Community Examiners' Evaluations of Competence to Stand Trial:
Common Problems and Suggestions for Improvement
Jennifer L. Skeem and Stephen L. Golding
University of Utah
Official text available in
Professional Psychology: Research and Practice
1998
Vol. 29, Pp. 357-367.
Author Note
This article is based on a master's thesis completed by Jennifer Skeem. Portions of the study upon which the article is based were presented at the American Psychological Association's 103rd Annual Convention (August, 1995).
Correspondence concerning this article should be addressed to Jennifer L. Skeem at the Department of Psychology, University of Utah, Salt Lake City, Utah, 84112. Electronic mail may be sent to skeem@psych.utah.edu
Community Examiners' Evaluations of Competence to Stand Trial:
Common Problems and Suggestions for Improvement
Abstract
With the exponential growth of forensic psychology over recent decades, an increasing number of clinical psychologists with little specialized training are becoming principal providers of forensic assessments. Based on the results of an empirical study, this article analyzes 3 fundamental problems with these psychologists' reports on competence to stand trial and provides recommendations for improvement based on legal, ethical, and professional standards of practice. We focus on the importance of (1) properly attending to the range of critical psycholegal abilities, including the defendant's decisional capacities, (2) explaining the critical reasoning that underlies one's psycholegal conclusions, and (3) using forensically relevant methods of assessment.
Community Examiners' Evaluations of Competence to Stand Trial:
Suggestions for Improving Their Logic and Forensic Relevance
The field of forensic psychological assessment continues to grow exponentially and affect an increasing number of clinical psychologists. With the rise of managed care and its financial implications, Grisso (1996) has expressed concern that psychologists with little specialized training may turn to forensic assessment for alternate sources of income, which "may have implications for the quality of court-ordered evaluation services in criminal cases" (p. 103). An appropriate domain in which to begin testing concern about the quality of evaluations completed by such "occasional experts'" (Grisso, 1987) is that of competence to stand trial (CST). Given their frequency (e.g., Steadman, Monahan, Hartstone, Davis & Robbins, 1982), CST evaluations are the form of forensic evaluations that psychologists are most likely to encounter. Moreover, examiners' reports on CST are highly influential in a legal process that implicates critical legal rights and involves considerable financial costs (e.g., Skeem, Golding, Cohn & Berg, in press; Winick, 1987; 1995). Studies have uniformly concluded that judges typically defer to the opinions of examiners, with rates of examiner-judge agreement often exceeding 90% (Hart & Hare, 1992; Reich & Tookey, 1986; Williams & Miller, 1981). Judges typically rely solely on examiners' written reports (Melton, Petrila, Poythress & Slobogin, 1997; Roesch & Golding, 1980; Steadman, 1979), and hence, the quality of the data and reasoning presented in such reports becomes a critical part of the CST adjudication process.
Despite the importance of CST assessments and reports, most jurisdictions neither set minimum standards for designating mental health professionals as forensic examiners nor provide examiners with systematic state-supported forensic training (Farkas, DeLeon & Newman, 1996; Grisso, Cocozza, Steadman, Fisher, & Greer, 1995). For example, only 19% of states require that clinicians certify for forensic assessment by completing training, an examination, or a period of supervised experience, and only 9% more report that they offer or plan to offer training (Farkas et al., 1996). Moreover, state-supported training usually consists of minimalistic, 2-day workshops (Farkas et al., 1996). Thus, there is a large group of "occasional experts," or "psychologists who supplement their general clinical practice with occasional forensic assessments" and "enter into forensic assessment with little or no specialized forensic knowledge" (Grisso, 1987, at 833).
Virtually all published studies on CST assessments have utilized clinicians who are either (1) specifically trained to use CST assessment instruments, (2) inpatient forensic facility staff, or (3) community examiners with extensive forensic training (see Grisso, 1991; Skeem, et al., in press). Few studies have investigated CST assessments in the most representative ecological context involving community-based occasional experts with little systematic forensic training. The empirical study upon which this article is based (Skeem, et al., in press) investigated the nature and quality of CST assessments completed in this real-world context.
This article presents that study's implications for professional psychologists by analyzing 3 central problems revealed with examiners' CST reports and providing suggestions for improvement based on legal, ethical, and professional standards (American Psychological Association, 1992; Borum & Grisso, 1996; Committee on Ethical Guidelines for Forensic Psychologists, 1991; Golding, 1993; Grisso, 1986, 1988; Heilbrun, 1992; Melton, Weithorn & Slobogin, 1985; Melton, et al., 1997). These central problems are (1) failure to adequately address fundamental CST abilities, including defendants' "decisional" competence (see Bonnie, 1992), (2) failure to present the critical reasoning underlying one's psycholegal conclusions, and (3) failure to employ forensically relevant methods of assessment.
In this paper, we will outline the method of our empirical study, briefly discuss our rationale for focusing on psycholegal abilities, then analyze these 3 central problems and provide suggestions for improvement. Although this article discusses key issues to consider while conducting CST assessments and communicating their results, it does not explain how to conduct these assessments or write reports for the court. The information provided here is intended to supplement forensic training and basic instruction in criminal law and psycholegal assessment (e.g., Bonnie, 1992; Grisso, 1988, 1991; Melton et al., 1997).
The Nature of the Report Evaluation Study
In the report evaluation study (Skeem, et al., in press), 100 CST evaluations referencing 50 defendants were randomly selected based on orders filed with Utah's Third District Court. These evaluations were completed by clinicians employed in the community: 80% percent were completed by Ph.D. psychologists; 14% by psychiatrists; and 6% by social workers. A total of 18 examiners, 62% of all those "state-approved," were represented in the report sample.(1) All examiners had undergone minimal state-supported training,(2) but only 2 examiners held diplomate status with the American Boards of Forensic Psychology or Psychiatry.
Two experienced forensic psychologists and the first author coded these reports with good-to-excellent rates of interrater reliability(3) (Skeem, et al., in press) using a comprehensive CST report coding manual.(4) The first 2 authors designed this manual, with the help of nationally-known experts, to distill critiques and standards regarding CST assessment and report quality. The manual coded the logic and structure of examiners' reports with respect to each report's (1) description and substantiation of the defendant's CST abilities, (2) description and substantiation of the defendant's psychopathology, (3) provision of data and reasoning for psycholegal conclusions, particularly describing any links between CST deficits and symptoms of psychopathology, and (4) corroboration of opinions with third party sources of information and forensically relevant assessment instrument data. After explaining the rationale for focusing on psycholegal abilities in CST assessment, we will note the results of this study below as relevant in their implications for professional psychologists.
The Context for CST Evaluations: Focusing on Forensically
Relevant Psycholegal Abilities
Why focus on psycholegal abilities?
The standard for CST in all jurisdictions is a variant of the federal Dusky standard which defines a defendant as incompetent if, due to mental illness or defect, he does not possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him" (Dusky v. United States, 1960, p. 171). Thus, the fundamental task for a forensic examiner is to relate any psychopathological or cognitive difficulties to possible impairments in the defendant's psycholegal abilities. Unlike traditional clinical evaluations, the existence of psychopathology is merely a starting point for CST assessments.
Forensic experts, commentators, and judicial authorities agree that examiners should assess and report on the defendant's specific psycholegal abilities and impairments (Borum & Grisso, 1996; Grisso, 1986, 1988; Golding, 1993; Melton et al., 1997; Miller & Germain, 1986; Weiter v. Settle, 1961). This recommendation is based on two principles. First, CST is a multidimensional construct (Bonnie, 1992; Roesch & Golding, 1980). As explained below, defendants are seldom globally impaired or equally functional across all competence domains. Depending upon the context of the defendant's case, the specific abilities that are impaired or spared may substantially alter conclusions about the defendant's competence. For example, a defendant with an impaired ability to testify may nevertheless be adjudicated competent if she intends to waive her right to a trial and plead guilty based on a rational decision making process.
Second, the final determination of CST is a legal matter. There is continuing debate about whether examiners should only provide data and knowledge to inform the court about the relationship between defendants' psychological characteristics and legally relevant capacities or go further to issue an opinion on the ultimate legal issue (see Golding, 1990). Without taking sides in this debate, we note that providing an opinion is the least important part of one's role as examiner. The most critical function involves advising the court about the defendant's specific abilities and deficits and explaining one's reasoned inferences about the bases for those deficits (see Carter v. United States, 1957, p. 617). An expert's opinion on the ultimate issue "rises no higher than the reasons on which it is based" (United States v. Horowitz, 1973, p. 777).
Which psycholegal abilities should be assessed?
Since the formulation of the Dusky standard, substantial attention has been devoted to understanding the particular psycholegal abilities that it encompasses. Several professional, legislative, and judicial organizations have created lists of functional psycholegal abilities which must be addressed in determining a defendant's competence (see Grisso, 1986, 1988; Florida Rules of Criminal Procedure, §3.211, 1991; Utah Code Annotated §77-15-5.4, 1994; Weiter v. Settle, 1961). Given the numerous sets of abilities that have been formulated, examiners could assess defendants' CST in a variety of ways, ideally depending on those issues most relevant to the defendant's case. Thus, to adequately represent examiners' operationalization of CST, our study assessed whether reports described the defendant's abilities or deficits with respect to 11 global domains and 31 nested subdomains (see Table 1).
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Insert Table 1 About Here
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These domains are based upon psycholegal abilities included in modern CST assessment manuals and instruments (Golding, 1993; Grisso, 1988), and "have value in that they delineate areas of inquiry for the evaluator" (Bennett, 1985, p. 377). The domains provided the foundation for addressing the three key points to be presented in the remainder of this paper, including the importance of (1) properly attending to the range of critical psycholegal abilities, including the defendant's decisional capacities, (2) explaining the reasoning that underlies one's psycholegal conclusions, and (3) using forensically relevant methods of assessment. It is to the first of these points that we now turn.
Critical Issues to Consider in Completing and Communicating
the Results of CST Evaluations
Addressing Key Psycholegal Abilities and Considering the Demands of the Case
"Decisional" versus "foundational" abilities. In early studies, examiners' reports were criticized for addressing traditional diagnostic issues to the exclusion of legally relevant issues including defendants' psycholegal abilities (Geller & Lister, 1978; Hess & Thomas, 1963; Roesch & Golding, 1977; Vann, 1965). In keeping with recent findings (Heilbrun & Collins, 1995; Nicholson, LaFortune, Norwood & Roach, 1995; cf Larkin & Collins, 1989), our study found that examiners' reports have improved in the sense that reports virtually always address the forensically relevant issue of CST (Heilbrun & Collins, 1995; Nicholson et al., 1995). However, current reports routinely emphasize minimal competence abilities and pay relatively little attention to the higher-order, decisional capacities that lie at the heart of the "rational" language of the Dusky standard (Nicholson et al., 1995; Skeem, 1996). For instance, 70% or more of reports addressed the defendant's appreciation of the charges, potential penalties, and adversarial nature of the proceedings, and her capacity to disclose information to counsel (Skeem, et al., in press). However, only 53% of the reports addressed the defendant's basic knowledge of their legal options and only 39% addressed the defendant's capacity for reasoned choice among those options. Moreover, despite the fact that over 90% of defendants resolve their cases via plea bargain (Bonnie, 1992), only 12% of the reports addressed the defendant's understanding of the implications of a guilty plea.
Because all defendants will be called upon to select "the main theory of defense" or to competently waive the specific rights involved in pleading guilty, forensic experts argue that capacities relevant to these decisions should be routinely considered in assessing competence (Bonnie, 1992, p. 307; Borum & Grisso, 1996; Freckleton, 1996; Golding, 1993; Roesch & Golding, 1980; cf Winick, 1995).(5) In addition to this pragmatic basis for assessing decisional competence, our legal system places a high value on autonomy and self-determination. Defendants are required by this system to make several fundamental decisions, particularly those involving the waiver of constitutional rights (Bonnie, 1992). In essence, "the client prerogatives to define the basic objectives of representation and to select the main theory of defense lie at the core of the idea that the client is the principal (and the attorney, the agent) in legal representation" (Bonnie, 1992, p. 307).
Decisional competence must also be assessed because individuals are often competent for one purpose but not another (Bonnie, 1992; Winick, 1995). As has been known for some time, psychopathology and mental retardation are heterogeneous and selective processes that affect some abilities in individuals while leaving others intact (see Appelbaum, 1994; Cichon, 1992). Research on competence to consent to treatment indicates that individuals' "foundational" abilities (i.e., understanding treatment information) do not necessarily predict their status on related "decisional" abilities (e.g., thinking rationally about treatment) (Grisso, Appelbaum, Mulvey & Fletcher, 1995; see also Bonnie, 1992). Thus, foundational abilities are empirically distinct from decisional capacities.
The Supreme Court's recent decision in Godinez v. Moran (1993) also highlights the importance of routinely assessing decisional as well as foundational capacities. Godinez involved a mentally disordered defendant who was found competent when he was represented by counsel, but who subsequently decided to dismiss counsel, plead guilty, and prevent mitigating evidence from being presented at his death penalty hearing. Before Godinez, the appellate courts had been divided upon whether the standard for waiving constitutional rights, including the right to counsel and the rights involved in pleading guilty, was higher than, or equivalent to, the Dusky standard (e.g., Sieling v. Eyman, 1973; Westbrook v. Arizona, 1965; cf United States v. Hewitt, 1975). In Godinez, the Supreme Court ruled that the competence standard for waiving rights was the same as the Dusky standard. However, it left unanswered the question of whether a defendant found competent based on a assessment of minimal psycholegal abilities can be assumed competent to make vital decisions even when decisional capacities were never assessed. Because Godinez left this question unanswered, but equated the competence standards for waiving fundamental constitutional rights and standing trial, examiners who do not assess defendants' decisional capacities run the risk having their reports understood as if they had. All defendants will face critical legal decisions during the resolution of their case (see Godinez v. Moran, 1993). Because they may be deemed competent to make these decisions if deemed competent to stand trial, it is absolutely critical that decisional capacities be addressed in CST assessments and reports.
Examiners may fail to address decisional abilities because these abilities are much more difficult to define and assess than foundational abilities. Hence, we will attempt to identify appropriate areas of inquiry and report for examiners based on an elementary description of Bonnie's (1992;1993; building upon Burt & Morris, 1972; Roesch & Golding, 1980; Winick, 1987) useful distinction between foundational and decisional competence. This distinction is reflected in a recently developed competence assessment instrument, and preliminary results from validation studies on the instrument appear promising (see Hoge, et al., 1997). According to Bonnie's theory, CST is understood as two separable constructs: a required "foundational" concept of competence to assist counsel and a contextualized concept of "decisional" competence. Foundational abilities are the minimal abilities defendants must possess to participate in their defense (these abilities roughly correspond to CST Domains 1, 2, and 6 in Table 1). Decisional abilities tap the cognitive tasks of understanding and rationally choosing among legal alternatives without distortion due to psychopathology (these abilities roughly correspond to CST Domains 4 and 5 in Table 1).(6) The decisional construct is contextual in the sense that the content and rigor (i.e., "demandingness") of the test for decisional competence is determined based upon the case context, including variables such as whether the defendant assents to or refuses the advice of counsel.
Although the content of the decisional construct is determined by the nature of the decisions that the defendant will face given the demands of his or her case, three general guidelines may be applied. First, as noted above, all defendants must choose a plea from among basic legal options and decide whether or not to plead guilty. Hence, defendants' decisionmaking capacities with respect to these topics must be assessed routinely (Bonnie, 1992; Golding, 1993). Second, when defendants expect to waive any fundamental constitutional right, their capacities to do so competently should be evaluated (Bonnie, 1992; Golding, 1993; see also Boykin v. Alabama, 1969; Johnson v. Zerbst, 1938). These rights include the right to counsel and to a jury trial, the right to testify and to be present at trial, and the rights involved in pleading guilty (Bonnie, 1992). Third, when defendants are expected to confront decisions which strongly implicate their personal values and autonomy (e.g., deciding whether or not to raise the insanity defense) as opposed to decisions about strategy which may be relatively delegated to the attorney (e.g., deciding whether to waive a preliminary hearing), their capacities to rationally make these choices should be assessed (Bonnie, 1992).
Unfortunately, the decisions that defendants may actually face can be difficult to predict. Defendants may change their mind about their case (as in Godinez), or the case circumstances themselves may change. Because rational decision making with respect to one domain (e.g., pleading guilty) may not generalize to another (e.g., proceeding pro se), it is important to clearly communicate which decisional domains were and were not actually assessed. For the decisional domains that are assessed, it is important to provide a thorough description of the defendant's degree of decisional ability (see Bonnie, 1992).
The most critical assessment issue with respect to decisional competence is the extent to which a defendant's psychopathology constrains or overly influences his or her choice among legal options. In addressing this issue, it is important to avoid confusing the defendant's reasoning process with his or her conclusion in assessing decisional competence (Bonnie, 1992; Golding, 1993; Winick, 1995). In the interests of protecting defendants' autonomy to make fundamental choices about their case based upon their personal values, our legal system honors even unwise decisions as long as those decisions are based on a rational assessment of legal options and their probable consequences (Faretta v. California, 1975; Frendak v. United States, 1979). Adapting Golding's (1993) example, a defendant may choose to have a jury trial rather than plea bargain, even when there is compelling evidence against him which suggests that he will serve a much longer sentence by doing so. The defendant's choice, though unwise, must be honored if it is rational (e.g., if the defendant understands the considerable risks involved, but wishes to exercise his right to defend himself because there is a slim chance that a jury will acquit him). However, the same choice reflects decisional incompetence if it is based upon irrational thought processes. For instance, if a defendant reveals that he wishes to proceed to trial because he is confident that a jury will confirm that he was justified in murdering his victim because God commanded him to do so, this raises serious doubt about his decisional competence.
This example highlights one of the most problematic issues involved in assessing reasoned choice: distinguishing between overvalued ideas and delusions (Golding, Skeem, Roesch & Zapf, in press; Walker, 1991). Although this issue exceeds the scope of this paper, it is important that examiners determine the extent to which a set of odd beliefs reflects psychopathology or unusual values. This determination may be based on the cultural, political, and religious context of the defendant's beliefs, the nature of symptoms (if any) that accompany the beliefs, and the defendant's social and treatment history. Consideration of these issues is critical in "grey area" cases where the presence of mental illness is questionable. Although legal choices based upon symptoms of psychopathology suggest decisional incompetence, decisions which express unconventional values and beliefs are regularly honored by the courts (see Golding, 1993; Saks, 1991).
In conclusion, it is tempting to merely assess foundational abilities such as whether the defendant knows the name of his or her charge. It is infinitely more difficult to define and assess rational decision making. Nevertheless, there are compelling pragmatic, legal, and empirical reasons for ensuring that a defendant's reasoning with respect to his or her legal choices is clear. In a related sense, there are cogent bases for assessing whether a defendant's competence is impaired by the effects of his or her medication.
Considering medication effects including "iatrogenic incompetence." Although most defendants in our study were medicated during their assessments, examiners rarely (18%) described assessing the impact of medication on their CST (Skeem, et al., in press). In Riggins v. Nevada (1992), the Supreme 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. This opinion stems from concerns that psychotropic medication may (a) make the defendant appear inappropriately emotionally withdrawn and remorseless during proceedings, (b) alter consciousness and induce sedation or confusion such that the defendant is less involved in proceedings, and/or (c) alter material evidence about the defendant's mental state such that insanity or psychopathology can not be observed by the trier of fact (Golding, 1993; Fentiman, 1986; Winick, 1977, 1993). Given these concerns, evaluators should routinely consider the effects of medication on competence (see Domain 11 in Table 1 for domains of inquiry).
Weighing the defendant's abilities against case demands. The fact that examiners often do not address critical, case-relevant psycholegal abilities, including decisional competence and competence while on psychotropic medication, suggests that they fail to conceptualize competence as an "open-textured," context-dependent construct (see Bonnie, 1992; Grisso, 1988; Roesch & Golding, 1980). Forensic experts often recommend that examiners (1) assess the psycholegal abilities that a defendant may require to resolve his or her particular case, then (2) weigh the defendant's level of ability against the likely demands of the case, considering factors such as the severity of the charges and qualities of the defense attorney (see Freckleton, 1995; Grisso, 1988; Miller & Germain, 1986). However, in our study, examiners virtually never (12%) described assessing the congruence between defendant's abilities and their case contexts (Skeem, et al., in press). In fact, as will be shown, examiners more generally failed to describe the psycholegal reasoning underlying their conclusions.
Providing Psycholegal Reasoning to Support Conclusions
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 (American Bar Association, 1986; Bazelon, 1975). 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 (see Bennett, 1985; Melton et al., 1997; Miller & Germain, 1986; Morse, 1978). Thus, it is essential that examiners specifically communicate their process of data interpretation to the courts (Golding, 1993; Grisso, 1986; Melton et al., 1985; Nicholson, et al., 1995). Moreover, psychologists have an ethical obligation to substantiate their conclusions in forensic reports by carefully documenting their factual bases (see American Psychological Association, §7.02, 1992; Committee on Ethical Guidelines for Forensic Psychologists, §7, 1991).
Early conceptual studies criticized examiners for issuing conclusory opinions in CST reports devoid of data-based explanations (Hess & Thomas, 1963; Roesch & Golding, 1977). More recent empirical studies (Nicholson et al., 1995; Skeem, 1996) suggest that there has been only modest improvement with respect to this issue. Nicholson and his colleagues (1995) found that only half of CST reports provided any example or rationale to support their conclusions about defendants' abilities or deficits. Our study more comprehensively analyzed the psycholegal reasoning expressed in CST reports.
The conclusions that examiners may reach in CST assessments can be organized into three categories: (a) the defendant's psychopathology, (b) the defendant's specific psycholegal abilities, and, most importantly, (c) the defendant's psycholegal impairments and the nature of the relationship, if any, between these impairments and symptoms of psychopathology. Our study indicated that, while examiners generally provide adequate reasoning to substantiate their clinical conclusions about defendants' psychopathology, they provide variable and poor substantiation for their more forensically relevant conclusions about defendant's CST abilities and CST impairments. Specifically, in over half of (67%) reports, examiners presented "multiple" or "most" of the symptoms that substantiated their diagnosis(7) of the defendant (Skeem, et al., in press). Similarly, in over half of (71%) reports, examiners provided specific examples of the symptoms they opined that defendants suffered (Skeem, et al., in press). In contrast, of the reports that concluded defendants were competent to stand trial, 41% rarely, 28% sometimes, and only 31% often supported this assertion by substantiating the defendant's specific psycholegal abilities (Skeem, et al., in press). These psycholegal abilities could be substantiated by documenting specific examples or defendant quotes which demonstrate a lack of defendant impairment. Most importantly, examiners provided even poorer substantiation for their conclusions about defendant's psycholegal impairments. It is to this issue that we now turn.
The critical issue referenced by legal standards for CST is the nexus between symptoms of psychopathology and deficits in competence. Thus, examiners must specifically assess and communicate their reasoning about the nature of the relationship between defendant's psychopathology and deficits in competence (Grisso, 1986, 1988; Golding, 1993; Melton et al., 1985, 1997; Nicholson & Kugler, 1991, Nicholson, et al., 1995; Roesch & Golding, 1980). In addition to the cogent grounds for doing so explained above (e.g., the judge must be permitted to independently assess the strength of the examiners' opinion), this form of reasoning must be provided to rule out alternate explanations for psycholegal deficits which normally would not result in a determination that a defendant was incompetent. These include the possibility that the deficit is based upon malingering, mere ignorance about legal procedures (which can be remedied via brief instruction), or transient states present during the examination such as fatigue (see Drob, Berger & Weinstein, 1987; Grisso, 1986). As Grisso (1986) notes, it is not enough that psychopathology and CST impairment(s) simply coexist: an examiner must be specifically demonstrate that the CST impairment is caused by mental illness or retardation. Even defendants with mental disorders may demonstrate CST impairments that reflect factors such as malingering to a greater extent than their psychopathology.
The scale used in this study to assess examiners' reasoning with respect to this issue may be used to assist psychologists in conceptualizing, assessing, and documenting the relationship between CST impairments and psychopathology. This scale formed the "core" of the coding manual and was carefully developed in successive iterations based on expert commentary, expert feedback, and application to trial samples of reports. In the study, when an examiner described a defendant as impaired with respect to any of the psycholegal domains listed in Table 1, raters judged the degree of relationship specified by the examiner between that CST impairment and symptomatology, using the scale explained in Table 2.(8)
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Using this scale, we found that examiners generally provided little data to support their conclusions about defendant's CST impairments. Specifically, when examiners noted CST impairments, they usually provided no description of a relationship between that impairment and symptoms of psychopathology (M=34%, SD=14)(9) or merely asserted (M= 36%, SD=13) or implied (M=19%, SD=7) that there was a relationship (Skeem, et al., in press). The reports very seldom substantiated (M=10%, SD=5) that there was a relationship by providing data or reasoning which specifically described how a defendant's psychopathology compromised his or her CST abilities (Skeem, et al., in press). Mere assertions that CST impairments are caused by psychopathology preclude the court from independently assessing the validity of such statements. Thus, it is critical that examiners assess and specifically substantiate any links between defendants' CST impairments and psychopathology. Examples of substantiated relationships which distinguish them from less acceptable descriptions of "CST impairment-psychopathology links" are provided in Table 2.
The links between CST impairments and psychopathology often become clear during a detailed examination of the defendants' psycholegal abilities using careful probes and follow up questions (see Golding, 1993; Grisso, 1988). However, in assessing CST impairment-psychopathology links, one might carefully consider the nature and content of the defendant's primary symptoms, how these might relate conceptually to the defendant's specific psycholegal impairments, then assess, as directly as possible,(10) whether there actually is a relationship between the symptom and the CST impairment (as explained below, because psychological constructs often do not translate well into legal standards, one must not merely infer psycholegal deficits based upon symptomatology). For instance, if a defendant delusionally believes that "crooked" government agencies are using whatever means necessary to prevent him from predicting and stopping terrorist acts and he simultaneously expresses reservations about whether his attorney can be trusted to act in his best interests, it may be important to probe whether the defendant mistrusts his attorney because he believes that his attorney is in league with the corrupt agencies. While doing so, it is important to entertain alternative hypotheses (see Borum, Otto & Golding, 1993). The defendant's paranoia may be unrelated to his skepticism about his attorney. He may, for instance, legitimately believe that his attorney's opinion of him may have been biased by a police report in which his offense was "blown out of proportion" in an attempt to remove him from an otherwise quiet community.
In order to assess the legitimacy of the defendant's belief, one would have to consult appropriate sources of third party information (e.g., the police report, counsel). More generally, in order to arrive at an appropriate conclusion, one would need to rely upon assessment methods that are directly relevant to the issue of competence. It is to this third and final issue that we now turn.
Using forensically appropriate methods of assessment
The role of testing in CST assessments. Historically, forensic examiners have been criticized for relying upon traditional methods of clinical assessment and failing to explain any relationship between the results of such assessments and defendants' competence (Eizenstadt, 1968; Elwork, 1984; Grisso, 1986, 1987). Our study indicates that little progress has been made with respect to this issue (see also Heilbrun & Collins, 1995; Nicholson et al., 1995).
Few (25%) of the reports in our study described using clearly relevant competence assessment instruments in their evaluations (Skeem, et al., in press). In contrast, most (69%) of the reports described administering traditional psychological instruments, which typically included intelligence (e.g., WAIS-R), personality (MMPI-2), and/or neuropsychological tests. Very few (30%) of these reports related the results of the test battery to the defendant's competence. In fact, the few reports that did merely asserted a vague relationship between the results of testing and the defendant's competence (e.g., "The defendant's verbal learning and memory abilities are impaired, and may compromise his ability to assist counsel"): none of the reports detailed a concrete relationship between the two (e.g., "The defendant's verbal learning and memory abilities are impaired, and may affect his ability to recall the events in his trial as they unfold."). Although an alternate forensically relevant purpose for traditional testing might be to rule out malingering, only 21% of the reports described using the tests to do so (Skeem, et al., in press).
Psychological testing should be used in a forensic evaluation only when it can be specifically related to the legal construct (Grisso, 1987; Heilbrun, 1992; Nicholson & Kugler, 1991). The construct of CST differs from clinical constructs such as intelligence, psychopathology, and personality. Measures of clinical constructs do not neatly translate into CST, and can produce invalid conclusions about competence (see Carbonell, Heilbrun & Friedman, 1992; Grisso, 1987; Nicholson & Kugler, 1991; Reich & Wells, 1985). Because the presence and nature of overlap between psychiatric symptoms and psycholegal abilities is fundamentally unknown (Nicholson & Kugler, 1991; Shah, 1981), we recommend that traditional tests be used only when they can be concretely related to the competence issue or used to rule out malingering. In contrast, competence-specific measures (see Grisso, 1986, for a review) should be used more routinely, since they are strongly associated with determinations of CST and promote good interexaminer reliability (see Nicholson & Kugler, 1991; Skeem, et al., in press).
Consulting third party sources of information. Examiners have also been criticized for basing their opinion solely on information obtained from the defendant's self-report during a single interview (Bennett, 1985; Bonnie & Slobogin, 1980; Grisso, 1986). Along with several contemporary studies (Heilbrun & Collins, 1995; Heilbrun et al., 1994; cf Nicholson et al., 1995), our study suggests that examiners relatively infrequently consult third party sources of information to broaden their information base and corroborate their opinions.
In our study, very few (9%) of the reports described contacting (or even attempting to contact) the defendant's attorney (Skeem, et al., in press). Although a majority (65%) of the reports described reviewing police reports on defendants' alleged crimes, only 37% cited defendants' mental health records. Based on information included in the reports, examiners' failure to consult records was virtually never based on a lack of availability of the records.
An "examiner will be at a considerable disadvantage in evaluating the defendant's [competence to stand trial]...if the examiner does not know the basic facts of the case" (Grisso, 1988, p. 41). The defendant's attorney is a vital source of information to consult in determining the (1) reason that the competence issue was raised, (2) the contextual characteristics and likely demands of the defendant's case, and (3) the nature of the relationship between the defendant and the attorney, and (4) the attorney's degree of skill and experience in handling mentally disordered defendants (Hoge, Bonnie, Poythress, & Monahan, 1992; Golding, 1993; Melton et al., 1997). Mental health records are crucial sources of external validation in assessing "malingering, exaggeration, or minimization of symptomatology and degree of disturbance" (Golding, 1993, p. 30). Similarly, the police report on the alleged offense forms the "backbone" of the information necessary to conduct an informed inquiry into a defendant's psycholegal abilities, including his or her capacity to disclose relevant information to counsel and appraisal of the charges and potential penalties (Golding, 1993). 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). Thus, we strongly recommend that third party sources of information be routinely consulted in conducting CST assessments.
The Underlying Issue: Insufficient Training
To this point, we have analyzed and provided recommendations for addressing three critical problems with occasional experts' CST reports: (1) failure to address critical psycholegal abilities, including decisional competence; (2) failure to explain the psycholegal reasoning underlying one's conclusions, and (3) failure to use forensically relevant methods of assessment. A comparison of these three problems with the more egregious problems revealed in early studies of CST reports reveals modest, but significant improvement over the past two decades. Specifically, examiners now (1) at least address the relevant issue of competence to stand trial (Heilbrun & Collins, 1995; Nicholson et al., 1995; Skeem, 1996), and (2) do not directly equate incompetence with psychosis (e.g., Skeem, 1996). Clearly, however, there is much room for improvement.
The results of our study suggest that occasional experts rely primarily upon their traditional clinical skills and attempt to generalize these to psycholegal assessments. Despite their adequate substantiation of their clinical opinions, these examiners provided little substantiation and reasoning for their forensic opinions. Despite their adequate rates of reliability with respect to a defendant's diagnosis and symptomatology, they typically disagreed with respect to a defendant's specific psycholegal abilities and impairments (see Skeem, et al., in press). Despite their thorough testing of psychological functions, they rarely employed competence assessment instruments. 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 (Skeem et al., in press) without describing the link between the psychopathology and psycholegal impairment and without considering the context of the case. These CST reports often appeared to be modified standard clinical reports.
This indicates a need for more than minimal training. Our study indicated that examiners' attendance at two annual, 2-day workshops did not improve their reports (see footnote 2). In the few states that provide forensic training, these brief workshops are the modal form of training provided (Farkas et al., 1996). These workshops appear to be of insufficient scope. Melton and his associates (1985) found that community examiners who completed a comprehensive training program in Virginia obtained higher scores on tests of forensic knowledge and completed reports which were rated more favorably by legal personnel than those completed by untrained examiners. Their training program consisted of 50 hours of lecture, demonstration, and, perhaps most importantly, supervised evaluation.
Training programs would likely be most effective if they specifically targeted common problems with examiners' forensic assessments. These include the 3 primary problems revealed in this and other empirical studies (Heilbrun & Collins, 1995; Nicholson et al., 1995) and the overlapping problems cited by expert over the past two decades (see Grisso, 1986). Also, as suggested above, training programs would ideally include a supervised evaluation component in which examiners are provided with individualized feedback.
The institution of more comprehensive, focused training programs could be accompanied by the development of more stringent certification requirements for forensic examiners and systems for systematically monitoring report quality via processes such as peer review of reports (see Appelbaum, 1992; Rarkas et al., 1997). 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. This would help promote the development of forensic psychology into a more respected and "responsible industry" (see Grisso, 1987). More importantly, instituting such programs would better protect the legal rights implicated in forensic evaluation and would ultimately save considerable sums of public moneys that are desperately needed for general mental health treatment.
References
American Bar Association (1986). Justice Mental Health Standards, §7.3.14(b). Washington, DC: A.B.A..
American Psychological Association (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611.
Appelbaum, P. (1992). Forensic psychiatry: The need for self-regulation. Bulletin of the American Academy of Psychiatry and Law, 20, 153-162.
Appelbaum, P. (1994). Almost a revolution. New York: Oxford.
Bazelon, D. (1975). A jurist's view of psychiatry. Journal of Psychiatry & Law, 3, 175-90.
Bennet, G. (1985). A guided tour through selected ABA standards relating to incompetence to stand trial. Georgetown Law Review, 53, 375-413.
Bonnie, R. (1992). The competency of criminal defendants: A theoretical reformulation. Behavioral Sciences & the Law, 10, 291-316.
Bonnie, R. (1993). The competence of criminal defendants: Beyond Dusky and Drope. University of Miami Law Review, 47, 539-601.
Bonnie, R., & Slobogin, C. (1980). The role of mental health professionals in the criminal process: The case for informed speculation. Virginia Law Review, 66, 427-522.
Borum, R. & Grisso, T. (1996). Establishing standards for criminal forensic reports: An empirical analysis. Bulletin of the American Academy of Psychiatry and Law, 24, 297-317.
Borum, R., Otto, R., & Golding, S. (1993). Improving clinical judgment and decision making in forensic evaluation. The Journal of Psychiatry and Law, Spring, 35-76.
Boykin v. Alabama, 359 US 238 (1969).
Burt, R., & Morris, N. (1972). A proposal for the abolition of the incompetency plea. University of Chicago Law Review, 40, 66-95.
Carbonnell, J., Heilbrun, K., & Friedman, F. (1992). Predicting who will regain competency: Initial promise unfulfilled. Forensic Reports, 5, 67-76.
Cichon, D. (1992). The right to "just say no:" A history and analysis of the right to refuse antipsychotic drugs. Lousiana Law Review, 53, 2840424.
Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty Guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665.
Drob, S., Berger, R., & Weinstein, H. (1987). Competency to stand trial: A conceptual model for its proper assessment. Bulletin of the American Academy of Psychiatry and Law, 15, 85-94.
Dusky v. United States, 362 U.S. 402 (1960).
Eizenstadt, S. (1968). Mental competency to stand trial. Harvard Civil Rights-Civil Liberties Law Review, 4, 379-203.
Elwork, A. (1984). Psychological assessments, diagnosis and testimony: A new beginning. Law and Human Behavior, 8, 197-203.
Faretta v. California, 422 U.S. 806 (1975).
Farkas, G., DeLeon, P., & Newman, R. (1997). Sanity examiner certification: An evolving national agenda. Professional Psychology: Research & Practice, 28, 73-76.
Fentiman, L. (1986). Whose rights is it anyway? Rethinking competency to stand trial in light of the synthetically sane insanity defendant. University of Miami Law Review, 40, 1109-1169.
Florida Rules of Criminal Procedure (1991). §3.211.
Freckleton, I. (1996). Rationality and flexibility in assessment of fitness to stand trial. International Journal of Law and Psychiatry, 19, 39-59.
Frendak v. United States, 408 A. 2d 364 (D.C. Cir, 1979).
Geller, J., & Lister, E. (1978). The process of criminal commitment for pre-trial psychiatric examination: An evaluation. American Journal of Psychiatry, 135, 53-63.
Godinez v. Moran. 113 S.Ct. 2680 (1993).
Golding, S. (1990). Mental health professionals and the courts: The ethics of expertise. International Journal of Law and Psychiatry, 13, 281-307.
Golding, S. (1993). Interdisciplinary Fitness Interview-Revised: Training Manual. Unpublished manuscript.
Golding, S., Skeem, J., Roesch, R., & Zapf, P. (in press). The assessment of criminal responsibility: Current controversies. In I. Weiner and A. Hess (Eds.), Handbook of Forensic Psychology, Second Edition. New York: Wiley.
Grisso, T. (1986). Evaluating competencies: Forensic assessments and instruments. New York: Permagon.
Grisso, T. (1987). The economic and scientific future of forensic psychological assessment. American Psychologist, 42, 831-839.
Grisso, T. (1988). Competency to stand trial evaluations: A manual for practice. Sarasota, FL: Professional Resource Exchange.
Grisso, T. (1992). Five-year research update (1986-1990): Evaluations for competence to stand trial. Behavioral Sciences and the Law, 10, 353-369.
Grisso, T. (1996). Pretrial clinical evaluations in criminal cases: Past trends and future directions. Criminal Justice and Behavior, 23, 90-106.
Grisso, T., Appelbaum, P., Mulvey, E., & Fletcher, K (1995). The MacArther treatment competence study II: Measures of abilities related to competence to consent to treatment. Law & Human Behavior, 19, 127-148.
Grisso, T., Cocozza, J., Steadman, H., Fisher, W., & Greer, A. (1994). The organization of pretrial forensic evaluation services: A national profile. Law & Human Behavior, 18, 377-393.
Hart, S., & Hare, R. (1992). Predicting fitness for trial: The relative power of demographic, criminal and clinical variables. Forensic Reports, 5, 53-54.
Heilbrun, K. (1992). The role of psychological testing in forensic assessment. Law & Human Behavior, 16, 257-272.
Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at time of offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61-67.
Heilbrun, K., Rosenfeld, B., Warren, J., & Collins, S. (1994). The use of third-party information in forensic assessments: A two-state comparison.
Hess, J., and Thomas, H. (1963). Incompetence to stand trial: Procedures, results and problems. American Journal of Psychiatry, 119, 713-720.
Hoge, S., Bonnie, R., Poythress, N., & Monahan, J. (1992). Attorney-client decisionmaking in criminal cases: Client competence and participation as perceived by their attorneys. Behavioral Sciences and the Law, 10, 385-394.
Hoge, S., Bonnie, R., Poythress, N., Monahan, J., Eisenberg, M., & Feucht-Haviar, T. (1997). The MacArthur adjudicative competence study: Development and validation of a research instrument. Law and Human Behavior, 21, 141-179.
Johnson v. Zerbst, 304 US 458 (1938).
Larkin, E., & Collins, P. (1989). Fitness to plead and psychiatric reports. Medicine, Science and the Law, 29, 26-32.
Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (1997). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, Second Edition. New York: Guilford Press.
Melton, G., Weithorn, L., & Slobogin, C. (1985). Community mental health centers and the courts: An evaluation of community-based forensic services. Lincoln NE: University of Nebraska Press.
Miller, R., & Germain, E. (1986). The specificity of evaluations of competency to proceed. Journal of Psychiatry and Law, 14, 333-347.
Morse, S. (1978). Crazy behavior, morals and science: An analysis of mental health low. Southern California Law Review, 51,527-654.
Nicholson, R., & Kugler, K. (1991). Competent and incompetent defendants: A quantitative review of comparative research. Psychological Bulletin, 109, 355-370.
Nicholson, R., LaFortune, K., Norwood, S., & Roach, R. (1995). Pretrial competency evaluations in Oklahoma: Report characteristics and consumer satisfaction. Paper presented at the American Psychological Association's 103rd Annual Convention, New York, N.Y. August, 1995.
Reich, J., & Tookey, L. (1986). Disagreements between court and psychiatrist on competency to stand trial. Journal of Clinical Psychiatry, 47, 616-623.
Reich, J., & Wells, J., (1985). Psychiatric diagnosis and competency to stand trial. Comprehensive Psychiatry, 26, 421-432.
Riggins v. Nevada 112 S.Ct. 1810 (1992).
Roesch, R., & Golding, S. (1977). A systems analysis of competency to stand trial procedures: Implications for forensic services in North Carolina. Urbana: University of Illinois.
Roesch, R., & Golding, S. (1980). Competency to stand trial. Urbana-Champaign, IL: University of Illinois Press.
Roesch, R., & Golding, S. (1986). Amnesia and competency to stand trial: A review of legal and clinical issues. Behavioral Sciences and the Law, 4, 87-97.
Saks, E. (1991). Competency to refuse treatment. North Carolina Law Review, 69, 945-999.
Shah, S. (1981). Legal and mental health system interactions: Major developments and research needs. International Journal of Law and Psychiatry, 4, 219-270.
Sieling v. Eyman, 478 F.2d 211 (9th Cir., 1973).
Skeem, J., Golding, S., Cohn, N. & Berge, G. (in press). The logic and reliability of evaluations of competence to stand trial. Law & Human Behavior.
Steadman, H.J. (1979). Beating a Rap? Defendants Found Incompetent to Stand Trial. Chicago: University of Chicago Press.
Steadman, H.J., Monahan, J., Hartsone, E., Davis, S., & Robbins, P. (1982). Mentally disordered offenders: A national survey of patients and facilities. Law and Human Behavior, 6, 31-38.
United States v. Hewitt, 528 F2d 339 (3rd Cir., 1975).
Utah Code Annotated §77-15-2 (1992); §77-15-5.4 (1994).
Vann, C. (1965). Pre-trial determination and judicial decision-making: An analysis of the use of psychiatric information in the administration of criminal justice. University of Detroit Law Journal, 43, 13-33.
Walker (1991). Delusion: What did Jaspers really say? British Journal of Psychiatry, 159, 94-103.
Weiter v. Settle, 195 F. Supp. 318 (W.D. Mo., 1961).
Westbrook v. Arizona, 384 US 150 (1965).
Williams, W., & Miller, K. (1981). the processing and disposition of incompetent mentally ill offenders. Law and Human Behavior, 5, 245-261.
Wilson v. United States, 391 F 2d 360 (1968).
Winick, B. (1977). Psychotropic medication and competence to stand trial. American Bar Association Research Journal, 3, 769-816.
Winick (1987). Incompetency to stand trial: An assessment of costs and benefits, and a proposal for reform. Rutgers Law Review, 39, 243-287.
Winick, B. (1993). New directions in the right to refuse mental health treatment: The implications of Riggins v. Nevada. William and Mary Bill of Rights Journal, 2, 205-238.
Winick, B. (1995). Reforming incompetency to stand trial and plead guilty: A restated proposal and response to Professor Bonnie. Journal of Criminal Law and Criminology, 85, 571-624.
Footnotes
1. Although a majority of the evaluations were performed by 5 examiners, the reports completed by these examiners did not differ from those provided by the remaining 13 examiners. Specifically, the frequencies with which (1) CST abilities were addressed, (2) reasoning was provided to link psychopathology with CST deficits, and (3) defendants were deemed incompetent did not differ between samples. There were also no differences in global ratings of report quality (Skeem, et al., in press).
2. This training consisted of 2 brief workshops which included a total of 8 hours of training on CST legal standards and evaluation. Half of the reports were drawn from a period preceding these workshops, and half were drawn from a period following the workshops. There were no significant differences between these groups of reports in the number of CST abilities addressed, substantiation of CST deficits, nor global ratings of quality (Skeem, et al., in press).
3. Mean estimates of reliability across various sets of variables ranged from good to excellent, based on Cichetti and Sparrow's (1981) kappa classifications. For example, pairs of coders had excellent rates of agreement on the CST domains presented in Table 1 (M kappa across domains=.93, SD=.12).
4. The coding manual is available from the first author upon request. More detailed analyses and additional data are also available upon request.
5. Although a comparison of analyses of CST standards and procedures exceeds the scope of this article, the reader is strongly encouraged to consult those cited here.
6. The abilities listed in Table 1 which are relevant to decisional competence (primarily Domains 4 and 5) combine content and requisite decisional level. For example, with respect to pleading guilty, a defendant may have knowledge about how plea bargaining works (4b), may understand the implications of a guilty plea or plea bargain, including the rights waived by doing so (5d), and, at the upper end, may have the capacity to make a reasoned choice about pleading guilty without distortion due to mental illness (5f).
7. Virtually all of the reports issued a diagnosis for the defendant (87%) and presented the defendant's symptomatology (94%) (Skeem, et al., in press).
8. The scale reflects "combinations of the following considerations: (a) the extent to which the examiner includes a specific statement that the defendant's CST impairment is based on psychopathology, (b) the extent to which the examiner provides specific data relevant to a link between the CST impairment and psychopathology, and (c) the extent to which the examiner specifically describes how the defendant's impairment is based on psychopathology" (Skeem ,et al., in press, at 8).
9. The figures reported here are the average percent of reports that obtained ratings of 0 (none), 0.5 (implied), 1 (asserted), or 2 (substantiated) across the domains listed in Table 1. For example, across CST domains, an average of 34% of reports provided no logical "link" between a CST impairment and a symptom of psychopathology.
10. In some instances, it may be impossible to directly assess the link between symptomatology and CST impairments. For instance, it may not be possible to directly assess whether a defendant's lability and poor control of his impulses would cause him behave appropriately in court. However, if the defendant had attended a court proceeding before the CST issue was raised, an examiner could obtain information about his behavior during those proceedings from his attorney. If no such information was available, an examiner might rely upon related observations (e.g., behavior during the examination) to form an opinion and carefully explain the indirect basis for the opinion to the court.