Assessing Competence to Stand Trial

Bruce Michael Cappo, Ph.D., ABPPClinical Associates, P.A.

September 17, 2014

About your presenter• Started Clinical Associates, P.A. in 1992• Multi-Disciplinary - About 75 practitioners throughout the state

• Psychiatrists, Psychologists, Psychiatric Nurse Practitioners, LSCSWs, LMLPs, LCPs, LCACs, and others

• While we do everything except child custody evaluations…• My practice is limited to evaluation & consultation• Forensic, Diagnostic & Risk Related evaluations

• Federal & State Courts, Federal agencies (DEA, ICE, DOE, etc), Police Depts, Clergy

• More info, Vita, Download this .ppt file and reference list at: www.clinical-assoc.com• Elizabeth Layton Mental Health Center evals since 1988 and Northeast

Kansas Guidance Center before that

Educational Objectives

• Increased awareness of the history of competency in the legal system• Increased understanding of the importance of utilizing

assessments in addition to an interview in completing such an assessment• Increased knowledge regarding the most utilized

assessments in determining competency• Increase knowledge for application of the necessary

components of a useful report for Kansas Courts

Dusky v. United States (1960)

•Milton Dusky, a 33 year old man, was charged with assisting in the kidnapping and rape of an underage female. He was clearly suffering from schizophrenia but was found Competent to Stand Trial and received a sentence of 45 years. • On petition to the US Supreme Court, the petitioner

requested that his conviction be reversed on the grounds that he was not competent to stand trial at the time of the proceeding.

Dusky v. United States (1960)

• The court ruled that to be competent to stand trial defendant must have a:• “sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him." • The court made clear that a brief mental status exam was

insufficient. His case was remanded for retrial, at which time his sentence was reduced to 20 years.

Dusky v. United States (1960) – Two Prongs•The defendant's capacity to understand the criminal process, including the role of the participants in the process

•The defendant's ability to function in that process, primarily through consultation with counsel in the preparation of a defense

Key points of Dusky

•Present Ability• “At this moment in time” which may be different than

their mental state at the time of the offense•Capacity versus Willingness• The focus is not on whether someone will work with their

attorney to benefit their own defense but whether they are capable of doing so

• “To a reasonable degree”• The threshold for competency is low

Pate v. Robinson (1966)

• Added procedural safeguards to the standard for competency to stand trial.

• US Supreme Court ruled that failure to provide the defendant with a hearing to determine competency, when sufficient evidence suggested the need, is a violation of the defendant's 6th amendment right to a fair trial.

Drope v. Missouri (1974)

• In 1974, the Court ruled in Drope v. Missouri that competence at the beginning of a hearing is not necessarily indicative of competence throughout the legal proceedings. • Furthermore, the Court specified what evidence was

relevant to whether a hearing of competency is warranted; this evidence included a defendant's irrational behavior, demeanor at trial, and expert's prior medical opinion• Drope is often referred to as the ‘Third Prong’ of Dusky

United States v. Duhon (W.D. La. 2000)• United States v. Duhon. 104 F. Supp. 318 2d 663 (W.D. La. 2000)• The court rejected the hospital's opinion that a mentally retarded

defendant was CST• Ruled that his factual understanding of the proceedings was

insufficient.• Hospital staff had merely taught him to memorize and retain some

basic information, and that he lacked the ability to consult with an attorney with a reasonable degree of rational understanding as well as to have a rational understanding of the proceedings.

Cooper v. Oklahoma (1996)

• US Supreme Court ruled unanimously that to impose the higher standard of clear and convincing evidence violated due process by allowing the State to put to trial a defendant who was more likely than not, incompetent.• The consequence to the State of an erroneous finding of incompetence

when a defendant is malingering was termed "modest."• It was thought that not even an accomplished malingerer could ''feign

incompetence successfully for a period of time while under professional care."• The defendant's “fundamental right to stand trial only while competent

outweighs the State's interest in the efficient operation of the criminal justice system."

Medina v. California (1992)

• In CST, the defendant is presumed competent and the burden of proof is on the defendant by preponderance of the evidence.• Medina argued that competency statute's burden of proof and

presumption provisions violated due process.• US Supreme Court held that the State is permitted to require that a

defendant claiming incompetence to stand trial bear the burden of proving so by the preponderance of the evidence

Levels of Evidence

• Reasonable suspicion• Reason to believe• Probable cause• Some credible evidence• Substantial evidence• Preponderance of the evidence• Clear and convincing evidence• Beyond reasonable doubt

Kansas Statutes

• Article 33: Competency Of Defendant To Stand Trial• Statute 22-3301: Definitions. • (1) For the purpose of this article, a person is "incompetent to stand trial" when

he is charged with a crime and, because of mental illness or defect is unable: • (a) To understand the nature and purpose of the proceedings against him; or • (b) to make or assist in making his defense.

• (2) Whenever the words "competent," "competency," "incompetent" and "incompetency" are used without qualification in this article, they shall refer to the defendant's competency or incompetency to stand trial, as defined in subsection (1) of this section. • History: L. 1970, ch. 129, § 22-3301; July 1.

KSA 22-3302: Proceedings to determine competency• (1) At any time after the defendant has been charged with a crime

and before pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting attorney may request a determination of the defendant's competency to stand trial. If, upon the request of either party or upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant. • (2) If the defendant is charged with a felony, the hearing to

determine the competency of the defendant shall be conducted by a district judge.

• (3) The court shall determine the issue of competency and may impanel a jury of six persons to assist in making the determination. The court may order a psychiatric or psychological examination of the defendant. To facilitate the examination, the court may: (a) If the defendant is charged with a felony, commit the defendant to the state security hospital or any county or private institution for examination and report to the court, or, if the defendant is charged with a misdemeanor, commit the defendant to any appropriate state, county or private institution for examination and report to the court, except that the court shall not commit the defendant to the state security hospital or any other state institution unless, prior to such commitment, the director of a local county or private institution recommends to the court and to the secretary of social and rehabilitation services that examination of the defendant should be performed at a state institution; (b) designate any appropriate psychiatric or psychological clinic, mental health center or other psychiatric or psychological facility to conduct the examination while the defendant is in jail or on pretrial release

or (c) appoint two qualified licensed physicians or licensed psychologists, or one of each, to examine the defendant and report to the court. If the court commits the defendant to an institution for the examination, the commitment shall be for not more than 60 days or until the examination is completed, whichever is the shorter period of time. No statement made by the defendant in the course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding. Upon notification of the court that a defendant committed for psychiatric or psychological examination under this subsection has been found competent to stand trial, the court shall order that the defendant be returned not later than five days after receipt of the notice for proceedings under this section. If the defendant is not returned within that time, the county in which the proceedings will be held shall pay the costs of maintaining the defendant at the institution or facility for the period of time the defendant remains at the institution or facility in excess of the five-day period.

• (4) If the defendant is found to be competent, the proceedings which have been suspended shall be resumed. If the proceedings were suspended before or during the preliminary examination, the judge who conducted the competency hearing may conduct a preliminary examination or, if a district magistrate judge was conducting the proceedings prior to the competency hearing, the judge who conducted the competency hearing may order the preliminary examination to be heard by a district magistrate judge. • (5) If the defendant is found to be incompetent to stand trial, the court shall

proceed in accordance with K.S.A. 22-3303 and amendments thereto. • (6) If proceedings are suspended and a hearing to determine the defendant's

competency is ordered after the defendant is in jeopardy, the court may either order a recess or declare a mistrial. • (7) The defendant shall be present personally at all proceedings under this

section. • History: L. 1970, ch. 129, § 22-3302; L. 1971, ch. 114, § 6; L. 1976, ch. 163, § 17;

L. 1977, ch. 121, § 1; L. 1982, ch. 148, § 1; L. 1984, ch. 128, § 1; L. 1986, ch. 115, § 64; L. 1986, ch. 299, § 2; L. 1986, ch. 133, § 2; L. 1992, ch. 309, § 1; July 1.

KSA 22-3303: Commitment of incompetent; limitation; civil commitment proceedings; regained competency; credit for time committed.

• (1) A defendant who is charged with a felony and is found to be incompetent to stand trial shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution. A defendant who is charged with a misdemeanor and is found to be incompetent to stand trial shall be committed for evaluation and treatment to any appropriate state, county or private institution. Any such commitment shall be for a period of not to exceed 90 days. Within 90 days after the defendant's commitment to such institution, the chief medical officer of such institution shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future. If such probability does exist, the court shall order the defendant to remain in an appropriate state, county or private institution until the defendant attains competency to stand trial or for a period of six months from the date of the original commitment, whichever occurs first.

• If such probability does not exist, the court shall order the secretary of social and rehabilitation services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in subsection (e) of K.S.A. 59-2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59-2946, and amendments thereto. The other provisions of subsection (f) of K.S.A. 59-2946, and amendments thereto, shall not apply.

• (2) If a defendant who was found to have had a substantial probability of attaining competency to stand trial, as provided in subsection (1), has not attained competency to stand trial within six months from the date of the original commitment, the court shall order the secretary of social and rehabilitation services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in subsection (e) of K.S.A. 59-2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59-2946, and amendments thereto. The other provisions of subsection (f) of K.S.A. 59-2946, and amendments thereto, shall not apply.

• (3) When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22-3302 and amendments thereto to determine the person's present mental condition. Reasonable notice of such hearings shall be given to the prosecuting attorney, the defendant and the defendant's attorney of record, if any. If the court, following such hearing, finds the defendant to be competent, the proceedings pending against the defendant shall be resumed. • (4) A defendant committed to a public institution under the

provisions of this section who is thereafter sentenced for the crime charged at the time of commitment may be credited with all or any part of the time during which the defendant was committed and confined in such public institution. • History: L. 1970, ch. 129, § 22-3303; L. 1977, ch. 121, § 2; L. 1992, ch.

309, § 2; L. 2001, ch. 208, § 8; July 1.

HB 2584 -- FAILED 5-30-14• Sec. 4. (a) No evaluator shall be appointed by the court unless the court determines

that such evaluator's qualifications include:• (1) Sufficient professional education and sufficient clinical training and experience to

establish the clinical knowledge required for the specific type of evaluation being conducted; and• (2) sufficient forensic knowledge or experience necessary for understanding the

relevant legal matter and for satisfying the specific purpose for which the evaluation is being ordered.• (b) (1) On and after January 1, 2016, any evaluator appointed by the court shall be

credentialed by the institute for Kansas forensic examiners.• Any person working as an evaluator prior to January 1, 2016, shall have completed

at least 24 hours of continuing education in forensics. Any person seeking initial appointment by the court as an evaluator on or after January 1, 2016, shall have completed at least 24 hours of continuing education in forensics and at least six months of supervised internship prior to performing any evaluation without supervision.

A Growing Trend

• The number of competency referrals has increased steadily over the past few decades. • Defense attorneys question their client's competency in 8%-15% of

felony cases (Hoge, Bonnie, Poythress, & Monahan, 1992)• In 1982 there was an estimated 25,000 annual referrals for

competency evaluations (Steadman et al., 1982). • By 1998, this number had doubled with an estimated 50,000 annual

referrals for competency evaluations in the United States (Skeem, Golding, Cohn, &Berge, 1998).• Grisso puts current estimates at over 60,000

Mental Disorders & Competency

• If someone has a diagnosis of: • Mental Retardation• Severe and Persistent Mental Illness• Psychotic Disorder• Insert diagnosis of your choice here…• Can they be competent?

• YES – we are addressing a very narrow question

Is this the same as an Insanity Defense?• In a word, NO • …and Kansas as well as a handful of other states no longer have an insanity

defense per se– and that is really a whole different presentation• Mens Rea

• If you think you are strangling the neck of a enemy combatant and you are actually strangling your spouse then you still know that you are strangling a person and may be culpable.

• If you think you are squeezing an orange and it is actually your business partner’s neck, then you may not be culpable

• Upheld by US Supreme Court in 2006 Clark v US

Assessment Process

• Journal Entry issued by Court – READ IT• This is the Order of the Court that instructs you as to what to do and to whom

to send results• Usually a release of information is not necessary as Journal Entry will specify

(order) to whom the report should be sent. It never hurts to get one though.• I get a release to examinee’s attorney and chat about concerns and who had

them.• Obtain police reports, medical records or other helpful info the attorney or

Court can provide• You need to know the charges and possible outcomes so you can gauge

responses from examinee as to accuracy

Pondering the Assessment Process

• Can I just do a mental status exam?• No – Supreme Court said this was not sufficient in Dusky

• Can I just do an Interview?• Yes – but hopefully you won’t after this presentation

• Do I need to use a formal assessment?• No – but hopefully you will want to after this presentation

• Aren’t the usual IQ test or personality test sufficient?• No

• Are you suggesting those specialized assessment instruments?• I am

Research

• Pirelli, Gottdiener & Zapf, A META-ANALYTIC REVIEW OF COMPETENCY TO STAND TRIAL RESEARCH, Psychology, Public Policy, and Law 2011, Vol. 17, No. 1, 1–53

• Defendants diagnosed with a Psychotic Disorder were approximately eight times more likely to be found incompetent than defendants without a Psychotic Disorder diagnosis and

Pirelli et al

• The likelihood of being found incompetent was approximately double for unemployed defendants as compared to employed defendants. • The likelihood of being found incompetent was also double for

defendants with a previous psychiatric hospitalization compared to those without a hospitalization history. • Comparative data on 12 competency assessment instruments and

three traditional instruments were also explored and the effect sizes associated with the competency measures were substantially larger than those for the traditional measures.

Criterion Validity• A measure of how well one variable or set of variables predicts an

outcome based on information from other variables, and will be achieved if a set of measures from a personality test relate to a behavioral criterion on which psychologists agree. • A typical way to achieve this is the extent to which a score on a

personality test can predict future performance or behavior. • Another way involves correlating test scores with another established

test that also measures the same personality characteristic.

Construct Validity

• The degree to which a test measures what it claims, or purports, to be measuring• Modern validity theory defines construct validity as the overarching

concern of validity research, subsuming all other types of validity evidence

Amnesia•Cima and colleagues found that 23 percent of male

forensic inpatients charged with serious crimes had claimed either partial or total amnesia for their crimes (Cima M, Nijman H, Merckelbach H, et al: Claims of crime-related amnesia in forensic patients. Int J Law Psychiatry 27:215–21, 2004). •Courts have taken different approaches to handling

claims of amnesia at the time of the crime; none have considered amnesia to be a per se bar to competence to stand trial.

Wilson v. United States• Court holds that amnesia per se in a case where recollection

was present during the time of the alleged offenses and where defendant has the ability to construct a knowledge of what happened from other sources and where he has the present ability to follow the course of the proceedings against him and discuss them rationally with his attorney does not constitute incompetency per se, and that a loss of memory should bar prosecution only when its presence would in fact be crucial to the construction and presentation of a defense and hence essential to the fairness and accuracy of the proceedings.

Wilson v. United States

•D.C. Circuit Court of Appeals in this case Wilson v. U.S. The court in Andrews utilized many of the same factors as were used in Wilson to help in determining whether a defendant's amnesia renders him incompetent to stand trial. The Seventh Circuit did not, however, require the post-trial review of the effect the defendant's amnesia had on his trial as Wilson does.

United States v. Andrews

• U.S. v. Andrews emphasizes that the remainder of the U.S. courts of appeal do not follow the approach taken by the D.C. Circuit Court of Appeals on this matter. The D.C. Circuit Court of Appeals is the only circuit to require a post-trial review for the competency of individuals with amnesia at the time of their alleged crimes. In contrast to Wilson, the Seventh Circuit took the approach that the ordinary attention paid by judges to a defendant's competence throughout the course of a trial is sufficient.

Special Populations

• Children, MR, Autism Spectrum, etc• Tend to acquiesce in responses• From the Dudley Moore movie Crazy People• Kathy: Who here wants to be an ad-man? • [several hands go up] • Emory Leeson: Who here wants to be a fire engine? • [everyone raises their hands, with several standing and commenting things

like "Ooh, I do!" and "Me! Pick me!"]

• Extra care needed in discerning comprehension and accurate responses

Aphasia, Head Trauma, Neurological Deficits• Grisso Model• Focus on the functional capacities demonstrated by the individual

(i.e., what are the strengths and deficits of specific abilities as defined by legal standards?). • Causal explanations are offered for the deficits observed, such as

mental disorder, situational state, malingering, and ignorance of legal process for example. • If a mental disorder is established, then the next step is the

formulation of the link between the symptoms of the illness and the specific competency related deficits.

Grisso‘s three elements for trial competency• Functional capacities are the specific mental status characteristics of a

defendant, including the strengths and weaknesses as related and defined by the legal standard. • Causal explanation includes the detailed causes of a defendant's

functional level. Including a differentiation among various conditions (mental illness, ignorance or lack of information regarding the legal issues, situational state such as intoxication or malingering). • Determination of the prognosis for recovery, or establishment of trial

competency, and the mechanism for facilitating that process.

Competency Instruments

• 13 competency assessment instruments over the past 4 decades• Intended to address a defendant’s psycholegal abilities• Range from informal checklists to structured, criterion– based scoring instruments:

• Competency Screening Test (CST; Lipsitt et al., 1971)• Competency to Stand Trial Assessment Instrument (CAI; Laboratory of Community

Psychiatry, 1973)• Georgia Court Competency Test (GCCT/GCCT-MSH; Nicholson, Briggs, & Robertson, 1988)• Interdisciplinary Fitness Interview (IFI/IFI-R; Golding, 1993)• Fitness Interview Test (FIT/FIT-R; Roesch, Zapf, Eaves, & Webster, 1998)• Computer-Assisted Determination of Competency to Proceed (CADCOMP; Barnard et al.,

1991)

Competency Instruments

• Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR; Everington & Luckasson, 1992)• Metropolitan Toronto Forensic Service (METFORS) Fitness Questionnaire (MFQ;

Nussbaum, Mamak, Tremblay, Wright, & Callaghan, 1998)• MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT-CA;

Poythress et al., 1999)• Mosley Forensic Competency Scale (MFCS; Mosley, Thyer, & Larrison, 2001)• Evaluation for Competency to Stand Trial–Revised (ECST-R; Rogers, Tillbrook, &

Sewell, 2004)• Test of Malingered Incompetence (TOMI; Colwell et al., 2008)• Inventory of Legal Knowledge (ILK; Musick & Otto, 2010).

Traditional Assessments

• Still used despite being designed to measure intelligence or personality• Current practice standards encourage the use of specific competency

assessment instruments (Grisso, 2003; Melton et al., 2007; Zapf & Roesch, 2009)• Many continue to use traditional measures in competency evaluations

(Archer, Buffington-Vollum, Stredny, & Handel, 2006; Borum & Grisso, 1995; Nicholson & Norwood, 2000; Ryba, Cooper, & Zapf, 2003; Skeem & Golding, 1998)• Most commonly used: MMPI-2, WASI, WAIS & Brief Psychiatric Rating

Scale (BPRS).

Competency Screening Test (CST)• Lipsit, Lelos, and McGarry 1971 • 22 item sentence completion test• Often used as initial screening tool• Scores range from 2 (competent answer) to 0 (incompetent answer)• Scores less than 20 suggest possible incompetence to stand trial• Criticized for having an extremely positive view of the legal process.• Produces large number of false positives, labeling defendants who are

competent as incompetent.• Has high inter-rater reliability and internal consistency with rater

training

Competency Screening Test (CST)

• Examples- When I go to court, the lawyer will:- The way a court trial is decided:- If the jury finds me guilty, I:- While listening to the witnesses testify against me:- When the jury hears my case, they will:

Competency Screening Test (CST)

• Best used as a screening instrument that helps determine if further extensive assessment for competency to stand trail maybe necessary.• It takes approx. 25 minutes to complete. For an individual who has

difficulty reading, the items can be read to them.• Brief version with 5 items• Highly correlated with verbal intelligence

• Research suggests that the CST should not solely be used by clinicians to make decision regarding a defendant's competency to stand trial

Competency Assessment Instrument (CAI)• Appraisal of role of: defense counsel, prosecuting attorney, judge, jury,

defendant, witnesses. • The defendant should be able to identify the basic role of each of these

players. For example: the prosecutor as foe, defense attorney as friend, judge as neutral, and the jury as the deciders of guilt or innocence.• The CAI is a semi-structured interview that assesses 13 functions of

competency to stand trial such as • (a) an appraisal of available legal defenses• (b) the planning of legal strategy• (c) the capacity to testify relevantly.

• Each item is scored on a five-point Likert scale. The CAI manual suggests that a defendant who scores consistently low (<3) should be remanded to an inpatient unit for further evaluation.

CAI• The CAI was designed to assess competency in a community-based

evaluation as opposed to an institutionally based evaluation.• Research suggests that the CAI would not serve as a good assessment

measure. • With respect to criterion-related validity, some studies produced only

moderate results. Schreiber et al., (1987) found that as many as 10% of the defendants found unfit by the hospital or court would be considered fit if decisions were based solely on the CAI. • The CAI’s primary contribution to competency to stand trial measures is

methodological. Its development signaled the initial use of more structured interviews for competency evaluations that focused primarily on the legal issues as opposed to the defendants‘ mental disorders.

Interdisciplinary Fitness Interview (IFI)• 5 item semi-structured interview • Assesses the defendant’s abilities in specific legal areas• Evaluates 11 categories of psychopathological symptoms• Rated from 0 to 2 describing the degree of capacity demonstrated• Each item is assigned the weight it played in determining overall

competence

IFI

• The IFI consists of three major sections that are rated separately• Section A: Legal Issues• Section B: Psychopathological Issues• Section C: Overall Evaluation of Competency. • The rationale behind the three sections of the IFI is the need for a

defendant's competency to be considered within the context of his/her legal proceedings. In particular, different cases should vary in how much weight is assigned to the IFI’s three sections depending on case-specific issues.

• Each section requires a different decision making process on behalf of the rater. • For Legal Issues• Five psycholegal abilities are considered on a three-point likert scale with

respect to incapacity of the defendant and the effects of those abilities on the overall decision of competence.

• For Psychopathological Issues• The rater is required to rate ten symptoms on how they affect competency.

• Finally, on Overall Evaluation of Competency• Examiners are asked to make a global judgment of competency, assign a

confidence rating to that judgment, and comment on factors that contributed to that decision.

IFI

IFI

• Different cases should vary in how much weight is assigned to the IFI’s three sections depending on case-specific issues.

• Impractical nature of its administration questions its utility as an efficient measure of competency to stand trial.

• Research findings support the reliability of the measure, but data on

its criterion-related validity appear contaminated.

Georgia Court Competency Test (GCCT)• (Wildman et al., 1980)• Most recent is the Mississippi State Hospital Revision• 21 items that represent three dimensions (increased from original 17)• General courtroom knowledge (Example: the jobs of the judge and lawyer)• Legal proceedings & current charges• Specific legal knowledge (Example: penalties, how to interact with defense

counsel)• Isn’t as good as measuring non-cognitive abilities such as ability to cooperate• Is significantly correlated with a number of independent competency measures

GCCT

• Semi-structured interview format with scoring criteria for each item• Cut score for competency recommendations (Georgia Court

Competency Test - Mississippi State Hospital [GCCT- MSH]; Johnson & Mullet, 1987). • In 1992, an eight-item screen for feigning was added to the GCCT-

MSH (Georgia Court Competency Test – 1992 Revision [GCCT]; Gothard, Rogers, & Sewell, 1995).

GCCT

• Problems continue with its validation• With respect to construct validity, research provides some evidence of

independent factors on the GCCT; however, these factors do not appear to be stable nor representative of the underlying constructs of the Dusky standard. • The criterion related validity of the GCCT has been established with high rates

of agreement between the GCCT and staff decisions of competency. • However, the high base rate of competent defendants in several of these

studies calls to question its criterion-related validity. • Despite one study with a lower base rate of competent defendants (Wildman,

White, & Brandenburg, 1990), the criterion-related validity of the GCCT remains questionable.

Fitness Interview Test – Revised (FIT-R)• Based on Criminal Code of Canada

The Inventory of Legal Knowledge (ILK)• Consists of 61 true-or-false items regarding the legal process• Designed to detect feigned deficits through assessing a defendant’s

response style. • It is a measure of a defendant’s approach to inquiries about his or her

legal knowledge, a measure of response style• Does not specifically assess abilities related to competence to stand

trial.• Is not a test of adjudicative competence.

The Test of Malingered Incompetence (TOMI)• Designed to assess cognitive malingering in Adjudicative Competence

evaluations• The TOMI has two 25-item scales• General Knowledge• Legal Knowledge

• Does not strictly aim to assess adjudicative competency abilities.

Competence Assessment for Standing Trial with Mental Retardation (CAST-MR)• Assesses competence to stand trial for persons with intellectual

disabilities• Based on Dusky criteria• Separate sections for Basic Legal Concepts, Skills to Assist Defense,

and Understanding Case Events.• Persons with Intellectually Disability tend to score lower on

specialized assessments of competency

Next Generation Tests

• MacCAT-CA & ECST-R• The MacCAT-CA is a semi-structured interview that was developed from a

longer research interview, the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD; Hoge et al., 1997). • The ECST (Rogers, 1995) was developed in order to better address the

psycholegal abilities put forth in Dusky v. United States and to provide clinicians with a standardized method of assessing feigned incompetence• These not only assess for the defendant’s current knowledge of the legal

system, but attempt to educate the individual when he or she does not readily reply with the correct response

MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA)• Hoge, Bonnie, Poythress & Monahan, 1999• Contains hypothetical situations that the defendant has to comment

on• Includes information on four abilities

- understanding charges and trials- appreciation of relevant information- reasoning with information during decision making- making a choice

MacCAT-CA

• Uses standardized questions in a semi-structured interview format with criterion-based scoring to measure competence-related abilities• Understanding, • Reasoning• Appreciation

• Evaluates a defendant's ability to understand and assimilate new legal information through exposure to correct information and immediate retesting. • If the defendant incorrectly responds to questions about the legal process he or she is

presented with the correct information and given a second chance to answer the item correctly

• Poythress et al. (1998) asserted that this is an advantage over most contemporary competency measures which focus mostly on present, or factual knowledge, and not a defendant's ability to learn and make appropriate decisions

MacCAT-CA

•The authors have emphasized that this instrument must be used as tool as opposed to a test of competence. The results must be interpreted in context of other relevant and specific data about the defendant’s case.

Evaluation of Competency to Stand Trial – Revised (ECST-R)• The Evaluation of Competency to Stand Trial – Revised (ECST-R) uses a

semi-structured interview format with 18 items and three scales, assessing factual and rational understanding of courtroom proceedings and ability to consult with counsel. It also uses a number of items and scales to screen for “feigned incompetence”

• Investigation of the ECST-R as a measure of competence and feigning. Journal of Forensic Psychology, volume 10, issue 2, Mar-Apr 2010, 91-106, Kerry Norton and Nancy Ryba

ECST-R• Developed by Rogers in 1995 and later revised (ECST-R; Rogers &

Tillbrook, 1998)• Goes beyond the MacCAT-CA in that it emphasizes the defendant's

relationship with his or her attorney and includes a screen for feigning. • Semi-structured interview with items that are rated on levels of

impairment due to psychotic symptoms and self defeating motivation• Includes questions establishing the basis of the attorney-client

relationship, followed by four sections: • (a) Nature of the Attorney-Client Relationship• (b) Factual Understanding of Courtroom Proceedings• (c) Rational Understanding of Courtroom Proceedings• (d) Atypical Presentation

Feigning Incompetence to Stand Trial• Defendants may be tempted to feign incompetency, either to delay

the proceedings or to possibly mitigate the eventual sentence, due to the gravity of their legal situation. • It is essential that competency measures systematically assess for

feigned incompetency. • Unfortunately, competency measures have neglected to evaluate

feigned incompetency• Only one first-generation measure (the GCCT) and one second-

generation measure (the ECST-R) address this crucial issue.

ECST-R E-APS

• One primary reason for the development of the ECST was to provide clinicians with a standardized method to screen for feigned incompetency. • The ECST-R Atypical Presentation Scale (E-APS) includes 28 items that

measure unusual presentation through several detection strategies. These detection strategies include:• Rare symptoms• Symptom combinations• Indiscriminant symptom endorsement• Symptom severity

Rare Symptoms and Symptom Combinations• The rare symptom strategy "involves the over-endorsement of

symptoms and associated features that occur only occasionally in patients with mental disorders“ Rogers, 1997, p. 303). • According to Rogers, rare symptoms is one of the most robust

strategies for the detection of feigning. • "Do people in the courtroom use telepathic powers to make you say

things against your will?" • Symptom combinations involves the endorsement of symptom pairs

that typically do not occur together in genuine patients. • “Do you feel so upset about court, that your memory plays tricks on

you?”

Indiscriminant Symptom Endorsement & Severity of Symptoms

Indiscriminate Symptom Endorsement (Rogers,1997)• This strategy assesses the overall proportion of symptoms endorsed by the defendant• If an unrealistically high proportion of symptoms are endorsed on the E-APS, feigning

should be suspected

Severity of symptoms (Rogers 1997) • On every item in which the defendant endorses a symptom, he is asked about the

severity in relation to competency• He is asked if that symptom makes it difficult for them to participate in the legal process. • A high number of symptoms that allegedly impair competency could suggest feigning. • All of these interview-based strategies for detecting feigning have been validated in

research with both simulation designs and known group comparisons (Rogers, 1997).

What do I use?

• Number one reason for finding of not competent to stand trial?• Psychosis• ECST-R has the best focus on Psychosis• Concerns about Feigning?• ECST-R has the E-APS scale for feigning• Concerns about intellectual functioning?• Can be with persons diagnosed as Mild MR• Does publisher discourage use as a measure of competency?• No

Malingering

• Malingering must be considered, evaluated and ruled out in legal issues during assessment.• Structured Inventory of Malingered Symptomatology (SIMS)• Structured Interview of Reported Symptoms (SIRS)• Miller Forensic Assessment of Symptoms Test (M-FAST)

Juveniles

• Many instruments appropriate for teens• Some studies suggests that : Average 14 y/o is no less capable than

the average adult in reasoning and decision making regarding trial issues• They look at a very narrow slice of the pie

From Grisso and MacArthur Foundation Juvenile Adjudicative Competence Project, 1998-2005 • Research on Juveniles’ Competence

• % of Inadequate Understanding (Lower number is better): Ages 11-13 14-15 16-17 18-24

• Role of Prosecutor 58 32 20 13 • Role of Defense Attorney 22 10 8 10 • Role of Judge 55 52 46 50 • Rights given up when plead guilty 85 72 63 54 • Impairment in competence decreased by at least half for all age groups after “teaching” • Greater learning for facts than abstract concepts/ appreciation

Differences in Adults and Teens

•When asked how “Joe” should respond to police questioning:

• Youths tended to focus on how statement might allow “Joe” to go home now, and on being compliant to get leniency

• Adults tended more often to consider how one’s statement could increase or decrease penalties later in adjudicative process

Juvenile Decision Making Processes

•When asked how “Joe” should respond to plea bargain: •Youths tended to focus on length of time (e.g., “2 years is less than 6 years”) •Adults tended to wrestle with odds of winning or losing e.g., “If this is Joe’s first offense…”or “Depends on how he feels about the lawyer he got…”

Developmental Immaturity Influences Youths’ Decisional Capacities • Effects of immaturity on perceptions of authority • E.g., role of attorney (deciding what to tell) • E.g., acquiescent or oppositional responses style

• Effects of immaturity on weighing gains and losses• E.g., involvement of peers • E.g., judgment about short-term vs. long-term effects of decision

California Welfare and Institutions Code Section 709

•California law recognizes lack of competency due to developmental immaturity•Timothy J. v. Superior Court, 150 Cal. App.4th 847, 58 Cal.Rptr.3d 746 (2007)

•Nothing like this in Kansas or most other states

Mueller, Kennedy, Taga Study 2004

• 60,000 Competency evaluations done yearly (Grisso)• 151 inpatient facilities in 43 states• Final data from 72 facilities in 39 states and DC • Facilities used average of 4 techniques

4 assessments used on average

• CAI• GCCT• IFI• MacCAT-CA• CST• CADCOMP• MMPI• IQ• Clinical Interview (standardized)• Clinical Interview (non-standardized)• Other. Please list ____________________

•67 facilities (93%) used clinical interview•54 used non-standardized interviews•32 used standardized interviews•19 facilities used both

•43 facilities (60%) used a Traditional Assessment Instrument•39 used IQ testing•35 used MMPI

• 49 facilities (68%) used a competency specific instrument• 38 used MacCAT-CA• 17 used CAST-MR• 11 used CAI• 10 used CST• 9 used GCCT• IFI & CADCOMP used at 1 facility each

• 33 facilities (46%) used all three methods to assess CST• 22 facilities (31%) used two of three methods to assess CST• 16 facilities (22%) used one method (14 used interview

alone)

Reports – Common Problems• Fogel et al. summarize several studies conducted over the surveyed decade

that point to the deviation of competency reports from commonly accepted best practice standards.

• Zapf, Hubbard, Cooper, Wheeles, and Ronan (2004) found that over 90% of the reports from an Alabama forensic center offered no information about defendants’ “appreciation” or “reasoning” abilities.

• Robinson and Acklin (2010) developed a quality survey themselves and found that only one-quarter of the reports written in their Hawaii sample received a score at or above 80% of the maximum possible score. Most reports omitted defendant’s age, charges, an description of evaluation procedures, or the rationale for the forensic opinion.

The Checklist Manifesto by Atul Gawande• Author of three bestselling books• Surgeon at Brigham and Women's Hospital in Boston• Staff writer for The New Yorker since 1998• Professor at Harvard Medical School and Harvard School of Public Health. • Won a MacArthur Fellowship• Named one of the world's hundred most influential thinkers by Foreign Policy

and TIME. • Director of Ariadne Labs a joint center for health system innovation. • Co-founder and chairman of Lifebox, a global not-for-profit implementing

systems and technologies to reduce surgical deaths globally.

Can I ask about what was alleged?

• Information obtained as part of the competency evaluation cannot be used against he defendant in the criminal proceeding• Questions about defendant’s understanding of a ‘good’ outcome are

acceptable in understanding his level of comprehension regarding any pleas offers and ability to weigh appropriate factors in decision making• You need to know if he understands what he has been charged with

and whether it matches info you obtained from attorney or other source

Philip Witt (2010) checklist to enhance the quality of competency evaluation reports.

1. Forensic referral question stated clearly.

2. Report organized coherently.

3. Jargon eliminated.

4. Only data relevant to forensic opinion included.

5. Observations separated from inferences.

6. Multiple sources of data considered, if possible.

7. Psychological tests used appropriately.

8. Alternate hypotheses considered.

9. Opinions supported by data.

10.Connection between data and opinions made clear.

What Judges Want in Reports1. Summary of the Evaluation, Including a Current Diagnosis, if any, of the Defendant’s Mental

Disorder and a Summary of the Defendant’s Mental Status

2. Statement of Purpose

3. Nature of Evaluator’s Contacts with the Defendant and Counsel

4. Statement of Information Accessed for the Evaluation

5. Method of Evaluation

6. Analysis of Competency of Defendant to Stand Trial or Plead Using the Current Legal Standard

7. Opinion as to Whether Defendant is Likely to be Restored to Competency Within a Reasonable or Statutorily Determined Period of Time

8. Recommendation as to Where Defendant Should be Restored, if Determined Incompetent

9. Summary of Assessment Conducted for Potential Malingering

10.Statement of Potential Future Dangerousness

Ultimate Question

• The judge decides whether the defendant is competent to stand trial.• Studies suggest 90% of the time or higher the judge sides with the

opinion of the examining psychologist or psychiatrist• There is some disagreement as to whether reports should answer the

ultimate question.• Some judges prefer the report contain a statement as to a finding• I use the language…The court is encouraged to find the defendant

competent/not competent to stand trial under KSA 22-3302 ...

• Fogel, M. H., Schiffman, W., Mumley, D., Tillbrook, C., & Grisso, T. (2013). Ten Year Research Update (2001–2010): Evaluations for Competence to Stand Trial (Adjudicative Competence). Behavioral Sciences & the Law• Robinson, R., & Acklin, M. W. (2010). Fitness in paradise: Quality of

forensic reports submitted to the Hawaii Judiciary. International Journal of Law and Psychiatry, 33, 131–137.• Viljoen, J. L., Wingrove, T., & Ryba, N. L. (2008). Adjudicative

competence evaluations of juvenile and adult defendants: Judges’ views regarding essential components of competence reports. International Journal of Forensic Mental Health, 7, 107–119.• Witt, P. H. (2010). Forensic report checklist. Open Access Journal of

Forensic Psychology, 2, 233–240.

Characteristics of those found Incompetent• Usually single males• Minorities• Low levels of education and intelligence• Unemployed• Previous involvement in legal and mental health systems• Exhibits symptoms of current serious mental disorder• Charged with more serious crimes

If Found Incompetent to Stand Trial

• Defendants typically go to a mental health institution – Larned in KS.• At the institution they are treated for restoration of competence.• If the treatment to restore competence is successful, the defendant

will then stand trial. • Usually on a 90 day call-back• If it is determined that competence may never be restored:• Involuntary committed through civil commitment proceedings. • Charges dropped• Jackson v. Indiana 1972 prohibits indefinite confinement

Restoring Competence

• Usually through psychoactive medication• Defendants who received treatment involving videos and instructions

on courtroom procedures in addition to medication were found more likely to be competent (43%) upon re-evaluation than those only receiving medication (15%) (Siegel & Elwork, 1990).• Educational interventions• Repetition

Sell v United States 2003

• Charles Sell, has a history of mental illness • Charged with submitting fictitious insurance claims for payment. • Evaluation - deemed “currently competent”, but at risk to suffer “a

psychotic episode” • Released on bail.• Additional counts of fraud, money laundering, intimidating a

witness filed and so bail was revoked.• He was then indicted for attempting to murder the FBI agent that

arrested him and an individual who was going to testify against him.

Sell v United States 2003

• He asked the Magistrate to reconsider his competence. The magistrate found that He was incompetent to stand trial. • He was ordered to “be hospitalized for treatment for four months”.• The state hospital where he was being treated recommended that he

take antipsychotic medication• He refused to do so. • The state sought to force him to take the medicine against his will.• Taking the medicine was likely to result in restored competence even

though he was not considered dangerous at the time

Sell v United States

•Supreme Court Ruled:

•“The Constitution allows the Government to administer those drugs, even against the defendant’s will, in limited circumstances.”

•Drug induced competency is acceptable

Final Thoughts

• Many instruments demonstrate practical use, adequate psychometric foundations and relevant norms to be used as tools in the CST evaluation process• However, screening tools and structured interviews are just that and

not psychometric assessments and should not be presented as such• Must you use one of these formal assessment tools? There can be

cases that are so clearly competent or not competent that none would be needed….however you rarely know that at ahead of time.• Most all evals are between these extremes

Final Thoughts

• It is for those cases that a formal tool is useful and indicated• Help address the possibility that someone might be falsely identified

as competent or not competent• The tool is not the only component of the evaluation and should not

be treated as such• Different instruments may be best in specific cases. The MacCAT with

it’s general scenarios may be more generalizable than the ECST-R that is more specific to the case at hand. We all have a favorite but there is no clear ‘best in all cases winner’ to the exclusion of all others

Final Thoughts

• There has been a polarization of forensic practitioners on acceptance versus rejection of competency measures• No valuable information, be it clinical acumen or standardized data,

should be systematically ignored (Ziskin)• American Academy of Psychiatry and the Law Practice Guideline

recommends the integration of competency interview findings with other sources of data in rendering evidence-based competency determinations

Final Thoughts

• Reports must give an explanation as to why a decision is made• If a low score is noted, is it offset by possible malingering?• Identify the specific issues which you believe should lead the court to

your encouraged conclusion• This also helps identify specific areas for those who work to restore

competence• An understanding and proper use of such instruments can make you a

better evaluator and increase credibility as well as certainty in the courtroom• I strongly encourage you to incorporate these into our CST process

Time for Questions

• To download this presentation and reference list• www.clinical-assoc.com

• cappo@clinical-assoc.com• Clinical Associates, P.A.• 8629 Bluejacket St. Suite 100• Lenexa, Kansas 66214• 913-677-3553