et al., 1998; see also Rogers, Grandjean, Tillbrook, Vitacco & Sewell, 2001). In this sample, the three scales of the MacCAT-CA demonstrated acceptable levels of internal consistency (α > .81) and interrater reliability (intraclass R > .75). With respect to predictive utility, study participants who were competent, incompetent, and questionably competent obtained significantly different MacCAT-CA scores (Otto et al, 1998). Similarly, the three MacCAT-CA scales were moderately predictive of examiners’ global ratings of competency (r=.36 to .49). As noted earlier, Zapf and Roesch (1998) found relatively good levels of agreement the FIT and MacCAT-CA, providing independent support for the scale’s convergent validity.
Otto and colleagues (1998) report that support for the construct validity of the MacCAT-CA was “found in the pattern of correlations between the MacCAT-CA measures and select clinical variables” (p. 439). The MacCAT-CA scales were moderately positively (average r = .29) associated with a measure of intelligence, and moderately negatively associated (r=-.29) with a measure of psychopathology. In contrast with Otto and colleagues’ (1998) assertion that these relationships support the construct validity of the MacCAT-CA, Zapf et al. (2003) have argued that incompetency should not be confounded with psychopathology or retardation. The MacCAT-CA’s strength of relation to intelligence and psychopathology is similar to that of its relation to clinical ratings of competency, which raises issues about its discriminant validity.
The construct validity of the MacCAT-CA has not been supported by confirmatory factor analyses conducted with the original normative sample (Zapf, et al. 2003) nor with exploratory factor analyses conducted with an independent sample of 149 mentally disordered offenders (Rogers et al., 2001). For example, Zapf et al. (2003) found that neither the three-factor model in which the scale is organized (understanding, reasoning, and appreciation) nor the two-factor model consistent with Bonnie’s theory (competency to assist counsel; decisional competency) fit the normative data. Their findings are consistent with those of Rogers et al. (2001), who found that the items based on the hypothetical vignette tended to form one factor, whereas those based on the defendant’s personal case loaded on another. Thus, the factor structure appears more a function of method variance (or the cognitive functions tapped by a particular method) than theoretical coherence.
In short, the MacCAT-CA generally appears to represent a sound normative approach to assessing adjudicative competency. The measure is unique in its attempt to assess systematically reasoning and decision-making capacities relevant to competency. The MacCAT-CA’s primary weakness lies in the fact that, however appealing norms may be, in the end such scores still need to be linked to individual and contextualized factors, as is acknowledged in the test manual Examiners who use the MacCAT-CA must heed its creators’ advice that the tool cannot be the sole basis for a competency assessment and is not intended as a “test” of competency (Poythress et al., 1999). Given the issues raised above, it is clear that the MacCAT-CA must be accompanied by case-specific inquiries about a defendant’s psycholegal abilities and consideration of his or her unique case context. Moreover, the MacCAT-CA must also be accompanied by a careful assessment of psychopathology, given that it does not include scales for assessing symptoms.
Advancing Assessment Technology
This review of contemporary normative, interview-based, and screening tools for assessing adjudicative competency suggests that there have been substantial technological advances in the field over recent years. Nevertheless, it is clear that issues remain to be resolved in future research. First, many of these measures have been criticized for their insufficient coverage of the competency construct. Most screening tools (CST, GCCT) and some interview tools (CAI; FIT-R) appear to assess only basic factual knowledge or “foundational” competency. Fewer tools (MacCAT-CA, ECST-R, and IFI-R) also appear to assess the rational knowledge and decisional capacities deemed crucial to conceptualizations of adjudicative competency in the United States. The ability of any of these tools (but perhaps particularly the MacCAT-CA) to operationalize defendants’ ability to consult with counsel has yet to be established. Notably, only the IFI-R appears to assess directly relevant “other competencies” that may be embraced by adjudicative competency. Ideally, these measures’ coverage of the competency construct will be better defined and, if necessary, improved via future research. These investigations should move beyond factor analytic studies and “eyeball analyses” of content to comparisons of scores on various measures with independent expert ratings of the basic Dusky facets and relevant aspects of “other competencies.”
Second, extant data do not speak to the issue of whether normative or interview-based tools for assessing adjudicative competency are more reliable and valid. As we are reminded by Roesch et al. (1996), “any improvement with respect to internal validity and statistical conclusion validity that stem from increased structure and systematization are achieved at the expense of reduced external and construct validity” (p. 110). Nevertheless, because normative and interview-based tools have not been subjected to a comparative trial, the extent to which the former possess relatively greater reliability and internal validity, and the latter possess greater external and construct validity is an open empirical question. The nature of this comparative trial should be responsive to two issues that have plagued past research on competency assessment tools.
First, although these leading approaches to assessing adjudicative competency differ in their theoretical structures, in practice they may lead to the same professional conclusion in all but the most difficult cases. Thus, the comparison will be strongest if conducted with “gray area” or challenging cases. As noted earlier, the vast majority of defendants who are referred for competency evaluations are deemed competent to stand trial. An additional proportion of defendants may be clearly “incompetent.” Thus, the best test of the discriminative power of these tools occurs in cases in which defendants are neither clearly competent nor incompetent (perhaps those who would score in the “questionable” range on a competency screening tool). Second, the criterion for assessing the predictive utility of the measures must be chosen carefully. In past research, researchers have relied heavily on judicial or staff findings as a criterion representing “true” competency status. Since judges typically accept the conclusory opinion of an evaluator, defining judicial agreement as a criterion for accurate assessment is tautological. Similarly, if some staff evaluators conduct unstructured or unsystematic competency assessments, their findings may represent an inappropriate basis for assessing validity. This “criterion problem” (Golding & Roesch, 1988) in assessing the predictive validity of competency determinations may be remedied, as it has in the past (Schreiber et al., 1987) by using the consensus competency judgments of a “blue ribbon panel” of forensic and legal experts as the criterion. Close examination of the reasons for disagreement among competing instruments, mirroring the best principles of cross-examination, may be a valuable method for exploring the relative construct validity of semi-structured and norm-based assessment tools.
As such research accumulates, it will further inform practitioners’ choice of a competency assessment tool. As noted earlier, we strongly recommend that such tools be used to increase the reliability of the data collection and decision-making process. However, even in the unlikely event that a “perfect” test for assessing competency was identified, the availability of that tool would not ensure high quality competency assessment practices. In the final section of this chapter, we provide general recommendations for completing and communicating evaluations of adjudicative competency that meet contemporary professional and ethical standards of practice.
Improving Competency Assessment Practices
Over the past decade, a growing number of studies have focused on the practice of competency assessment by systematically analyzing examiners’ evaluations and reports (Heilbrun & Collins, 1995; Heilbrun, Rosenfeld, Warren & Collins, 1994; LaFortune & Nicholson, 1995; Robbins, Waters & Herbert, 1997; Skeem et al., 1998). Theses studies consistently indicate that even now, “ the level of practice falls far short of professional aspirations for the field” (Nicholson & Norwood, 2000, p. 9). In this concluding section, we summarize five recommendations for improving evaluations of competency to stand trial, based on common problems identified in these investigations (see also Skeem & Golding, 1998). Because the standards of accountability for forensic evaluation are higher than those for traditional clinical assessment (American Psychological Association, 1992; Committee on Ethical Guidelines for Forensic Psychologists, 1991; Grisso, 1988), we encourage examiners to apply these recommendations.
Use the Right Tools
First, we recommend that examiners use the “right tools.” The right tools are those that directly target the relevant psycholegal issue, i.e., competency to stand trial. Examiners would do well to use one of the promising competency assessment tools reviewed above to structure their assessments. Use of these tools, with clear recognition of their necessary limitations, is likely to enhance the reliability and quality of the competency assessment. Nevertheless, examiners rarely use them (e.g., Skeem et al., 1998).
In contrast, as noted previously, examiners use traditional clinical instruments relatively often (e.g., Heilbrun & Collins, 1995; Skeem et al., 1998). Historically, examiners have been criticized for relying on such tools and failing to explain their relationship to the defendants’ competence (Eizenstadt, 1968; Elwork, 1984; Grisso, 1986, 1987). Because psychological constructs like personality and intelligence do not translate neatly into adjudicative competency, examiners would be better served by using specialized competency assessment tools than traditional clinical ones. Measures of clinical constructs that may relate to the legal issue of the defendant’s competency may be used when relevant and necessary (see Heilbrun, 1992).
Get the Right Information
Second, we recommend that examiners supplement their use of a promising competency assessment tool with additional information obtained both within and outside the interview. In the interview, the examiner must make inquiries about competency domains that are relevant to the particular case (see Table 1), but may not covered well by the competency assessment tool applied. Moreover, when competency deficits are identified through the use of the tool or interview, careful inquiries must be made to determine whether the deficit is based on a symptom of mental illness or disability. Again, the central issue with respect to adjudicative competency is the link between psycholegal deficits and psychopathology.
Clearly, information obtained within the interview should be supplemented with third party sources of information. In practice, examiners rarely secure such information (Heilbrun & Collins, 1995; Heilbrun et al., 1994; Skeem et al., 1998). As observed by Grisso (1988), an “examiner will be at a considerable disadvantage in evaluating the defendant’s competency...if the examiner does not know the basic facts of the case” (p. 41). The basic facts of the case are obtained by contacting key players (e.g., defense counsel) and obtaining necessary records (e.g., police, mental health). For example, defense counsel is a vital source of information for determining the Pate issue, the nature of the attorney-client relationship, and the contextual characteristics and likely demands of the defendant’s case. Mental health records are crucial sources of information for assessing exaggeration or minimization of symptoms. The police report on the alleged offense forms the “backbone” of the information necessary to make an informed assessment of the defendant’s capacity to disclose relevant information to counsel and appraisal of the charges and potential penalties (Golding, 1993). For these reasons, we strongly recommend that third party sources of information be routinely consulted in conducting competency assessments. Examiners must make specific, and, if necessary, repeated efforts to obtain as much information as is reasonably possible when completing the evaluation.
Take Context Seriously
Third, in determining what competency inquiries to add to the interview and how to weigh any competency deficits, examiners should take the context of the case seriously. As discussed at the opening of this chapter, adjudicative competency is, at its core, an open-textured, context-dependent construct. Thus, when attempting to assess whether a defendant is competent, an examiner must ask him or herself, “Competent for what?” (Rogers & Mitchell, 1991). Apparently, examiners rarely consider the likely demands of the defendant’s case demands in assessing competency. For example, despite the fact that the vast majority of criminal cases (over 90%) are resolved via plea bargain, we have found that examiners rarely (12%) address a defendant’s understanding of the implications of a guilty plea (Skeem et al., 1998).
Generally, examiners tend to emphasize minimal competence abilities to the exclusion of higher-order, decisional capacities that lie at the heart of the “rational” language of the Dusky standard (Nicholson et al., 1995; Skeem et al., 1998). Given that all defendants must choose their basic legal strategy, and most must be capable of competently waiving the rights involved in pleading guilty, examiners should routinely assess a defendant’s capacity for reasoned choice among relevant legal options. Although it is infinitely easier to merely assess such basic abilities as whether the defendant knows the name of his or her charge, there are compelling reasons for also ensuring that the defendant’s reasoning with respect to his or her legal choices is clear (for guidance, see Skeem and Golding, 1998).
To address the issue of “Competent for what?,” examiners must weigh any identified psycholegal deficits against the likely demands of the case, considering such factors as the severity of the charges, any fundamental constitutional rights that may be waived (e.g., right to counsel, to a jury trial, against self-incrimination), and the qualities of the defense attorney. Unfortunately, extant research suggests that examiners rarely (12%) or never (0%) assess the congruence between a defendant’s abilities and his or her case context (Skeem, et al., 1998; Robbins et al., 1998, respectively). We recommend that examiners routinely conceptualize and assess adjudicative competency as a context-textured construct.
As mentioned earlier, we also recommend that examiners clearly specify the limits of generalizability associated with their competency assessments in their reports to the court (see “Competency to proceed pro se and plead guilty”). The decisions that defendants will actually face are difficult to predict. Defendants may change their mind about their case (as in Godinez), or the case situation itself may change. Because competency for one purpose (e.g., pleading guilty) is unlikely to generalize to another (e.g., proceeding pro se), it is important to clearly communicate which domains were and were not actually assessed (Grisso, Appelbaum, Mulvey, & Fletcher, 1995; Whittemore et al., 1997).
Test and Substantiate Your Conclusions
Fourth, during the evaluation process and while you are writing the evaluation report, carefully test your conclusions and substantiate them with clear data and reasoning. As noted by Skeem and Golding (1998):
The trier of fact determines the weight to be assigned to an examiner’s opinion by evaluating the strength and persuasiveness of the expert’s analysis of the data. When examiners fail to specify the reasoning underlying their conclusions, they preempt the trier of fact from arriving at an independent and informed opinion and thereby usurp the judicial decision making role. Thus, it is essential that examiners specifically communicate their process of data interpretation to the courts. Moreover, psychologists have an ethical obligation to substantiate their conclusions in forensic reports by carefully documenting their factual bases. (p. 362, citations omitted).
Nevertheless, extant data suggest that examiners rarely substantiate their conclusions about a defendant’s competency deficits (Robbins et al., 1997; Skeem et al., 1998). Most notably, examiners rarely address the heart of the competency doctrine by describing how a particular competency deficit is related to symptoms of psychopathology or intellectual impairment. Because competency deficits based on malingering, ignorance, or transient states (e.g., fatigue, noncompliance) are not sufficient bases for incompetence, they must be ruled out. It is not enough that psychopathology and competency deficits merely coexist, given that even defendants with mental disorders can and do exhibit competency deficits based on factors other than psychopathology. In short, an examiner must demonstrate that a deficit is caused by mental illness or disability.
Obtain Specialized Forensic Training
Fifth, we recommend that examiners obtain specialized didactic training and expert supervision in conducting assessments of adjudicative competency. Any expertise attained must be maintained by keeping abreast of new legal and technological developments in the field. Most problems that have been identified with competency evaluations may be attributable to a lack of formal specialized training. Examiners who rely upon their basic skills for assessing psychopathology and attempt to generalize these skills to competency assessment are likely to fall short across key dimensions. Their evaluations may resemble minimally modified standard clinical assessments. As concluded by Skeem & Golding (1998):
Given their lack of familiarity with the competence construct, these examiners apparently focused primarily upon assessing psychopathology. If psychopathology was present concomitantly with even minimal psycholegal impairment, they often deemed the defendant incompetent without describing the link between the psychopathology and psycholegal impairment and without considering the context of the case (p. 365, citations omitted).
Informally reading articles or attending two-three day workshops is unlikely to be sufficient for improving the quality of competency evaluations (see Skeem et al., 1998). Comprehensive workshops accompanied by supervised evaluation are likely to be substantially more effective (Melton et al., 1985), if comprehensive predoctoral or postdoctoral training is not an option.
In this chapter, we have analyzed conceptualizations of adjudicative competency, alternative measures of the competency construct, and common problems with assessing competency in practice. Future research needs to examine the comparative strengths and weaknesses of the most robust and clinically useful measures. To date, only one comparative study has been published. Regardless of several good measures being available, the quality of typical forensic practice leaves much to be desired. We have attempted to propose practice guidelines that will assist both novice and experienced examiners. Two relatively recent developments hold promise for narrowing the gap between professional standards and practice in competency assessment. First, several states are developing (a) more stringent requirements for certifying clinicians as forensic examiners, and (b) systems for monitoring report quality through such mechanisms as peer review (see Appelbaum, 1992; Farkas et al., 1997). Second, with the recent creation of a specialty of forensic psychology, systems for credentialing and training are likely to become more systematized (see Otto & Heilbrun, 2002). With the institution of such measures, the quality of forensic assessments and reports would improve to a much greater extent over the next two decades than they have in the past.
1. Capacity to comprehend and appreciate the charges or allegations
2. Capacity to disclose to counsel pertinent facts, events, and states of mind
Note. CST = competency to stand trial.
a. Factual knowledge of the charges (ability to report charge label)
b. Vnderstanding of the behaviors to which the charges refer
c. Comprehension of the police version of events
a. Ability to provide a reasonable account of one's behavior around the time of the alleged offense
b. Ability to provide information about one's state of mind around the time of the alleged offense
c. Ability to provide an account of the behavior of relevant others around the time of the alleged offense
d. Ability to provide an account of police behavior
e. Comprehension of the Miranda warning
f. Confession behavior (influence of mental disorder, suggestibility, and so forth on confession)
a. Knowledge of penalties that could be imposed (e.g., knowledge of the relevant sentence label associated with the charge, such as "5 to life")
b. Comprehension of the seriousness of charges and po~ntial sentences
a. Understanding of the meaning of alternative pleas (e.g., guilty and mentally ill) b. .Knowledge of the plea bargaining process
a. Capacity to comprehend legal advice
b. Capacity to participate in planning a defense strategy
c. Plausible appraisal of likely outcome (e.g., likely disposition for one's own case) d. Comprehension of the implications of a guilty plea or plea bargain (i.e., the
rights waived on entering a plea of guilty)
e. Comprehension of the implications of proceeding pro se (e.g., the rights waived and the ramifications of waiver)
f. Capacity to make a reasoned choice about defense options (e.g., trial strategy, guilty plea, proceeding pro se, pleading insanity) without distortion attributable
to mental illness (an ability to rationally apply knowledge to one's own case)
a. Understanding of the roles of courtroom personnel (i.e., judge, jury, prosecutor) b. Understanding of courtroom procedure (the basic sequence of trial events)
a. Appreciation of appropriate courtroom behavior
b. Capacity to manage one's emotions and behavior in the courtroom
a. Capacity to track events as they unfold (not attributable to the effects of medication)
b. Capacity to challenge witnesses (i.e., recognize distortions in witness testimony)
a. Recognition that counsel is an ally
b. Appreciation of the attorney-client privilege
c. Confidence in and trust in one's counsel
d. Confidence in attorneys in general
e, Particular relationship variables that may interfere with the specific attorney- client relationship (i.e., attorney skill in working with the client; problematic socioeconomic or demographic differences between counsel and client)
a. Capacity to track proceedings given sedation level on current medication
b. Potentially detrimental effects of medication on the defendant's courtroom demeanor
3. Capacity to comprehend and appreciate the range and nature of potential penalties that may be imposed in the proceedings
4. Basic knowledge of legal strategies and options
5. Capacity to engage in reasoned choice of legal strategies and options
6. Capacity to understand the adversary nature of the proceedings
7. Capacity to manifest appropriate courtroom
8. Capacity to participate in trial
9. Capacity to testify relevantly
10. Relationship with counsel
11. Medication effects on CST
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 Assistant Professor, Department of Psychology, University of Nevada, Las Vegas, Box 455030, Las Vegas, Nevada, 89154-5030, firstname.lastname@example.org.
 Professor, Department of Psychology,
student, Department of Psychology, University
The common wording in most statutes.
AWhile psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements@ Godinez at 2682, emphasis added).
ABona fide@ doubt does not mean a Aconstructive doubt@ based upon presence of psychosis or prior mental health history, but rather a present substantial doubt based upon linkage to competency to proceed.
For example, a capital murder defendant, later found competent, may well exaggerate the nature of the physical and sexual abuse he was subjected to as a child. At the death penalty phase, when he presents mitigating evidence, the prosecution may introduce his distortions to impeach him or his experts.
 Thus, applying Harper in the context of pre-trial detainees.
 It will be interesting to watch the briefs in Sell to see if a balanced and scientifically defensible analysis of the strength and weaknesses of atypical antipsychotics in placed before the Court.
 Interestingly, the American Bar Association, in their Criminal Justice Mental Health Standards, comes down on the side of the State's interests, "A person determined to be incompetent to stand trial and detained or committed for treatment or habilitation or ordered to appear for outpatient treatment or habilitation should have no right to refuse ordinary and reasonable treatment or habilitation designed to effect competence. However, a defendant should have the right to refuse any treatment or habilitation which may impair the defendant's ability to prepare a defense to the charge, which is experimental or which has an unreasonable risk of serious, hazardous or irreversible side effects" (1989, § 7-4.10).
For an excellent discussion of treatment refusal, reasons for refusal, and the
 From a professional mental health perspective, one of the problems with many court decisions in this area is a presumption of generality of adverse effects in all individuals, based upon data that they occur in some individuals. Given the great variability of individual differences, a person-specific analysis seems warranted.
 That is, assuming that the result of a Riggins hearing is that the State prevails, or that the defendant agrees to trial while medicated and the hearing judge determines that fundamental fairness will not be compromised.
 All courts that have considered the issue agree that expert testimony is the minimum required. Riggins can be read as questioning whether this is sufficient, " We also are persuaded that allowing Riggins to present expert evidence about the effect of Mellaril on his demeanor did nothing to cure the possibility that the substance of his own testimony, his interaction with counsel, or his comprehension at trial were compromised ..." (at 1816). Similarly, as noted in Lawrence v. Georgia (1995), AAlthough a defendant is not entitled to have the jury view him or her in an unaltered, undrugged state in those instances where the requirements of Riggins are met, we hold henceforth that a defendant, who is under medication that may affect his demeanor, is entitled, upon the motion of defense counsel, to have the jury informed by the court at the beginning of the trial and in the charge to the jury that the defendant is under the influence of medication, that the defendant=s behavior in their presence is conditioned by the medication, and that the insanity asserted as defendant=s defense is to be evaluated as of the time alleged criminal acts were committed” (at 452).
 Many insanity‑pleaders are found unfit for trial and are treated, primarily with psychotropic medication, until their (predominantly) psychotic symptomatology remits. Golding, Eaves & Kowaz (1989) have shown that considerable change occurs during this time period. It is therefore extremely likely that a defendant who pleads not guilty by reason of insanity comes to trial disadvantaged if his pre-medication mental state is not preserved. An extensive Asanity@ evaluation is unlikely to have taken place, and no relatively neutral record of his/her pre‑treatment behavioral, perceptual, cognitive, affective and judgmental capacities at the time of the offense, will exist. The defendant may have changed dramatically by the time of the "insanity" evaluation, and medicated or not, if the defendant was in a disturbed state at the time and in a different state later, she/he will have difficulty recalling/describing the relevant mental state during a subsequent interview. Finally, the defendant, many months later, has a difficult time convincing a judge or jury of their mental state, especially given the strong societal suspicion of malingering and the defendant's current presentation (if fit, she/he is likely to appear in court looking like anyone else; there will be no overt symptoms of agitation, psychotic anxiety, behaving as if hallucinating , etc). Moreover, as Justice Kennedy observed, the jury may draw erroneous conclusions about remorse and other mental state attributes on account of the defendant=s (medication induced) reduced affect. In light of these considerations, while it may not be practical in all competency evaluations, examiners should consider adopting a policy of videotaping examinations when the underlying charges are especially serious. It is difficult to conduct a proper Amental status at the time of offense@ when a defendant is currently psychotic, and most often a retrospective evaluation is employed (see, generally, Simon & Shuman, 2002). Nevertheless, an attempt should be made to videotape as much of a detailed record of the defendant=s pre-treatment mental state and the mental state at the time of the offense as possible (Golding & Roesch, 1987).
 An infrequent, but extremely complicated, variant is when a defendant wishes to proceed pro se in order to prevent the introduction of a mental state defense. This is addressed in the section on competency to waive an insanity defense.
 Justice Blackmun, in his dissent, characterized the majority's position as one conferring a constitution right to make a fool of himself upon the defendant.
 This can best be accomplished by adopting both an Aarticulated standard@ approach in statutory regulation and by conducting Aarticulated interviews,@ as exemplified by the IFI-R.
Justices Stevens Brennan and Marshall, in strongly worded dissents, challenged the legal as well as moral logic of the majority=s view that since Connelly was not in Apolice custody,@ there need be no further inquiry into voluntariness [ACoercive police activity is a necessary predicate to finding that a confession is not `voluntary' A (at 167)]. Fundamentally, they argued that a confession could not be considered voluntary unless the decision to do so was the product of a free and deliberate choice, rather than the product of psychotic delusions and command hallucinations.
Hence, since Connelly was not in police Acustody@ at the time of his statment to them, his confession statement could not be suppressed on involuntariness grounds. Connelly=s incompetence to proceed was established later, but that pertained to other issues.
 The Competency Assessment Screening Test- Mental Retardation (CAST-MR, Everington & Luckasson, 1992) is also an exceptionally promising tool, but is designed specifically for defendants with developmental disabilities, a topic addressed elsewhere in this book (see Williams, Ghezzi & Burkeholder, Chapter 11).