Competency for adjudication:
An international analysis
Stephen L. Golding
Department of Psychology
University of Utah
Salt Lake City, UT
and
Ronald Roesch
Department of Psychology
Simon Fraser University
Burnaby, British Columbia
Canada
In D. Weisstub (Ed.) Law and Mental Health: International Perspectives, Vol. 4, Pp. 73-109
COMPETENCY FOR ADJUDICATION
The phrase "competency for adjudication" does not yet appear in any standard works on competency to stand trial and associated issues. We prefer to begin to use it as a general heading because it incorporates other related competency issues that are now becoming somewhat more prominent than the core issue of competency to proceed with trial. Among these "collateral issues" are competency to confess, competency to waive certain defenses and competency to refuse certain treatments when one is committed for competency restoration. In this chapter we will review the literature on these issues from both jurisprudential and mental health perspectives. Where possible, we will also discuss available empirical research or needed research data, as appropriate.
Our review is limited to the status of competency jurisprudence and social policy in nations which follow the historical development of "competency" in Anglo-Saxon law. This is not to say that criminal defendants in other countries do not exhibit that kind of severe mental disorder which might disadvantage them at trial. Rather, the tradition under which this problem is conceptualized appears to be different. According to a recent international report (Schreiber, 1985), the jurisprudence of most other nations focusses upon either mental illness at the time of the alleged offense, or at the time of conviction. That is, if a defendant is seriously disordered at the time of trial, the disposition depends upon whether or not he or she was also sufficiently disturbed at the time of the offense. If, under the jurisprudence of the country, a defendant was so disturbed at that time as to render the criminal act non-culpable, the case will be resolved according to that fact. If the disorder is present at the time of conviction only, the defendant will ordinarily be dealt with by means of "lateral transfer," i.e., he or she will be treated as that country deals with convicted offenders who may be mentally ill. In many instances, this might result in transfer from criminal incarceration to hospital. Thus, the competency issue as framed in Anglo-Saxon jurisprudence does not, strictly speaking, exist in certain countries. Obviously, it does, but it is conceptualized in a different manner. We do not know of any empirical attempts to evaluate the differences in rates of adjudged non-culpability or disposition as a mentally disordered offender produced by such differing conceptualizations. It would be important to do so.
COMPETENCY IN THE CRIMINAL JUSTICE SYSTEM
Competency for adjudication is one of the most important issues for mental health professionals, lawyers and other professionals working with mentally disordered offenders. The set of competency issues which arise during adjudication are raised significantly more often than the insanity defense, or any other issue that concerns mentally disorder offenders. Not only is competency the most prevalent issue, it is also one aspect of the larger criminal justice -- mental health "megasystem" which is most susceptible to influence from changes in other aspects of the system, and it is one of the most costly aspects of the system.
Prevalence amongst criminal defendants. Unfortunately, the ordinary statistics collected in most jurisdictions do not permit precise evaluation of how many defendants are evaluated for competency to stand trial, or how many are found unfit to proceed. Nevertheless, some survey statistics and reasonable estimates are available. Roughly one percent of all criminal defendants are evaluated for competency at some time during their criminal adjudication (see, for example, Goldstein, 1973). It also appears, in United States jurisdictions, that referral rates for competency evaluations have been increasing since the early 1970s. Morrissey & Goldman (1986) report that unpublished data from the National Institutes of Mental Health, Division of Biometry and Epidemiology estimate that there has been an 81 percent increase in involuntary criminal commitments from 1972 to 1980. This increase has been primarily among defendants whose competency is under question or who are "lateral transfers" from prison as mentally disordered offenders needing mental hospitalization. Actual numbers of defendants are more difficult to estimate. Steadman and his colleagues (Steadman et al., 1982) estimated in 1982 that 25,000 competency evaluations were performed per year in the United States. For reasons already noted, these estimates are crude and probably represent the lower bound of evaluations performed. Thus, we do know how many evaluations are performed on an outpatient basis, at court-clinics, in jail settings or in more formal institutional settings. It is probably safest to assume generality of the "one percent" estimate -- that is, in any jurisdiction, the number of competency evaluations is approximately one percent of all defendants arraigned on criminal charges.
Influence of system factors on competency referrals. Ideally, a defendant would not be evaluated for competency unless a bona fide doubt existed as to his/her competency (the legal standards involved in this threshold issue are discussed subsequently). It is well known, however, that competency referrals are triggered by a number of other considerations, many of which are unrelated to the defendant's actual mental capacities. Several important factors have been identified. First, there is a general confusion among trial attorneys as to the role of mental disorder in the adjudication of criminal defendants. Thus, competency to stand trial, mental disorder negating criminal responsibility, and mental disorder as a mitigating factor at sentencing or as a basis for alternative dispositions are frequently confused (Roesch & Golding, 1979, 1980, 1986). Secondly, some trial attorneys know the differences quite well, but use the possibility of a competency evaluation to accomplish other goals. Until the decision of the U.S. Supreme Court in Ake v. Oklahoma (1985) mandating the availability of the assistance from mental health professionals under certain circumstances, many attorneys felt that competency evaluations were a means of guaranteeing them the assistance they needed in preparing their case (Roesch & Golding, 1979). Roesch and Golding also uncovered other, somewhat more dubious rationales, for using competency evaluations in their 1979 survey. For example, some trial attorneys use competency referrals to seek a delay of trial in order to "cool down" a community or to increase the probability that the memory of witness against the defendant will deteriorate. Prosecutors may also use competency referrals as a means of gaining access to information that might be denied to them under ordinary rules of discovery. While a defendant's statements made during a competency evaluation cannot be used, ordinarily, at the guilt determination phase of trial, they can be used when the defendant puts his mental state into question as when he raises the insanity defense (see the discussion of this issue in Golding and Roesch, 1987, and in Melton et al., 1987).
A third set of factors that increase competency referrals has to do with interactions with other aspects of the mental health -- criminal justice "megasystem." A number of authors have observed that changes in the strictness of civil commitment criteria have led to increases in the number of competency referrals in several jurisdictions (Geller & Lister, 1978; Dickey, 1980; Roesch & Golding, 1985; Wexler, 1983). These authors argue that as civil commitment criteria have been generally tightened, police and prosecutors are increasingly tempted to charge mentally disordered individuals who are engaging in nuisance behavior in public, and then divert them into mental hospitals for competency evaluations and/or treatment.
Costs associated with competency referrals. It seems clear from the data reported above that the system for competency evaluations is a costly one, and one that is also subject to considerable potential for misuse. The costs associated with the operation of the system are both financial and legal. Legally, when the system is operating in a potentially distorted fashion, the costs are in terms of a lessening of the "quality" of justice from the perspective of both the defendant and the state. When defense attorneys misuse the system to delay trial or obtain an advantage at disposition, the cost is in terms of the speedy administration of justice, further complicating an overburdened system. When the system is used by the state for tactical advantage or as an alternative to commitment, the costs to the defendant may be conceptualized in terms of deprivation of liberty interests, due process, and other constitutional rights. Even when the system is misused for the understandable reason of attempting to obtain treatment for mentally disordered offenders awaiting trial (in jurisdictions where this is not properly provided), the legal costs remain significant because the defendant might otherwise be able to obtain the needed treatment in a less restrictive environment (without the typical denial of bail and treatment in an institutional setting).
The financial costs associated with the competency referral system, as it currently functions, are also quite significant. Winick (1985) estimates that approximately 185 million dollars are spent annually on the competency process within the United States. Golding et al. (1984) estimated the costs, using range estimates, at between 150 to 225 million dollars for inpatient evaluations alone. As we will discuss in detail in a concluding section, there is an obvious need to obtain more accurate data which will allow us understand better the nature of the operation of the competency process. However, it should be clear that considerable financial and legal costs may be associated with the competency adjudication system. We have outlined problems associated with the system and its costs at the beginning of this chapter, so that the reader will be set to consider various reform options (discussed in the concluding section) as we review the entire process in following sections.
In this chapter, we will present an overview of competency laws, research, and methods of assessment. As noted earlier, we will concentrate on competency conceptualized within Anglo-Saxon jurisprudence.
HISTORICAL VIEWS OF COMPETENCY
The Anglo-Saxon jurisprudential system places great weight on the role of pleading as a means of assuring that the issues between accuser and accused are joined properly. It follows that if the accused is mentally or physically impaired to the extent that he or she cannot understand the charges or the proceedings against them, then such a defendant cannot plead properly to the charges. While there is some amount of scholarly controversy about the early origins of competency doctrine in English courts (see Anonymous, 1967; Group for the Advancement of Psychiatry, 1974; Roesch & Golding, 1980; Youtsey v. United States, 1899), it is clear that by the Eighteenth Century, a relatively articulated doctrine of competency to stand trial was in place. Hale, in his History of the Pleas of the Crown (1736) observed that:
If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment (Quoted in Silten & Tullis, 1977; p. 1053).
The doctrine of trial competency analyzed by Hale actually included not only competency to plead at arraignment, but also competency at trial, judgment, sentencing or possible execution. Cases available from that time period (e.g., Frith's Case, 1790) also make clear that this doctrine was observed by courts of the period. As we have pointed out in earlier work (Roesch & Golding, 1980), the competency doctrine has many of the characteristics of what are known as "open constructs" in the social sciences. That is, the underlying doctrine is a "theory" of sorts which states a set of abstract and open-ended principles. It does not specify a set of particular facts that are ever dispositive of the competency issue, nor does it state a set of rules about how those facts should be considered in the process of judging whether or not a particular defendant is "competent" or "incompetent." The main historical principle that emerges in all cases, statutes, and scholarly commentary upon the doctrine may be stated in the following way:
In an adversarial system of jurisprudence, it is a fundamental violation of fairness and due process to proceed against a defendant who, by virtue of mental or physical impairment, is not able to participate as vigorously or effectively in his/her defense as would be expected of a normal defendant. The concern is not only that failure to participate vigorously and effectively may lead to an erroneous result (conviction of an innocent defendant), but also that the moral authority of the judicial system will be diminished by proceeding against a defendant who is unable to comprehend rationally the proceedings, the judgment or the sentence.
COMPETENCY TO STAND TRIAL
United States. The modern standard for competency to stand trial was established by the Supreme Court in Dusky v. United States (1960). Although the exact wording varies, all states use some variant of the Dusky standard to define trial competency (Favole, 1983). In Dusky, the Supreme Court held that
It is not enough for the district judge to find that "the defendant is oriented to time and place and has some recollections of events," but that the test mustbe 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. (p.402)
The major problem with the Dusky standard has been a great deal of ambiguity as to the meaning of its key terms. What is meant by "sufficient present ability?" How does one determine whether a defendant "has a rational as well as factual understanding?" Lower courts have provided some direction to evaluators and to other judges. Perhaps the most frequently cited is a list of more specific issues presented in Wieter v. Settle (1961):
I. that he has mental capacity to appreciate his presence in relation to time, place and things;
II. that his elementary mental processes are such that he apprehends (i.e. seizes and grasps with what mind he has) that he is in a Court of Justice, charged with a criminal offense;
III. that there is a Judge on the Bench;
IV. a Prosecutor present who will try to convict him of a criminal charge;
V. that he has a lawyer (self-employed or Court-appointed) who will undertake to defend him against the charge;
VI. that he will be expected to tell his lawyer the circumstances, to the best of his mental ability, (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed;
VII. that there is, or will be, a jury present to pass upon evidence adduced as to his guilty or innocence of such charge;
VIII. he has sufficient memory to relate those things in his own personal manner;
-such a person, from a consideration of legal standards, should be considered mentally competent to stand trial under criminal procedure, lawfully enacted. (Pp. 321-322)
It is important to note several aspects of the Dusky standard as it has been applied. First, the Dusky standard concerns competency to proceed, not mitigation of criminal responsibility as a consequence of mental disorder. The two issues are frequently confused, in no small measure because many individuals who subsequently raise the "insanity defense" are also evaluated for trial competency, and many are found unfit. For example, Golding, Eaves & Rogow (1986) discovered that 61 percent of their sample of individuals found not guilty by reason of insanity had been committed and treated as unfit to stand trial prior to their NGRI adjudication (see Disposition and treatment section for a more detailed review of this study). This degree of overlap and the common tendency for forensic evaluations to address both issues simultaneously (a mistake, we believe) contribute to the confusion of issues.
A second aspect of the Dusky standard concerns its ambiguity as to what level of mental incapacity or disturbance is needed for the threshold of "sufficient present ability." Almost all empirical research on incompetent defendants finds that the vast majority are diagnostically psychotic or are significantly developmentally disabled. For example, in Roesch and Golding's (1980) study of 270 defendants referred for competency evaluations, 87 percent of those found incompetent were either psychotic or mentally retarded, whereas only 17 percent of the competent defendants received such diagnoses. Differences of this magnitude are reported frequently (Cooke, 1969; Daniel et al., 1984; McGarry, 1965; Pendleton, 1980; Reich & Wells, 1985; Roesch et al., 1981). These results help to highlight a continuing problem in the understanding of the Dusky standard by mental health and legal professionals alike. Many individuals continue to equate the existence of psychosis or severe mental retardation with incompetency, but this is both a legal and an empirical mistake. It is legally erroneous because all court opinions which address the subject hold that the presence of severe mental illness (i.e., psychosis) or mental retardation is not dispositive of the competency issue (see, for example, Feguer v. Unites States, 1962; Swisher v. United States, 1965; Wieter v. Settle, 1961; and Roesch and Golding (1980) for a review of these and other cases). This is so because the Dusky standard is a functional and context-dependent one in which mere presence of severe disturbance (a psychopathological criterion) is only a threshold issue -- it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome. Nevertheless, because most evaluators are mental health professionals with little legal or forensic training, it should not be surprising to find that mental status issues such as presence or absence of psychosis have played a dominant role in the findings of evaluators. In addition, many evaluators have rarely taken into account the specific demands of a defendant's case.
The empirical data are also subject to continued misinterpretation. As Golding et al. (1984) demonstrate in their study, the conditional probability that a defendant who is incompetent is also psychotic is not the same that a defendant who is psychotic is also incompetent. The empirical data, by virtue of its design addresses the former conditional probability, but not the latter. Given the nature of the Dusky standard, it is almost an index of validity of judicial decision -making that most individuals who are incompetent are also psychotic or severely retarded. On the other hand, the proportion of psychotic defendants who are also incompetent will depend heavily upon the nature of the referral system and the threshold for competency referral used in a particular jurisdiction. If judges pay close attention to the so-called Pate standard (discussed below) and demand a good faith showing that there is bone fide doubt as to a psychotic defendant's competency, then the proportion will be quite high. If, however, they tend to make referrals, even when they suspect that the defendant is competent (as seems to be the case -- see Roesch, 1979; Roesch & Golding, 1980), then the proportion will be lower.
That investigators continue to misunderstand the meaning of the empirical data can be demonstrated by looking at a recent study by Reich & Wells (1985). These authors studied 390 consecutive referrals to a court clinic, and developed a formula to predict court decision based upon various predictor variables. They discovered that presence of schizophrenia, repeated referrals and absence of alcoholism, drug abuse predicted court outcome with a predictive accuracy of 81 percent. They then use these results to advocate using these variables as a simple screening test for competency. The problem, of course, is that they are confusing "causal arrows" and sub-population definitions. Their advocacy for such a formula merely reinforces the misunderstanding equating psychosis with incompetency, since their own data indicates that 49 percent of the schizophrenic individuals were found competent. This continuing confusion is one of the principle reasons why the advocates of "newer" evaluation methods (discussed below) stress the minimization of psychopathological diagnosis and the maximization of functional assessment of capacities in reports to the courts (Golding et al., 1984; Melton et al., 1987).
Some individuals have also interpreted the Dusky standard as implying that a defendant with amnesia would be incompetent to stand trial. The legal decisions in the United States (as well as in Canada and the United Kingdom) have held that this is not necessarily the case (e.g.,Ritchie v. Indiana, 1984;Wilson v. United States, 1968). Various courts have reached this conclusion in different ways. In Missouri v. Davis (1983), the defendant had memory problems due to brain damage. Nevertheless, the Missouri Supreme Court held that amnesia by itself is not a sufficient reason to bar the trial of an otherwise competent defendant. In Montana v. Austed (1982), the court held that the bulk of the evidence against the defendant was physical and not affected by amnesia. Finally, in a Maryland decision (Morrow v. Maryland, 1982), the court held that, because of the potential for fraud, amnesia does not justify a finding of incompetence. The court also stated that everyone has amnesia to some degree since the passage of time erodes memory. These decisions are of interest because they support the view that evaluators cannot reach a finding of incompetency based upon mental state alone, independent of the facts of the legal case.
The "standard" set forth in Dusky is an "open-construct" (Roesch & Golding, 1980). After extensive commentary and debate, the American Bar Association, in promulgating its Criminal Justice Mental Health Standards (ABA, 1984) endorsed leaving this standard in its open form, rejecting proposals to develop more specific "checklists" or operational definitions (McGarry et al., 1973; Robey, 1965) of the construct. This is in accord with the logic which led to the development of the Interdisciplinary Fitness Interview (Golding et al., 1984) discussed in a subsequent section. Rather than attempt to define competency is any operational fashion, the IFI allows clinical and legal decision makers to evaluate the global logic of the Dusky standard in flexible ways that make sense given the particulars of a given defendant, charge and legal context.
United Kingdom. The law regarding the issue of fitness to stand trial in England and Wales is contained in the Mental Health Acts and the Criminal Procedure (Insanity) Act of 1964. The procedures are, of course, similar to those in the United States and Canada since English common law is the historical basis for the current laws in these countries. English law allows a consideration of the fitness of a defendant if there is reason to believe that the defendant is under a disability that would affect his or her ability to understand the legal proceedings, to challenge a juror to whom he or she might object, or understand the substance of the evidence (Gostin, 1984). No specific mention is made of the ability to confer with an attorney. However, the Butler Commission (1975), in a report which examined a number of legal and mental health issues related to mentally disordered offenders, has proposed that this be added to the criteria. As well, the Commission proposed that the ability to challenge jurors should not be a criterion in determining fitness.
The perspective of the judiciary in most western countries with respect to the relevance of amnesia is perhaps most influenced by a case in the English courts. The effect of amnesia on the determination of fitness is a thorny issue in England as it is elsewhere. In Regina v. Podola (1959), the court held that even if the amnesia had been genuine (it was feigned) it would not have been sufficient to find the defendant unfit. The courts have clearly been concerned about the possibility of a defendant faking amnesia and of the inability of evaluators to detect it. In Podola it was stated that:
Such a plea is easy to advance, and it may be extremely difficult to refute. It affords an obvious ...refuge to a person finding himself or herself in a position of grave difficulty and danger-and the graver the danger the greater the motive for making an assertion of this kind.
The Podola decision has influenced the law in other jurisdictions (particularly Canada and the United States) and has led to the position that a finding of unfitness based solely on amnesia would be difficult to advance (see Regina v Boylen (1972) for a Canadian case based on the Podola decision, and Roesch & Golding (1986) for a review of legal and clinical issues regarding amnesia in the U.S., U.K., and Canada).
In Scotland, competency to stand trial ("insanity in bar of trial") is dealt with by means of the hospital order system wherein the defendant is committed to hospital without time limitation and with restrictions being placed upon his discharge(Normand, 1984). This potentially unlimited commitment without a preliminary finding as to the sufficiency or adequacy of the State's case against the defendant has been considered a problem in Scottish criminal law (Thompson Committee, 1975) in parallel with similar problems in English (Butler Committee, 1975), Canadian (Law Reform Commission,1976) and American (Roesch and Golding, 1980) criminal law.
Canada. The procedures for determining fitness to stand trial are set forth in the Criminal Code of Canada. The Code applies uniformly to all Canadian provinces which means that the methods for dealing with the fitness question do not vary appreciably from province to province. The Code does not provide much guidance on the criteria for a finding of unfitness, as Section 543(1) of the Criminal Code illustrates:
A court, judge or magistrate may, at any time before verdict, where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, direct that an issue be tried whether the accused is then, on account of insanity, unfit to stand trial.
It is clear from this section that little direction is provided to the courts or to the mental health professionals who are asked to evaluate a defendant's fitness. Canadian legal scholars have looked to the common law and case precedence in an effort to identify the basis for a finding of unfitness. One of the leading Canadian law and mental health scholars, Simon Verdun-Jones, has written extensively on this issue (see, for example, Verdun-Jones, 1981). He cites Regina v. Woltucky (1952) as a leading Canadian case. This case involved an accused who believed he was being persecuted by the R.C.M.P. through the use of a machine which could read his thought and affect his behavior. The Woltucky court held that:
The test on the issue is whether or not the accused is able to understand the proceedings; to try him if he is not able to understand the proceedings and to instruct his counsel would deprive him in all probability of his right to make a full defence.
As Verdun-Jones points out, a later case which appeared before the British Columbia Court of Appeal spells out the criteria more clearly. In Regina v. Roberts (1975), the court stated that a defendant must be
capable of discussing his case rationally with his counsel [as well as have the] capacity to appreciate the evidence adduced throughout his trial and arrive at rational conclusions as to the significance of that evidence and to make decisions on advice of counsel with respect to his defence.
The Law Reform Commission of Canada (1976) has urged that these criteria be more clearly specified in the Criminal Code. As a result of their report and work by the Mental Disorder Project, substantial revisions of the Criminal Code sections dealing with mental disorder in the criminal process has been written and it is likely that some substantive changes will take place in the near future. The new proposed code (hereinafter referred to as the proposed code) incorporates a number of recommendations from the Law Reform Commission as well as professional groups (see Stevens & Roesch, 1980) for the response of the Canadian Psychological Association to the LRC proposals). The proposed code will be referred to throughout this review of Canadian law as it represents a significant attempt to reform the laws regarding the processing of mentally disordered offenders in the legal system.
The proposed code specifies criteria similar to Dusky, with unfitness defined as the inability to a) understand the nature or object of the proceedings, b) understand the possible consequences of the proceedings, or c) communicate with counsel. Thus, a clearer definition will be provided to evaluators, although as we have pointed out elsewhere (Roesch & Golding, 1980), there will remain considerable discretion in the interpretation of what behaviors on the part of a defendant will constitute inability in these areas.
PROCEDURAL ASPECTS OF COMPETENCY TO STAND TRIAL
United States. State laws regarding procedural aspects of competency vary a good deal, although all jurisdictions follow the constitutionally mandated procedural principles we will describe in this section. The issue of competency may be raised by any officer of the court at any point in the criminal process. It must be raised and formally considered if the court determines that a bona fide doubt exists as to a defendant's competency (Drope v. Missouri, 1975; Pate v. Robinson, 1966). When competency is raised by the prosecution, however, a potential problem arises concerning information obtained in a competency evaluation that could be used against a defendant during a trial or other legal proceeding (Berry, 1973; Pizzi, 1977). In Estelle v. Smith (1981), the Supreme Court of the United States held that
a criminal defendant, who neither initiates a psychiatric examination nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding (p. 465).
The even broader coverage is given in the Federal Rules of Criminal Procedure:
No statement made by the defendant in the course of any (forensic) examination ... with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant ... in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony (Federal Rules of Criminal Procedure, Rule 12.2(c), 1985).
The strength of these rules is based, in part, on the abuses which were determined to exist in many jurisdictions where defendants were evaluated for their competency on motion of the prosecution, often without the benefit of notice to counsel. With respect to the issue of counsel, both the American Psychiatric Association and the American Bar Association have taken the further position that, even in the context of the Estelle rule, it is unethical for a mental health professional to evaluate a defendant for competency unless counsel has been appointed, and is aware of the intended examination (presumably to allow for various motions to be filed).
Careful reading of these rules, however, reveals at least two possible sources of difficulty. First, while the rule bars introduction of evidence obtained from such examinations on the issue of guilt, it does so only when the defendant does not introduce any mental state evidence on his behalf. Therefore, if the defendant raises the insanity defense, he explicitly legitimates introduction of all evidence on his mental state. Many incompetent defendants do raise the insanity defense if charges are not otherwise resolved by the time competency is restored. (As noted earlier, as many as 60 percent of all NGRI acquittees have been found incompetent to stand trial [Golding et al., 1987].) The potential magnitude of this problem is illustrated in United States v. Byers (1984).
Byers was indicted for the murder of his lover. Immediately after his arraignment, he was examined at St. Elizabeth's by a team of psychologists and psychiatrists who found him competent, but suffering from paranoid delusions. On motion of the prosecutor, Byers was re-examined at another federal facility. The examiners subsequently filed reports indicating Byers was competent and suffered from "magical thinking" that did not rise to the level of delusion. At trial, however, one examiner testified that during his interview Byers had told him that "Mrs. Byers suggested to him that this could be under the influence of some magic, or spells or some influence of roots" (p. 1143). Pandemonium broke loose at trial since the statement, if true, implied that Byer's "delusions" had been suggested to him by his wife as a defense strategy. The trial court characterized the testimony as "devastating" and such that it "perhaps will torpedo the (defendant) out of the water" (p. 1144). The examiner had also a) destroyed his notes of the interview; b) admitted that he did not record the statement in the destroyed notes because he considered it insignificant; c) did not tell any of his colleagues of the alleged statement, and d) did not allude to it in his report to the court. Byers was indeed torpedoed by the testimony, and was unsuccessful in his attempt, on appeal to have his conviction set aside on the grounds that admitting such testimony violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to effective assistance to counsel. A strongly divided court ruled that Byers statements were admissible and did not violate his right to avoid self-incrimination as had been the case in Estelle. The court distinguished Estelle by arguing that Byers had himself interposed the insanity defense, whereas Smith had not raised either competency or sanity. Thus, once defendants have entered their mental state into the adjudication process by interposing an insanity defense or some other mental state claim, no information revealed to the examiner that can be construed as relevant to that claim is exempted.
In Buchanan v. Kentucky (1987), the United States Supreme Court re-affirmed its Smith doctrine in a case where the defendant's counsel and the prosecution had sought a pre-trial commitment of Buchanan in order to treat his mental disorder. When Buchanan sought to introduce mental state evidence at his trial to the effect that he was suffering from "extreme emotional disturbance" at the time of the alleged murder, the prosecution was permitted to introduce evidence from the examining psychiatrist, even though he had never formally evaluated Buchanan's mental state at the time of the alleged crime.
Where, as here, a defendant requests a psychological evaluation or presents psychiatric evidence, the prosecution may rebut his presentation with the report of the requested examination without implicating the defendant's privilege against self-incrimination. Because petitioner did not testify and his entire strategy was to establish his "mental status" defense through the social worker's readings of earlier evaluations, the prosecution could not respond to petitioner's case unless it presented other psychological evidence (p. 2907).
A second problem has to do with whether indirect "fruits" of such evidence are admissible. Jurisdictions differ in the ways in which they deal with this potential problem. After all, it may be impossible for the defense to discover if the state's evidence was a result of some lead or hint in the competency evaluation report. Melton et al. (1987) argue that the most effective means of guarding against this possibility is to restrict the nature of reports to the court and to the prosecution. They cite a progressive procedure in Virginia that provides only a summary of the clinical information, with all references to statements about the alleged crime expunged, unless the defendant files notice of an intent to use mental state evidence at trial (in which case, the full report is provided). While such a procedure may seem cumbersome, we agree that is represents a reasonable standard of cautious forensic practice in competency evaluations, and hope that it will be more widely adopted.
Reliability and validity of competency assessments
Empirically, most competency evaluations result in agreement between the evaluators and between evaluators and the court, despite of whatever confusion may exist over the definition of competency. The few studies of reliability report that pairs of evaluators agree in 80 percent or more of the cases (Golding, et al., 1984; Goldstein & Stone, 1977; Poythress & Stock, 1980; Roesch & Golding, 1980). However, as Golding et al. (1984) point out, when base rates for competency are considered, these high levels of agreement are less impressive. Further, they do not imply agreement about the criteria for a determination of competency. In fact, considerable variability exists within the spectrum of cases that may be labeled as "grey area." Since most defendants referred for evaluation are clearly competent, and only a few are clearly incompetent, an examiner could achieve high levels of agreement with another examiner without even directly assessing the defendants, by simply calling all defendants competent. Since in most jurisdictions, approximately 80 percent of all referred defendants are competent, the examiners would have an excellent percentage of agreement by chance alone. While the base rate problem can be adjusted through the use of certain statistics (e.g., kappa), the studies reporting reliability usually have small samples overall and consequently few incompetent defendants. It is the more difficult decisions, involving cases where competency is truly a serious question, that are of concern. How reliable are decisions about these cases? To date, no study has accumulated enough of these cases to answer this question.
It is more difficult to assess the validity of decisions made by either the examiners or the courts. It is well known that courts tend to accept the findings of mental health professionals on this issue. For example, most studies have found that the courts agree with the recommendations of examiners in over 90 percent of the cases studied (Golding et al., 1984; Steadman, 1979; Williams & Miller, 1981). It is difficult to accept this overlap as indexing validity for two reasons.
First, there is a serious criterion problem. Predictive validity is impossible to assess fully because of a decision - by - treatment interaction. That is, only defendants who are considered competent are allowed to proceed. It is feasible to look at the predictive validity of decisions about competent defendants, but not possible, of course, to assess the decisions about incompetent defendants, since they are referred for treatment, and judicial proceedings are suspended. For these reasons, then, there is no "correct" decision against which to compare judgments. We have argued (Roesch & Golding, 1980) that the only direct way of assessing the validity of decisions about incompetency is to allow defendants who are believed to be incompetent to proceed with a trial anyway. This would be a provisional trial in which assessment of a defendant's performance could continue. If a defendant were unable to participate, then the trial could be stopped. If a verdict had already been reached and the defendant convicted, the verdict could be set aside. We suspect that in a significant percentage of trials alleged incompetent defendants will be able to participate. In addition to the obvious advantages to both defendants, in terms of briefer periods of confinement, the use of a provisional trial could provide valuable information about what should be expected of a defendant in certain judicial proceedings. Short of a provisional trial, it may be possible to address the validity issue by having independent experts evaluate the information provided by evaluators and other sources. We know of no studies that have addressed the validity issue except, to a limited degree, the research we will report later in this chapter (Golding, et al., 1984).
A second problem in accepting the overlap data as indexing validity is that the courts usually accept (defer to?) mental health judgments about competency. There is ample reason to believe that many courts are simply accepting the evaluators' definition of competency and their conclusions (Bazelon, 1975; Bennett, 1968; Hess & Thomas, 1963; Roesch & Golding, 1980; Vann, 1965; Vann & Morganroth, 1965). Once a competency evaluation has been completed and the written report submitted (see Petrella & Poythress, 1983) for a discussion of the content of these reports), the court may schedule a formal hearing, but usually does not. If both defense and prosecution accept the findings of a report, as is likely, a formal hearing is not held. If a hearing is held, the evaluators may be asked to testify, but most hearings are quite brief and usually only the written report of an evaluator is used. In fact, the majority of hearings last only a few minutes and are held simply to confirm the findings of evaluators (Steadman, 1979).
The ultimate decision about a defendant's competency rests, of course, with the court, which is not bound by the evaluators' recommendations (see Feguer v. United States (1962) ["expert testimony rises no higher than the reasons on which it is based; it is not binding on the trier of facts" (p. 236); North Dakota v. Heger, 1982). Nevertheless, many courts appear to follow the conclusions of reports, and not to exercise their ultimate authority in these matters (labeled by Dix (1981) as "the problem of psychiatric dominance"). To the extent this is true, "overlap" data have little meaning vis-a-vis the validity of recommendations or judgments by the court.
United Kingdom. The issue of fitness may be raised by the defence, prosecution, or court but different levels of proof will apply depending upon which party raised the issue. One procedure worth noting is that English law allows the judge the discretion to postpone a consideration of fitness and direct the prosecution to present its case. The defendant could be acquitted if there is insufficient evidence to convict. If there is sufficient evidence, the issue of fitness could then be directed.
A unique feature of the English law is that there are two levels of proof required for a finding of unfitness, depending upon which party initially raised the question of fitness. As Gostin (1984) points out, "The burden of proof in such enquiries lies with the party that alleges disability. If the defence raises the issue, then the standard of proof required is that on a balance of probabilities the accused is unfit to stand trial; but if the prosecution alleges unfitness, it must be proved beyond a reasonable doubt" (p. 252).
Canada. The Criminal Code of Canada does not specify who may raise the issue but the Canadian courts have followed the principle that the defense, prosecution, or the court itself may raise the issue of fitness (Verdun-Jones, 1981). There has been some debate in Canada about the appropriateness of allowing the prosecution or the court to raise the issue, even over the objections of the defense attorney (Verdun-Jones, 1981). Del Buono (1975) has argued that the defendant should be the only one to raise the issue since the defendant has "the most to risk, but also the most to lose" (p. 314), because of the indefinite term of the confinement of defendants found unfit. Lindsay (1977) has suggested that the prosecution may use the fitness process as a tactical maneuver "where it feels its case is vulnerable to attack by evidence introduced by the defence" (p. 324). Nevertheless, provisions allowing any court actor to raise the issue have been supported by groups such as the Law Reform Commission and will likely be formally adopted when the Criminal Code is revised.
Once the issue is raised, the court may remand the defendant to a facility for evaluation or order an evaluation on an outpatient basis. In practice, most defendants are remanded and held for a period of thirty days (renewable for an additional thirty days).
The proposed code would limit the remand for assessment of fitness to three days, compared to the current thirty day maximum. This is consistent with the research we have conducted which demonstrates that most decisions about a defendant's ability to stand trial can be made on the basis of brief assessments (Golding, Roesch, & Schreiber, 1984; Roesch & Golding, 1980). Further, the proposed code specifies a presumption against "in custody" remands. Out-patient assessments would be the rule rather than the exception. This will obviously have an effect on the current system and may create a demand for facilities capable of providing short term assessments.
At present, most defendants are remanded to a forensic facility for an evaluation of fitness. The evaluation process in British Columbia will serve as an example of how evaluations are conducted in Canada, although it should be noted that there are some differences between provinces (see Webster, Menzies, & Jackson (1982) for a review of the evaluation process in Ontario). In British Columbia, defendants are referred to the Forensic Psychiatric Institute, which is part of the British Columbia Forensic Psychiatric Services Commission. Defendants are interviewed by psychiatrists and social workers, may be administered psychological tests, and their ward behavior is observed and noted. At the end of the evaluation (defendants are held an average of nearly 30 days), defendants are returned to court for a hearing to determine fitness. A written report is submitted to the court and the examining psychiatrist may be called upon to testify. As in other jurisdictions, the decision about fitness rests with the court but in practice disagreement is rare.
COMPETENCY TO PLEAD GUILTY
When a defendant wishes to plead guilty, he obviously is waiving a number of fundamental constitutional rights, and so must do so in an intelligent, voluntary and competent fashion. Are the mental capacities necessary to do so of a fundamentally "higher" nature requiring a different and higher standard of competency? Two Federal Appellate circuits (the 9th and the 4th) have ruled that this is the case, while the remaining circuits have found that the language of Dusky suffices to address the constitutional requirements (Roesch & Golding, 1980; Sarno, 1987).
In Sieling v. Eyman (1973), the Ninth circuit adopted a higher standard which had previously been expressed by Justice Hufstedler in her dissent in Schoeller v. Dunbar (1970):
The standards measuring a defendant's competency to stand trial are not necessarily identical to those defining his competency to enter a plea of guilty....To the extent that they differ, the standards of competency to plead guilty are higher than those of competency to stand trial. A defendant is not competent to plead guilty if mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea (Schoeller, p. 1194).
The so-called Sieling standard has generated a significant amount of scholarly commentary in the rulings of other appellate circuits (see, for example, Allard v. Helgemoe, 1978) to the effect that it is unnecessary and potentially creates a class of defendants "caught in the middle." They would be competent to stand trial, but unable to enter into plea bargaining. While we acknowledge that this is a possibility, we feel that the weight of clinical experience (awaiting empirical data) is on the side of the Sieling court. Assuming competent defense counsel, the issue tends to arise in those cases where the defendant wishes to plead over the objection of his or her counsel (hence also raising the question of waiver of counsel). We know of no cases in which a defendant has been denied the right to plea bargain given a finding of competency to stand trial. However, we do know of several cases, both reported and unreported, where defendants were permitted under Faretta v. California (1975; see discussion below) and Dusky to plead guilty, or take steps that were equivalent, in situations that raise grave doubts about the influence of mental disorder on the defendant's rationality.
COMPETENCY TO WAIVE THE INSANITY DEFENSE
Imposing an insanity defense upon an unwilling defendant is a situation which arises infrequently in the United States. It is also possible in Canada and, in restricted form, in England. A leading case in Canada is Regina v. Simpson (1977) where a defendant was found not guilty by reason of insanity on an indictment of two counts of attempted murder even though he did not place his state of mind at issue during the trial. The Simpson court allowed the prosecution to introduce evidence of a defendant's insanity, if sufficiently substantial evidence created a grave question whether the accused had the capacity to commit the offense. Fundamental fairness required the trial judge to submit the defense and the appropriate instructions to the jury as a verdict option, even when post-acquittal commitment of an insanity acquittee is automatic and indeterminate.
In England, the prosecution may enter evidence of insanity only if the defendant introduces his state of mind as an issue at trial. Thus, if a defendant attempts to prove that he suffered a non-insane automatism, the prosecution may attempt to show that the automatism was "insane," i.e. the product of a disease of the mind, which would result in a mandatory hospitalization (Bratty v. A.- G. Northern Ireland, 1961).
In the United States, a small group of cases have addressed this issue directly or indirectly. In Lynch v. Overholser (1963), the United States Supreme Court allowed an "interposed" insanity defense, but rejected allowing the result to be an automatic commitment. In Whalem v. United States (1965) and United States v. Robertson (1974), the District of Columbia Court of Appeals set forth authority for a trial judge to raise the defense of insanity over the objection of the defendant. Some of the factors that should be considered in interposing such a defense including the defendant's behavior at trial, the trial counsel's desire to raise the defense (thwarted by defendant), the bizarreness of the actus reus, and the opinions of experts about the defendant's mental state.
In light of a series of Supreme Court cases stressing a defendant's right to make fundamental decisions about their own case (see discussion of Faretta above), the D.C. Court of Appeals was persuaded in Frendak v. United States (1979) that there may be "persuasive reasons why defendants convicted of an offense may choose to accept the jury's verdict rather than raise a potentially successful insanity defense" (p. 376). Among such reasons are a) a potentially longer period of confinement than if convicted [especially in light of Jones v. United States (1983)] even if commitment is not automatic in sua sponte insanity defenses; b) a desire to receive treatment as a prisoner rather than as a mental patient; c) a desire to avoid subsequent legal and social stigmatization as "twice cursed" (criminally insane); and d) a desire not to admit the actus reus, or not to have an act of political or religious protest construed as "insane." In light of this, the Frendak Court held that a trial judge may not force an insanity defense in a defendant found competent to stand trial if the individual intelligently and voluntarily decides to forgo that defense. In reaching this result, however, we further hold that the court's finding of competency to stand trial is not, in itself, sufficient to show that the defendant is capable of rejecting an insanity defense; the trial judge must make further inquiry into whether the defendant has made an intelligent and voluntary decision" (p. 367).
In modifying and reinterpreting its rule, the District of Columbia Court of Appeals is explicitly adopting the "Sieling" standard (Sieling v. Eyman, 1973) for competency to plead guilty
The Dusky standard is designed to indicate whether the accused knows enough about the facts of the case to relate them coherently to his or her attorney and to understand the nature of the proceedings. It is not intended to measure whether the defendant is also capable of making intelligent decisions on important matters relating to the defense...because the court is dealing with an individual whose sanity has been questioned, a cursory explanation or a rote interrogation cannot satisfy the court's duty (Frendak, Pp. 379-380, citations and other text omitted).
COMPETENCY TO CONFESS
Confession by a suspect in a criminal investigation is one of the primary means by which the police "solve" cases. Since the admission of an unimpeached confession at trial almost invariably leads to a conviction, the assessment of the reliability (validity) of a confession is central in the adjudication of a criminal case. When the defendant is suspected of being mentally disordered or retarded, a number of legal, psychological, and social policy concerns arise in addition to the traditional issue of "coercion." As a matter of fundamental fairness, the common law assumption has always been that "the law will not suffer a prisoner to be made the deluded instrument of his own conviction" (from Hale's Pleas of the Crown, cited in Columbe v. Connecticut, 1961; at p.581). Additionally, an individual must make a "knowing, intelligent and voluntary" waiver of fundamental rights (in this case the right to avoid self-incrimination). Since this issue has been most developed in the jurisprudence of the United States, we focus our discussion on that body of cases.
With respect to the domain of rights that are involved in the adjudication of criminal cases, the "knowing, intelligent, and voluntary" standard has been supported by separable but interrelated lines of analysis. One line of analysis focusses upon the mental state of the defendant and the impact of that mental state upon his competency to knowingly, intelligently, and voluntarily waive some fundamental right. The second line of analysis focusses upon interpretation of the rationale for the so-called "Miranda" doctrine. Unfortunately, because of a rather surprising and intellectually confusing decision in Connelly v. United States (1986), these lines of analysis seemingly lead in different directions.
Elsewhere in this chapter we have discussed, in great detail, the principles involved in competency to stand trial. The doctrine which lies behind these principles is most simply stated as barring, on due process grounds, the trial of a defendant who cannot, on account of mental disorder or physical infirmity, comprehend the charges against him, understand the consequences of conviction, or effectively assist his trial counsel. Other fundamental rights are also involved in the adjudication of a criminal case, including the right to avoid compelled self-incrimination and the right to effective assistance of counsel. In another section we will address the issue of a defendant who seeks to represent herself; here we concentrate on confessions and the decision to confess without first speaking with counsel.
It is a well settled principle of jurisprudence that a defendant who wishes to waive a fundamental right must do so in an intelligent, knowing, competent and voluntary manner. The language of some of the United States Supreme Court's seminal cases on this subject are instructive in helping us unpack the semantic implications of these terms. In Johnson v. Zerbst (1938), the Court, in the context of waiving right to assistance of counsel, expressed the doctrine as:
A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused (p.464, emphasis added).
In a more recent case decided in the context of waiving the rights to avoid self-incrimination, trial by jury, and to confront one's accusers by pleading guilty, the Court in Boykin v. Alabama (1969) concluded that:
It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary....A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. Admissibility of a confession must be based upon a `reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.' Jackson v. Denno, 378 U.S. 368,387...We think that the same standard must apply to determining whether a guilty plea is voluntarily made....What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence (Pp. 242-244; emphasis added).
In its famous Miranda decision (Miranda v. Arizona, 1966), the same language re-appears:
...the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant, unless it demonstrates the use of procedural safeguards to secure the privilege against self-incrimination....Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney...The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently (p. 444; emphasis added).
Interpretation of these phrases has proven to be the key to understanding legal and professional disputes in this area. Unfortunately, with the exception of Grisso's work on juvenile comprehension of Miranda warnings, to be discussed subsequently, (Grisso, 1981; Grisso, 1986), little empirical research exists on the psychological aspects of these phrases. Nevertheless, a composite interpretation does emerge which is useful to both psychological examiners and legal professionals.
These phrases are interpreted constructively and not literally. That is, just as the courts have stressed that a defendant must have a "rational as well as a factual understanding of the proceedings against him" (Dusky, 1960) in interpreting competency to stand trial, the meanings of these phrases have not been taken literally. As Livermore & Meehl (1967) pointed out in their discussion of the language of the "M'Naghten rules" where construction of the terms such as "defect of reason" or "know" is critical, these terms must be interpreted in the full light of a complex set of psychological capacities and processes.
Voluntary waiver. Obviously, one aspect of the interpretation of this phrase involves the non-existence of such factors such as police coercion, intimidation, torture, threats or attempts to otherwise induce a confession "against the will" of the defendant. More problematic, however, are situations in which the defendant's mental state and/or capacities render him more susceptible to implicit coercion or intimidation than a "normal" defendant, or where the defendant's mental disorder may deprive him of the degree of free agency experienced by "normal" defendants.
As we have articulated elsewhere (Golding & Roesch, 1987), in the context of the jurisprudence of criminal responsibility, the entire edifice of civil and criminal law is based upon a moral premise that an individual is responsible for his acts only when he knowingly and freely chooses those acts:
The classical formulation of this moral presupposition is the legal maxim, Actus non facit reum, nisi mens sit rea, which translates freely into modern English as "An act is not legally cognizable as evil, and hence criminally punishable, unless it is committed by a person who has the capacity to cognize the act as evil and then freely chooses to do it" (p. 395)
In this context as well, the influence of mental disorder on an individual's ability to freely choose to confess is an important issue. Even the majority in the Connelly case (discussed below) acknowledged that "as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness' calculus (Colorado v. Connelly, 1986; p. 520).
Plainly, the mental state of the defendant (as a function of physical or psychological trauma, medication, sleep deprivation, surgical procedure, or ongoing severe mental disorder or retardation) may influence either his susceptibility to persuasion or his ability to freely choose to confess.
Most courts have had little difficulty on the issue of susceptibility when there is clear evidence of a significant alteration of the defendant's mental state in the context of custodial interrogation, even absent overt police misconduct. In Blackburn v. Alabama (1960), the defendant was a paranoid schizophrenic who had a long history of hospitalizations and whose alleged crime was committed while he was an escapee from a prior commitment. He was interrogated by the police for a period of at least five hours during which there was no indication of police misconduct or threatening behavior. His confession during that interrogation was ruled involuntary:
...the evidence indisputably establishes the probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion (p. 207).
In Townsend v. Sain (1963), the defendant was a heroin addict who was being interrogated about a murder charge. When he complained of withdrawal symptoms, a physician administered a sedating drug. His subsequent confession was deemed involuntary even though there was no indication that the police had engaged in wilful misconduct (although, obviously, they "took advantage" of the situation). Thus, in the context of an interrogation, "it is well settled that statements or confessions made during a time of mental incompetency or insanity are involuntary and consequently inadmissible" (Sullivan v. Alabama, 1982; p. 482). The judicial evaluation of the voluntariness of the defendant's confession is made from the totality of the circumstances with the defendant's mental capacity, intelligence and possible incompetency receiving special attention. The language of Gibbs is particularly noteworthy, `a confession is inadmissable if it would not have been obtained but for the effects of the confessor's psychosis ' [emphasis added, at 244].Thus, prior to the decision in Connelly, voluntariness was broadly construed both in terms of factors increasing susceptibility to whatever coercion or intimidation might be present, and in terms of the act of confession and the act of waiver being the product of a "rational mind and a free will."
Intelligent waiver. The phrase "intelligent" is not used to connote a certain level of intellectual functioning in the psychological sense, although this may be involved. Rather, "intelligent" is used as a synonym for "rational." While some defense counsel may feel that any decision to confess is per se "irrational," the courts have always held that a defendant may rationally choose to confess (and hence face almost certain conviction) when he understands the legal implications of his decision and its likely consequences. "Intelligent" thus refers to both a rational understanding of the consequences, connotations and implications of the act of confession and to the form of reasoning ("rational") which lies behind it. Thus, a decision to confess based upon a firm understanding that it will likely result in conviction and such-and-such sentence will be seen as intelligent if it is also based upon a set of reasons that could be viewed as "rational." A defendant with normal intellectual capacities and without serious mental disorder who chooses to confess to spare her family the embarrassment of publicly revealing her sexual promiscuity could be seen as doing so for rational reasons even though many might choose otherwise in order to avoid imprisonment on a manslaughter charge arising from the slaying of her lover. Arguably, however, a paranoid schizophrenic defendant, whose rationale for confession was based in delusional system that God would destroy her or her family if she did not confess, would be found to have waived her Fifth Amendment rights in a non-rational, i.e. non-intelligent, manner even if she "understood" the likelihood of conviction and sentencing.
Knowing waiver. To the extent that this term has semantic implications beyond those already covered by "voluntary" and "intelligent," it refers to cognitive and intellectual capacities to understand the terms utilized in a "Miranda" warning. The primarily focus has been upon the theoretical and functional intelligence of the defendant in relationship to the meaning of the words and phrases of the warning. While no specific "cutting score" or developmental age has emerged from court decisions, clear evidence of a defendant's mental retardation raises a bona fide doubt (Ellis & Luckasson, 1985).
This aspect of competency to confess has received the most empirical attention, primarily in Grisso's work (1981; 1986) which focusses on juveniles. Grisso developed a series of four assessment instruments designed to assess the capacities of defendants (both adult and juvenile) to waive their "Miranda" rights in a meaningful fashion. The Comprehension of Miranda Rights (CMR) instrument utilizes a semi-structured interview format in which each of the four parts of the standard warning are presented to a subject with a request that he or she "Tell (the interviewer) in your own words what is said in that sentence." Follow-up questions to clarify responses are allowed. The CMR utilizes a standardized scoring manual for each item and has moderately high inter-rater and immediate test-retest reliabilities. The CMR is also available in a True-False format (CMR-TF), and a version which focusses on the vocabulary of the Miranda language (CMV). A final instrument, the Function of Rights in Interrogation (FRI) measure consists of pictures and vignettes which serve as an interview vehicle to assess a subject's understanding of how the right to silence and the right to an attorney function during various stages of the adjudication process. Reliability characteristics for these instruments are in the same range as those of the CMR (see Grisso, 1981; 1986 for details). The three "CMR" measures intercorrelate substantially but not so highly as to be seen as interchangeable in their functions or the components of comprehension which they assess; the CMR instruments do not relate well to the FRI measure, however, with intercorrelations ranging from 0.05 to 0.27.
Grisso's work in this area represents a substantial contribution because these instruments, when taken together, provide a specific means to assess the cognitive aspects of comprehension of Miranda rights. While intelligence as measured by standardized tests (Stanford-Binet, Wechsler) is surely relevant to this concern, it is too global a construct to be useful in judicial decision-making. As one might expect, CMR scores are correlated with traditionally measured IQ (CMR, 0.47; CMV, 0.59; CMR-TF, 0.43). From a construct validational point of view, these correlations indicate that while the CMR relate properly to global intelligence, they also tend to measure something else in their own right. While the CMR is still under study, one would hope that the "something else" will prove to be a better index of functional comprehension of Miranda rights than can be indexed by IQ scores.
Connelly v. Colorado
Having reviewed the jurisprudential and psychological literature on competency to confess, we now turn our attention to the Connelly case which is rapidly becoming the source of much confusion and debate.
Factual background. Francis Connelly approached a Denver police officer on August 18, 1983 and stated, without prompting, that he had murdered someone and wanted to talk about it. He was promptly "Mirandized" and claimed he understood his rights but wanted to talk anyway. He denied taking drugs or being drunk when asked, but did state that he had been a patient in several mental hospitals. He repeated that he understood his rights to this officer and to another officer. He told the police officers and a detective that he had come from Boston to confess to the murder of a young girl in 1982. He subsequently took them to the scene where the body had been previously discovered. The officers testified that he did not appear to them to show any signs of mental disorder, other than his admission that he had been previously hospitalized. The next day, he was interviewed by the public defender, who found him disoriented, incoherent, and claiming that he was hearing voices which had commanded him to withdraw all his money, buy a plane ticket to Denver (from Boston), and send the rest of the money to his mother or else he would be forced to commit suicide. Connelly was evaluated for competency to stand trial, found incompetent, and hospitalized until March, 1984, at which time he was judged restored to competency. At his trial, the defense moved to suppress all of his prior statements to the police on the grounds that his waiver was incompetent.
At the suppression hearing, the primary witness was a psychiatrist from the state mental hospital who had examined Connelly during his competency evaluation and treatment. Dr. Metzner testified that a) Connelly was suffering from a chronic mental illness, schizophrenia; b) Connelly had a long history of disorder including five hospitalizations since 1979; c) that at the time of his waiver and confession he was actively psychotic, and was experiencing "command hallucinations" which interfered with his ability to make free and rational choices, although he did understand his rights in an abstract and purely cognitive fashion. On the basis of this evidence, the trial court ruled that Connelly's statements, both before and after the Miranda warning were involuntary, being the product of mental disorder and not the operation of a rational intellect and free will. In State v. Connelly (1985), the Colorado Supreme Court upheld this finding with respect to both Connelly's pre- and post-custodial statements, and specifically relied upon the Culombe, Blackburn, and Townsend cases discussed earlier in this section:
The testimony ... established that the defendant on this occasion was suffering from a serious mental disorder which placed him in the dilemma of confessing his crime to the police or committing suicide. Given this state of the evidence, it was within the court's prerogative to rule that the defendant's initial statement to Officer Anderson was not the product of a rational intellect and a free will notwithstanding the fact that this statement was neither solicited by the officer nor was the result of any form of police action...The testimony ... (also) clearly established that the defendant's mental condition of August 18, 1983 was such that he was incapable of making an intelligent and free decision with respect to his constitutional right of silence while in custody and his constitutional right to confer with a lawyer before talking to the police. (p. 731)
The United States Supreme Court reversed Connelly in a decision that has already generated considerable controversy (Elliot, 1987; Perlin, 1987). In the original petition for certiorari, neither the state nor defense raised the issue of whether or not Connelly's mental illness and adjudged incompetency resulted in an ineffective waiver of his Miranda rights. The issues were confined to his pre-custodial statements which were also suppressed. The Court took
the unprecedented step of rewriting a prosecutor's certiorari petition for him, enabling him to seek reversal on a ground he did not present....the Court directed parties to brief the question of whether the defendant's mental condition rendered his waiver of Miranda rights ineffective ( Justices Brennan and Marshall, dissenting opinion, Colorado v. Connelly, 1986, n.5).
The majority in Connelly held that:
Coercive police activity is a necessary predicate to finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment (p.522).
Thus, because no police coercion or wrongdoing was evident in the behavior of the Denver police, Connelly was not due any further consideration of the voluntariness issue. The Court went on to observe that accepting Connelly's claim that his mental disorder alone could render his decision to confess involuntary would "import into this area of constitutional law notions of `free will' that have no place here" (p.523).
This decision is a troublesome one from both jurisprudential and psychological perspectives. It is important to note that nowhere in the majority opinion is the fact that Connelly was found incompetent to stand trial even mentioned. Three Justices (Brennan, Marshall, and Stevens) strongly dissented from the Court's analysis of Connelly's waiver of his Miranda rights:
The Court seems to believe that a waiver can be voluntary even if it is not the produce of an exercise of the defendant's `free will'...The Court's position is not only incomprehensible to me; it is also foreclosed by the Courts recent pronouncement in Moran v. Burbine ...106 S. Ct. 1135, 1141...(1986)...that `the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice' (Justice Stevens, dissent, p. 525)
Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind ... (Connelly's) ... seriously impaired mental condition is clear ... At the time of his confession (he) suffered from a `longstanding mental disorder,' diagnosed as chronic paranoid schizophrenia ... He had been hospitalized for psychiatric reasons five times prior to his confession; his longest hospitalization lasted for seven months. ... (He) heard imaginary voices and saw nonexistent objects. ... He believed that his father was God, and that he was a reincarnation of Jesus. ... At the time of his confession, Mr. Connelly's mental problems included `grandiose and delusional thinking' ... He had a known history of `thought withdrawal and insertion' ... he had not taken any antipsychotic medications for at least six months prior to his confession ... (Justice Marshall, dissent, Pp. 525-526, citations and other text omitted).
Thus, the jurisprudentially troublesome part of this opinion is that it totally ignores the entire precedent of constitutional analysis of "intelligent, voluntary, and competent" waiver of any fundamental right, relying instead on the creation of a separate class of voluntary rights, those which only apply when there has been police misconduct. It also ignores the uncontradicted evidence of Connelly's serious and legally relevant mental disorder.
COMPETENCY TO WAIVE COUNSEL
The fundamental right to effective assistance of counsel during an adversarial confrontation during which an individual may loose an even more fundamental right, i.e. to liberty, is acknowledged in all mature systems of law. When a defendant seeks to waive this right and proceed pro se, a serious issue of competency arises. In the hierarchy of factors which may compromise the fairness of adjudication, right to assistance of counsel is high on the list. Nevertheless, some defendants wish to represent themselves, for a variety of reasons. In Faretta v. California (1975), the Supreme Court of the United States addressed this issue in detail. As is the case with other fundamental rights, the waiver must be made in a "knowing, intelligent and voluntary" manner [in Faretta this is expressed as "literate, competent, and understanding, ... voluntarily exercising his informed free will" (p. 836)]. The standard set in this case was that the wiseness or stupidity of the defendant's decision was not the issue. Rather, the defendant must only show that the waiver meets the criteria of "literate, competent, and competent." While the Supreme Court had previously announced in Westbrook v. Arizona (1965) that a hearing on competency to stand trial did not suffice to determine competency to "waive ... constitutional rights to the assistance of counsel and ... to conduct (one's) own defense" (p. 150), it did not choose to rule on whether or not the standard was a higher one. Unfortunately, no comprehensive empirical study of actual trial court practice is available. The matter is the subject of intense and abstract debate in the scholarly literature (e. g., Melton et al., 1987; Roesch & Golding, 1980, 1987; Silten & Tullis, 1977). The American Bar Association, in its recently announced Criminal Justice Mental Health Standards (ABA, 1984), declined to advocate a higher standard, but did advocate an explicitly different standard, as follows:
...the present ability to knowingly, voluntarily and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishment, and any additional matters essential to a general understanding of the case (Standard 7-5.3).
In our experience, however, trial courts have had a difficult time dealing with potentially incompetent defendants who seek to waive their right to counsel. While some trial courts have reached similar conclusions based on either higher standards or on the basis of tailoring the Dusky language as advocated by the ABA, most have difficulties when confronted with an articulate but extremely paranoid defendant. A recent Utah case illustrates the nature of the problem.
Ron Lafferty was accused, with his brother, of the murder of his sister-in-law and her child. Throughout a series of hearings, he maintained his innocence and his desire to represent himself. His reasons for wishing to do so were that a) he had committed the acts on command from God, who wished the blood atonement of the victims; b) the only issue which could be legitimately addressed was whether or not God had so ordered him; c) the only court having proper jurisdiction in the matter was an ecclesiastical court, not a temporal one; d) no attorney would be able to present his case in this way, since they were under the control of the current leaders of the (false) Mormon Church; and e) in any event, God would see to it that he would be saved. Throughout the many hearings, forensic evaluators had great difficulty in determining whether or not he suffered from a paranoid personality disorder, or was frankly delusional. In the end, all but one (who did not personally examine Lafferty), concluded that he was delusional, and could not rationally waive his right to counsel. Nevertheless, the court was impressed with his articulation of his position, and ruled that he could represent himself, although it appointed stand-by counsel. In fact, counsel presented the bulk of the case, acting on direct orders from Lafferty, and never introducing mental health testimony or an insanity defense at the guilt phase of the trial. Lafferty was convicted and sentenced to death.
Before jumping to the conclusion that the court abused its discretionary judgment, one should realize that the reasons upon which Lafferty based his decision were not fully presented to the court. While they were presented in the professional reports, they were not fully brought out during the hearings because Lafferty was allowed to conduct those hearings, the presumption being that he was competent until proven otherwise. The court, in its memorandum decision on the competency issue, stressed the importance of Lafferty's Faretta rights, even though it clearly believed Lafferty was mentally ill, and that his actions would be to the detriment of his case. While we would hope that most courts would not reach a competency decision given this fact pattern, we believe, lacking empirical data, that many courts will (reluctantly) read Faretta in this way. The case of Arthur Goode in Florida, who was also convicted of murder supports this conclusion. Goode sexually assaulted and murdered a ten year old boy in Florida. At the time, he was an escapee from an involuntary commitment in Maryland. Following the Florida murder, Goode returned to Maryland, kidnapped two other boys, murdering one and telling the other of his Florida murder victim. Goode was convicted and sentenced to life. He then confessed to the Florida killing, and demanded to be returned there in order that he might be executed. Goode asserted his right to waive counsel. One of the psychiatrists who examined him, and found him competent, characterized Goode's reasons as follows:
He is making a choice based upon nonpsychotic reasons, and his reasoning basically consists of his feeling that he has already been convicted of a murder, Number One. Number Two, he wishes not to spend the rest of his life in prison. Number Three, despite his insistence that he feels no remorse he does indicate that he still considers himself to be dangerous and in a very vague way, but in a very true way indicates that somewhere within himself there is the thought that he should not be allowed to continue to go on in his present course which includes mental illness, which includes murdering young children [Goode v. Florida (1978), p. 383].
Two other psychiatrists for the state shared in this conclusion, while one psychiatrist for the defense (testifying over Goode's objections to his counsel) characterized Goode as showing
signs of schizophrenia of the latent type with disturbance in his thoughts, in his thinking, in his affect and his behavior. In addition, I think that he meets the criteria as I understand them related to the issue of competency to stand trial in that - and I think here is the misleading part - he can give factual information and he does so very readily, and I think that this is deceiving to people in that he appears to make sense about what he is saying, but -- and I think this is a matter to be argued by you and the State and for the Judge to decide, but is it rational, and I think that is the key issue (p. 382).
Whether or not Goode was or was not psychotic (or "merely" suffering from substantial personality disorder), his reasons for wishing to offer no defense, for wishing to confess at trial, and for desiring to be executed were "rational" enough to persuade the trial court, the Florida Supreme Court, the Court of Appeals and the United States Supreme Court that he was competent to waive counsel and proceed as he wished based upon his Faretta rights. We submit that under either Dusky or some higher standard, this finding is erroneous. Goode, while evidently much more dangerous than other mentally disordered individuals, is not atypical in viewing his situation and his disorder as hopeless, and therefore wishing to die. What would the result have been if, absent the murders, Goode had sought approval from the courts for passive suicide because he had grown tired and dispirited after battling severe mental disorder until the age of 27? Clearly, all courts would have refused to cooperate, and would have committed him as mentally ill, dangerous to self, and incompetent to refuse treatment. Is it jurisprudentially consistent to reach a different result here solely on the basis that he committed murder (while arguably insane) and wishes to assert his Faretta right to represent himself and thereby to block any attempt to adjudicate his case sort of sentencing him to death? We think not.
When the defendant's paranoid system involves obviously delusional content (e.g. "little green men from Mars"), courts will have no difficulty. However, in our clinical experience, almost all other mentally disordered defendants seeking to represent themselves do so on the basis of either religious delusions or suicidal ideation in the face of admittedly difficult circumstances. We believe that the courts need more explicit guidance in this matter, and that, on both pragmatic and theoretical grounds, a higher as well as a different standard are required. There are simply too many possibilities of abuse.
Competency to refuse treatment
In the context of a criminal indictment, what rights does a defendant preserve when committed under court order for competency restoration? As we discuss in the section on disposition, a variety of due process rights must be exercised on behalf of such a defendant under the doctrine set out by Jackson v. Indiana and under state statutes governing the disposition of incompetents. However, a particularly troublesome jurisprudential and psychological issue arises when one tries to determine whether such a defendant has any right to the form and context of treatment given. In addition, does the involuntary medication of a criminal defendant who wishes to raise the insanity defense disadvantage the defendant by making him appear less psychopathological at the time of trial? Does it alter his or her psychological state so as to render the defendant less able to effectively consult with trial counsel? It is to these questions that we now turn.
Disadvantage at trial. When a defendant is restored to competency by medication, he or she may be disadvantaged at trial because of the medication. Among the potential disadvantages discussed by scholarly commentary (ABA, 1984; Fentiman, 1986; Gutheil & Appelbaum, 1983; Roesch & Golding, 1980; Tomashefsky, 1985; Winick, 1977, 1985) are:
a. that the defendant may need to take the witness stand, but may appear very constrained, emotionally withdrawn, and without affect or remorse leading the trier of fact to an adverse inference about the credibility of other testimony that he was insane or otherwise psychologically disturbed at the time of the alleged offense (e.g. Commonwealth v. Louraine, 1983; State v. Murphy, 1960; In re Pray, 1975);
b. that the psychotropic medications may produce side - effects that alter consciousness, degree of awareness, and emotionality such that the defendant is cognitively confused and less involved in the trial proceedings, thereby reducing the effectiveness of his assistance of trial counsel;
c. the psychotropic medications may alter the defendant's mental state such that he or she will appear distinctly different to court-appointed insanity defense examiners who may not have assessed the defendant prior to competency restoration (Golding & Roesch, 1987).
When the state has shown through preliminary hearings that it has a strong case against a defendant who is alleged to have committed a serious felony, there are compelling reasons to tip the balance of potentially conflicting interests in favor of the state's need to proceed with the trial of such a defendant. When the defendant's competency is medication-dependent, his interest in proceeding totally unaffected by such medication must give way, unless a strong case can be made that no additional safeguards can assure a fair proceeding. Very few courts have addressed this issue (see Fentiman, 1986, for a review in the context of the insanity defense). An integrative reading of the available cases and relevant mental health scholarship (Golding & Roesch, 1987; Gutheil & Appelbaum, 1983) yields the following composite proposal for how such cases should be approached.
Directly assess need for continued treatment. There is considerable variability in the nature of individual response to psychotropic treatment (Gutheil & Appelbaum, 1983). We propose that state courts modify their decision-making to incorporate this reality. When a court commits a defendant for competency restoration, the court should request from the treating facility a specific determination of the defendant's need for continuing medication when he or she is returned as restored. The court should then investigate, as part of its competency restoration hearing, whether or not the defendant is in need of such continuing medication, and whether or not the defendant objects to being tried in such a state. The determination should be based, in part, upon actual data concerning the defendant's mental state, on and off medication. There is no reason why treating facilities cannot aid in that determination based upon their observations during the last phase of the defendant's treatment, which hopefully would include clinical trials of reduced medication and/or medication cessation. If the court should find that the defendant is competent only when medicated, it should then determine whether or not certain safeguards are needed to assure that the side-effects manifested in this defendant do not compromise fundamental fairness.
Provide trier of fact with better data. If the defendant is tried while medicated, then both the trial judge or jury should be provided directly with testimony as to the effects of such medication upon this defendant (see In re Pray, 1975). The American Bar Association's Criminal Justice Standards explicitly includes this provision:
The defendant should not be considered incompetent to stand trial because the defendant's present mental competence is dependent upon a continuation of treatment or habilitation which includes medication, nor should a defendant be prohibited from standing trial or entering a plea solely because that defendant is being provided such services under professional supervision.
If the defendant proceeds to trial with the aid of treatment or habilitation which may affect demeanor, either party should have the right to introduce evidence regarding the treatment or habilitation and its effects and the jury be instructed accordingly (ABA, 1984, Standard 7-4.14).
In addition, every attempt should be made to provide the jury with data concerning the defendant's pre-medication mental state. Many insanity-pleaders are found unfit for trial (Criss & Racine, 1980; Golding et al., 1987; Petrila, 1982) and are treated, primarily with psychotropic medication, until their (predominantly) psychotic symptomatology remits. Conservatively estimated, another 30 percent may received treatment while in jail awaiting trial. Furthermore, Golding et al. (1987) have shown that considerable change occurs during this time period. It is therefore extremely likely that a defendant who pleads not guilty by reason of insanity comes to trial disadvantaged if his pre-medication mental state is not preserved. First, if unfit for trial, an extensive "sanity" evaluation is unlikely to have taken place, and no relatively neutral record of his/her pre-treatment behavioral, perceptual, cognitive, affective and judgmental capacities at the time of the offense, will exist. Second, the defendant may have changed dramatically by the time of the "insanity" evaluation, especially if medicated. Third, medicated or not, if the defendant was in a disturbed state at the time and in a different state later, she/he will have difficulty recalling/describing the relevant mental state during a subsequent interview. Fourth, the defendant, many months later, has a difficult time convincing a judge or jury of their mental state, especially given the strong societal suspicion of malingering and the defendant's current adequate interpersonal presentation (if fit, she/he is likely to appear in court looking like anyone else; there will be no overt symptoms of agitation, psychotic anxiety, behaving as if hallucinating , and the like). Finally, in the interests of justice (for both the defense and prosecution), no record would normally exist of the objective data upon which the forensic examiner based his/her inferences. Recording interviews removes the disadvantage of cross-examining an expert who is not only "in control" of the expertise but also of the data to which that expertise is applied. Thus, as we have argued at length elsewhere (Golding & Rosech, 1987), we believe that every attempt should be made to videotape a "criminal responsibility" or general "mental status at the time of offense" interview (Melton et al., 1987) with the defendant, prior to use of medication, when there is any possibility that some mental state defense will be raised at trial. The examiner's primary concern in such cases should be to preserve a sufficiently detailed record of the defendant's pre-treatment mental state so as to not disadvantage the defendant at trial subsequent to competency restoration.
If these steps are followed, then it is likely that a defendant will not be disadvantaged at trial in a manner for which safeguards are not available. The extreme case of a defendant who will never regain competency without medication, is seriously disadvantaged while medicated with no possible compensatory safeguards, and who runs into the "outer-limit" established by the state's interpretation of Jackson (see below) is an unlikely one.
Right to refuse treatment. Neither civil nor criminal committees have an absolute, unqualified right to refuse treatment. Several cases have outlined the contours of the qualified right for criminal detainees or pre-trial defendants committed for competency restoration. In Vitek v. Jones (1980), the Supreme Court of the United States held that
A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections (Pp. 493-494).
In Bee v. Greaves (1984), the Court of Appeals for the Tenth Circuit relied by Vitek to conclude that a pre-trial detainee could not be treated against his will unless the court made a specific finding that the defendant was mentally ill, was in need to treatment, and was incompetent to consent to the proposed treatment. In accord with this principle, several states (e.g. Illinois, Florida, Utah) have modified their competency statutes to provide for a specific finding on the issue of competency to consent to treatment at the time of a hearing on competency to stand trial per se. Thus, in these jurisdictions, once a defendant has been found incompetent to stand trial, the court then evaluates what treatments in which settings are appropriate, and permits the defendant to raise whatever objections may be filed on his behalf as to these issues. The primary concern here is the defendant's privacy interest, and his interest in avoiding being subjected to treatment which might be dangerous or produce lasting and detrimental consequences.
A person determined to be incompetent to stand trial and detained or committed for treatment or habilitation or ordered to appear for outpatient treatment or habilitation should have no right to refuse ordinary and reasonable treatment or habilitation designed to effect competence. However, a defendant should have the right to refuse any treatment or habilitation which may impair the defendant's ability to prepare a defense to the charge, which is experimental or which has an unreasonable risk of serious, hazardous or irreversible side effects (ABA, Criminal Justice Mental Health Standards, Standard 7-4.10(c), 1984).
Florida's code (Florida Statutes, 1986) is illustrative of the way these standards have been incorporated into state law. It provides for the commitment of mentally ill or retarded individuals found incompetent to stand trial when there is clear and convincing evidence that, in addition, they pose either a danger to themselves, or others, or when their refusal would be detrimental to their well-being, and when there is a finding that no less restrictive alternative is available (Section 916.13). Section 916.107 specifies the defendant's rights concerning treatment refusal as follows:
(3) RIGHT TO EXPRESS AND INFORMED CONSENT
(a) A person committed to the department pursuant to this act shall be asked to give express and informed written consent for treatment. "Express and informed consent" or "consent" means consent given voluntarily in writing after a conscientious and sufficient explanation and disclosure of the purpose of the proposed treatment, the common side effects of the treatment, if any, the expected duration of the treatment, and any alternative treatment available. If a patient in a forensic facility refuses such treatment as is deemed necessary by the patient's multidisciplinary treatment team at the forensic facility for the appropriate care of the patient and the safety of the patient or others, such treatment may be provided under the following circumstances:
1. In an emergency situation in which there is immediate danger to the safety of the patient or others, such treatment may be provided upon the written order of a physician for a period not to exceed 48 hours... the forensic facility shall, within 48 hours, excluding weekends and legal holidays, petition the committing court or the circuit court serving the county in which the facility is located, at the option of the facility administrator, for an order authorizing the continued treatment of the patient. In the interim, treatment may be continued without the consent of the patient upon the continued written order of a physician who has determined that the emergency situation continues to present a danger to the safety of the patient or others.
2. In a situation other than an emergency situation, the administrator of the forensic facility shall petition the court for an order authorizing the treatment of the patient. The order shall allow such treatment for a period not to exceed 90 days from the date of the entry of the order. Unless the court is notified in writing that the patient has provided express and informed consent in writing or that the patient has been discharged by the committing court, the administrator shall, prior to the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for another 90-day period. This procedure shall be repeated until the patient provides consent or is discharged by the committing court.
3. At the hearing on the issue of whether the court should enter an order authorizing treatment for which a patient has refused to give express and informed consent, the court shall determine by clear and convincing evidence that the patient is mentally ill or mentally retarded as defined in this chapter, that the treatment not consented to is essential to the care of the patient, and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects. In arriving at the substitute judgment decision, the court must consider at least the following factors:
a. The patient's expressed preference regarding treatment;
b. The probability of adverse side effects;
c. The prognosis without treatment; and
d. The prognosis with treatment.
The basic concern amongst side-effects is tardive dyskinesia which may develop in patients treated with commonly prescribed anti-psychotic medications such as Haldol, Prolixin, Stelazine, Thorazine and others. There is considerable debate in the professional community, but the majority opinion is that the disorder may be irreversible in chronic patients and may develop quite early in treatment if properly assessed (Gardos, 1980; Gardos & Cole, 1983). This class of side-effects, which involves abnormal motor movements of the limbs, face, tongue and mouth, as well as other side effects which involve feelings of apathy, listlessness, cognitive slowing, shaking, muscular discomfort and often anxiety, provide a genuine basis for treatment refusal. Indeed, they are the primary reasons for non-compliance with medication among psychiatric patients.
It would be a difficult choice among even "competent" patients. The advantage of statutes such as Florida's is that they force not only a full review of options and alternatives, but also, we suspect, result in a more conservative use of medication. Absent any empirical investigations of the impact of such policies, we can only observe that they represent a rational solution to a complex set of competing interests.
DISPOSITION AND TREATMENT OF UNFIT DEFENDANTS
When a defendant is found unfit to proceed, a complex set of problems arise. We have already considered one difficult issue, namely the interest of the state to restore competency so that the case may be adjudicated versus the interest of the individual not to be disadvantaged at trial because of medication and not to be subjected to certain forms of treatment against his will. Additional issues concern a) the setting in which treatment occurs (least restrictive alternative), b) rights the individual maintains while in treatment, c) the length of time governing involuntary treatment, and d) the disposition of charges if competency restoration seems improbable.
United States
The disposition of incompetent defendants is perhaps the most problematic area of the competency procedures. Until the case of Jackson v. Indiana (1972) virtually all states allowed the automatic and indefinite commitment of incompetent defendants. In Jackson, the Supreme Court held that defendants committed solely on the basis of incompetency "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" (p.738). The Supreme Court did not specify how long a period of time would be reasonable nor did it indicate how progress toward the goal of regaining competency could be assessed.
The Jackson decision did have a substantial effect on commitment laws. Many states revised their statutes to provide for alternatives to commitment as well as limits on the length of commitment (Roesch & Golding, 1979). As of 1986, the 50 states and the District of Columbia have interpreted Jackson in a variety of ways. Seventeen states either explicitly place no limits on commitment or rely upon the courts to rule in individual cases that the Jackson limit has been reached. Twelve jurisdictions construct a limit as a percent of maximum time, maximum time, or certain outer limits if less than maximum time (ranging from 15 months to 10 years). Four states establish maximums that depend upon the crime. Eighteen states place the outer limit at 18 months or less.
Unfortunately, little data are available with respect to how these various policy options actually operate. Most states only have rudimentary mental health tracking systems, and so investigators face tremendous difficulties in trying to assess the outcome of various policy alternatives. While many states now utilize statutory language that embodies the principle of treatment in a least restrictive setting, it is not known how this language has been interpreted in practice. The same "little or no data" conclusion holds for other aspects of disposition of the incompetent, viz., how long they tend to be held, what treatments they tend to receive, what kinds of individuals raise objections to psychotropic medication, etc.
We now turn to a review of that literature which does exist.
There are few publications dealing with the treatment of defendants found unfit to stand trial. We suspect that most defendants do not receive treatment specific to the problems associated with their legal status. Medication is the most common form of treatment, although some jurisdictions have established treatment programs designed to increase understanding of the legal process (e.g., Pendleton, 1980; Webster, Jenson, Stermac, Gardner, & Slomen, 1985) or that confront problems that hinder a defendant's ability to participate in the defense (Davis, 1985). However, determinations of release may have more to do with the nature of the legal charges than responsiveness to treatment.
Roesch and Golding (1980) found that many charges against unfit defendants are frequently dismissed after it is determined that they are ready for trial, especially if they had been held for an amount of time approximately equal to the time that would have been served if originally found guilty and sentenced.
Cuneo et al (1982) examined the relationship between the seriousness of the charge and length of confinement for unfit defendants. In this study of a sample of 827 unfit defendants, the criminal charges were coded according to a scale of seven levels of seriousness. They found a correlation of .64 indicating that patients with more serious charges are hospitalized longer. Should this be the case? In other words, should degree of incapacity or responsiveness to treatment be related to the type of offense? The authors suggest that one explanation is that more serious charges may require a higher level of functioning or fitness. As a consequence, treatment may take longer to ensure that the defendant is ready to meet the demands of the case. It is also possible, of course, that the confinement period for some defendants may be viewed as an alternative disposition.
There are a few examples of specific treatment programs for unfit defendants. Pendleton (1980) used the Competency Assessment Instrument to identify problem areas of persons who had been committed to a mental hospital as unfit to stand trial. These defendants attended a class reviewing pleas, roles of courtroom personnel, courtroom procedure, and appropriate courtroom behavior. There was both an oral or written exam at end of class, which was followed by a video tape of a mock trial. The purpose of the class was to provide defendants with a behavioral rehearsal and to desensitize them to the trial process. When a defendant successfully demonstrates competency in the class and mock trial, he or she was referred for an interview to re-evaluate competency; if found competent, the defendant is returned to court. Pendleton found that 97.5 of the defendants returned to court in this manner were able to complete the trial process. As Pendleton suggests, this might attest to the success of the program, but since there was no control or comparison group it is not possible to determine whether these defendants could have been successfully returned to court even in the absence of a specific treatment program.
Davis (1985) describes a treatment program in a Ohio forensic facility that attempts to assess and treat a defendant's problems as they affect the legal case. Following the functional perspective suggested by Roesch and Golding (1980), Davis suggests that the priority of treatment must be on the restoration of competency and not on other problem areas:
That a patient does not have marketable job skills, lacks a high school diploma, or evidences residual psychotic symptoms may be valid clinical findings, but they are not germane to continued hospitalization unless they affect the individual's competency to stand trial. (p. 269)
Davis (1985) goes on to argue that
the assessment and treatment planning process must proceed on the same specific and functional basis as the original competency assessment. For example, a delusion that the patient's attorney is a member of the KGB and cannot be trusted would clearly have the potential to prevent the patient from participating in his or her defense. However, a poor self image may have little relationship to the patient's competency. Similarly, a patient's lack of a high school diploma and his lack of knowledge about the legal system would have differing treatment priorities. The first concern is not relevant to competency, while the second would have clear implications. (p. 269).
Davis (1985) also describes how the treatment staff assess competency related needs and develop a treatment plan to address those needs. The treatment plans address the following areas: knowledge of the charge and possible consequences, ability to communicate rationally with an attorney, knowledge of courtroom procedures, and the capacity to apply knowledge and abilities to the actual demands of a particular legal situation. Much of the treatment occurs in groups, but some individual therapy takes place as well.
Webster et al (1985) created an educational program at the Metropolitan Toronto Forensic Service (METFORS). Clinicians at METFORS observed that many of the defendants referred for forensic assessments were repeaters. Indeed, as many as one in four were repeat remands. They began an eight session educational program in an effort to break this pattern. Fitness issues and courtroom procedures were considered in two of the sessions, while other sessions were devoted to reviews of theories of mental illness and how to find and use support services once outside the legal system. They report that the project has been very popular with the defendants but note that they have little data to support the program's effectiveness. Nevertheless, this program is a good example of an effort to provide information and education to defendants.
Our review of the literature revealed no other publications on treatment programs explicitly designed for unfit defendants. Clearly, the establishment and evaluation of treatment programs must be a priority. If the Jackson doctrine is taken seriously, it is incumbent upon mental health professionals to develop programs which can assess the likelihood of successful treatment programs for unfit defendants. This implies, of course, that we have considerably more knowledge than we presently do about how to restore competency. To gain more understanding, it will be important to provide funds for research and program development to programs interested in developing explicit treatment programs for unfit defendants. As noted, there is an increasing trend for states to allow treatment and evaluation to occur in the least restrictive setting.
Though many states allow evaluations (and a few treatment) to be conducted at jail, or on an outpatient basis if the defendant can be released on bail, most evaluations and treatment continue to be conducted in institutional settings, primarily forensic units within state mental hospitals. While inpatient evaluations are not needed in all but perhaps a small percentage of cases, the current majority practice is to continue to use lengthy and costly institutional evaluations (Roesch & Golding, 1980; Winick, 1985).
Data from our study of NGRI acquittees in British Columbia (Golding et al., 1987) are illustrative of the treatment outcomes associated with more traditional, institutionally based treatment programs. Over sixty percent of the acquittees had been hospitalized as unfit to stand trial prior to the adjudication of their cases. The mean length of hospitalization was 429 days, with a median of 172 days. A few individuals experienced extremely long hospitalizations which tends to distort the mean figure. Thus the "typical" defendant is treated in an institutional setting for approximately 6 months. Our British Columbia data is somewhat unique in that we were able to determine the time period during which most psychopathological change occurred in the cohorts which we studied. Not surprisingly, the change tends to occur within the first six months of psychopharmacological treatment, if it occurs at all. Thus, most NGRI acquittees who are treated, respond about as much as they ever will, within the first six months of treatment. For over half of our sample, this meant that they had responded before they began their long period of hospitalization as NGRI acquittees, since they had been treated as unfit to stand trial.
In recent years, considerable effort has been made to convince courts and mental health administrators to utilize community-based evaluation procedures and/or screening at court clinics (e.g., Beran & Toomey, 1979; Fitzgerald, Peszke, & Goodwin, 1978; Melton, Weithorn, & Slobogin, 1985; Roesch, 1978; Winick, 1985). Laben et al. (1977) estimated that the costs of community-based evaluations was one-third the cost of hospital-based evaluations (see also Fitzgerald et al., 1978 ). While more use of such community evaluations or screening procedures could be justified on jurisprudential grounds (less restrictive settings, fewer infringements on other procedural rights), we expect that a major shift towards these alternatives will occur on financial grounds alone within the next 10 years. By then, assessment procedures explicitly designed for use in such settings will be more commonly utilized, and a majority of evaluations will take place in outpatient settings or in local jails.
Canada
As is the case in other jurisdictions, only a small percentage of defendants who are evaluated are found unfit and committed for treatment. In a study of six Canadian cities, Menzies, Webster, Butler, & Turner (1980) reported that 85 of remanded defendants were found to be fit to stand trial. The Criminal Code of Canada makes provision for the indeterminate commitment of those defendants found unfit to stand trial. Unfit defendants may be confined indefinitely under this provision, under the authority of a "Lieutenant Governor's warrant". The place of detention is unspecified. As Verdun-Jones (1982) points out, "although it is generally assumed that such detention should be in a psychiatric facility, the Code makes no mention of the place where an unfit person should be confined nor does it make any reference to the need for `treatment' or `therapy'" (p. 122). The Code also makes provision for the Lieutenant Governor to appoint a Review Board to review the cases of unfit defendants and make advisory recommendations to the Lieutenant Governor about the disposition of a case. The board consists of three to five members, at least two of whom must be a psychiatrist and one a lawyer.
A number of concerns have been raised about the manner in which unfit defendants are dealt with in Canada. The fact that the final decision about disposition rests with the Lieutenant Governor rather than the review board (or alternatively, the courts), has been criticized because the Lieutenant Governor is not obliged to specify reasons for disagreeing with a recommendation from the board (Whitley, 1984). Consequently, there is little or no opportunity for a defendant or a defense lawyer to challenge the decision. The review boards themselves are not open to public scrutiny. The hearing before a review board is informal with no established rules of procedure. Furthermore, Whitley points out that "there does not appear to be a common practice of voting on decisions; nor are reasoned decisions written...dissents as a rule are not recorded" (p. 391). Verdun-Jones (1982) has articulated the view that
Despite the many "humanitarian" considerations which have been alleged to be the justification for maintaining the place of the fitness doctrine within the Canadian system of criminal justice, the doctrine has been subjected to a rising wave of criticism in recent years. Far from being a mechanism whose primary concern is the protection of the accused, the current legal machinery associated with the fitness issue bears all the indelible hallmarks of a legal device which is equally (if not more) concerned with the protection of society from the perceived danger posed by those who have fallen afoul of the criminal law and have suffered the misfortune of having been diagnosed as "mentally ill" (p.365).
Recommended changes to the criminal law may alleviate some of these concerns. The proposed code eliminates the role of the lieutenant governor in decisions about the disposition of unfit defendants or those found not guilty by reason of insanity. The Review Board will continue to be responsible for disposition and will be composed of a judge who will act as chair, a psychiatrist and at least one other mental health professional. The most substantive change is that a hearing before the board will be considered a quasi-judicial proceeding in which the accused will have a right to counsel, the right to call witnesses and to cross-examine witnesses. Further, the board will operate on the assumption that the least restrictive disposition should be considered.
The proposed code would also limit the length of confinement by placing a ceiling based on type of offense. For serious, typically violent, offenses the maximum will be 10 years or the maximum sentence proscribed for the offense, whichever is shorter. For all other offenses, the maximum will be two years or the maximum sentence.
One area in which the proposed legislation did not follow the recommendations of a number of groups and legal scholars is the use of a provisional trial. We have discussed the use of provisional trials elsewhere in this chapter. The Law Reform Commission of Canada (1977) proposed that a trial judge may postpone determination of the fitness issue. In the case of a trial by jury, the provisional trial would operate in the following manner:
The trial judge would postpone the issue until all the evidence at rial had been heard. He would then direct the jury to consider the guilt or innocence of the accused. If the jury delivered a verdict of not guilty the accused would be acquitted and there would be no fitness hearing. If the jurors thought the accused guilty of the charge, they would deliver a conditional verdict that on the evidence presented to them they are unable to acquit the accused. The verdict is condition in the sense that it is a verdict of guilty if the accused is fit...if unfit, the judge would set aside the verdict and the trial proceedings and make an order for the disposition of the unfit accused. (pp. 16-17)
Verdun-Jones (1985), in a chapter in an earlier volume in this series, has argued that "The adoption of the device of a provisional trial represents a critical step in the slow march toward ensuring that fitness to stand trial procedures are geared toward protection of the accused person from loss of liberty" (p. 51). We agree, and believe it unfortunate that this change does not appear in the proposed code.
From a research perspective, there will be a need to monitor the effect of the proposed code if it is actually passed into law. The proposed code offers policy makers and researchers an ideal opportunity to study the impact of legislative reform. It is unfortunately the case that most changes are made with little empirical knowledge of how the current system operates. Further, changes are made with little planning for evaluating the impact of the changes once the law takes effect. What is needed is a more comprehensive approach to change in which research is viewed as a necessary component of change. Campbell (1969) has referred to this as an experimenting society approach in which we make changes with the view that they be continually monitored to see if the effect was as predicted. This allows us to modify changes as needed or, at times to discontinue a program or law because it didn't have the intended effect.
Applying this research perspective to the proposed code, it would be of considerable interest to assess the degree to which the new law accomplishes its objectives. For example, with respect to disposition issues, a number of research questions could be addressed, such as: Are less restrictive alternatives actually being used? How long are defendants held? What sort of treatment do they receive and how effective is it? Similar questions could be raised at other stages in the process. The new law, if put into practice, would provide an exceptional opportunity to examine the impact of a major change at the national level. In order to address the research questions, however, it will be important to collect baseline data against which the changes can be compared.
United Kingdom
A trial or other judicial proceedings are, of course, postponed for defendants found unfit to stand trial. The court must order that the defendant be committed to a hospital and held indefinitely, with disposition at the discretion of the home secretary. However, the Mental Health Act of 1983 also gives a Mental Health Review Tribunal concurrent jurisdiction, and it may order an absolute or conditional discharge or remove restrictions placed on an unfit defendant. Lesser restrictions could, in effect, place an unfit defendant in the same category and with the same rights as a civilly committed individual (Verdun-Jones, 1985). A defendant may request a review by a mental health tribunal within six months and will automatically be reviewed after the expiration of six months.
The Butler Commission (1975) recommended changes which would allow for a provisional trial. Gostin (1984) provided the following summary:
If disability is found but the medical evidence suggests that recovery is possible within a few months, the judge can adjourn the proceedings for a maximum of six months, during which time the defendant will undergo treatment. The trial may be reconvened at any point during this period on medical evidence that the accused is either recovered...or has not responded to treatment. At the adjourned proceedings, the question of disability will be reopened. If he is still under disability, a finding of facts will take place; the object of this is to enable the jury to return a verdict of not guilty where the evidence is not sufficient for a conviction. If the jury finds that the defendant actually committed the act, he will not be found guilty, because his disability has made it impossible for him to contest his guilt fully. (p. 255)
Finally, it should be noted that the Butler Committee also recommended greater latitude in the disposition orders so that outpatient treatment or even a discharge without any order is possible.
ASSESSING COMPETENCIES
We have argued elsewhere (Roesch & Golding, 1980, 1987) that the most valid conceptual basis for the assessment of competencies is based on a functionalist perspective. The "mental illness" of a defendant is important, but it is not sufficient as a basis for evaluating competency. Rather, the psychopathological, cognitive and affective capacities of the defendant must be related to the specific demands of the legal case and the competencies in question. Some cases are more complex than others and may, as a result, require a higher level of competency. Thus, it may be that the same defendant is competent for one type of legal proceeding but not for others. The "standard" set forth in Dusky is, as we have argued in detail elsewhere (Roesch & Golding, 1980) an "open-construct." After extensive commentary and debate, the American Bar Association, in promulgating its Criminal Justice Mental Health Standards (ABA, 1984) endorsed leaving this standard in its open form, rejecting proposals to develop more specific "checklists" or operational definitions (McGarry et al., 1973; Robey, 1965) of the construct. This is in accord with the logic which led to the development of the Interdisciplinary Fitness Interview (Golding et al., 1984) discussed subsequently. Rather than attempt to define competency is any operational fashion, the IFI allows clinical and legal decision makers to evaluate the global logic of the Dusky standard (or other standards) in flexible ways that make sense given the particulars of a given defendant, charge and legal context.
However, forensic evaluators are also assisted by statutory explicitness in defining the contours of the competency construct. Florida's statutory guidance provides a good example, requiring evaluators to relate a defendant's mental condition to each of 11 legal factors. Each of the following factors must be addressed in the evaluator's report to the court:
1. Defendant's appreciation of the charge
2. Defendant's appreciation of range and nature of possible penalties
3. Defendant's understanding of the adversary nature of the legal process
4. Defendant's capacity to disclose to attorney pertinent facts surrounding the alleged offense
5. Defendant's ability to relate to attorney
6. Defendant's ability to assist attorney in planning defense
7. Defendant's capacity to realistically challenge prosecution witness
8. Defendant's ability to manifest appropriate courtroom behavior
9. Defendant's capacity to testify relevantly
10. Defendant's motivation to help himself in the legal process
11. Defendant's capacity to cope with the stress of incarceration prior to trial (Florida Rule of Criminal Procedure 3.2(a)(1)).
Our view of competency has led us to develop a method for assessing competency which would allow consideration of both the mental status questions and the legal issues. Before we review this measure, we will present an overview of the history of competency assessment methods.
Prior to the 1960s, there were no standard methods for assessing competency in U. S. jurisdictions. One of the first was a checklist developed by Robey (1965), which focused on court process issues such as understanding of the legal process. Another early procedure used a checklist and a set of interview questions devised by Bukatman, Foy, and de Grazia (1971). Neither of these early measures were used very often (Schreiber, 1978). By far, the greatest impact on competency assessment came from the work of A. Louis McGarry and his colleagues at the Harvard Medical School's Laboratory of Community Psychiatry. McGarry, a psychiatrist, was involved in the development of two measures: the Competency Screening Test and the Competency Assessment Instrument.
The Competency Screening Test (CST) was created by Lipsitt, Lelos and McGarry (1971) as a screening measure to identify clearly competent defendants and thus minimize the need for lengthy inpatient evaluations. Such a screening process was considered important because the vast majority of defendants referred for evaluations are competent. The reason is that many other factors influence referrals, including the use of the evaluation commitment as a method for denying bail, as a tactical maneuver to delay a trial, to provide a basis for a reduction in charges or sentences, and as a means of getting defendants who are seen as in need of mental health treatment out of the jails and into the hospitals (Chernoff & Schaffer, 1972; Dickey, 1980; Golten, 1972; Kaufmann, 1972; Lewin, 1969; Menzies, Webster, Butler, & Turner, 1980; Menzies, Webster, Butler, & Turner, 1980; Roesch & Golding 1985; Teplin, 1984).
The CST, however, has not often been used as a screening device. Many evaluators have not chosen to use the CST because of the underlying values reflected in its scoring procedures. The CST is a 22 item measure in sentence completion format. Typical items are "Jack felt that the judge _____ , or "If the jury finds me guilty _____." Defendants are asked to fill in the blanks to complete the sentence. Each item is given a score of 2 (competent), 1 (questionable), or O (incompetent). The CST is designed so that a low total score (Lipsitt et al used a cutoff score of 20) would identify possible incompetent defendants. The scoring method has been criticized (Brakel, 1974; Roesch & Golding, 1980) because of its idealized perception of the criminal justice system. On one item, "Jack felt that the judge _____", responses like "was right" or "was fair" would receive a score of 2, while responses such as "was unjust", "was too harsh" or "was wrong" would get a score of O. On another item, "when Bob disagreed with his lawyer on his defense, he ____", a score of O would be given to "figured there was no sense arguing." We have suggested (Roesch & Golding 1980) that such responses may actually reflect a sense of powerlessness in controlling one's outcome in the legal system. This may be based on past experiences with the legal system and may well be an accurate interpretation.
The CST has been examined in a number of studies. In their initial study on the CST, Lipsitt, Lelos, and McGarry (1971) reported interjudge reliability was .93. Unfortunately, only one other study using the CST has assessed reliability. Randolph, Hicks, and Mason (1981) reported reliability coefficients quite similar to Lipsitt et al, in the .90 range. Keeping in mind that these are the only two studies, it would appear that the CST can be scored in a reliable manner. There have been at least four validity studies comparing classification based on CST cutoff scores and hospital evaluation decisions. In general, the CST appears to function reasonably well as a screening device. The errors appear to be in the desired direction; that is, the CST appears to label defendants as incompetent by the CST, but none was misclassified as competent. In the Randolph et al. (1981) study of the CST, they report an exceedingly high false positive rate of 47 percent but a false negative rate of zero. The overall accuracy of the CST, in terms of agreement with a psychiatric evaluation, was 72 percent. Shatin (1979) found that the CST in his study of 21 female defendants misclassified only four cases. Shatin also reported his results on the use of a five item short form of the CST, and found good concordance with the full 22-item CST.
The other measure developed by McGarry, the Competency Assessment Instrument (CAI), is potentially more useful than the CST. The CAI contains 13 items related to legal issues. The items include "appraisal of available legal defenses," "quality of relating to attorney", and "capacity to disclose pertinent facts...". Each item is scored on a 1 to 5 scale, ranging from "total incapacity" to "no incapacity." The CAI manual contains clinical examples of levels of incapacity as well as suggested interview questions.
The CAI has been used in a number of jurisdictions, although perhaps more as an interview structuring device than in the two stage screening manner (with the CST) as originally intended by McGarry (see Laben et al., 1977; Schreiber, 1978). A revised and extended version has been adopted for use in Canada (Roesch, Webster, & Eaves, 1984), and described elsewhere in this chapter. Unfortunately, there are few studies reporting either reliability or validity data. The present authors used the CAI in a North Carolina study (Roesch & Golding, 1980). Thirty interviews conducted by pairs of interviewers yielded item percent agreement ranging from 68.8 percent to 96.7 percent, with a median of 81.2 percent. The interviewers were in agreement on the competency status of 29 of the 30 defendants (26 competent, 3 incompetent). The interviewers decisions were in concordance with the more lengthy hospital evaluation decisions in 27 of 30 cases, or 90 percent. Obviously, more studies are needed, but the CAI appears to hold promise as a brief screening device.
There has been one attempt to develop a more standard procedure for the assessment of fitness in Canada. Roesch, Webster, & Eaves (1984) published a manual describing the Fitness Interview Test (FIT), an interview and rating scale method for assessing fitness. The FIT was based in part upon McGarry et al.'s (1973) Competency Assessment Instrument. The first part of the FIT is a revision and extension of the CAI, so that it would be appropriate for use in Canada. Two items were added to the original 13 items on the CAI. These items focused on understanding the arrest process, and understanding the legal process (oath, plea, evidence). The second section of the FIT contains 12 original items designed to tap mental status variables. A final item asks evaluators to reach a decision about fitness. Each item is rated on a five point scale ranging from no impairment to a total lack of impairment. Evaluators are also asked to rate the importance of each item to the final decision about fitness. As Roesch et al. point out, "This additional rating is potentially a major conceptual contribution of this research because it allows an analysis of important elements of a decision. This rating can be used to compare raters, to determine if there are different individual and professional viewpoints about fitness, as well as to examine differences by type of decision" (p. 9).
It should be noted that the FIT is not designed as a checklist, a conclusion incorrectly reached by Coles and Pos (1985). Rather, it is intended as a method of structuring the assessment interview and ensuring that information would be obtained on a range of issues potentially relevant to a determination of unfitness. In addition to providing some structure to the assessment process, Roesch et al. suggested that such a procedure would be invaluable as a research instrument since it would lead to a uniform data base. This could be used to examine decisions about fitness both within and between jurisdictions. Initial studies by Roesch et al. suggest that the FIT can be used in a reliable manner and should be a useful guide to evaluators concerned with the assessment of fitness in Canada.
The most recent work on competency assessment is our research on the development of the Interdisciplinary Fitness Interview (IFI). The IFI is designed to assess both the legal and psychopathological aspects of competency. The IFI consists of three major sections: (a) legal issues (5 items); (b) psychopathological issues (11 items); and (c) overall evaluation (4 items). Table 1 contains a list of the items.
----------------------------------------------------------------- insert Table 1 here
----------------------------------------------------------------
Each of the general items represents an organizing scheme for more specific subareas that have been seen to influence competency decisions. For example, six subareas are subsumed under the broad "capacity to appreciate" which forms the core of item 1. These are: (a) appreciating the nature of the state's criminal allegation; (b) ability to provide a reasonable account of one's behavior prior to, during, and subsequent to the alleged crime; (c) ability to provide an account of relevant others during the same time period; (d) ability to provide relevant information about one's own state of mind at the time of the alleged crime, including intentions, feelings, and cognitions; (e) ability to provide information about the behavior of the police during apprehension, arrest, and interrogation; and (f) projected ability to provide feedback to an attorney about the veracity of witness testimony during trial, if a trial is likely to be involved. Note, however, in line with the open-textured nature of the competency construct, that a complete enumeration is not possible; rather, an attempt is made to summarize the general "lay of the land," allowing for specifics to be a matter of personal judgment.
The IFI was designed so that evaluators would have to consider both legal and mental status issues, but neither in isolation. The format of the IFI requires evaluators to relate their observations to the specific demands of the legal situations. For each item, evaluators are asked to rate the degree of incapacity of the defendant, as well as to given the item a score to indicate the influence that the incapacity might have on the overall decision about competency. Thus, a defendant may receive a score indicating the presence of hallucinations (item 10) but receive a low weight score because the evaluator has determined that the presence of hallucinations would not have much effect on the conduct of the legal case. Another defendant with the same symptom may receive a high weight score because the hallucinations are considered to be more of a potential problem during the legal proceedings.
A lengthy training manual for use of the IFI has been developed as a guide for evaluators. For each item, the manual provides a set of suggested questions and follow-up probes and also gives clinical guidance for the handling of typical problems.
The IFI can be used by a single evaluator and we expect that this would be the manner in which it is most frequently employed. However, in our research on the IFI, we have used two evaluators so that reliability could be assessed. Moreover, as a research instrument, we were interested in what the IFI could tell us about how competency is being defined. Because we believe that competency is as much a legal construct as it is a mental health one, we were also interested in determining if there were any differences in the way in which legal and mental health professionals would reach decisions about competency. Thus, we departed from the tradition of having only mental health professionals assess competency by inviting lawyers to participate also. In our research, a lawyer and a mental health professional have worked together as co-interviewers of defendants whose competency had been questioned. We believe that this collaboration is an important method that might result in a broader and, it is hoped, more valid assessment of competency. The presence of lawyers forces a different consideration of the legal issues specific to a case, and it also provides a method of training mental health professionals in the law. One of the problems in the past has been that mental health evaluators lacked knowledge about the legal system. While the creation of graduate training programs in law and psychology as well as joint Ph.D./J.D. degree programs may change this situation in the future (Roesch, Grisso, & Poythress, 1985), collaborating on forensic assessment could serve as an excellent means of educating existing evaluators about legal issues.
Our first study of the IFI has been published (Golding, Roesch, & Schreiber, 1984), the results of which will be summarized here. The subjects were pretrial defendants in the Boston area who were referred by court clinics to a state mental hospital for competency evaluations. They were interviewed by teams composed of a lawyer and either a psychologist or a social worker. The interviews lasted approximately 45 minutes. While the interviews were conducted jointly, each evaluator independently completed the rating form of the IFI. The results demonstrated that judgments about competency can be made in a reliable manner by lawyers and mental health evaluators. They were in agreement on 97 percent of their final determinations of competency. By type of decision, the interviewers found 58 defendants to be competent, 17 incompetent and disagreed on the remaining 2 cases. While overall agreement was excellent, there were some differences between the professions at the item level.
Interjudge reliability (kappa) ranged from .40 to .92. The interviewers were less in agreement on the legal items (mean kappa= .48) compared to the psychopathology items (.67). This finding reinforces our view that the assessment of competency will be improved as lawyers and mental health professionals come to understand the reasons for their disagreement. These were also significant differences in the strategies used by each profession to arrive at a decision. Principal component analyses suggested that mental health professionals have a more integrated view of competency because the legal and psychopathology items overlap to a greater degree. For example, the first component for mental health professionals was a combination of legal items (appreciate changes and options) and psychopathology items that might be viewed as clinical correlates of the legal items (insight, absence of thought disturbance and psychotic belief systems).
Since the defendants in our study were also independently assessed by evaluators at the mental hospital, it was of interest to compare our interviewers' decisions with those of the hospital. The overall agreement was only 76 percent, and there was greater disagreement with respect to decisions that a defendant was incompetent. While the two groups agreed 83 percent of the time on competent decisions, the agreement for incompetency was only 58 percent. It is difficult to interpret these differences because there is no absolute criterion against which to compare them. It is impossible to determine which decision was right and which was wrong. It is conceivable, of course, that both decisions were right because the defendants were seen at different times. A defendant who was incompetent at the first interview has been competent by the time the second one took place, especially if medication was prescribed.
The above discussion illustrates one of the many research problems inherent in studies of competency assessment. Since most defendants are competent (77 percent in our study), it is difficult to obtain a sufficiently large sample of incompetent defendants. Based upon our studies in North Carolina and Boston, it has become clear to us that decisions about most defendants referred for competency evaluations are straightforward, that is, they are competent to stand trial, a finding which is evident no matter what the method of assessment. The potential value of the IFI, we believe, is in assessing defendants whose competency is truly questionable. It is here that we also believe that the collaboration of lawyers and mental health professionals will be of greatest value.
CONCLUDING OVERVIEW
The complex of issues which surrounds competency to be adjudicated remains the central focus of much of the interaction between the criminal justice system and the mental health system. Considerable evidence points to the conclusion that the international jurisdictions which explicitly recognize competency as a separable issue are in the process of experimenting with a number of alternatives. Among the more salient aspects of reform is the attempt to use more cost-effective screening, to perform evaluations and treatment in a less restrictive environment, and to consider competencies at other levels of the adjudication process, particularly with respect to confessions, waiver of counsel and waiver of mental state defenses. Social policy "experimentation" with these issues would benefit from empirical examinations of their systems-wide outcome and comparison with procedures in other international jurisdictions which either subsume competency under other aspects of the mental health code or deal with mental health issues as part of disposition.
REFERENCES
Ake v. Oklahoma. 105 S. Ct. 1087 (1985).
Allard v. Helgemoe. 572 F. 2d 1 (1st. Cir., 1978).
American Bar Association. (1984). Criminal Justice Mental Health Standards. Chicago, Ill.: Author.
Anonymous. (1967). Incompetency to stand trial. Harvard Law Review, 81, 454-473.
Bazelon, D. L. (1975). A jurist's view of psychiatry. Journal of Psychiatry and the Law, 3, 175-190.
Bee v. Greaves. 744 F. 2d 1387 (Tenth Cir., 1984).
Bennett, D. E. (1968). Competency to stand trial: A call for reform. Journal of Criminal Law, 59, 569-582.
Beran, N. J., & Toomey, B. G. (Eds.) (1979). Mentally ill offenders and the criminal justice system: Issues in forensic services. New York: Praeger.
Berry, F. D. (1973). Self-incrimination and the compulsory mental examination: A proposal. Arizona Law Review, 15, 919-950.
Blackburn V. Alabama. 361 U. S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960).
Boykin v. Alabama, 359 U. S. 238 (1969).
Brakel, S. J. (1974). Presumption, bias, and incompetence in the criminal process. Wisconsin Law Review, 1974, 1105-1130.
Bratty v. A.-G. Northern Ireland. 3 All E. R. 523 (1961).
Buchanan v. Kentucky, 107 S. Ct. 2906 (1987).
Bukatman, B. A., Foy, J. L. & DeGrazia, E. (1961). What is competency to stand trial. American Journal of Psychiatry,127,1225-1229.
Butler Commission (1975). Report of the committee on mentally abnormal offenders. London: HMSO.
Carpenter, W. T., Heinrichs, D. W. & Hanlon, T. E. (1987). A comparative trial of phramacological strategies in schizophrenia. American Journal of Psychiatry, 144, 1466-1470.
Chernoff, P. A., & Schaffer, W. G. (1972). Defending the mentally ill: Ethical quicksand. American Criminal Law Review, 10, 505-531.
Cole, E. M. & Pos, R. (1985). Assessment of fitness to stand trial:The need for a profile rather than a scale. Psychological Reports, 57, 1051-1054.
Colorado v. Connelly, 479 U. S. 157 (1986).
Columbe v. Connecticut. 367 U.S. 568. (1961).
Commonwealth v. Louraine. 453 N. E. 2d 437 (Sup. Ct. Mass., 1983).
Cooke, G. (1969). The court study unit: Patient characteristics and differences between patients judged competent and
incompetent. Journal of Clinical Psychology, 25, 140-143.
Criss, M. L., Racine, D. R. (1980). Impact and change in legal
standards for those adjudicated not guilty by reason of insanity. Bulletin of the American Academy of Psychiatry and Law, 8, 261
-271.
Cuneo, D. J., Brelje, T. B., Randolph, J. J., & Taliana, L. E.. (1982). Seriousness of charge and length of hospitalization for the unfit defendant. Journal of Psychiatry & Law, 10, 163-171.
Daniel, A. E., Beck, N. C., Herath, A. et al. (1984). Factors associated with psychiatric recommendations of incompetency and insanity. Journal of Psychiatry and Law, Winter, 1984, 527-544.
Davis, D. L. (1985). Treatment planning for the patient who is incompetent to stand trial. Hospital & Community Psychiatry, 36(3), 268 -271.
Del Buono, V. M. (1975). Mental disorder: A crime. Canadian Journal of Criminology and Corrections, 18, 302-318.
Dickey, W. (1980). Incompetency and the nondangerous mentally ill client. Criminal Law Bulletin, 16(1), 22-40.
Dix, G. (1981). Mental health professionals in the legal process: Some problems of psychiatric dominance. Law and Psychology Review, 6, 1-19.
Drope v. Missouri. 42 U.S. 162 (1975).
Dusky v. United States. 362 U. S. (1960).
Eaves, D., Roesch, R., Glackman, W., & Vallance, S. (1982). Attitudes of the legal profession to the Law Reform Commission recommendations on fitness to stand trial. Criminal Law Quarterly, 24, 233-243.
Elliot, K. R. (1987). Colorado v. Connelly: The "involuntary" reduction in federal due process. Western State University Law Review, 14, 551-566.
Ellis, J. W., & Luckasson, R. A. (1985). Mentally retarded criminal defendants. Geurge Washington Law Review, 53, 414-493.
Estelle v. Smith, 451 U. S. 454 (1981)
Faretta v. California. 422 U. S. 806. (1975).
Favole, R. J. (1983). Mental disability in the American criminal process: A four issue survey. In J. Monahan & H. J. Steadman (Eds.), Mentally disordered offenders : Perspectives from law and social science. New York : Plenum.
Feguer v. United States. 302 F. 2d 214 (Eight Cir.,1962).
Fentiman, L. C. (1986). Whose rights is it anyway? Rethinking competency to stand trial in light of the syntheticaly sane insanity defendant. University of Miami Law Review, 40, 1109-1169.
Fitzgerald, J. F., Peszke, M. A. & Goodwin, R. C. (1978). Competency evaluations in Connecticut. Hospital and Community Psychiatry, 29, 450-453.
Frendak v. United States. 408 A. 2d. 364 (District of Columbia C. A., 1979).
Frith's Case, 202 St. Tr. 307.
Gardos, G. E. & Cole, J. O. (1980). Overview: Public health issues in tardive dyskinesia. American Journal of Psychiatry, 137, 776-781.
Gardos, G. E. & Cole, J. O. (1983). The prognosis of tardive dyskinesia. Journal of Clinical Psychiatry, 44, 177-179.
Geller, J. L. & Lister, E. D. (1978). The process of criminal commitment for pretrial psychiatric examination: An evaluation. American Journal of Psychiatry, 135, 53-60.
Golding, S. L. & Roesch, R. (1987). The assessment of criminal responsibility : A historical approach to a current controversy. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology, Pp.395-436. New York : Wiley.
Golding, S. L., Eaves, D., Rogow, A. (1988, in press). The
assessment, treatment and community outcome of insanity
acquittees. International Journal of Law and Psychiatry.
Golding, S. L., Roesch, R., & Schreiber, J. (1984). Assessment and conceptualization of competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Law and Human Behavior, 8, 321-334.
Goldstein, R. L. (1973). The fitness factory: Part I: The psychiatrist's role in determining competency. American Journal of Psychiatry, 130, 1144-1147.
Goldstein, R. L. & Stone, M. (1977). When doctors disagree : Differing views of competency. Bulletin of the American Academy of Psychiatry and the Law, 5, 90-97.
Golten, R. J. (1972). Role of defense counsel in the criminal commitment process. Criminal Law Review, 10, 385-430.
Goode v. Florida. 365 So. 2d 381 (Sup. Ct. Florida, 1978).
Gostin, L. (1984). Mental health and the law in England and Wales: An exposition and leads for the future. In M. Craft & A. Craft (Eds), Mentally abnormal offenders. London: Bailliere Tindall.
Grisso, T. (1981). Juveniles' waiver of rights: Legal and psychological competence. New York: Plenum.
Grisso, T. (1986). Waiver of rights to silence and legal counsel. Evaluating competencies, Pp. 11-155. New York: Plenum.
Group for the Advancement of Psychiatry. (1974). Misuse of psychiatry in the courts. Chicago, Ill.: American Psychiatric Association.
Gualtierei, C. T. & Sprague, R. L. (1984). Preventing tardive dyskinesia and preventing tardive dyskinesia legislation. Psychopharmacology Bulletin, 20, 346-348.
Gutheil, T. G. & Appelbaum, P. S. (1983). "Mind control," "Synthetic sanity," "Artificial competence," and genuine confusion: Legally relevant effects of antipsychotic medication. Hofstra Law Review, 12, 77-120.
Hess, J. H., & Thomas, H. E. (1963). Incompetence to stand trial: Procedures, results and problems. American Journal of Psychiatry, 119, 713-720.
In re Pray, 133 Vt. 253, 336 A. 2d 174 (Sup. Ct. Vt. 1975)
Jackson v. Indiana, 406 U. S. 715 (1972)
Johnson v. Zerbst. 304 U.S. 458 (1938).
Jones v. United States, 463 U. S. 354 (1983).
Kaufman, H. (1972). Evaluating competency: Are constitutional deprivations necessary? American Criminal Law Review, 10, 465-504.
Laben, J. K. & Kashgarian, M., & Nessa, D. B. et al. (1977). Reform from the inside: Mental health center evaluations of competency to stand trial. Journal of Community Psychology, 5, 52-62.
Law Reform Commission of Canada (1977). Mental disorder in the criminal process. Ottowa: Ministry of Supplies and Services.
Lewin, T. H. (1969). Incompetency to stand trial: Legal and ethical aspects of an abused doctrine. Law and Social Order, 2, 233-285.
Lindsay, P. S. (1977). Finess to stand trial in Canada: An overview in light of the recommendations of the Law Reform Commission of Canada. Criminal Law Quarterly, 19, 303-347.
Lipsitt, P. D., Lelos, D., McGarry, A. L. (1971). Competency for trial: A screening instument. American Journal of Psychiatry, 128, 105-109.
Livermore, J. M., & Meehl, P. E. (1967). The virtues of M' Naghten. Minnesota Law Review, 51, 789-856.
Lynch v. Overholser, 369 U. S. 705 (1963).
McGarry, A. L. (1965). Competency for trial and due process via the state hospital. American Journal of Psychiatry, 122, 623-631.
McGarry, A. L. (1971). Competency for trial and due process via
the state hospital. American Journal of Psychiatry, 122, 623-631.
McGarry, A. L. & Curran, W. J., & Lipsett, P. D. et al. (1973). Competency to stand trial and mental illness. NIMH, Center for Studies of Crime and Delinquency, DHEW 73-9105.
Melton, G. B., Weithorn, L. A., & Slobogin, C. (1985). Community mental health centers and the courts: An evaluation of community-based forensic services. Lincoln: University of
Nebraska Press.
Melton, G. B., Weithorn, L. A. & Slobogin, C. (1985). Community
mental heal centers and the courts : An evaluation of community-based forensic services. Lincoln, NE. : University of Nebraska Press.
Menzies, R. J., Jackson, M. A., & Glasberg, R. E. (1982). The nature and consequences of forensic psychiatric decision-making. Canadian Journal of Psychiatry, 27, 463-470.
Menzies, R. J., Webster, C. D., Butler, B. T. et al. (1980). The
outcome of forensic psychiatric assessment: A study of remands in six Canadian cities. Criminal Justice and Behavior, 7, 471-480.
Miranda v. Arizona, 384 U. S. 436 (1966).
Missouri v. Davis. 653 S. W. 2d 167 (Mo. Sup. Ct.,1983).
Montana v. Austed. 641 P.2d. 1373 (Mont. Sup. Ct.) (1982).
Morissette v. United States, 342 U. S. 246 (1952).
Morrissey, J. P. & Goldman, H. H. (1986). Care and treatment of the mentally ill in the United States: Historical developments and reforms. Annals of the American Academy of Political and Social Science, 484, 12-27.
Morrow v. Maryland. 443 A. 2d 108 (MD. Ct. App., 1982).
Normand, Andrew C. (1984). Unfitness for trial in Scotland: Proposed adjudication of the facts and the right to reprosecute International Journal of Law & Psychiatry, 7, 415 -435.
North Dakota v. Heger. 326 N. W. 2d 855 (ND. Sup. Ct., 1982).
Pate v. Robinson, 383 U. S. 375 (1966).
Pendleton, L. (1980). Treatment of persons found incompetent to stand trial American Journal of Psychiatry, 137(9), 1098 -1100.
Perlin, M. (1987). Colorado v. Connelly: Farewell to free will?. Search and Seizure Law Report, 14, 121-128.
Petrella, R. C. & Poythress, N. G. (1983). The quality of forensic evaluations: An interdisciplinary study. Journal of Consulting and Clinical Psychology, 51, 76-85.
Petrila, J., Selle, J., & Rouse, P. C. (1981). The pre-trial examination process in Missouri:a descriptive study. Bulletin of the American Academy of Psychiatry and the Law, 9(1) , 60-85.
Pizzi, W. T. (1977). Competency to stand trial in federal courts: Conceptual and constitutional problems. University of Chicago Law Review, 45, 21-71.
Poythress, N. G., & Stock, H. V. (1980). Competency to stand trial: A historical review and some new data. Psychiatry and Law, 8, 131-146.
Randolph, J. J., Hicks, T. & Mason, D. (1981). The competency screening test: A replication and extension. Criminal Justice and Behavior, 8, 471-482.
Regina v. Boylen. 8 C.R.N.S. 273 (N.S. Mag. Ct.) (1972).
Regina v. Podola. 3 W.L.R. 718 (1959).
Regina v. Roberts. 24 C.C.C. 539, W.W.R. 742 (B.C.C.Am) (1975).
Regina v. Simpson. 35 C.C.C. 2d 337 (1977).
Regina v. Woltucky. 103 C.C.C. 43, 15 C.R. 24, 6 W.W.R. (N.S.) 72 (Sask. C.A.) (1952).
Reich, J. & Wells, J. (1985). Psychiatric diagnosis and competency to stand trial. Comprehensive Psychiatry, 26, 421-432.
Ritchie v. Indiana. 468 N. E. 2d 1369 (Ind. Sup. Ct., 1984).
Robey, A. (1965). Criteria for competency to stand trial: A checklist for psychiatrists. American Journal of Psychiatry, 122, 616-623.
Roesch , R., & Golding, S.L. (1979). Treatment and disposition of defendents found incompetent to stand trial: A review and a proposal. International Journal of Law and Psychiatry, 2, 349-370.
Roesch, R. (1978). A brief, immediate screening interview to determine competency to stand trial. A feasibility study. Criminal Justice and Behavior, 5, 241-248.
Roesch, R., & Eaves, D., & Sollner, R. et al. (1981). Evaluating fitness to stand trial. A comparative analysis of fit and unfit defendants. International Journal of Law and Psychiatry, 4, 145-157.
Roesch, R., & Golding, S. L. (1987). Defining and assessing competency to stand trial. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (pp. 378-394). New York: Wiley.
Roesch, R. & Golding, S. L. (1986). Amnesia and competency to stand trial: A review of legal and clinical issues. Behavioural Sciences and the Law, 4, 87-97.
Roesch, R. & Golding, S. L. (1985). The impact of deinstitutionalization. In D. P. Farrington & J. Gunn (Eds.), Current research in forensic psychiatry and psychology : Aggression and dangerousness. Chickester, U.K. : Wiley.
Roesch, R. & Golding, S. L. (1980). Competency to stand trial. Urbana, Ill: University of Illinois Press.
Roesch, R., Webster, C. D., & Eaves, D. (1984). The Fitness Interview Test: A method for examaning fitness to stand trial. Toronto: University of Toronto Centre of Criminology.
Sarno, G. G. (1987). Compliance with Federal constitutional requirement that guilty pleas be made voluntarily and with understanding, in Federal cases involving allegedly incompetent state convicts. 38 A.L.R. Fed. 238.
Schoeller v. Dunbar. 423 F. 2d 1183 (Ninth Cir.,1970).
Schreiber, Hans-Ludwig. (1985). Definitions of criminal responsibility and of psychological and pathological factors which may mitigate or exclude such responsibility. Paper presented at the Seventh Criminological Colloquium, "Studies on criminal responsibility and psychiatric treatment of mentally sick offenders." Council of Europe, Strasbourg, October 2, 1985.
Schreiber, J. (1978). Assessing competency to stand trial: A case study of technology diffusion in four states. Bulletin of the American Academy of Psychiatry and the Law, 6, 439-457.
Schreiber, J. (1982). Professional judgment in the assessment of competency to stand trial: Report of an evaluation study. International. Journal of Law & Psychiatry, 5, 331-340.
Shatin, L. (1979). Brief form of the Competency Screening Test for mental competence to stand trial. Journal of Clinical Psychology, 35, 464-467.
Sieling v. Eyman, 478 F. 2d 211 (9th Cir. 1973).
Silten, P. R. & Tullis, R. (1977). Mental competency in criminal proceedings. Hastings Law Journal, 28, 1053-1074.
State v. Connelly. 702 P. 2d 722 (Colo. Sup. Ct., 1985).
State v. Murphy, 56 Wash. 2d 761, 355 P. 2d 323 (Sup. Ct. Wash. 1960).
Steadman, H. J. (1979). Beating a rap? Defendants found incompetent to stand trial. Chicago, Ill.:University of Chicago Press.
Steadman, H. J., Monahan, J., Hartstone, E. et al. (1982).
Mentally disordered offenders. A national survey of patients and facilities. Law and Human Behavior, 6, 31-38.
Stevens, H., & Roesch, R. (1980). The response of the Canadian Psychological Association to the Law Reform Commission Report on mental disorder in the criminal process. Criminal Reports, 16, 21-39.
Sullivan v. Alabama. 666 F. 2d 478 (1982).
Swisher v. United States. 237 F.Supp. 921 (W. D. Mo.,1965).
Teplin, L. A. (1983). The criminalization of the mentally ill: speculation in search of data. Psychological Bulletin, 94, 54-67.
Thompson Committee (1975). Criminal Procedure in Scotland
(Second Report). Command Paper 6218.
Tomaschefsky, S. (1985). Antipsychotic drugs and fitness to stand trial: The right of the unfit defendant to refuse treatment. University of Chicago Law Review, 52, 773-794.
Townsend v. Sain. 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
United States v. Byers. 740 F. 2d 1104 (D. C. Cir., 1984).
United States v. Robertson, 507 F. 2d 1148 (D.C. Cir. 1974).
Vann, C. R. (1965). Pretrial 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.
Vann, C. R., & Morganroth, F. (1965). The psychiatrist as judge: A second look at the competence to stand trial. University of Detroit Law Journal, 43, 1-12.
Verdun-Jones, Simon N. (1981). The doctrine of fitness to stand trial in Canada: The forked tongue of social controlInternational Journal of Law & Psychiatry, 4(3-4), 363 -389.
Verdun-Jones, S. (1985). In D. N. Weisstub (Ed.), Law reform in the commonwealth. Law and mental health (Vol 2). New York: Pergamon.
Vitek v. Jones. 445 U. S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552. (1980).
Webster, C. D. et al. (1985). Psychoeducational assessment programmes for forensic psychiatric patients. Canadian Psychology, 26, 50-53.
Webster, C. D., Menzies, R. J., & Jackson, M. A. (1982). Clinical assessment before trial. Toronto: Butterworths.
Webster, C. D., Menzies, R. J., & Butler, B. T. (1982). Forensic psychiatric assessment in selected Canadian cities. Canadian Journal of Psychiatry, 27, 455-462.
Webster, C. D., Phillips, M. S ., & Stermac, Lana (1985). Persons held on Warrants of the Lieutenant Governor in CanadaCanada's Mental Health, 33(3), 28 -32.
Westbrook v. Arizona, 384 U.S. 150 (1965).
Wexler, D. B. (1983). The structure of civil commitment- Patterns, pressures and interactions in Mental Health Legislation. Law and Human Behavior, 7, 1-18.
Whalem v. United States, 346 F. 2d 812 (D.C.Cir. 1965), cert.denied, 382 U.S. 862 (1965).
Whitley, S. (1985). The Lieutenant-Governor's advisory boards
of review for the supervision of the mentally disordered in
Canada: A call for change. International Journal of Law and
Psychiatry, 7, 385-394.
Wieter v. Settle. 193 F.Supp. 318 (W. D. Mo.,1961).
Williams, Wright & Miller, Kent S(1981). The processing and disposition of incompetent mentally ill offendersLaw & Human Behavior, 5(4), 245 -261.
Wilson v. United States. 391 F. 2d 460 (D. C. Cir.,1968).
Winick, B. J. (1977). Psychotropic medication and competence to stand trial. American Bar Association Research Journal, 3, 769-816.
Winick, B. J. (1985). Restructuring competency to stand trial. U. C. L. A. Law Review, 32, 921-985.
Youtsey v. United States, 97 F. 937 (6th Cir. 1899).
TABLE 1
Interdisciplinary Fitness Interview Items
Section A: Legal Items
1 Capacity to appreciate the nature of the alleged crime, and to disclose pertinent facts, events, and motives
2 Quality of relationship with one's current attorney
3 Quality of relationship with attorneys in general
4 Anticipated courtroom demeanor and trial conduct
5 Appreciating the consequences of various legal options
Section B: Psychopathological Items
6 Primary disturbance of thought
7 Primary disturbance of communication
8 Secondary disturbance of communication
9 Delusional processes
10 Hallucinations
11 Unmanageable or disturbing behavior
12 Affective disturbances
13 Disturbances of consciousness/orientation
14 Disturbances of memory/amnesia
15 Severe mental retardation
16 General impairment of judgment/insight
Section C: Overall Evaluation
1 Overall fitness judgment
2 Rating of confidence in judgment
3 Comment on basis for decision about defendant
4 Other factors rater might wish to take into account in reaching decision
Section D: Consensual Judgment
1 Fitness judgment after conferring with partner
2 Changes in rating of individual items after conferring
3 Reasons for changes
FOOTNOTES