Learning Forensic Examinations of Adjudicative Competency

Stephen L. Golding, Ph.D.

Professor Emeritus

Department of Psychology

University of Utah

Chapter overview

            The purpose of this chapter is to provide mental health professionals with an introduction to the assessment of adult adjudicative competency as a forensic mental health professional. In doing so, I will attempt to outline the essential legal, ethical, professional assessment and interpretational issues. However, individuals attempting to work in this area also need to obtain supervision and learn more about the overarching ethical, legal and professional concepts and skills that are somewhat unique to forensic assessments. More comprehensive treatment of the broader issues may be found in a) Specialty Guidelines for Forensic Psychologists (SGFP; Committee on Ethical Guidelines for Forensic Psychologists, 1991); b) Principles of Forensic Mental Health Assessment (Heilbrun, 2001); and c) Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (Melton, Petrila, Poythress & Slobogin, (1997). In addition, more detailed treatment of all of the issues raised in this chapter concerning adjudicative competency may be found in Evaluating competencies: Forensic assessments and instruments (Grisso, 2003) and a series of essential reviews (Poythress, Bonnie, Monahan, Otto & Hoge, 2002;Roesch, Zapf, Golding & Skeem, 1998; Skeem, Golding & Emke-Francis, 2004; Stafford, 2003).

History and significance of adjudicative competency

            Adjudicative competency has been an issue in Anglo-Saxon jurisprudence from the early Thirteenth Century. At that time, which pre-dated a number of significant legal rights (e.g.,assistance of counsel), many types of pleas existed and a trial could not proceed without a defendant’s entering a plea. If the defendant did not, the competency issue arose in the form of a query: Was he “mute by malice,” i.e., not responding to the indictment in order to prevent a trial , or “mute by visitation by God,” i.e. unable to comprehend and respond to the charges because of mental retardation or disorder. Conceptualizations of the “competency problem” slowly changed as both the principles of jurisprudence and understanding of mental disorder matured. By the Seventeenth Century, Coke observed that allowing an incompetent defendant to proceed to trial compromised the moral authority of the court and would be “a miserable spectacle, both against the law, and of extreme inhumanity and cruelty, and can be no example to others” (see Roesch et al., 1998). A further core jurisprudential justification, that the trial of an incompetent defendant is like an unjust adversarial contest “in which the defendant, like a small boy being beaten by a bully, is unable to dodge or return the blows” also emerged (Frith’s Case, 1790). In 1899, these conceptualizations were drawn into American case law in Youtsey v. United States (1899).

            The significance of adjudicative competency can be understood both legally, procedurally and economically. In our adversarial system, it is considered a fundamental violation of fairness and due process to proceed against an incompetent defendant (Dusky v. United States, 1960). The constitutional concern about proceeding against an incompetent defendant is both pragmatic and symbolic. Pragmatically, an individual who cannot participate vigorously and effectively in his defense is denied “fundamental fairness” and may be erroneously convicted. Symbolically, the moral authority of the judicial system is diminished as was stated so eloquently in Frith’s Case (1790). Procedurally, adjudicative incompetency places a “hold” on all subsequent phases of an adjudication. Thus, an issue of a defendant’s competency is effectively an adjudicative bottleneck. Economically, competency evaluations, competency hearings and competency restoration require the majority of “forensic mental health dollars” in any jurisdiction (Golding, 1992).

Adjudicative competency as a construct

            I have long argued that competency is a “open-textured construct” in the precise sense set forth by Cronbach and Meehl (1955). Thus, competency cannot be reduced to a precise set of operational definitions (like a score of such-and-such on a test, or the presence of a given symptom or diagnosis), but is by its nature open-textured. As discussed subsequently, this is one of the main reasons why various proposals to operationalize competency, by means of nomothetic tests, often produce unsatisfactory or incomplete results. Nomothetic assessment devices, such as the MacArthur Competency Assessment Tool (MacCAT; Poythress, Nicholson, Otto et al., 1999) or the Evaluation for Competency to Stand Trial-Revised (ECST-R; Rogers, Tillbrook & Sewell, 2004), are a useful supplement to other idiographic assessment techniques and integrative strategies that contextualize a defendant’s competency in terms of the specific details of the case. Being “open-textured” however, does not mean a conceptual free-for-all; careful review and understanding of relevant constitutional cases helps to reveal the possible contours of the adjudicative competency construct, and hence the contours of an assessment of adjudicative competency.

The constitutional structure of adjudicative competency

            Relating psychopathology or intellective functioning to competency. All legal analyses of adjudicative competency are based upon the premise that competency does not have a precise relationship to either intelligence or level of psychopathological disturbance. The most common error made by inexperienced forensic examiners is to equate either extreme psychopathology or significant retardation with incompetency. Incompetent defendants are often psychotic, but psychotic defendants, in general, are not incompetent (Viljoen & Roesch, 2003). Intelligence and psychopathology function in an “if – then” fashion in terms of their relationship to competency. Presence of either mental retardation or psychopathological disturbance is merely “a threshold issue that must be established in order to ‘get one’s foot in the incompetency door’ “(Skeem, Golding & Emke-Francis, 2004). It is the “linkage” between psychopathological or cognitive limitations and functional impairment in critical psycholegal abilities that is central to the competency construct. (Skeem and Golding, 1998). Thus, the essence of a competency evaluation is not the assessment of pathology or cognitive functioning, but rather how and why this can be linked to deficits in specific psycholegal abilities that are required of a defendant in a particular case. Unfortunately, as Skeem and Golding (1998) have shown, this is most often the weakest part of competency evaluations and reports.

            Defining competency constitutionally. The basic constitutional contours of adjudicative competency were set forth in Dusky v. United States (1960):

It is not enough for (a) . ... . judge to find that "the defendant is oriented to time and place and has some recollections of events," but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. [at 402]

            A fundamental skill for a forensic examiner’s competency is knowledge of the competency statute and its interpretation in their jurisdiction. From a legal perspective, this is best accomplished by “shepardizing “ Dusky within the jurisdiction. However, most jurisdictions simply adopt the vague Dusky language. Professional levels of forensic competency are best achieved by study of those jurisdictions that have created articulated standards (e.g., Utah Annotated Code (2006), §77-15-5] and by knowledge of the professional literature . Even so, a forensic examiner must realize that the constitutional contours of competency prohibit an inflexible “list” of competency related psycholegal abilities. Thus, in Drope v. Missouri (1972), the United States Supreme Court observed that, ”[there 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” (at 180). In a subsequent section I discuss the more common psycholegal abilities usually evaluated in a standard competency evaluation, but one should realize that the specific psycholegal abilities “in play” are driven by the specific context of particular case and may involve “other competencies” not ordinarily evaluated when a defendant is represented by counsel (e.g., competency to waive counsel or waive an insanity defense recommended by counsel; competency to confess; competency to plead guilty or waive post-conviction appeals; and competency to refuse psychotropic treatment aimed at competency restoration).

            In the pivotal case of Godinez v. Moran (1993), the Supreme Court addressed the question of whether these “other competencies” (e.g., competency to proceed pro se, plead guilty, waive an insanity defense) should be judged according to the constitutionally mandated Dusky standard, or whether they should be judged by a higher standard because of the additional constitutional parameters of such decisions. The wiseness of the defendant’s decision or whether the defendant is legally sophisticated is not the issue. Rather, the issue is whether or not mental disorder compromises the defendant’s ability to make rational (though “stupid” or ill-advised) decisions. Many defendants who wish to proceed pro se or plead guilty (against the advice of counsel) do so because of depression or suicidal ideation, delusionally inspired thinking about religious issues, or extreme and idiosyncratic belief systems (usually of a political or social nature). These situations always pose difficult questions for courts and forensic examiners because distinguishing between delusionally-influenced incompetent decision-making and idiosyncratically inspired decisions pushes the boundaries of our scientific and social knowledge (Golding, Skeem, Roesch & Zapf, 1999; Litwack, 2003). While the issue legally framed in Godinez was whether a higher or different standard than Dusky applies, the more important legal and pragmatic issue is whether or not a full inquiry is made into a defendant's decisional capacities , regardless of what standard is applied to that analysis. The Godinez court found that the standards were the same, but avoided the more troubling aspect of Moran’s case. When Moran’s competence was evaluated, the examination focused solely upon his capacity to stand trial with the assistance of counsel. At that time, he was cooperating with counsel. When he appeared at trial three months later, however, he sought to discharge his public defender and plead guilty to all three charges of capital murder, without any stipulation by the prosecution as to sentence. The trial judge relied upon the prior competency evaluations to accept his waiver of counsel and guilty plea. At his sentencing hearing, Moran presented no defense, and would not permit the introduction of any mitigation. He essentially “volunteered” for execution. Regardless of whether the standard of competence varies across contexts, how can an evaluation in one context generalize to another very different context? 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 v. Robinson (1966; see discussion following). Most courts and attorneys have interpreted (incorrectly, I believe) Godinez as standing for the proposition that competency assessed in a particular context and time frame generalizes across contexts . Other courts have scrutinized the issue by a more appropriate Pate analysis and have not accepted the arguably erroneous interpretation of Godinez . As discussed below, any significant change in the context in which a defendant was evaluated may trigger the need for a re-evaluation, and evaluators should stress this issue in their reports .

                        Raising the competency issue. In Pate v. Robinson (1966), the United States Supreme Court recognized, given the constitutional imperatives involved in not proceeding against a potentially incompetent defendant, that all officers of the court [defense and prosecution counsel as well as the judge] have an obligation to raise and resolve a competency inquiry, whenever a bona fide doubt as to a defendant’s competency exists. While usually raised in a pre-adjudication context, Pate requires that the issue be resolved whenever a genuine doubt exists, and thus it may arise as contexts change before and during and subsequent to the trial, particularly with defendants whose mental state fluctuates, even while medicated . Many inappropriate competency referrals are made because officers of the court are often hesitant to deny a Pate motion for fear of a conviction being overturned on grounds that a uninvestigated and unadjudicated bona fide doubt existed. A reasonable solution to the “does a genuine doubt” exist, or “is this a redundant or inappropriate Pate motion” , is found in some jurisdictions that provide for hearing on the sufficiency of the Pate petition. Regardless of statutory language, courts have the authority to reject inadequately founded, redundant or frivolous motions (United States v, Bradshaw, 1982). Regardless of the sufficiency of a Pate petition, forensic examiners, as part of their evaluation procedure, should always ascertain the grounds for the petition from the moving party, because this provides an orientation to the particular psycholegal issues likely to be involved (Grisso, 1988; Melton et al., 1997).

            Pate has another important and often unappreciated implication. DoesGodinez limit forensic examiners and triers of fact when a “new” competency issue arises? A common misinterpretation of the Godinez holding has been that, since there is no constitutional requirement for a competency standard to be “higher” or “different” in differing contexts, then a finding that a defendant is competent to proceed, when he was evaluated in context A [e.g., cooperating with his attorney, not intending to represent himself], he is therefore also competent to proceed in context B [e.g., subsequently firing his attorney and deciding to proceed pro se]. Understanding Pate as being potentially triggered when context changes,helps us to solve this problem. Thus, whenever a bona fide doubt arises, there is a constitutional mandate to investigate competency to proceed. Thus, if the context changes, a new bona fide doubt may also arise.

            There are other important practice implications of Pate and Godinez. First, since a mentally disordered defendant’s competence can fluctuate dramatically and quickly, forensic examiners should emphasize this in their court reports, especially when such fluctuations are part of the defendant’s mental health history. Secondly, forensic examiners should be cautious about relying upon “older” mental health records, again especially when there is reason to suspect fluctuation . Third, forensic examiners should make the exact context of their evaluations clear to the court and state that their current opinions should not be taken as applicable to other, unevaluated contexts. Forensic examiners should write evaluative reports with this potential for mis-application in mind. A suggested boilerplate phrase would be something like, “Mr. X. was evaluated in the following context. [for example, he was compliant with his medication, was cooperating with his attorney, etc.]. Should the context of his case change , Mr. X would need to re-evaluated in order to render a reliable and current opinion as to his competency.”

                         Time limits for restoration.          Once a defendant has been found incompetent, other constitutional issues arise in determining a defendant’s restorability or progress towards restoration. In Jackson v. Indiana (1972), the U.S. Supreme Court addressed the issue of how long an incompetent pre-trial defendant can be held by the state in an attempt to restore competency. The Court’s holding, that a defendant “cannot 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” ( at 738), has given rise to wide jurisdictional disparities because of its vagueness. Many jurisdictions do not have so-called “Jackson limits” (Morris and Meloy, 1993;Roesch & Golding, 1979) and similarly most jurisdictions do not have a statutory scheme that dictates when and how often an incompetent defendant is re-evaluated in terms of whether or not restoration progress has been made and whether or not restorability is still a “substantial probability.” Regardless of legal difficulties, Jackson poses a problem for forensic evaluators because it presupposes a) effective restoration treatments and b) an ability to predict restorability and response to treatment.

            Little systematic research exists on the issue of the effectiveness of restoration interventions or the ability of examiners to predict accurately restorability, even though Jackson and Sell v. United States (2003; see discussion below) presume both. With respect to intervention effectiveness, a comprehensive review of the largely descriptive clinical and the scant empirical literature on psychosocial and psychoeducational restoration treatment programs for both mentally disordered and mentally retarded defendants by Pinals (2005) led her to conclude that

Overall, the competence restoration literature supports that between eighty and ninety percent of all defendants with mental illness will be able to be restored to competence, and generally this restoration has been achieved in a period of less than six months. [p. 104].

Pinals further notes that almost all restoration programs utilize a combination of psychopharmacological and psychoeducational treatment programs. As Pinals appropriately points out, however, data on either the relative efficacy of psychopharmacological and psychosocial or psychoeducational programs, explicitly called for by the Sell court are mostly lacking (see also Roesch, Ogloff & Golding, 1993). Nevertheless, the prevailing psychiatric status quo is that psychopharmacological interventions, when medically “appropriate” [i.e. almost always if the defendant has a mental disorder], are an essential component of competency restoration. This then leads to an analysis of the efficacy of psychotropic medications and medication refusal.

            Constitutional framework for involuntary medication and restoration. Medication refusal and involuntary medication in the competency context has been addressed in three important Supreme Court cases. First, in Washington v. Harper (1990), the Supreme Court ruled that individuals who have been lawfully convicted retain certain constitutional rights , but authorized constitutionally acceptable procedures for the involuntary medication of prison inmates when such treatment was medically appropriate and necessary because of dangerousness to self or others. In Riggins v. Nevada (1992), the Court extended its dangerousness justification to incompetent defendants, and also addressed the issue of whether an individual treated with psychotropic medications might be disadvantaged at trial because of those medications (what might be termed iatrogenic incompetency). On appeal to the Supreme Court, Riggins had argued that his medication altered his ability to assist his counsel and had affected his demeanor and mental state, thereby prejudicially affecting the jury=s construal of his testimony and especially his constricted affect. The Supreme Court reversed Riggins’s conviction on two principal grounds. First, the State had failed to demonstrate that Riggins’ involuntary medication was justified under Harper. Second, that the State had failed to show that, in order to adjudicate Riggins, he needed to be medicated to maintain his competency. The majority, therefore, believed that there was a substantial probability of trial prejudice. 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.

            The direct practice implication of Riggins (discussed in detail in the Sell section below) is that competency examiners need to evaluate whether or not a particular defendant, on a given level of medication, will have difficulties tracking the proceedings, consulting with counsel, engaging in appropriate cognitive abilities and displaying appropriate affect. While a few states have incorporated Riggins into their competency assessment criteria , competency examiners in other jurisdictions should also include an assessment of these important issues in their evaluations.

            The third and most problematic case is Sell v. United States (2003) Sell was diagnosed as having persecutory delusional disorder, he was found incompetent, but refused medication on grounds that delusional disorder would not respond to such treatment. He could not be medicated under a Harper rationale because he was not dangerous to self or others. The Supreme Court’s decision in Sell was a multipronged and problematic test for resolving the issue. The Court ruled that trial courts should be encouraged to decide the issue on Harper grounds, but failing that, should consider a number of specific factors.

            The first Sell prong is the State’s showing that an important governmental interest is at stake in the forcible medication of the defendant. While apparently a purely legal issue, forensic examinations are implicated because the Court indicated that a consideration in deciding the State’s “interest,” is the likelihood that he would remain in confinement if untreated and unrestored and the amount of time the defendant has already spent in confinement. Hence, examiners will be asked to assess the probability of non-restoration given treatment refusal (see United States v. Lindauer (2006)).

             The second Sell prong is that “administration of the drugs is substantially likely to render the defendant competent to stand trial. This prong has serious implications for forensic examinations, but it is very uncertain that a forensic examiner has much of a database upon which to base an opinion. Certainly, if the defendant has shown “good response” in the past without undesirable cognitive and affective side-effects, one could opine on this basis. However, based upon the existing empirical literature on the effectiveness of psychotropic medications, on what basis could one render a “substantially likely” to respond opinion? The Supreme Court may have saddled lower courts and examiners with a scientifically unworkable standard given our current knowledge of the effectiveness of antipsychotic medications.

            A careful critical analysis of the psychopharmacological outcome literature casts considerable doubt upon the oft-repeated mantra of the general effectiveness of psychotropic medications, particularly so-called second generation antipsychotic medications. One must acknowledge from the outset that a critical analysis of this area has been complicated by the more recent deluge of information concerning the appropriateness of research designs mandated by drug-industry sponsored efficacy trials, the mis-reporting of data and/or authorship, and the statistical and research design assumptions of those efficacy studies [see Heres, Davis , Maino et al. (2006); Jørgensen, Hilden & Gøtzsche (2006); Tandon, (2006)]. In addition, the external validity of most of the published psychopharmacological outcome literature is compromised because the most salient characteristics of forensic populations, e.g., comorbid substantance abuse disorders, comorbid personality disorders, and prior psychopharmacological failure, almost routinely lead to such individuals being excluded from efficacy trials. When one peers through the lens more carefully, being fully cognizant of the potentials for distortion, it is much less clear on what basis experts could opine about the likelihood of restoration given psychopharmacological interventions.

            A reasonable read of the better psychopharmacological treatment outcome literature is that, on average, one-third of clients will show both clinically and statistically significant response, one-third will show a response pattern that is perhaps statistically significant but is meager clinically, and one-third will show little, if any, response . In one of the most comprehensive and well-designed comparative outcome studies available, Lieberman, Stroup, McEvoy et al. (2005) compared mainstream second-generation antipsychotic medications and a first-generation antipsychotic in a large national sample . The principal outcome metric was “discontinuation for any reason .” Though there were some outcome differences between drugs, between 64% to 82% of the clients “discontinued.” Thus, even in a general chronically psychotic population, the base-rate for treatment ineffectiveness is quite high. While effectiveness in the special sub-population of those adjudicated psychotic and incompetent has not been studied, on logical grounds the rate of ineffectiveness can be presumed even higher, because of prior treatment failure and lowered levels of therapeutic alliance attributable to prior involuntary treatment.

            Another pragmatic implication of the “substantial likelihood of treatment response” prong is the need to assess the defendant’s medication refusal history including the bases for that refusal (See Appelbaum, 1994, for an excellent review of treatment refusal). "Treatment refusal" is a longitudinal process that reflects not only a defendant's psychopathology (e.g., lack of insight into the need for treatment, refusal to acknowledge mental disorder), but also subjective reactions to prior treatments, therapeutic alliance and prior relationships with treating personnel, experience with adverse effects, and information or mis-information about medication (Ladds & Convit, 1994). In their recent review, Heilbrun and Kramer (2005) have stressed the importance of assessing the role of coercion in a patient’s “decision” to accept or refuse the offered treatment, the importance of assessing the competence of the defendant to refuse treatment, and the critical role that concepts of procedural justice (Greer, O’Regan & Traverso, 1996; Lidz et al., 1995) can have in facilitating the “working relationship” between the treatment team and the patient. Their argument can also be extended to the importance of examining the role of the “alliance” in predicting response to psychopharmacological as well as psychosocial interventions. A number of studies report relationships between poor therapeutic alliance, a prior history of coercive treatment and low insight outcome for both psychosocial and psychopharmacological interventions (Day, Bentall, Robert et al., 2005; Gaudiano & Miller, 2006;Krupnick, Sotsky, Simmens et al., 1996).

            A final part of the “substantial likelihood of response” prong is focusing on the nature of the defendant’s insight into his disorder. A variety of specialized assessment instruments (Amador, Strauss, Yale et al. [1993]; McEvoy, Apperson, Appelbaum et al. [1989]) can be used to guide inquiry into a defendant’s insight. As part of this assessment, I would also recommend that an examiner consider using the MacArthur Competence Assessment Tool for Treatment (MacCAT-T), a semi-structured interview developed by Grisso and his colleagues (see Grisso & Appelbaum, 1998a; 1998b; ;Grisso, Appelbaum, Mulvey & Fletcher, 1995). Their instrument follows the logic of the MacCAT [discussed below] and focuses upon the individual’s understanding, reasoning and appreciation with respect to their grounds for treatment refusal. It is well-designed approach to the assessment of competence to refuse treatment in a civil context and can be adapted to the Sell context.

             The third Sell prong is a re-statement of the Court’s holding in Riggins. Essentially, there must be proof that the proposed medication “is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting the trial, thereby rendering the trial unfair” (Sell at 181). If testimony by the defendant is anticipated, examiners should attend to whether or not the defendant, on account of medication, appears to have constricted or hollow affect and whether or not he appears emotionally withdrawn. This is especially important if the defendant is going to testify in the mitigation phase of a death penalty case or in an insanity case (Eisenberg, Garvey & Wells, 1998). Even if testimony is not anticipated, jurors carefully watch the emotional expressions of defendants. Therefore, forensic examiners need to evaluate the range and nature of a defendant’s emotional expressiveness when psychotropic medications are involved. When defendants are medicated, the examiner should also attend carefully to the defendant’s ability to concentrate and to attend to verbalizations since this could impair their ability to assist counsel at trial. Another issue that arises in medicated defendants is the degree to which the defendant is able to recall his mental state at the time of offense when unmedicated. Finally, when a forensic examiner has concerns about the impact of medications on Riggins factors, it is important to consult with the treatment team to investigate whether medications can be reduced or altered. It goes without saying that the examiner’s report, with Pate in mind, should specify the exact medication profile at the time of examination and make clear that, if that profile has been significantly altered, a re-examination of the defendant in that new context would be needed. Informing the court about the nature and extent of Riggins concerns, stressed in both the original case and in Sell appears to be constitutionally mandated .

            The fourth Sell prong is the familiar “no less intrusive” interventions likely to achieve treatment response. Here again, there are implications for forensic examiners, but not much of a database upon which to rely. The fourth Sell prong is also familiar in that it stresses that the forced medication must be “medically appropriate,” i.e. based upon knowledge, that the particular drug anticipated to be used is “appropriate” for the treatment of the defendant’s medical condition. This prong is based upon the myth that there exists a body of knowledge that finds a particular drug or drug class as uniquely suited to treatment of a particular diagnosis. Empirically, there is little scientific evidence for such associations and it is common practice to prescribe sequentially. That is, drug selection is not based upon scientific criteria, but rather pragmatics( “let’s try X1, if that doesn’t work X2, if that doesn’t work X3 if... well, let’s try drug combinations.” This issue is likely to be a front-burner controversy for years to come, but as of now, most courts have paid only lip-service to the Sell criteria, accepting unelaborated “yes, Zyprexa will be substantially likely to render the defendant competent without serious side effect” testimony without scrutiny . Only a few courts have engaged in a serious Sell inquiry, and when they do, they get highly perplexing and contradictory testimony .

The assessment of adjudicative competency

            Approaches to the assessment of adjudicative competency differ in their theoretical structures, though in practice they may lead to the same professional conclusion in all but the most difficult cases .              Some competency assessment instruments, like the revised Interdisciplinary Fitness Interview (IFI-R; Golding, 1993) and Fitness Interview Test-Revised (FIT-R; Roesch, Zapf, Eaves & Webster, 1998) use an idiographic and structured clinical judgement approach. These instruments attempt to structure evaluations directly around an articulation of psycholegal abilities associated with competency evaluations as viewed through the lens of a comprehensive review of leading competency cases (See Table 1). Assessment approaches on this type concentrate on those psycholegal abilities that are most relevant to a particular context (see Skeem and Golding, 1998). While each of the psycholegal abilities is “scored,” this scoring is only meant to convey the relative importance of deficits in a particular area to the evaluator’s integrated conclusions. The scores are not meant to be summed and are not assumed to comprise a homogeneous scale.

            The other approach to competency assessment focuses on competency as a normative

 construct. The most highly studied instrument of this type is the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA; Hoge, Bonnie, Poythress, & Monahan, 1999; Poythress et al., 1999) which assesses the competency construct by focusing on three hypothesized lower order constructs: understanding, reasoning and appreciation (Bonnie, 1992). It produces criterion-based scores for each lower order construct based upon summing item scores, the scales are meant to be homogenous, and scores are referenced to a normative sample. In reality, the MacCAT-CA has also an idiographic component in that scaled scores are interpreted in light of the evaluator’s integrated judgment that includes case-specific facts and the defendant’s clinical presentation.

            A more detailed review of each of these approaches follows, but it is important to note that the extent to which either of these contemporary approaches better captures the open-textured nature of competency is an open empirical question. The question remains open because, with the exception of Golding, Roesch & Schreiber (1984), who compared an earlier version of the IFI with the CAI, and Zapf & Roesch (2002) who compared the FIT and the MacCAT-CA, no study has examined the comparative validity and utility of commonly used assessment strategies. The implications of this lack of comparative validity research is discussed subsequently.

Conceptualizing and performing a competency evaluation

            Selecting an assessment strategy. Many excellent resources exist for the practitioner interested understanding different assessment models for a competency evaluation (Grisso, 2003; Roesch et al., 1998; Skeem, Golding & Emke-Francis, 2004;Zapf & Viljoen, 2003). In reality, no one model or device suffices, so in supervision, I encourage professionals to develop their own professional identity by crafting a methodology that reflects both professional practice standards and their own views. Trying out the models of others is merely a starting place. What matters most is that the practitioner can present to the court a systematic procedure, part of which is formulated based known reliable and valid methods . A competency assessment involves both an assessment as to current psychopathological symptoms or cognitive deficits and an assessment of the linkage, if any, between these and the psycholegal abilities that constitute competency (Skeem & Golding, 1998). Competency examiners, unlike clinical mental health professionals, need to be trained in both assessment domains. While a traditional comprehensive evaluation of a defendant’s psychopathology and cognitive deficits, involving psychological tests , diagnostic interviews and the like, would be desirable in a competency evaluation context, the pragmatic reality of most community based evaluations is that a truncated version of such a clinical evaluation is often necessary . For this reason, many competency examiners utilize prior mental health records (which almost always exist in a meaningful referral) and various screening strategies to concentrate their efforts in the “clinical phase” of a competency evaluation. Examination of prior mental health records in the pre-interview stage (see below) helps set up likely areas of inquiry, screening and subsequent focused evaluation. Little attention has been paid to this problem in the forensic assessment literature, and a review of screening strategies in a competency context is needed (DeClue, 2003). Informative reviews of these and other instruments may be found in First (2003) and Rogers (2001; 2003). Much has been written about the uniqueness of forensic examiner training. An essential component of this uniqueness is the need to utilize specialized forensic assessment “tools” (Grisso, 2003; Heilbrun, 2001;Skeem, Golding & Emke-Francis, 2004).

            All existing forensic assessment instruments are “tools” in the sense that none are meant to be solely relied upon because the assessment of competency is highly contextualized, and results from one source of information are only data that need to be integrated with other data and the context in arriving at a competency judgement. For example, the MacArthur Competency Assessment Tool-Adjudicative Competency (MacCAT-CA, Poythress et al., 1999) is the most psychometrically sophisticated of available competency assessment devices, but its authors specifically state that it is not meant as a “test” for competency and its nomothetic results must be integrated with facts from the case context and the individual’s specific psycholegal abilities.

            Among the principal forensic tools that are most commonly recommend by forensic professionals in competency examinations (Lalley, 2003) are the Competency Assessment Interview (CAI;McGarry, Lelos & Lipsitt, 1973), the Interdisciplinary Fitness Interview-Revised (IFI-R Golding (1993); and the MacCAT-CA (Poythress et al., 1999). Comprehensive reviews of the strengths and weaknesses of these tools may be found in Grisso (2003), Skeem, Golding & Emke-Francis (2004), Zapf & Viljoen (2003), and Zapf & Roesch (2005). Recently, Rogers and his colleagues have introduced the Evaluation of Competency to Stand Trial-Revised (ECST-R;Rogers, Tillbrook & Sewell, 2004). Some brief comment about these instruments and their comparison is necessary. The CAI and the IFI-R are fundamentally semi-structured interviews designed to help examiners explore the domain of psycholegal abilities associated with competency. The IFI-R is a revision of the original IFI (which, in part, was a revision of the CAI). The CAI examined 13 psycholegal abilities that McGarry and his colleagues had identified from a review of the forensic literature and existing case law. It was a ground breaking development in forensic tools for competency evaluations and is still widely used. The original IFI was developed because the CAI did not completely span the construct of competency as it was currently understood and did not focus on the linkage between competency and psychopathology . The IFI-R represents a subsequent update, revised to include a more extensive linkage analysis and other psycholegal abilities associated with more modern competency cases such as Riggins and Godinez. Thus, in addition to the traditional areas of psycholegal abilities, such as understanding the role of court personnel and court processes, the IFI-R adds examination of the iatrogenic effects of medication , decisional competency with respect to rational choice of legal strategy, and competency to plead guilty or pro se. The 35 specific psycholegal abilities, organized into 11 more global domains, that constitute the IFI-R are depicted in Table 1.

For each psycholegal ability, the IFI-R guides examiners through suggested inquiries meant to explore the linkage, if any, between psychopathological symptoms or cognitive deficits and impairment in each domain The IFI-R approach is very similar to the structured clinical judgment paradigm advocated by many in the debate about approaches to risk assessment (actuarial versus structured clinical judgment methods). Each domain can be “scored” as to degree of impairment, but the scores are specifically not designed to be summed into a “competency score.”

The MacCAT-CA was developed based upon Bonnie’s (1992) conceptualization of competency as involving three key domains: understanding, reasoning and appreciation. The first two domains are assessed via 16 items that reference a short vignette describing a fight and subsequent criminal charges. The understanding items reflect understanding of core aspects of the legal system, and examiners are permitted to inform defendants about mis-understood details and then assess understanding again . Reasoning is assessed by probing if the defendant can identify the relevancy of information that is presented to them about the hypothetical case. The remaining appreciation items use the context of the defendant’s case to inquire principally into psychopathological or delusional states that would lessen the defendant’s appreciation of his specific case and case facts. Norms based upon a national sample of competent and incompetent defendants are available. The first two domains, understanding and reasoning, make sense to look at nomothetically, since they are based upon a standardized vignette. The appreciation norms, based on judgments of appreciative capacity in the defendant’s specific context, are really nothing more than judgments about that defendant’s abilities, similar to the structure of the IFI-R or the CAI. Despite the MacCAT-CA’s normative structure, its authors caution against using the three scale scores to determine competency. They stress that it is a “tool” to be integrated with clinical data and contextualized judgment.

Rogers, Jackson, Sewell et al. (2003) have recently introduced the Evaluation of Competence to Stand Trial -Revised (ECST-R). The ECST-R is “hybrid “ interview protocol designed to measure the “prongs” of the Dusky standard. It groups items into three global domains, Consult with Counsel (CWC), Factual Understanding of Court Proceedings (FAC) and Rational Understanding of Courtroom Proceedings (RAC). Each item is scored by the examiner based upon standardized questions. The ECST-R also contains a scale, termed Atypical Presentation, based upon a structured protocol and designed to detect malingering in the competency context. Rogers and his colleagues have presented encouraging data on the factor structure of the ECST-R, the internal consistency of the scale scores, and interrater reliability (Rogers, Jackson, Sewell et al., 2003) and on the ability of the ATP scale to detect feigned incompetency (Rogers, Jackson, Sewell & Harrison, 2004). The ECST-R, like the MacCAT-CA, is a normative instrument though it is rather different in its approach to the development and scoring of competency domain items. The differences are reflected in empirical data presented by Rogers, Tillbrook and Sewell (2004) who report that the ECST-R and the MacCAT-CA have only modest convergent validities, at a scale level, that range from 0.32 to 0.55. The ECST-R has a great deal of appeal for examiners working in strict Dusky jurisdictions, but is based upon a strong normative assumption that is not widely held in the field. Scores within each domain are based upon summing items within the domain and converting the total to a T-score that is then interpreted in a standard fashion. Scores on CAC and RAC are also summed and converted to T-scores. While examiners are permitted to integrate these scores with contextualized data, they are explicitly encouraged to rely upon the T-scores because such interpretations will then be accompanied by “known error rates.” This is a strong normative assumption that runs contrary to what appears to be the mainstream consensus that competency is a multifaceted construct that needs to be assessed in a contextualized fashion. Moreover, there is widespread agreement that severe impairment in only one area, despite no impairment in a broad range of areas, may be grounds for a finding of incompetency.

Comparative validity and the problem of “grey area” cases. Unfortunately, little research on the comparative validity of various competency assessment approaches is available to guide forensic examiners in their selection of “tools.” In addition, the existing validational studies mostly use a contrasted groups design which arguably inflates the discriminant validities (see Zapf, Skeem & Golding, 2005). For example, the MacCAT-CA validational sample was a “weak comparison” because it compared individuals for whom there were no competency issues raised with a group who were adjudicated incompetent. The ECST-R was validated by comparing judged “genuinely” incompetent defendants with judged “feigning” or simulated “feigning” defendants. These are weak tests of the instruments’ construct validity.

An additional difficulty with existing validational studies not using a contrasted groups design is that they use an unselected Pate referral stream. It is well known that approximately 70-80% of all individuals referred for competency evaluations are found competent (Roesch & Golding, 1980; Roesch, Zapf, Golding, & Skeem, 1999) and that the majority of competency evaluations are relatively simple determinations (Melton, Petrila, Poythress, & Slobogin, 1997; Roesch et al., 1999). Hence, the “subject pool” contains a relatively high proportion of clear-cut cases of competent defendants . In addition, the referral stream also contains a small number of acutely psychotic, untreated, highly disorganized and most likely clearly incompetent individuals (CI). Thus, statistically, most validational studies are weak tests and almost any instrument with some degree of criterion validity is going to look like it is highly accurate . Thus, a comparative validity study among instruments in this referral stream would show at least moderate convergence by chance. In fact, even inappropriate forensic assessment approaches will look reasonably “good.” For example, a simple screen for absence of psychotic symptoms or presence of gross thought disorganization would be reasonably accurate in predicting competency status. A more meaningful validational study or a comparison of competency assessment instruments would be in a “winnowed” pool, where clear-cut competent and incompetent cases have been ideally removed, but in reality, reduced, in proportion. Thus, future validational studies of whatever type should concentrate on examining their psychometric characteristics with the “tough sample.”Conducting a competency assessment

            The comments and observations that follow build upon the Interdisciplinary Fitness Interview-Revised manual and reference the domain of psycholegal abilities referenced in Table 1. A competency evaluation can be thought of as occurring in a series of stages, loosely based upon Sullivan’s (1953) conceptualization of a clinical interview.

            Pre-interview stage. What one does before a competency evaluation is as critical as the evaluation itself. Regrettably, most jurisdictions’ competency statutes do not required or facilitate the routine provision of critical materials to the evaluator, and so this must be done on one’s own . This stage essentially involves developing an individualized “road-map” of “this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics” (Golding & Roesch, 1988, p. 79).

            “This defendant” means that one knows the defendant’s mental health, and criminal/forensic history in sufficient detail to perform a meaningful evaluation. Many presumptively incompetent psychotic defendants will not be able to provide this information during an interview, and other defendants may be either unreliable historians or will deliberately “shade” their histories. Of course, complete mental health histories will rarely be available at the pre-trial competency evaluation phase of an adjudication. Nevertheless, a minimum is a discharge summary, treatment history, and social history from the most recent mental health contact, if such exists. If the individual does have a mental health history, especially in a non-forensic context, then one can perform a targeted evaluation of core symptoms and problematic patterns. A competency evaluation include an assessment of the potential for malingering, symptom or problem minimization (especially with retarded defendants) and for other problematic response styles (see below). There is a sufficient database concerning the longitudinal development of psychopathology to compare what this defendant claims with what is likely given his/her known history. Mental health history also provides a basis for judging the likelihood of competency restoration.

            In respect of criminal history, a minimum is either a state or federal summary of prior charges and dispositions. An individual with a history of many criminal justice contacts can be expected to present very differently from an individual with no prior contacts with the criminal justice system. In addition, knowledge of an individual’s criminal history will facilitate smoother segues during the detailed inquiry and linkage analysis stage by asking the defendant to compare his current situation to a prior situation.

            Knowledge of a defendant’s forensic history is also critical, in that it provides invaluable information about prior symptom-impairment links, response to treatment, especially in an involuntary treatment context, prior problems in forming therapeutic alliance [see discussion of Sell] and malingering potential. While it is rarely possible to obtain a complete forensic history in a typical pre-adjudication competency evaluation context, a minimum would be the most recent forensic evaluation. These can be obtained by the moving party either directly or through the mechanism of a court-ordered disclosure.

            “These charges,” “existing evidence” and “substantial effort of a particular attorney” translate into a series of pre-evaluation inquiries. One must obtain the charging document and a precis of the state’s evidence so that an informed evaluation can be made of the defendant’s understanding of the charges. Consultation with the moving party (to clarify case conceptualization, the range of trial strategies, what problems they have encountered in trying to represent this defendant) is necessary to evaluate the “rationality” of the defendant’s reasoning about trial strategy in light of existing evidence.

            Inception stage. As with any clinical interview, one goal of the inception is to establish rapport with the defendant, to the extent that this is possible. However, a forensic interview differs from a clinical interview in many respects (Greenberg & Shuman, 1997) and establishing rapport may be difficult because the “client” is the court who has ordered the evaluation, sometimes over the objections of the defendant. Defense attorneys have sometimes raised the competency issue against the wishes of the defendant, and at other times, the defense attorney may have “warned” the defendant that you are an “agent” of the prosecution. For whatever reason, it is not uncommon for the defendant to adopt a resistant or hostile stance towards the evaluator. In such situations, it is important to strive to maintain countertransferential neutrality and to communicate to the defendant respect for, but disagreement with, his perceptions that the relationship is adversarial in nature.

     While it is not necessary to obtain the consent of the defendant in the context of a court ordered evaluation, it is professionally required that one attempt to obtain informed assent and to describe the limits of privilege in the form of a “forensic warning” (see the American Psychological Association’s (2002) Ethical Principles of Psychologists and Code of Conduct; and Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991)). This warning has a long legal history and is based upon a defendant’s Fifth Amendment right to avoid self-incrimination (Estelle v. Smith, 1981). A detailed inquiry often results in various statements by the defendant that are tantamount to a confession or contradict subsequent trial testimony. While the prosecution may not introduce information obtained during a court ordered competency evaluation at either the trial or guilty phase, there is a gigantic exception to this, often styled as a “waiver” when the defendant is deemed to have placed his mental state into evidence. Explaining the rather complex nature of this legal waiver and limits of privilege is difficult to do with competent adults, and becomes oxymoronic with individuals who are currently psychotic, manic or have even moderate developmental disabilities. The process of attempting to obtain assent and understanding with these individuals is, in and of itself, an extremely valuable assessment window into their underlying competencies. I encourage the use of a “process approach” (see Stiles, Poythress, Hall, Falkenbach & Williams, 2001 ) as opposed to a fixed warning language or a prepared statement to be signed. A process approach involves repeated cycles of explanation of the privilege and its limits, in both abstract and concrete ways, assessing the defendant’s understanding, providing further clarifying information, eliciting and responding to questions, and re-assessing understanding. This approach is especially important in interviewing defendants facing severe penalties. For example, with capital murder defendants, I use the opportunity to explain how less forthcoming or exaggerated reports can backfire in the context of waiver and competency interviews. Thus, after the competency evaluation and the guilt phase of a trial, any attempts to introduce mitigating psychological evidence, such as physical and sexual abuse as a child, will “blow up” in the defendant’s face if he engages in a somewhat natural tendency to exaggerate the nature of his childhood abuse during a competency evaluation. When later contradicted by evidence at the penalty phase, the trier of fact is left with the impression that the defendant has a general habit of untruthfulness, which may undercut other claims.

            The inception phase also offers an opportunity for informal assessment of a number of other important issues. I routinely play down my knowledge of the defendant and his history in order to elicit free narratives. Such free narratives, as opposed to responding to direct questions or option-posing questions, allow for an assessment of the defendant’s linguistic abilities, memorial capacities, interpersonal style and possible deceptive strategies.

            The reconnaisance phase. The phase obtains data that is critical to the subsequent linkage analysis that is at the heart of a competency evaluation. Having foreknowledge of a defendant’s mental health history allows for a more targeted evaluation of relevant psychopathology. While it is a matter of chosen style, I prefer to “mix” psychopathological and psycholegal reconnaisance. The goal is to obtain an overall picture of the defendant’s psychological and psychopathological strengths and weaknesses, as well as their psycholegal abilities, in order to determine which areas are in need of the detailed inquiry that follows in the next phase. Areas of psychopathological difficulties and their links to psycholegal abilities are successively probed in context. An illustrative sequence might be as follows:

E: “Tell me everything you can about what happened prior to your arrest.”

D: [Short narrative that includes, “Before I went over to her house, I smoked part of a joint.”]

E: [Loop into history and extent of all substance abuse; segue to relationship to criminal/forensic history]

E: “Have you ever done anything that got you into legal trouble while you were high?“ D: [ Relates three Driving under the influence charges; segue to understanding certain aspect of legal system]]

E.:”What was the outcome of those charges?”

D: [Relates one charge dropped, one resulted in fine and some jail time, last one put on probation with conditions by mental health court]

At this point, the examiner would choose a segue to one of several relevant lines of inquiry. For example, psychopathological history, treatment and outcome history, psycholegal abilities such as understanding available pleas, possible relevance of intoxication to alleged charge and so forth. After looping through these, the examiner would return to the main theme.

E: “OK, I understand a lot more now about how drugs have affected your life. Let’s get back to the day of the incident. Tell me more about what you did before you went over to her house.”

             If, in describing his prior arrest and plea bargain to have charges stayed and placed under the supervision of mental health court, it was clear that the defendant understood the basic roles of court personnel, it might prove unnecessary to probe this part of the domain of psycholegal abilities further, except for a brief follow up to check for contextual differences: “Do you think there is anything different the role of the judge, prosecutor or your defense attorney in this case?”

            Thus, rather than adopting a fixed structured interview style that examines each area sequentially as dictated by some manual, I believe that more “connected” interviews can be achieved by knowing the domains of questions well enough to flexibly flow from one topic to another, making sure that ultimately all psycholegal areas depicted in Table 1 have been probed . At the end of the reconnaisance stage, the psycholegal abilities, potentially linked to psychopathological/cognitive symptoms, that are “in play” should be quite clear to the examiner and are probed in depth in the next phase.

            The detailed inquiry stage.         Little research exists on the important topic of why defendants are evaluated or adjudicated as incompetent. Skeem et al. (1998) found that, while examiners show relatively high overall rates of agreement as to final judgments of incompetency, they were wildly discrepant in their reasons for finding an individual incompetent. I believe this is so because examiners often fail to probe the clear “linking logic” that connects symptoms and psycholegal abilities. Skeem et al. (1998) and Skeem and Golding (1998) forcefully demonstrated the general lack of “linking logic” in a random sample of competency evaluations. Thus, the most critical phase of a competency evaluation, the detailed inquiry, focuses on that linking logic. The issue of linkage basically comes down to providing the trier of fact with the logic that connects and substantiates the psychopathological data with the psycholegal conclusion about impairment in a relevant psycholegal ability.

            For example, suppose the defendant is a paranoid schizophrenic whose symptoms are partially controlled by anti-psychotic medication. A conclusion that he is incompetent on account of his being psychotic is completely without any linking logic. A conclusion that he is incompetent because he (genuinely) has a delusion that there is a government conspiracy against him and the prosecutor, as a government agent, is part of that conspiracy is closer, but still lacks linking logic. A conclusion that he is incompetent because, on account of his delusion that the prosecutor is conspiring against him, he believes that the plea bargain offered, which he “understands,” must be rejected because the prosecutor cannot be trusted, even though the offer is in writing, is closer still. A conclusion that he is incompetent because, in addition to the above, he believes that attempts by his defense counsel to explain the “pros and cons” of accepting the plea bargain prove that the defense counsel is also part of the conspiracy, and that therefore he intends to represent himself and call the head of the CIA as a witness pretty much hits the nail on the head.

            The point of the detailed inquiry is to examine each of the identified potentially problematic psycholegal abilities in terms of how they relate to the individual’s psychopathology and/or cognitive impairment. Implicit in the linkage analysis is a consideration of whether or not the observed deficit is more closely linked with other causes than the defendant’s psychopathology. That is, the examiner must consider plausible rival hypotheses (Skeem and Golding, 1998).

                         Assessment of malingering and deception . The concept of malingering, deception and other problematic presentation styles covers a wide territory ranging from minimization of pathology, through feigned pathology to exaggerated pathology ( see Rogers (1997) for a detailed review). Clinical psychologists are accustomed to assessing this psychometrically with validity scales from the MMPI-2 or the PAI (see, for example, Arbisi & Ben-Porath, 1998; Bagby, Nicholson, Bacchiochi et al. , 2002; Berry, Baer, Rinaldo & Wetter, 2002; Edens, Cruise & Buffington-Vollum, 2001). Given the desirability of examining converging information sources , using the psychometrically sound validity indices from these instruments makes sense, when they are available or it is feasible to administer these instruments . This is routinely done in inpatient evaluation contexts, but infrequently done in outpatient evaluations. Regardless, it is also necessary to assess malingering from a clinical interviewing perspective (for interview strategies for malingered psychosis, for example, see Resnick (1997)) and to consider use of specialized forensic assessment instruments such as Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby & Dickens, 1992). The SIRS systematically assesses feigning of symptoms using a variety of interview strategies such as rare symptoms, and improbably symptom combinations to identify various deceptive strategies. It takes between 30 minutes and an hour to administer, and is considered by most forensic psychologists to the the “gold standard” (Lalley, 2003).

            The same logic that produced the SIRS has also been used by Rogers to develop the Atypical Presentation Scale of the ECST-R. It is unfortunate that no studies exist on the detection of malingering in forensic contexts with sophisticated defendants. That is, while research suggests that many malingering cases can be reliably detected by these sorts of instruments (Rogers et al., 2004), the populations studied have been based on either simulation designs or contrasted groups involving “likely malingerers .” The problem with this research is that the items on the SIRS or the Atypical Presentation Scale are rather obvious to sophisticated malingerers. In addition, there is some reason to believe that scores on these instruments are unduly influenced by intelligence and suggestibility (Pollock, 1996). Recently, Hurley & Deal (2006) have shown disturbingly high false positive rates in assessing malingering with either the SIRS or the TOMM (Tombaugh, 1996) in mentally retarded non-defendants, even when instructed to perform optimally A newly developed instrument, the Miller Forensic Assessment of Symptoms (M-FAST, Miller, 2001) is based upon the SIRS logic, though it is shorter and designed as a screening instrument. Early validity and reliability data appear promising (Miller, 2004; Zapf & Galloway, 2002).

            Regardless of the approach taken, evaluation of malingering is necessary in all competency evaluations. The examiner should seek converging sources of data from traditional and forensic assessment devices , and integrate that information with clinical observation. In addition to the methods described above, detailed observation of individuals in inpatient settings and jails, when possible, provides invaluable information. Finally, a modicum of common sense is helpful. If one knows the individual’s criminal justice and mental health history in detail, claimed impairments can be evaluated in a more meaningful context.

            Assessment from a multisource perspective. Heilbrun (2001) and Skeem, Golding & Emke-Francis (2004) have appropriately stressed the importance of integrating “third party” information into a competency evaluation. Police reports are important and should be compared with the defendant’s ability to recall critical aspects of the alleged crime and surrounding behavior. Claims of amnesia are common and should be rigorously pursued from a multisource perspective, not relying upon the defendant’s claim. Police reports also help to frame the critical evidence against the defendant and hence form the basis for inquiry into the defendant’s ability to engage in rational choice of defense strategy. They also allow an investigation into the defendant’s ability to provide relevant information to counsel (see Table 1). Information should also be obtained from defense counsel concerning contextual aspects of the case (i.e., what is likely to be required of the defendant), the nature of counsel’s interpersonal interactions with the defendant and the nature of counsel’s interactions with the defendant that led to a Pate doubt. Criminal history records provide a glimpse into the defendant’s experience with the criminal justice system and the defendant’s past psycholegal abilities. Mental health records provide both an opportunity to target likely realms of psychopathology, as well as important information relevant to the assessment of malingering. An examiner’s report that stresses multisourced data and carefully links that data to conclusions is the goal. Examiners should also be aware that use of third party or collateral information is potential problematic at the guilt phase of a trial, since an argument can be made that reliance upon such data violates a defendant’s right to confront and cross-examine witnesses against him (see People v. Goldstein (2005) for an insightful discussion of this issue). It is for this reason that the original SGFP (Committee on Ethical Guidelines, 1991) and its proposed revision (American Psychology-Law Society, 2006) stress the importance of carefully documenting and attempting to corroborate such collateral data that form a critical aspect of one’s opinion .

Termination of the examination. A number of defendants directly ask about the examiner’s opinions at the end of an interview. Opinions about how to handle this vary widely. If the examiner has a fairly clear idea as to what will be communicated to the court and defense and prosecution counsel, I believe it is permissible to communicate the essence one’s opinion (obviously, in a appropriately tentative fashion). If one has not yet formed an opinion, this too can be communicated. I routinely ask defendants at this stage if there are any questions they have of me. Clearly one cannot respond to questions outside of one’s knowledge or competence (“Do you think I’ll end up serving time?”), but legitimate questions can be answered (“If the judge finds me incompetent, what is likely to happen?”). Treating the defendant with dignity in this manner helps to preserve the possibility of reasonable rapport with future examiners. Both Section 9.10 of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) and Section 12.05 of the proposed revision of the Specialty Guidelines for Forensic Psychology (American Psychology-Law Society, 2006) require such feedback (unless prohibited by law of the jurisdiction or institution), although the SGFP provides somewhat more detailed and helpful guidance.

            A thorny issue that sometimes emerges at the end of an interview has to do with the individual who has communicated reasonable grounds for believing he or someone else is at risk or who appears to be either not treated or inappropriately treated. While the examiner is not in a clinical relationship with the defendant as client, I believe that professional standards of practice would require some reasonable action on the part of the forensic examiner. The closest any ethics code comes to addressing this issue in a forensic context is Section 6.05 of the proposed revised Specialty Guidelines (American Psychology-Law Society, 2006). Essentially, one should inform the party who has retained the examiner’s services (e.g., attorney, legal representative, court) of one’s concerns and the basis for them. Depending upon the jurisdiction, reasonable belief that there is a risk of imminent harm to another may require other actions as well.

Case analysis

            Because it illustrates a number of the basic points of this chapter, I have chosen the case of Brian David Mitchell, the alleged kidnapper of Elizabeth Smart. All of the details in this section, including the data sources relied upon, methodologies, and the logic and conclusions of all three examiners are in the public domain as part of Judge Atherton’s opinion, available on the Internet (Atherton, 2005). All forensic reports in this case are sealed. No aspect of those reports, not contained in Judge Atherton’s opinion, nor any other detail of the case, even those testified to in open court, are included in this section.

            Essential case facts. Mitchell is alleged to have broken into the Smart’s home, kidnaped Elizabeth, taken her as his plural wife, sexually assaulted her and taken her across state lines. He and his then current wife [Wanda Barzee] were arrested when they returned to Salt Lake City with Elizabeth a little less than a year later. Mitchell was referred for a competency evaluation, on account of his seemingly bizarre beliefs and unwillingness to discuss critical case and mental state issues with counsel. Mitchell refused to talk with the court appointed examiners despite several attempts to do so. After we each evaluated Mitchell using different methodologies, I opined that he was incompetent and Dr. Gardner opined the opposite. Prior to a hearing, defense counsel privately retained Dr. Skeem, and at that time Mitchell was willing to speak with her. She ultimately opined that despite serious concerns, she considered him “situationally competent” to proceed in a very specific context [pursuing a plea bargain] and needing to be re-evaluated if any significant change in context occurred. Subsequently, Mr. Mitchell had a revelation that Satan was trying to trick him into accepting the plea bargain. Dr. Skeem notified counsel that she now doubted his competence even on the original narrowed grounds, and counsel moved for another re-evaluation of Mitchell under Pate (deterioration of mental condition), and he was re-evaluated by all three examiners, though he now refused to speak with Dr. Skeem. Dr. Skeem and I ultimately opined that he was delusional and incompetent, and Dr. Gardner opined that he was still competent, although had a severe narcissistic personality disorder.

            Refusal of interview. May a forensic examiner ethically opine on a psycholegal issue if the defendant refuses an interview? Yes, but only under special circumstances: a) a sincere attempt to obtain interview data must take place; b) the opinion must be appropriately conditioned as to limits of reliability and validity; and c) a database sufficient to support the conditioned opinion must exist [see EPPCC and SGFP]. This situation is not unusual in competency and insanity evaluation contexts with delusional defendants, those that lack insight into their psychosis (agnosognosia) or certain individuals with extreme political or religious beliefs. In this case, I agreed to attempt the evaluation, and after interviewing a variety of family members and individuals who knew Mitchell over the years, reading a number of his writings (both before and after arrest), watching a detailed interview of Ms. Smart (who was a remarkable historian of Mitchell’s conversations with her and events) and FBI interviews of Mitchell immediately after his arrest, reading Ms. Smart’s diary and reviewing prior mental health and social records (a complete list of all examiners’ sources is in the Court’s opinion), I decided that I could satisfy Utah’s burden of proof (preponderance of the evidence) in conjunction with professional standards.

            Framing the case-specific competency issues. Mitchell’s writings as well as videotapes and interactions with counsel left no doubt that he was quite intelligent and theoretically had no difficulties with various foundational psycholegal abilities. For example, he clearly knew, in one sense, the role of the judge, prosecutor and defense counsel. However, in a more meaningful sense, as applied to him, there was a question of his competency in that regard because he believed that Satan especially worked through “good people” and that he had to be especially vigilant for “signs” that these people were not acting on behalf of Satan. Thus, he came to question the motives of the prosecutor (and his defense counsel, and ultimately Dr. Skeem) because he saw signs that this was the work of Satan who was tempting him to accept the plea bargain instead of following God’s revelation that he was the “Davidic King” [the messiah] who needed to be matryred in order to bring on the battle between himself and the AntiChrist. Similarly, he “knew” that Judge Atherton could sentence him essentially to a life term if he was found guilty, but he believed that no defense was permissible, since “he must endure sacrifice for the salvation of the righteous and must suffer a symbolic martyrdom by passively submitting to being convicted and incarcerated’ (Atherton, p. 21). Besides, if God willed it, as He had done with Peter and Paul, he would be released within a specified time interval. Obviously, considerable doubt existed as to decisional competencies (allowing himself to be defended, making rational choice of defense strategies and the like). It was clear to all that the competency issue essentially rested on one issue: Was his belief system delusional or was it merely an extreme form of religious belief? If the former, then many domains of his psycholegal abilities might be compromised, and if the latter, then his “choices” were unusual or extreme, but the result of extreme narcissism, not mental disorder.

            Distinguishing delusion from extreme belief and linkage to competency. I had confronted this issue in a prior case and, in conjunction with Dr. Skeem (who was then a graduate student), worked on a logic to address this issue. An early version of this was published as part of a forensic assessment chapter (Golding et al., 1999). Since then, additional empirical and clinical data have become available to guide decision making. Nevertheless, the issue remained such that it was important to stress to the Court that “differentiating [extreme religious belief, overvalued ideas, and delusionality] is fraught with difficulty and that no one can claim the ability to do so with great certainty or reliability” (Atherton opinion, p. 28). This case therefore illustrates the core point of this chapter that it is the linkage between data and conclusion, and the logic of that linkage, that is central to a forensic evaluation. The essence of the (publically available) data and the linkage analysis was as follows.

            Some of Mitchell’s religious beliefs (personal revelation) are mainstream beliefs within the Church of Jesus Christ of Latter Day Saints (LDS); others, such as the need to re-establish plural marriage, have been abandoned by the LDS Church and are considered apostate, although held by a significant minority of “fundamentalists”; others, such as a need to be matyred to bring about the final battle with the AntiChrist, or that the AntiChrist will be financed by the World Bank, are extreme and rare, but not totally unique; finally, some, such as that he is the “Davidic King” or that he must capture, when indicated by God through certain “signs” particular young women to become his plural wives to build his kingdom, are totally unique and shared only by him and Ms. Barzee . It would be “shaky” to use the mere content of these unique beliefs (even though they pushed the limits of subcultural “normativeness” in that only he and his wife had these beliefs) as a grounds for diagnosing delusional disorder. Modern thinking, along with some research (see Pierre, 2001) suggests that content of belief is less important than the process or manner of belief, and that degree of preoccupation, deterioration in social functioning and distress on account of the delusion are factors that help differentiate delusion from extreme beliefs. In addition, new research and clinical observations exist on the nature of the prodromal development of psychosis (see Møller & Husby, 2000; Stanton & David, 2003). Integrating these literatures illustrates both the multisource and linkage principles discussed in this chapter.

            (Public) Data and linkage analysis. Starting in early adolescence, he began to exhibit odd “aggressive, cruel and sadistic” behavior and speech towards his siblings, felt that his mother was trying to poison him, and that fumes from autos would infect him. Around this time, multiple family members also described a change from his childhood personality, particularly withdrawing and isolating himself. When he exposed himself to an 8 year old, a psychological evaluation was performed and he was diagnosed as a “behavior disorder of adolescence – withdrawing reaction with some paranoid tendencies” (Atherton, p. 9). Despite recommendations, there was little followup by Mitchell, his family or the State. He became heavily involved with alcohol and drugs and dropped out of high school.

            As a young adult, he became heavily involved with religion and “embarked on a self-described search for God” and “sampled” Hare Krishna, various Protestant faiths, Christian Science and Buddhism. He subsequently had a “conversion” experience, returned to the LDS Church, obtained his GED, took University courses, and was socially involved with friends and family. After a tumultuous second marriage and divorce, he met and married Ms. Barzee, became very involved with the mainstream LDS Church and held several positions of responsibility. He was also regularly employed. He thus achieved a fairly high level of social, interpersonal and vocational functioning for a number of years.

            After a few years, “Family members recall that (he) became more preoccupied with religious ideas and describe him as self-righteous and increasingly adamant that he had a ‘special role.” ... (they) began to isolate themselves from their families. When family members would question the two about their beliefs and conduct, they would often react defensively and appeared to become increasingly paranoid.” He now saw the LDS Church as apostate and himself and Ms. Barzee as “special, unique and superior because of their religious experiences and self-understanding.” (p. 13). Eventually, they believed that they must rid themselves of wordly belongings. They became homeless. They began to explore a number of fringe religious, political and alternative medicine groups. “All of these groups ultimately rejected (them) because of their overbearing attitudes with respect to their religious beliefs.” (p. 13)

            Their beliefs and behavior became increasingly more extreme, as did their isolation and preoccupation. At this point, Mitchell now firmly believed that his thoughts and actions, indeed his will, was controlled by God, as were the actions of others towards him. That is, he now acted as he thought God was commanding him to act. Moreover, those commands not only came in the form of revelation, but also by special signs that were sent to him by means of the “meaning” of events that happened to him. In psychopathological language, he was having passivity experiences and his thinking was becoming extremely referential. For example, he “knew” that Ms. Smart was meant to be his plural wife because of what he perceived in her face and demeanor during what was, in reality, a chance meeting at an outdoor market.

            Additional data supported the extent of the breakdown of his social functioning (not even recognizing former friends; being avoided by other homeless persons; being rejected even by the most extreme religious and political groups). Distress was documented in a number of ways (he experienced a great deal of subjective distress on account of his experiences; his belief system was focused on members of his family and former friends and mentors and led to confrontations with them).

            The above data, in the context of what is known about delusions, the impact of psychosis on social functioning, and the prodromal development of psychosis led me to conclude that Mitchell’s thinking was delusional, not merely extreme or narcissistic.

            The connection (linking logic) between this delusionality and impairments in many of the domains of psycholegal abilities depicted in Table 1 are expressed in Judge Atherton’s final holding:

“ It is the court’s conclusion that the preoccupation, distress, and impaired social functioning exhibited by Defendant are symptoms of a delusional disorder and are not merely the logical outcomes of choices made by someone with extreme religious beliefs who also suffers from a narcissistic personality disorder. Defendant’s religious beliefs are, therefore, delusional. Because a delusional belief is one based upon incorrect inferences about external reality ... , it necessarily follows that Defendant’s ability to accurately perceive and interpret external reality is impaired and, therefore, that he lacks the capacity to realistically determine what is in his own best interests. Since having the capacity to realistically determine what is in one’s own best interests is nothing more or less than having the ability to make reasoned, rational choices, it follows from the court’s conclusion that because Defendant’s religious belief system is the basis upon which he makes decisions concerning his criminal case, he also lacks the capacity to consult with counsel with a reasonable degree of rational understanding and is, pursuant to section 77-15-1(1), incompetent to proceed to trial. ... The court finds that Defendant has present adequate capacity to comprehend and appreciate the charges against him, the range and nature of the possible penalties that may be imposed, and the adversary nature of the proceedings against him. See Utah Code Ann. § 77-15-5(4)(a)(i), (iii), and (v). The court further finds that Defendant has an impaired capacity to disclose to counsel pertinent facts, events, and states of mind, engage in reasoned choice of legal strategies and options, manifest appropriate courtroom behavior, and testify relevantly, if applicable.” Utah Code Ann. § 77-15-5(4)(a)(ii), (iv), (vi), and (vii). The court further finds that Defendant’s mental disorder substantially interferes with his relationship with counsel and, therefore, that his mental disorder has resulted in “his inability to consult with his counsel and to participate in the proceedings against him with a reasonable degree of rational understanding.” Utah Code Ann. § 77-15-2(2). Therefore, the court concludes that Defendant is incompetent to proceed to trial. (Pp. 58-59)

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Table 1: Adjudicative Competency Domains and Subdomains

1.         Capacity to comprehend and appreciate the charges or allegations

            a.         Factual knowledge of the charges (ability to report charge label)

b.         Understanding of the behaviors to which the charges refer

c.          Comprehension of the police version of events

2.Capacity to disclose to counsel pertinent facts, events, and states of mind

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)

3.Capacity to comprehend and appreciate the range and nature of potential penalties that may be imposed in the proceedings

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 potential sentences

4.Basic knowledge of legal strategies and options

a.         Understanding of the meaning of alternative pleas (e.g., guilty and mentally ill)

b.         Knowledge of the plea bargaining process

5.Capacity to engage in reasoned choice of legal strategies and options

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)

6.Capacity to understand the adversary nature of the proceedings

a.         Understanding of the roles of courtroom personnel (i.e., judge, jury, prosecutor)

b.         Understanding of courtroom procedure (the basic sequence of trial events)

7.Capacity to manifest appropriate courtroom

     behavior

a.         Appreciation of appropriate courtroom behavior

b.         Capacity to manage one's emotions and behavior in the courtroom

8.Capacity to participate in trial

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)

9.Capacity to testify relevantly

10.Relationship with counsel

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)

11.Medication issues

a.         Capacity to track proceedings given sedation level on current medication and to communicate with counsel

b.         Potentially detrimental effects of medication on the defendant's courtroom demeanor

            c.          Likelihood of treatment response; treatment response history; therapeutic alliance

            d.         Bases for treatment refusal