ASSESSMENT OF COMPETENCY AND SANITY
"I wouldn't recommend insanity for everyone, but it always worked for me" (Hunter S. Thompson)

    There are so many different kinds of assessments that forensic psychologists perform for the criminal courts that it is customary to lump them all under the rubric of "forensic mental health assessments" (FMHAs).  Two of the most important kinds of assessment are competency evaluations and sanity evaluations.  Of these, competency evaluations of the form "competency to stand trial" (also called IST, or Incompetency to Stand Trial; or adjudicative competence) are the most common, done about 60,000 times a year.  By contrast, far less than 1% of criminal proceedings involve a sanity evaluation, which for comparison purposes, works out to about 3,000 cases per year.  Sanity evaluations are also called "criminal responsibility" (CR) or mental state at the time of the offense (MSO) evaluations.  The concept of competency is rooted in Constitutional law (Youtsey v. US 1899), while the concept of sanity is a creation of case law, but a much more significant distinction is that competency refers to mental state at the time of criminal proceedings while sanity refers to mental state at the time of the crime.  Because competency evaluations are more common, this lecture will first review how forensic psychologists assist with assessing competency, and then later discuss the role of psychologists and psychiatrists in insanity cases.

COMPETENCY

    The notion of competency is deeply rooted, often constitutionally, in the legal systems of most Anglo-American common law countries.  Theoretically, competency is related to the presumption of innocence (until proven guilty), but there are other related principles of fairness, due process, the (First Amendment) right to petition, and (to a lesser extent) the right to represent oneself.  Legally, the U.S. Supreme Court (in Godinez v. Moran 1993) has ruled that all competencies are the same and involve the same standards, but in practice, there are many different kinds of competencies, and each one needs to be evaluated on its own merits.  In its most basic form, competency refers to a capacity to function meaningfully and knowingly in a legal proceeding ... [and where there are no] serious deficiencies in one or more abilities, such as understanding the legal proceedings, communicating with attorneys, appreciating one's role in the proceedings, and making legally relevant decisions (Wrightsman, Greene, Nietzel & Fortune 2002: 294).  Given this definition, there are two fundamental aspects which best describe the multiple abilities expected, and make up what many scholars (e.g., Bonnie 1993) are suggesting be called "adjudicative competence."  Adjudicative competence can be characterized in the following words, but it must be noted these are not formal definitions, but simplifications for educational purposes:

    The above should NOT be taken as the only two main types of competencies, since it is really a matter of opinion about what the "main" abilities are that help characterize, summarize, or group all the other abilities.  In this sense, there are as many types of competencies as there are relevant cognitive and behavioral abilities.  A comprehensive list would be quite long, and Melton et. al. (1997), among others, have attempted such a list, as follows:

Abilities Related to the Notion of Competency

To understand the current legal situation
To understand the charges
To understand relevant facts
To understand the legal issues and procedures
To understand potential legal defenses
To understand the possible dispositions, pleas, and penalties
To appraise the likely outcome
To appraise the roles of the defense counsel, prosecutor, judge, jury, witnesses and defendant
To identify witnesses
To relate to counsel in a trusting and communicative fashion
To comprehend instructions and advice
To make decisions after receiving advice
To maintain a collaborative relationship with counsel and help plan legal strategy
To follow testimony for contradictions or errors
To testify relevantly and be cross examined if necessary
To challenge prosecution witnesses
To tolerate stress at the trial and while awaiting trial
To refrain from irrational and unmanageable behavior during trial
To disclose pertinent facts surrounding the alleged offense
To protect oneself and utilize legal safeguards available

    In practice, the courts generally limit both the number and kind of competencies which are considered.  This is because the aforementioned two cases (Dusky v. U.S.; Drope v. Missouri) make up so much binding precedent in the case law of competency.  Of the two, the 1960 Dusky case is the more landmark case (although see Forensic Psychiatry's Other Landmark Cases), outlining the core standards or most basic criteria for determinations of competency.  It is worthwhile to examine the Dusky case and its criteria in some detail:

1960 Dusky v. US  362 US 402; 80 S Ct 788

     Milton Dusky was a 33 year old man who assisted 2 teenagers in raping a 16 yr. old, and was charged with kidnapping. He had a clear-cut case of schizophrenia, but was nonetheless found Competent to Stand Trial.  Upon conviction, he got 45 years as punishment.  Upon appeal, the US Supreme Court ruled that Competent to Stand Trial means "defendant has sufficient present ability to consult with lawyer with a reasonable degree of rational and factual understanding of proceedings against him." It is not sufficient to find him oriented to time, place, and some events.  Upon re-trial, his sentence was reduced to 20 years.

     The two-pronged test of competency established in Dusky has been adopted in most states, and consists of (1) a factual understanding of the proceedings, not just the charges; and (2) a functional ability to assist one's attorney in one's own defense.

THE DECISION TO CONDUCT A COMPETENCY ASSESSMENT   

    Questions about a defendant's adjudicative competence can arise at many different stages of the criminal justice process.  For example, a brief competency screening may occur early on while the defendant is being held in jail, awaiting trial.  In such cases, some strange or bizarre behavior (maybe a suicide attempt) captures the attention of jail authorities and usually prompts (in most states) a referral (and/or trip) to an outpatient (or inpatient) community mental health center for an evaluation.  While jail trips for outpatient (or inpatient) evaluations are far more common than evaluations done inside a jail (jail visits), most recommendations for treatment (to restore competency) are carried out while the defendant remains in jail (Bartol & Bartol 2004).  In the pre-arraignment stage, treatment is usually provided within the jail context, but some states have mental health courts where diversion and a more appropriate venue for treatment is sought, in light of the mental health court's mission to divert the case from the criminal justice system.  In the post-arraignment stage (closer to trial date), a request for evaluation may come from either the defense attorney or from the court, and the procedure is as follows:

    In some instances, it might be found that the lawyers on both sides are covering up a defendant's mental illness in order to avoid competency evaluations.  In other instances, the defendant may strongly resist a competency evaluation. In yet other instances, an attorney may regard the matter as part of a private, confidential relationship to their client.  The ABA position on this is that an attorney's obligation of candor to the court overrides loyalty to the client.  Attorneys have been censured for this, and it's also not uncommon for them to attempt to influence the content, style, or conclusions of the competency assessment report written by a forensic psychologist.  Some attorneys even "overuse" competency evaluations since they serve various tactical purposes:  to explore the possibility of an insanity defense; to guarantee safer custody of an at-risk client; to deny bail privileges of a dangerous client; and to delay the trial for purposes of gaining some other advantage.  Ethical issues aside, regardless of whomever first raises the issue of competency, it is up to the judge to decide if a "bona fide doubt" exists and a competency evaluation is warranted.  It should be noted that the law of competency doesn't care if the defendant is known to be psychotic (breaks with reality, or hallucinating) or mentally retarded.  Either condition may or may not be relevant, but once a competency assessment is ordered, these things must be considered in the context of whether they affect IST (Incompetence to Stand Trial) status. 

CONDUCTING A COMPETENCY ASSESSMENT

    In most states, practically any mental health employee or social worker is authorized to conduct a competency assessment.  Research on this has shown that assessments conducted by nonmedical personnel are just as good, if not superior, to those prepared by more credentialed experts, such as psychiatrists (Petrella & Poythress 1983).  Traditionally, a full-fledged assessment involves a clinical interview, a mental status exam, a psychological test, and a social history, but it has become common in recent years to just rely upon an interview and/or a psychological test.  There are a number of psychological tests available (in standardized and local variations), but only the first four in the list below tend to be the ones most used since the others are of more recent development:

PRESENTING THE RESULTS OF A COMPETENCY ASSESSMENT

    Forensic assessments can be given in one of five ways: (1) by telephone consultation, usually involving more than one phone call; (2) by a records and transcript review, usually involving at least ten hours of work, and most frequently used in death penalty mitigation or post-conviction relief cases; (3) research expertise testimony, where the expert usually talks about their dissertation and subsequent research which sheds light on issues in the case; (4) in-court consultation, where the expert serves as an advocate for one side or another on an issue in the case; and (5) a full evaluation of the defendant along with supporting courtroom testimony.  If and when a written report is submitted to the court, several things can happen.  The report itself may not even take a position on the matter (ultimate issue) of whether the defendant is IST since several experts think that bluntly stating such a thing intrudes upon the court's responsibility (Morse 1978).  On the other hand, the courts have various ways to pressure or "force" an expert into giving their best qualified judgment on whether the defendant is competent or not (Poythress 1982).  The courts prefer not only an assessment of competency, but a prescription over the likelihood of treatment (to restore competency, if applicable).  Depending upon what stage of judicial process the case is in, the report may or may not be accompanied by the verbal testimony of the expert.  Steadman's (1979) research indicates that about 70% of the time, attorneys will "stipulate" (agree without further examination) to the expert's report, as written, and judges almost always agree (90% of the time) with expert opinion.  According to a review of research by Nicholson & Kugler (1991), only about 30% of the time is the defendant found incompetent anyway, and at least half of those found incompetent have their competency restored after about six months of treatment.  Perhaps the most interesting criminal justice aspect of all this involves the two different "burdens of proof" in competency cases:

Burdens of Proof in Competency Cases

Preponderance of the Evidence

Most states use this standard, at least since the 1992 case of Medina v. California, which allows the defense to shoulder the burden of proof. The standard is proof that one side has more evidence than the other; evidence of a greater weight, more convincing, and as a whole, more probable than not.

Clear and Convincing Proof

Some states (e.g., OK, PA, CT, RI) have used this standard, at least until the 1996 case of Cooper v. Oklahoma, which said that it was too stringent, even though good at screening out cases of faking. The standard is proof of reasonable certainty of the truth; when the factual truths are highly probable.  It is the standard most frequently used, however, in dangerousness cases (danger to self or others) where involuntary hospitalization is warranted. 

OTHER ISSUES & TYPES OF COMPETENCY ASSESSMENTS

    Sometimes, an assessment is done specifically to detect faking or malingering, and although the legal system, as a whole, has no foolproof way to do this (Butcher & Miller 1999), virtually any type of FMHA has such capability, and specialized instruments exist, such as the Rey Fifteen-item Memory Test or the Rogers Criminal Responsibility Assessment Scales (R-CRAS).  There seems to be a strong movement toward a quantitative (or test-based) approach to the detection of lying, but many clinicians still rely upon multiple measures of assessment rather than one or two tests.  A claim of amnesia is the most common symptom, anyway, of those who are likely to be faking incompetence, and the courts are rather strict on whether amnesia qualifies as IST (amnesia itself not being a bar to competence).

    A related issue involves the process of restoration to competency.  It could be the days are almost gone when criminals could "hide out" or escape punishment by feigning incompetency.  Only the most truly psychotic (approximately 15% according to Bartol & Bartol 2004) of this (mentally disordered) offender population escape criminal responsibility, where "escaping" means the charges are dropped (only if the charges are minor) or it means relatively long-term confinement in a mental facility (if the charges are serious) until they are restored to competency or efforts at restoration are given up.   There are many issues in this area, most of which are summarized below:

    Civil commitment is always an option, as states can fairly easily (or not so easily) commit somebody involuntarily year after year (with periodic hearings) for dangerousness.  However, such practices are legally and ethically unsound, and do nothing to help sort out what is the Constitutional basis for liberty rights of the mentally ill (which is an emerging justice issue).  There is a need for criminal justice theory on the issue.  For a long time, the field of criminal justice has proposed that the IST plea be abolished altogether (Burt & Morris 1972), and other ideas on the issue (see ABA 1986) include the notion of having "provisional trials" in which the hopelessly incompetent defendant is tried anyway, at least on the matter of guilt or innocence, but it is unclear what effect this will have on the shape of judicial process.

    Another issue regards the competency to confess, and many forensic psychologists today are finding themselves drawn into police or investigative psychology in this area where Miranda decisions/waivers and/or confessions are questionable.  Competency for just about any legal function (and there must be at least 30 of them, see Weiss 1997) can be questioned, of course, but the main issue with confession involves whether the defendant's will was overborne by authorities.  This generally requires an assessment of not only how "strong or weak" the will or susceptibility of the defendant is, but an assessment of how "coercive" or "psychological" the police interrogation was.  Psychologists testifying about the latter of these have not yet made significant inroads into criminal justice, as police expertise regarding interrogation procedure has been quite strong.  More inroads and progress have been made regarding whether Miranda rights have been knowingly, intelligently, and voluntarily waived (see Grisso 1998).

    The competency of juveniles is a controversial area where a number of issues have arised.  Grisso (1998), for example, has discovered that 55-63% of juveniles cannot understand at least one critical element of the Miranda warnings, and that those under the age of 15 have even poorer comprehension.  The issue goes beyond the maturity of juveniles and their comprehension, however.  There are a number of unresolved issues since the leading case on the subject (Fare v. Michael 1979), not the least of which is what Constitutional standard applies to the competence of a juvenile waiver of Miranda.  Theoretically, a totality of circumstances standard (used for adults) may (or should) apply (which requires looking at the overall surroundings of the setting, the juvenile's age, previous experience with criminal justice, etc.), or a per se approach might be better (where juveniles should receive selective assistance from an interested adult; e.g., some parens patriae representative or advocate).  In a larger sense, the issue involves whether people with "special needs" (like juveniles) are deserving of special protections.

    A final issue involves competency to represent oneself, also known as pro se representation or competency to waive the right to an attorney, or the right to act as one's own attorney.  Theoretically, the standard for this is the same as for competency to stand trial, but the issues are much more complex, such as Faretta v. California's (1975) holding of a Constitutional right to proceed pro se as long as done competently and in response to probing questions (of a penetrating and comprehensive nature) from a judge (often a task that the judge is more than happy to outsource to a forensic psychologist).  The legal foundation for acting as one's own attorney can be found in Section 35 of the Judiciary Act of 1789 and also in 28 USCS Section 1654, but in recent years, the government has tried to limit this right (at least frivolous use of it by prisoners as per the Prisoner Litigation Reform Act of 1996).  Under Faretta, a judge must hold a "colloquy" (discussion) with any defendant claiming this right in a so-called "Faretta hearing."  The judge must ask probing questions, but is NOT allowed to disqualify anyone simply because they don't know legal procedures or the rules of evidence.  Likewise, neither limited command of the English language nor limited intelligence appear to be a bar on exercising this right.  Most judges interpret the meaning of Faretta as requiring them to issue repetitive "warnings" about the foolishness of acting as one's own attorney.  Decent and proper conduct in the courtroom is frequently a concern, as is the ability to take advice from stand-by counsel.  In 1972, Angela Davis successfully represented herself, but did so mostly by following the advice of her stand-by counsel.  Other cases have bordered on being a travesty of justice, such as: (1) the 1987 case of Dr. Jack Kevorkian who mainly sought publicity thru the tactic; (2) the 1993 case of Colin Ferguson who rejected his attorney's advice to use a black rage defense; and (3) the 2002 case of Zacarias Moussaoui who used a mixture of attorney advice along with inflammatory outbursts in this bellweather case of how to try terrorists.  Self-representation might be a good idea on minor legal matters (such as in family or civil law), but it is NOT generally a good idea in criminal law.

INSANITY          

    At the outset of discussion here, it is customary to pass on the reminder that insanity is a legal concept, not a clinical concept.  Lawyers can (and will) interpret, modify, stretch, bend, or "customize" an insanity defense, not only because they can, but because they are trained to do so and have a monopoly over the concept.  This may present some frustration to psychologists who are used to more consistent use of terminology and scientific principles, but the insanity defense, also called Not Guilty by Reason of Insanity (NGRI) is what it is -- a 13th Century legal tradition or paradigm where some peoples' minds are seen as so deranged, diseased, or defective that they don't know what they did, any more than a wild beast would know, and that normal grounds for responsibility and punishment just don't apply.  The burden of proof for insanity almost always rests with the defense, so therefore insanity is a subtype of "affirmative defense" where the defense must shoulder the burden of proof.  Other affirmative defenses include self-defense, entrapment, duress, and provocation, and normally, an "affirmative" defense is so-named because it allows the defense to just raise, or affirm it, forcing the prosecution to rebut it.  Most legal rules preclude the possibility of ever going back to a plea of innocence, or any other kind of plea, once the decision is made to adopt the insanity defense.  The job of a psychologist is usually to provide a Mental State at Time of Offense (MSO) evaluation, which in most cases, is often ordered and conducted simultaneously with a competency evaluation (to cover all the bases or to rule out competency first, since only competency truly delays the proceedings).  A significant difference here is that an MSO or insanity evaluation normally requires the psychologist consider the defendant's version of events at the time of offense.  Another significant difference is that you can only try a defendant once for insanity (to do so more than once would violate their double jeopardy rights) while you can try them over and over again for competency.   

    The legal definition and practice of the insanity defense varies from jurisdiction to jurisdiction.  The federal government has revised its approach four times in the last 50 years.  Some states don't even recognize an insanity defense (e.g., Montana, Idaho, Utah, Kansas and Nevada), but allow mental state issues to be raised as a possible mitigating factor at sentencing (called diminished capacity which is allowable in all states).  About half the states allow something akin to a temporary insanity defense (technically called diminished responsibility in most places, but also called "designer" or exotic defenses, and/or "abuse excuse" syndromes like the Twinkie Defense).  The significant difference is that a diminished capacity defense is typically used to challenge or deny any premeditation element in the statutory definition of the crime, while a diminished responsibility defense can challenge or deny any mens rea element for any offense (Ramsland 2002).  Some states also have another legal option aside from insanity, called Guilty But Mentally Ill (GBMI), which will be discussed below.  Each state also varies in terms of the impact or result of being declared insane.  In some states (like Colorado), if an insanity evaluation is ordered AND the defendant is found to have been insane at the time of the offense, BUT sane at the time of the evaluation, then they are released from custody and all charges are dropped.  In other states, a jury must concur with the results of a forensic examination; e.g., if a jury finds a defendant insane, this normally trumps a finding of sanity, even by any state-ordered "independent" examiner.  Clearly, there is room for continued reform with the insanity defense, and as we shall see, such reform is part of the ongoing history and evolution of the insanity defense.

HISTORICAL OVERVIEW OF INSANITY

    The so-called "modern" era of the insanity concept began in 1843.  Prior to that, there were some colorful, but relatively unimportant, procedures such as the "wild beast" test and the "begat" test (if capable of procreation).  Most textbooks refer to the following as significant historical placemarkers in the evolution of the modern insanity defense, and the characterizations given are not strict definitions, but illustrations for educational purposes:

    Much has evolved since the above historical placemarkers.  For example, most states and the federal government now use a preponderance of the evidence standard for insanity determinations; "backdoor" commitments via stipulations, dangerousness, and justifications for treatment are still common; sexual predators are for the most part basically prohibited from using any insanity defense; GBMI offenders still receive no better treatment than NGRI offenders; and bench trials for insanity are becoming more commonplace since there is research (see Bartol & Bartol 2004) showing that juries don't know how (or care) to apply the various standards or tests for insanity (effectively making the insanity defense part of jury nullification).  What hasn't changed is the practice of forensic psychologists doing dual-purpose evaluations (for both competency and insanity) at least 47% of the time (Warren, Fitch, Dietz & Rosenfeld 1991), this being perhaps unethical as well as a clinically Herculean task.  

    Also, what hasn't changed is the shortage of good assessment instruments for insanity determinations.  The basic choices are between only two: the Mental Status Examination at the Time of Offense (Slobogin, Melton & Showalter 1984); and the Rogers Criminal Responsibility Assessment Scales (Rogers & Shuman 2000).  Nicholson (1999) compares these (and others), and says that although the R-CRAS is not without its limitations, it has the most validity and reliability for guiding insanity determinations.  The MSO and R-CRAS approach are distinguished below:

MSO Approach

R-CRAS Approach

A series of three interviews are held, or one or two interviews combining the following: first, a focus upon historical information about the defendant, second, a focus upon the offense, and third, assessing the defendant's present mental state.  Although all three sections are important, section one tends to cover what really matters, such as bizarre behavior, disturbance of affect, episodic disorders, and any suspected neuropsychological defects. A rating system for comparing the defendant's self-reports with police reports, attorney notes, and any other developmental histories. Factors such as planning the offense, awareness of criminality, and self-control are rated according to analysis of the collated information. Malingering is assessed, as is the possibility of brain damage. DSM disorders are identified, and specific abilities at cognitive & behavioral control are assessed.

    Various other reforms and/or arguments over whether the insanity defense ought to be abolished sometimes draw in the opinion or commentary of forensic psychologists, but such discussion is beyond the scope of this lecture note.

INTERNET RESOURCES
Adjudicative Competence in Juveniles
All About the Insanity Defense
American Psychiatric Association page on Insanity
Competency and Immaturity in Juveniles
Complex Issues about MR Defendants
Forensic NeuroPsychology Special Issue 2003 (pdf)
Issues with Assessment Issues in IST Evaluations
Judge Bazelon Center for Mental Health Law
Legal, Empirical & Clinical Issues in Criminal Responsibility and Insanity
Malingering & The Rey Fifteen-item Memory Test (pdf)
Measures for Assessing Adjudicative Competency
Mental Competency Evaluation Guidelines for Judges (pdf)
Philosophical Premises of an Insanity Defense

Prof. Elkins' Notes on Competency to Stand Trial
Shifting Standards for the Insanity Defense
Texas Manual for Evaluating Competency (pdf)
The Hinckley Trial & Its Effect on the Insanity Defense

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