Professional Psychology: Research and Practice1998, W 29, No. 4, 357-367

Copyright 1998 by the American Psychological Association, Inc.0735-702SV98/J3.00

Community Examiners' Evaluations of Competence to Stand Trial:Common Problems and Suggestions for Improvement

Jennifer L. Skeem and Stephen L. GoldingUniversity of Utah

With the exponential growth of forensic psychology over recent decades, increasing numbers ofclinical psychologists with little specialized training are becoming principal providers of forensicassessments. On the basis of results from an empirical study, the authors analyze 3 fundamentalproblems with these psychologists' reports on competence to stand trial and provide recommendationsfor improvement based on legal, ethical, and professional standards of practice. The article focuseson the importance of (a) properly attending to the range of critical psycholegal abilities, includingthe defendant's decisional capacities; (b) explaining the critical reasoning that underlies one's psy-cholegal conclusions; and (c) using forensically relevant methods of assessment.

The field of forensic psychological assessment continues to

grow exponentially and affect an increasing number of clinical

psychologists. With the rise of managed care and its financial

implications, Grisso (1996) expressed concern that psycholo-

gists with little specialized training may turn to forensic assess-

ment for alternate sources of income, which ' 'may have implica-

tions for the quality of court-ordered evaluation services in crim-

inal cases" (p. 103). An appropriate domain in which to begin

testing concern about the quality of evaluations completed by

such "occasional experts" (Grisso, 1987) is that of competence

to stand trial (CST). Given their frequency (e.g., Steadman,

Monahan, Hartstone, Davis, & Robbins, 1982), CST evaluations

are the form of forensic evaluations that psychologists are most

likely to encounter. Moreover, examiners' reports on CST are

highly influential in a legal process that implicates critical legal

rights and involves considerable financial costs (e.g., Skeem,

Golding, Cohn, & Berg, in press; Winick, 1987, 1995). Studies

have uniformly concluded that judges typically defer to the

opinions of examiners, with rates of examiner-judge agreement

often exceeding 90% (Hart & Hare, 1992; Reich & Tookey,

JENNIFER L. SKEEM received her MS in psychology in 1996 from theUniversity of Utah, where she is currently a doctoral student and Disser-tation Research Fallow in the Department of Psychology. Her researchinterests are in criminal forensic assessment, forensic training, and jurydecision making in insanity defense cases.STEPHEN L. GOLDING received his PhD in psychology from the Universityof Oregon in 1970. He is professor of psychology and an adjunct profes-sor of law and psychiatry at the University of Utah. His research interestsare in criminal forensic assessment, forensic training, and ethical stan-dards of practice.THIS ARTICLE is BASED on a master's thesis completed by Jennifer L.Skeem. Portions of the study on which the article is based were presentedat the 103rd Annual Convention of the American Psychological Associa-tion held in August 1995.CORRESPONDENCE CONCERNING THIS ARTICLE should be addressed to Jen-nifer L. Skeem, Department of Psychology, University of Utah, Salt LakeCity, Utah 84112. Electronic mail may be sent to skeem@psych.utah.edu.

1986; Williams & Miller, 1981). Judges typically rely solely

on examiners' written reports (Melton, Petrila, Poythress, &

Slobogin, 1997; Roesch & Golding, 1980; Steadman, 1979),

and, hence, the quality of the data and reasoning presented in

such reports become a critical part of the CST adjudication

process.

Despite the importance of CST assessments and reports, most

jurisdictions neither set minimum standards for designating

mental health professionals as forensic examiners nor provide

examiners with systematic state-supported forensic training

(Farkas, DeLeon, & Newman, 1997; Grisso, Cocozza, Stead-

man, Fisher, & Greer, 1994). For example, only 19% of states

require that clinicians certify for forensic assessment by com-

pleting training, an examination, or a period of supervised expe-

rience, and only 9% more report that they offer or plan to offer

training (Farkas et al., 1996). Moreover, state-supported training

usually consists of minimalistic, 2-day workshops (Farkas et

al., 1997). Thus, there is a large group of "occasional experts,"

or' 'psychologists who supplement their general clinical practice

with occasional forensic assessments" and "enter into forensic

assessment with little or no specialized forensic knowledge"

(Grisso, 1987, p. 833).

Virtually all published studies on CST assessments have used

clinicians who are either (a) specifically trained to use CST

assessment instruments, (b) inpatient forensic facility staff, or

(c) community examiners with extensive forensic training (see

Grisso, 1992; Skeem et al., in press). Few studies have investi-

gated CST assessments in the most representative ecological

context involving community-based occasional experts with lit-

tle systematic forensic training. The empirical study on which

this article is based (Skeem et al., in press) investigated the

nature and quality of CST assessments completed in this real-

world context.

This article presents that study's implications for professional

psychologists by analyzing three central problems revealed with

examiners' CST reports and providing suggestions for improve-

ment based on legal, ethical, and professional standards (Ameri-

can Psychological Association, 1992; Borum & Grisso, 1996;

357

358 SKEEM AND GOLDING

Committee on Ethical Guidelines for Forensic Psychologists,

1991; Golding, 1993; Grisso, 1986, 1988; Heilbrun, 1992; Mel-

ton et al., 1997; Melton, Weithorn, & Slobogin, 1985). These

central problems are as follows: (a) failure to adequately ad-

dress fundamental CST abilities, including defendants' deci-

sional competence (see Bonnie, 1992); (b) failure to present

the critical reasoning underlying one's psycholegal conclusions;

and (c) failure to use forensically relevant methods of

assessment.

In this article, we outline the method of our empirical study,

briefly discuss our rationale for focusing on psycholegal abili-

ties, then analyze these three central problems and provide sug-

gestions for improvement. Although this article discusses key

issues to consider while conducting CST assessments and com-

municating their results, it does not explain how to conduct

these assessments or write reports for the court. The information

provided here is intended to supplement forensic training and

basic instruction in criminal law and psycholegal assessment

(e.g., Bonnie, 1992; Grisso, 1988, 1992; Melton et al., 1997).

The Nature of the Report Evaluation Study

In the report evaluation study (Skeem et al., in press), 100

CST evaluations referencing 50 defendants were randomly se-

lected on the basis of orders filed with Utah's Third District

Court. These evaluations were completed by clinicians em-

ployed in the community: 80% percent were completed by PhD-

level psychologists, 14% by psychiatrists, and 6% by social

workers. A total of 18 examiners, 62% of all those who were

state-approved, were represented in the report sample.1 All ex-

aminers had undergone minimal state-supported training,2 but

only two examiners held diplomate status with the American

Boards of Forensic Psychology or Psychiatry.

Two experienced forensic psychologists and Jennifer L.

Skeem coded these reports, with good to excellent rates of

interrater reliability3 (Skeem et al., in press), using a compre-

hensive CST report coding manual." We designed this manual,

with the help of nationally known experts, to distill critiques

and standards regarding CST assessment and report quality. The

manual codes the logic and structure of examiners' reports with

respect to each report's (a) description and substantiation of

the defendant's CST abilities; (b) description and substantiation

of the defendant's psychopathology; (c) provision of data and

reasoning for psycholegal conclusions, particularly describing

any links between CST deficits and symptoms of psychopathol-

ogy; and (d) corroboration of opinions with third-party sources

of information and forensically relevant assessment instrument

data. After we explain the rationale for focusing on psycholegal

abilities in CST assessment, we note the results of mis studybelow as relevant in their implications for professional

psychologists.

The Context for CST Evaluations: Focusing on

Forensically Relevant Psycholegal Abilities

Why Focus on Psycholegal Abilities?

The standard for CST in all jurisdictions is a variant of the

federal Dusky standard, which defines a defendant as incompe-

tent if, because of mental illness or defect, he does not possess

"sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding" and "a rational

as well as factual understanding of the proceedings against him"

(Dusky v. United States, 1960, p. 171). Thus, the fundamental

task for a forensic examiner is to relate any psychopathological

or cognitive difficulties to possible impairments in the defen-

dant's psycholegal abilities. Unlike traditional clinical evalua-

tions, the existence of psychopathology is merely a starting point

for CST assessments.

Forensic experts, commentators, and judicial authorities agree

that examiners should assess and report on the defendant's spe-

cific psycholegal abilities and impairments (Borum & Grisso,

1996; Golding, 1993; Grisso, 1986, 1988; Melton et al., 1997;

Miller & Germain, 1986; Welter v. Settle, 1961). This recom-

mendation is based on two principles. First, CST is a multidi-

mensional construct (Bonnie, 1992; Roesch & Golding, 1980).

As explained below, defendants are seldom globally impaired

or equally functional across all competence domains. Depending

on the context of the defendant's case, the specific abilities that

are impaired or spared may substantially alter conclusions about

the defendant's competence. For example, a defendant with an

impaired ability to testify may nevertheless be adjudicated com-

petent if she intends to waive her right to a trial and plead guilty

based on a rational decision-making process.

Second, the final determination of CST is a legal matter.

There is continuing debate about whether examiners should only

provide data and knowledge to inform the court about the rela-

tionship between defendants' psychological characteristics and

legally relevant capacities or go further to issue an opinion on

the ultimate legal issue (see Golding, 1990). Without taking

sides in this debate, we note that providing an opinion is the

least important part of one's role as examiner. The most critical

function involves advising the court about the defendant's spe-

cific abilities and deficits and explaining one's reasoned infer-

ences about the bases for those deficits (see Carter v. United

States, 1957, p. 617). An expert's opinion on the ultimate issue

1 Although a majority of the evaluations were performed by 5 examin-

ers, the reports completed by these examiners did not differ from those

provided by the remaining 13 examiners. That is, the frequencies with

which (a) CST abilities were addressed, (b) reasoning was provided to

link psychopathology with CST deficits, and (c) defendants were deemed

incompetent did not differ between samples. There were also no differ-

ences in global ratings of report quality (Skeem et al., in press).2 This training consisted of two brief workshops, which included a

total of 8 hours of training on CST legal standards and evaluation. Half

of the reports were drawn from a period preceding these workshops,

and half were drawn from a period following the workshops. There were

no significant differences between these groups in the number of CST

abilities addressed, substantiation of CST deficits, or global ratings of

quality (Skeem et al., in press).3 Mean estimates of reliability across various sets of variables ranged

from good to excellent, on the basis of Cichetti and Sparrow's (1981)

kappa classifications. For example, pairs of coders had excellent rates

of agreement on the CST domains presented in Table 1 (M kappa across

domains = .93, SD = .12).4 The coding manual is available from Jennifer L. Skeem on request.

More detailed analyses and additional data are also available on request.

IMPROVING CST EVALUATIONS 359

"rises no higher than the reasons on which it is based" (United

States v. Horowitz, 1973, p. 777).

Which Psycholegal Abilities Should Be Assessed?

Since the formulation of the Dusky standard, substantial atten-

tion has been devoted to understanding the particular psychole-

gal abilities that it encompasses. Several professional, legisla-

tive, and judicial organizations have created lists of functional

psycholegal abilities that must be addressed in determining a

defendant's competence (see Grisso, 1986, 1988; Florida Rules

of Criminal Procedure, §3.211, 1991; Utah Code Annotated

§77-15-5.4, 1994; Welter v. Settle, 1961). Given the numerous

sets of abilities that have been formulated, examiners could

assess defendants' CST in a variety of ways, ideally depending

on those issues most relevant to the defendant's case. Thus, to

adequately represent examiners' operationalization of CST, our

study assessed whether reports described the defendant's abili-

ties or deficits with respect to 11 global domains and 31 nested

subdomains (see Table 1). These domains are based on psy-

cholegal abilities included in modern CST assessment manuals

and instruments (Golding, 1993; Grisso, 1988) and "have value

in that they delineate areas of inquiry for the evaluator" (Ben-

net, 1985, p. 377). The domains provided the foundation for

Table 1

CST Ability Domains and Subdomains

Domain Subdomain

1. Capacity to comprehend and appreciate the charges

or allegations

2. Capacity to disclose to counsel pertinent facts,

events, and states of mind

3. Capacity to comprehend and appreciate the rangeand nature of potential penalties that may be

imposed in the proceedings4. Basic knowledge of legal strategies and options

5. Capacity to engage in reasoned choice of legal

strategies and options

6. Capacity to understand the adversary nature of the

proceedings7. Capacity to manifest appropriate courtroom behavior

8. Capacity to participate in trial

9. Capacity to testify relevantly10. Relationship with counsel

11. Medication effects on CST

a. Factual knowledge of the charges (ability to report charge label)b. Understanding of the behaviors to which the charges referc. Comprehension of the police version of eventsa. Ability to provide a reasonable account of one's behavior around the time of the

alleged offenseb. Ability to provide information about one's state of mind around the time of the

alleged offensec. Ability to provide an account of the behavior of relevant others around the time

of the alleged offensed. Ability to provide an account of police behaviore. Comprehension of the Miranda warningf. Confession behavior (influence of mental disorder, suggestibility, and so forth on

confession)a. Knowledge of penalties that could be imposed (e.g., knowledge of the relevant

sentence label associated with the charge, such as "5 to life")b. Comprehension of the seriousness of charges and potential sentences

a. Understanding of the meaning of alternative pleas (e.g., guilty and mentally ill)b. Knowledge of the plea bargaining process

a. Capacity to comprehend legal adviceb. Capacity to participate in planning a defense strategy

c. Plausible appraisal of likely outcome (e.g., likely disposition for one's own case)d. Comprehension of the implications of a guilty plea or plea bargain (i.e., the

rights waived on entering a plea of guilty)e. Comprehension of die implications of proceeding pro se (e.g., the rights waived

and the ramifications of waiver)f. Capacity to make a reasoned choice about defense options (e.g., trial strategy,

guilty plea, proceeding pro se, pleading insanity) without distortion attributableto mental illness (an ability to rationally apply knowledge to one's own case)

a. Understanding of the roles of courtroom personnel (i.e., judge, jury, prosecutor)b. Understanding of courtroom procedure (the basic sequence of trial events)a. Appreciation of appropriate courtroom behavior

b. Capacity to manage one's emotions and behavior in the courtrooma. Capacity to track events as they unfold (not attributable to the effects of

medication)b. Capacity to challenge witnesses (i.e., recognize distortions in witness testimony)

a. Recognition that counsel is an allyb. Appreciation of the attorney-client privilegec. Confidence in and trust in one's counseld. Confidence in attorneys in generale. Particular relationship variables that may interfere with the specific attorney-

client relationship (i.e., attorney skill in working with the client; problematicsocioeconomic or demographic differences between counsel and client)

a. Capacity to track proceedings given sedation level on current medicationb. Potentially detrimental effects of medication on the defendant's courtroom

demeanor

Note. CST = competency to stand trial.

360 SKEEM AND GOLDING

addressing the three key points to be presented in the remainder

of this article, including the importance of (a) properly attending

to the range of critical psycholegal abilities, including the defen-

dant's decisional capacities; (b) explaining the reasoning that

underlies one's psycholegal conclusions; and (c) using forensi-

cally relevant methods of assessment. It is to the first of these

points that we now turn.

Critical Issues to Consider in Completing and

Communicating the Results of CST Evaluations

Addressing Key Psycholegal Abilities and Considering

the Demands of the Case

Decisional versus foundational abilities. In early studies,

examiners' reports were criticized for addressing traditional di-

agnostic issues to the exclusion of legally relevant issues, includ-

ing defendants' psycholegal abilities (Geller & Lister, 1978;

Hess & Thomas, 1963; Roesch & Golding, 1977; Vann, 1965).

In keeping with recent findings (Heilbrun & Collins, 1995;

Nicholson, LaFortune, Norwood, & Roach, 1995; cf Larkin &

Collins, 1989), our study found that examiners' reports have

improved in the sense that reports virtually always address the

forensically relevant issue of CST (Heilbrun & Collins, 1995;

Nicholson et al., 1995). However, current reports routinely em-

phasize minimal competence abilities and pay relatively little

attention to the higher-order decisional capacities that lie at the

heart of the "rational" language of theDusky standard (Nichol-

son et al., 1995; Skeem, 1996). For instance, 70% or more of

reports addressed the defendant's appreciation of the charges,

potential penalties, and adversarial nature of the proceedings

and the defendant's capacity to disclose information to counsel

(Skeem et al., in press). However, only 53% of the reports

addressed the defendant's basic knowledge of his or her legal

options, and only 39% addressed the defendant's capacity for

reasoned choice among those options. Moreover, despite the fact

that over 90% of defendants resolve their cases by means of

plea bargains (Bonnie, 1992),only 12% of the reports addressed

the defendant's understanding of the implications of a guilty

plea.

Because all defendants will be called on to select the "main

theory of defense'' or to competently waive the specific rights

involved in pleading guilty, forensic experts argue that capacities

relevant to these decisions should be routinely considered in

assessing competence (Bonnie, 1992, p. 307; Borum & Grisso,

1996; Freckleton, 1995; Golding, 1993; Roesch & Golding,

1980; cf Winick, 1995).' In addition to this pragmatic basis for

assessing decisional competence, our legal system places a high

value on autonomy and self-determination. Defendants are re-quired by this system to make several fundamental decisions,

particularly those involving the waiver of constitutional rights

(Bonnie, 1992). In essence, "the client prerogatives to define

the basic objectives of representation and to select the main

theory of defense lie at the core of the idea that the client is the

principal (and the attorney, the agent) in legal representation"

(Bonnie, 1992, p. 307).

Decisional competence must also be assessed because individ-

uals are often competent for one purpose but not another (Bon-

hie, 1992; Winick, 1995). As has been known for some time,

psychopathology and mental retardation are heterogeneous and

selective processes that affect some abilities in individuals while

leaving others intact (see Appelbaum, 1994; Cichon, 1992).

Research on competence to consent to treatment indicates that

individuals' foundational abilities (i.e., understanding treatment

information) do not necessarily predict their status on related

decisional abilities (e.g., thinking rationally about treatment;

Grisso, Appelbaum, Mulvey, & Fletcher, 1995; see also Bonnie,

1992). Thus, foundational abilities are empirically distinct from

decisional capacities.

The Supreme Court's recent decision in Godinez v. Moran

(1993) also highlights the importance of routinely assessing

decisional as well as foundational capacities. Godinez involved

a mentally disordered defendant who was found competent when

he was represented by counsel but who subsequently decided

to dismiss counsel, plead guilty, and prevent mitigating evidence

from being presented at his death penalty hearing. Before Godi-

nez, the appellate courts had been divided on whether the stan-

dard for waiving constitutional rights, including the right to

counsel and the rights involved in pleading guilty, was higher

than, or equivalent to, the Dusky standard (e.g., Sieling v. Ey-

man, 1973; Westbrook v. Arizona, 1965; cf United States v.

Hewitt, 1975). In Godinez, the Supreme Court ruled that the

competence standard for waiving rights was the same as the

Dusky standard. However, it left unanswered the question of

whether a defendant found competent on the basis of an assess-

ment of minimal psycholegal abilities can be assumed competent

to make vital decisions even when decisional capacities were

never assessed. Because Godinez left this question unanswered

but equated the competence standards for waiving fundamental

constitutional rights and for standing trial, examiners who do

not assess defendants' decisional capacities run the risk of hav-

ing their reports understood as if they had. All defendants will

face critical legal decisions during the resolution of their case

(see Godinez v. Moran, 1993). Because they may be deemed

competent to make these decisions if deemed competent to stand

trial, it is absolutely critical that decisional capacities be ad-

dressed in CST assessments and reports.

Examiners may fail to address decisional abilities because

these abilities are much more difficult to define and assess than

foundational abilities. Hence, we will attempt to identify appro-

priate areas of inquiry and report for examiners on the basis of

an elementary description of Bonnie's (1992, 1993; building

on Burt & Morris, 1972; Roesch & Golding, 1980; Winick,

1987) useful distinction between foundational and decisional

competence. This distinction is reflected in a recently developed

competence assessment instrument, and preliminary results

from validation studies on the instrument appear promising (seeHoge et al., 1997). According to Bonnie's theory, CST is under-

stood as two separable constructs: a required foundational con-

cept of competence to assist counsel and a contextualized con-

cept of decisional competence. Foundational abilities are the

minimal abilities defendants must possess to participate in their

1 Although a comparison of analyses of CST standards and procedures

exceeds the scope of this article, the reader is strongly encouraged to

consult those cited here.

IMPROVING CST EVALUATIONS 361

defense (these abilities roughly correspond to CST Domains 1,

2, and 6 in Table 1). Decisional abilities tap the cognitive tasks

of understanding and rationally choosing among legal alterna-

tives without distortion caused by psychopathology (these abili-

ties roughly correspond to CST Domains 4 and 5 in Table 1 ).6

The decisional construct is contextual in the sense that the con-

tent and rigor (i.e., demandingness) of the test for decisional

competence is determined on the basis of the case context,

including variables such as whether the defendant assents to or

refuses the advice of counsel.

Although the content of the decisional construct is determined

by the nature of the decisions that the defendant will face given

the demands of his or her case, three general guidelines may be

applied. First, as noted above, all defendants must choose a plea

from among basic legal options and decide whether or not to

plead guilty. Hence, defendants' decision-making capacities

with respect to these topics must be assessed routinely (Bonnie,

1992; Golding, 1993). Second, when defendants expect to waive

any fundamental constitutional right, their capacities to do so

competently should be evaluated (Bonnie, 1992; Golding, 1993;

see also Boykin v. Alabama, 1969; Johnson v. Zerbst, 1938).

These rights include the right to counsel and to a jury trial, the

right to testify and to be present at trial, and the rights involved

in pleading guilty (Bonnie, 1992). Third, when defendants are

expected to confront decisions that strongly implicate their per-

sonal values and autonomy (e.g., deciding whether or not to

raise the insanity defense), as opposed to decisions about strat-

egy that may be relatively delegated to the attorney (e.g., decid-

ing whether to waive a preliminary hearing), their capacities

to rationally make these choices should be assessed (Bonnie,

1992).

However, the decisions that defendants may actually face can

be difficult to predict. A defendant may change his or her mind

about the case (as in Godinez), or the case circumstances them-

selves may change. Because rational decision making with re-

spect to one domain (e.g., pleading guilty) may not generalize

to another (e.g., proceeding pro se), it is important to communi-

cate clearly which decisional domains were and were not actu-

ally assessed. For the decisional domains that are assessed, it is

important to provide a thorough description of the defendant's

degree of decisional ability (see Bonnie, 1992).

The most critical assessment issue with respect to decisional

competence is the extent to which a defendant's psychopathol-

ogy constrains or overly influences his or her choice among

legal options. In addressing this assessment issue, it is important

to avoid confusing the defendant's reasoning process with his

or her conclusion (Bonnie, 1992; Golding, 1993;Winick, 1995).

In the interests of protecting defendants' autonomy to make

fundamental choices about their case on the basis of their per-

sonal values, our legal system honors even unwise decisions as

long as those decisions are based on a rational assessment of

legal options and their probable consequences (Faretta v. Cali-

fornia, 1975; Frendak v. United States, 1979). Adapting Gol-

ding's (1993) example, a defendant may choose to have a jury

trial rather than plea bargain even when there is compelling

evidence against him that suggests that he will serve a much

longer sentence by doing so. The defendant's choice, though

unwise, must be honored if it is rational (e.g., if the defendant

understands the considerable risks involved but wishes to exer-

cise his right to defend himself because there is a slim chance

that a jury will acquit him). However, the same choice reflects

decisional incompetence if it is based on irrational thought pro-

cesses. For instance, if a defendant reveals that he wishes to

proceed to trial because he is confident that a jury will confirm

that he was justified in murdering his victim because God com-

manded him to do so, this raises serious doubt about his deci-

sional competence.

This example highlights one of the most problematic issues

involved in assessing reasoned choice: distinguishing between

overvalued ideas and delusions (Golding, Skeern. Roesch, &

Zapf, in press; Walker, 1991). Although this issue exceeds the

scope of this article, it is important that examiners determine

the extent to which a set of odd beliefs reflects psychopathology

or unusual values. This determination may be based on the

cultural, political, and religious context of the defendant's be-

liefs; the nature of symptoms (if any) that accompany the be-

liefs; and the defendant's social and treatment history. Consider-

ation of these issues is critical in "gray-area" cases where the

presence of mental illness is questionable. Although legal

choices based on symptoms of psychopathology suggest deci-

sional incompetence, decisions that express unconventional val-

ues and beliefs are regularly honored by the courts (see Golding,

1993; Saks, 1991).

In conclusion, it is tempting to merely assess foundational

abilities, such as whether the defendant knows the name of his

or her charge. It is infinitely more difficult to define and assess

rational decision making. Nevertheless, there are compelling

pragmatic, legal, and empirical reasons for ensuring that a de-

fendant's reasoning with respect to his or her legal choices is

clear. In a related sense, there are cogent bases for assessing

whether a defendant's competence is impaired by the effects of

his or her medication.

Considering medication effects, including iatrogenic incom-

petence. Although most defendants in our study were medi-

cated during their assessments, examiners rarely (18%) de-

scribed assessing the impact of medication on defendants' CST

(Skeem et al., in press). In Riggins v. Nevada (1992), the

Supreme Court held that due process may be violated if, absent

a compelling state interest, a defendant is forced to stand trial

while on antipsychotic drugs that may negatively affect his de-

meanor and ability to participate in proceedings. This opinion

stems from concerns that psychotropic medication may (a)

make the defendant appear inappropriately emotionally with-

drawn and remorseless during proceedings, (b) alter conscious-

ness and induce sedation or confusion such that the defendant is

less involved in proceedings, and/or (c) alter material evidence

about the defendant's mental state such that insanity or psycho-

6 The abilities listed in Table 1 that are relevant to decisional compe-

tence (primarily Domains 4 and 5) combine content and requisite deci-

sional level. R>r example, with respect to pleading guilty, a defendant

may have knowledge about how plea bargaining works (4b); may under-

stand the implications of a guilty plea or plea bargain, including the

rights waived by doing so (5d); and, at the upper end, may have the

capacity to make a reasoned choice about pleading guilty without distor-

tion attributable to mental illness (5f).

362 SKEEM AND GOLDINO

pathology cannot be observed by the trier of fact (Golding,

1993; Fentiman, 1986; Winick, 1977, 1993). Given these con-

cerns, evaluators should routinely consider the effects of medica-

tion on competence (see Domain 11 in Table 1 for domains of

inquiry).

Weighing the defendant's abilities against case demands.

The fact that examiners often do not address critical case-rele-

vant psycholegal abilities, including decisional competence and

competence while on psychotropic medication, suggests that

they fail to conceptualize competence as an open-textured, con-

text-dependent construct (see Bonnie, 1992; Grisso, 1988;

Roesch & Golding, 1980). Forensic experts often recommend

that examiners (a) assess the psycholegal abilities that a defen-

dant may require to resolve his or her particular case, then (b)

weigh the defendant's level of ability against the likely demands

of the case, considering variables such as the severity of the

charges and qualities of the defense attorney (see Freckleton,

1995; Grisso, 1988; Miller & Germain, 1986). However, in our

study, examiners virtually never (12%) described assessing the

congruence between the defendant's abilities and his or her case

contexts (Skeem et al., in press). In fact, as will be shown,

examiners more generally failed to describe the psycholegal

reasoning underlying their conclusions.

Providing Psycholegal Reasoning to Support

Conclusions

The trier of fact determines the weight to be assigned to an

examiner's opinion by evaluating the strength and persua-

siveness of the expert's analysis of the data (American Bar

Association, 1986; Bazelon, 1975). When examiners fail to

specify the reasoning underlying their conclusions, they preempt

the trier of fact from arriving at an independent and informed

opinion and thereby usurp the judicial decision-making role (see

Bennett, 1985; Melton et al., 1997; Miller & Germain, 1986;

Morse, 1978). Thus, it is essential that examiners specifically

communicate their processes of data interpretation to the courts

(Golding, 1993; Grisso, 1986; Melton et al., 1985; Nicholson,

et al., 1995). Moreover, psychologists have an ethical obligation

to substantiate their conclusions in forensic reports by carefully

documenting their factual bases (see American Psychological

Association, 1992, §7.02; Committee on Ethical Guidelines for

Forensic Psychologists, 1991, §7).

Early conceptual studies criticized examiners for issuing con-

elusory opinions in CST reports devoid of data-based explana-

tions (Hess & Thomas, 1963; Roesch & Golding, 1977). More

recent empirical studies (Nicholson et al., 1995; Skeem, 1996)

suggest that there has been only modest improvement with re-

spect to this issue. Nicholson and his colleagues (1995) foundthat only half of CST reports provided any example or rationale

to support their conclusions about defendants' abilities or defi-

cits. Our study more comprehensively analyzed the psycholegal

reasoning expressed in CST reports.

The conclusions that examiners may reach in CST assess-

ments can be organized into three categories: (a) the defendant's

psychopathology, (b) the defendant's specific psycholegal abili-

ties, and, most important, (c) the defendant's psycholegal im-

pairments and the nature of the relationship, if any, between

these impairments and symptoms of psychopathology. Our study

indicated that, although examiners generally provide adequate

reasoning to substantiate their clinical conclusions about defen-

dants' psychopathology, they provide variable and poor substan-

tiation for their more forensically relevant conclusions about

defendants' CST abilities and CST impairments. To be specific,

in over half (67%) of the reports, examiners presented multiple

or most of the symptoms that substantiated their diagnosis of

the defendant (Skeem et al., in press).1 In a similar manner, in

over half (71%) of the reports, examiners provided specific

examples of the symptoms they opined that defendants suffered

(Skeem et al., in press). In contrast, of the reports that con-

cluded defendants were competent to stand trial, 41% rarely,

28% sometimes, and only 31% often supported mis assertion

by substantiating the defendant's specific psycholegal abilities

(Skeem et al., in press). These psycholegal abilities could be

substantiated by documenting specific examples or defendant

quotes that demonstrate a lack of defendant impairment. Most

important, examiners provided even poorer substantiation for

their conclusions about defendant's psycholegal impairments. It

is to this issue that we now turn.

The critical issue referenced by legal standards for CST is

the nexus between symptoms of psychopathology and deficits

in competence. Thus, examiners must specifically assess and

communicate their reasoning about the nature of the relationship

between the defendant's psychopathology and his or her deficits

in competence (Grisso, 1986, 1988; Golding, 1993; Melton et

al., 1985, 1997; Nicholson & Kugler, 1991, Nicholson et al.,

1995; Roesch & Golding, 1980). In addition to the cogent

grounds for doing so explained above (e.g., the judge must be

permitted to independently assess the strength of the examiner's

opinion), this form of reasoning must be provided to rule out

alternative explanations for psycholegal deficits that normally

would not result in a determination that a defendant was incom-

petent. These include the possibility that the deficit is based on

malingering, mere ignorance about legal procedures (which'can

be remedied via brief instruction), or transient states present

during the examination, such as fatigue (see Drob, Berger, &

Weinstein, 1987; Grisso, 1986). As Grisso (1986) noted, it is

not enough that psychopathology and CST impairment(s) sim-

ply coexist: An examiner must specifically demonstrate that the

CST impairment is caused by mental illness or retardation. Even

defendants with mental disorders may demonstrate CST impair-

ments that reflect variables such as malingering to a greater

extent than their psychopathology.

The scale used in this study to assess examiners' reasoning

with respect to this issue may be used to assist psychologists

in conceptualizing, assessing, and documenting the relationship

between CST impairments and psychopathology. This scale

formed the core of the coding manual and was carefully devel-

oped in successive iterations based on expert commentary, ex-

pert feedback, and application to trial samples of reports. In the

study, when an examiner described a defendant as impaired with

respect to any of the psycholegal domains listed in Table 1,

7 Virtually all of the reports issued a diagnosis for the defendant

(87%) and presented the defendant's symptomatology (94%; Skeem et

IMPROVING CST EVALUATIONS 363

Table 2

Codes Depicting the Extent of Relationship Described Between

CST Impairments and Symptomatology

Relationshipcode (& score) Definition Example

None (0)

Implied (0.5)

Asserted (1)

Substantiated (2)

The CST domain is describedas impaired, but there is nodescription of arelationship between theimpairment andpsychopathology.

The author presents quotesfrom the defendant or

examples that merelyimply a link between theCST impairment andpsychopathology.

The author attributes the CSTimpairment topsychopathology withoutspecifically describing the

relationship.

The author specifies how theCST impairment is caused

by psychopathology.

"The accused is unable to provideinformation to assist in hisdefense."

"The defendant is unable to relate toher attorney."

' 'When asked to describe his versionof events about the alleged assault,

the accused said he did not knowwhat happened."

"The defendant stated that the roleof her attorney is 'a lot of persons

on your property, the private-side-for my defense some friends and .family' [sic]."

"The accused has problems with

memory that would preclude himfrom providing information toassist in his defense."

"The defendant's ability to relate toher attorney will be compromisedby her delusional thought

processes"' 'As noted, the accused has problems

with memory and could not relatewhat he and others were doing at

the time of the alleged crime. Hemay have difficulty providinginformation to his attorney toassist in his defense."

' 'The defendant is committed to adelusional system that includes a

belief that her attorney is receivingcommands from God to ensurethat she is punished. This delusioncompromises her trust in andability to relate to her attorney."

Note. CST = competency to stand trial.

raters judged the degree of relationship specified by the exam-

iner between that CST impairment and symptomatology, using

the scale explained in Table 2.8 Using this scale, we found

that examiners generally provided little data to support their

conclusions about defendants' CST impairments. To be specific,

when examiners noted CST impairments, they usually provided

no description of a relationship between that impairment and

symptoms of psychopathology (M = 34%, SD = 14)9 or merely

asserted (M = 36%, SD = 13) or implied (M = 19%, SD =

7) that there was a relationship (Skeem et al., in press). The

reports very seldom substantiated (Af = 10%, SD = 5) that

there was a relationship by providing data or reasoning that

specifically described how a defendant's psychopathology com-

promised his or her CST abilities (Skeem et al., in press). Mere

assertions that CST impairments are caused by psychopathology

preclude the court from independently assessing the validity of

such statements. Thus, it is critical that examiners assess and

specifically substantiate any links between defendants' CST im-

pairments and psychopathology. Examples of substantiated rela-

tionships, which distinguish them from less acceptable descrip-

tions of CST impairment-psychopathology links, are provided

in Table 2.

The links between CST impairments and psychopathology

8 The scale reflects ' 'combinations of the following considerations:

(a) the extent to which the examiner includes a specific statement that

the defendant's CST impairment is based on psychopathology, (b) the

extent to which the examiner provides specific data relevant to a link

between the CST impairment and psychopathology, and (c) the extent

to which the examiner specifically describes how the defendant's impair-

ment is based on psychopathology" (Skeem et al., in press).

' The numbers reported here are the average percentages of reports

that obtained ratings of 0 (none), 0.5 (implied), 1 (asserted), or 2

(substantiated) across the domains listed in Table 1. For example, across

CST domains, an average of 34% of reports provided no logical link

between a CST impairment and a symptom of psychopathology.

364 SKEEM AND GOLDING

often become clear during a detailed examination of the defen-

dants' psycholegal abilities using careful probes and follow-

up questions (see Golding, 1993; Grisso, 1988). However, in

assessing CST impairment-psychopathology links, one might

(a) carefully consider the nature and content of the defendant's

primary symptoms, (b) consider how these symptoms might

relate conceptually to the defendant's specific psycholegal im-

pairments, then (c) assess, as directly as possible,10 whether

there actually is a relationship between the symptom and the

CST impairment (as explained below, because psychological

constructs often do not translate well into legal standards, one

must not merely infer psycholegal deficits on the basis of symp-

tomatology). For instance, if a defendant delusionally believes

that' 'crooked" government agencies are using whatever means

necessary to prevent him from predicting and stopping terrorist

acts and he simultaneously expresses reservations about whether

. his attorney can be trusted to act in his best interests, it may be

important to probe whether the defendant mistrusts his attorney

because he believes that his attorney is in league with the corrupt

agencies. While doing so, it is important to entertain alternative

hypotheses (see Borum, Otto, & Golding, 1993). The defen-

dant's paranoia may be unrelated to his skepticism about his

attorney. He may, for instance, legitimately believe that his attor-

ney's opinion of him may have been biased by a police report

in which his offense was "blown out of proportion" in an

attempt to remove him from an otherwise quiet community.

In order to assess the legitimacy of the defendant's belief,

one would have to consult appropriate sources of third-party

information (e.g., the police report, counsel). More generally,

in order to arrive at an appropriate conclusion, one would need

to rely on assessment methods that are directly relevant to the

issue of competence. It is to this third and final issue that we

now turn.

Using Forensically Appropriate Methods of Assessment

The role of testing in CST assessments. Forensic examiners

have historically been criticized for relying on traditional meth-

ods of clinical assessment and failing to explain any relationship

between the results of such assessments and defendants' compe-

tence (Eizenstadt, 1968; Elwork, 1984; Grisso, 1986, 1987).

Our study indicated that little progress has been made with

respect to this issue (see also Heilbrun & Collins, 1995; Nichol-

son et al., 1995).

Few (25%) of the reports in our study described the evaluator

having used clearly relevant competence assessment instruments

in their evaluations (Skeem et al., in press). In contrast, most

(69%) of the reports described the evaluator having adminis-

tered traditional psychological instruments, which typically in-

cluded intelligence (e.g., Wechsler Adult Intelligence Scale—

Revised), personality (e.g., the Minnesota Multiphasic Person-

ality Inventory-2), and/or neuropsychological tests. Very few

(30%) of these reports related the results of the test battery to

the defendant's competence. In fact, the few reports that did

merely asserted a vague relationship between the results of test-

ing and the defendant's competence (e.g., "The defendant's

verbal learning and memory abilities are impaired and may com-

promise his ability to assist counsel"); none of the reports

detailed a concrete relationship between the two (e.g., "The

defendant's verbal learning and memory abilities are impaired

and may affect his ability to recall the events in his trial as they

unfold"). Although an alternate forensically relevant purpose

for traditional testing might be to rule out malingering, only

21% of the reports described using the tests to do so (Skeem

et al., in press).

Psychological testing should be used in a forensic evaluation

only when it can be specifically related to the legal construct

(Grisso, 1987; Heilbrun, 1992; Nicholson & Kugler, 1991).

The construct of CST differs from clinical constructs such as

intelligence, psychopathology, and personality. Measures of clin-

ical constructs do not neatly translate into CST and can produce

invalid conclusions about competence (see Carbonnell, Heil-

brun, & Friedman, 1992; Grisso, 1987; Nicholson & Kugler,

1991; Reich & Wells, 1985). Because the presence and nature

of overlap between psychiatric symptoms and psycholegal abili-

ties is fundamentally unknown (Nicholson & Kugler, 1991;

Shah, 1981), we recommend that traditional tests be used only

when they can be concretely related to the competence issue or

used to rule out malingering. In contrast, competence-specific

measures (see Grisso, 1986, for a review) should be used more

routinely because they are strongly associated with determina-

tions of CST and promote good interexaminer reliability (see

Nicholson & Kugler, 1991; Skeem et al., in press).

Consulting third-party sources of information. Examiners

have also been criticized for basing their opinion solely on

information obtained from the defendant's self-report during a

single interview (Bennett, 1985; Bonnie & Slobogin, 1980;

Grisso, 1986). Along with several contemporary studies (Heil-

brun & Collins, 1995; Heilbrun, Rosenfeld, Warren, & Collins,

1994; cf Nicholson et al., 1995), our study suggests that examin-

ers relatively infrequently consult third-party sources of infor-

mation to broaden their information base and corroborate their

opinions.

In our study, very few (9%) of the reports described the

evaluator having contacted (or even having attempted to con-

tact) the defendant's attorney (Skeem etal., in press). Although

a majority (65%) of the reports described the evaluator having

reviewed police reports on the defendant's alleged crimes, only

37% cited the defendant's mental health records. On the basis

of information included in the reports, examiners' failure to

consult records was virtually never attributable to a lack of

availability of the records.

An ' 'examiner will be at a considerable disadvantage in evalu-

ating the defendant's [competence to stand trial] if the examiner

does not Icnow the basic facts of the case" (Grisso, 1988,

10 In some instances, it may be impossible to directly assess the link

between symptomatology and CST impairments. For instance, it may

not be possible to directly assess whether a defendant's lability and poor

control of his impulses would cause him to behave inappropriately in

court. However, if the defendant had attended a court proceeding before

the CST issue was raised, an examiner could obtain information about

his behavior during those proceedings from his attorney. If no such

information was available, an examiner might rely on related observa-

tions (e.g., behavior during the examination) to form an opinion and

carefully explain the indirect basis for the opinion to the court.

IMPROVING CST EVALUATIONS 365

p. 41). The defendant's attorney is a vital source of information

to consult in determining (a) the reason that the competence

issue was raised, (b) the contextual characteristics and likely

demands of the defendant's case, (c) the nature of the relation-

ship between the defendant and the attorney, and (d) the attor-

ney's degree of skill and experience in handling mentally disor-

dered defendants (Golding, 1993; Hoge, Bonnie, Poythress, &

Monahan, 1992; Melton et al., 1997). Mental health records are

crucial sources of external validation hi assessing "malingering,

exaggeration, or minimization of symptomatology and degree

of disturbance" (Golding, 1993, p. 30). In a similar manner,

the police report on the alleged offense forms the backbone of

the information necessary to conduct an informed inquiry into

a defendant's psycholegal abilities, including his or her capacity

to disclose relevant information to counsel and to appraise the

charges and potential penalties (Golding, 1993). The standards

of accountability for forensic evaluation are higher than those

for traditional clinical assessment (American Psychological As-

sociation, 1992; Committee on Ethical Guidelines for Forensic

Psychologists, 1991; Grisso, 1988). Thus, we strongly recom-

mend that third-party sources of information be routinely con-

sulted in conducting CST assessments.

The Underlying Issue: Insufficient Training

To this point, we have analyzed and provided recommenda-

tions for addressing three critical problems with occasional ex-

perts' CST reports: (a) failure to address critical psycholegal

abilities, including decisional competence; (b) failure to explain

the psycholegal reasoning underlying one's conclusions; and (c)

failure to use forensically relevant methods of assessment. A

comparison of these three problems with the more egregious

problems revealed in early studies of CST reports reveals mod-

est, but significant, improvement over the past two decades. To

be specific, examiners now at least address the relevant issue

of CST (Heilbrun & Collins, 1995; Nicholson et al., 1995;

Skeem, 1996) and do not directly equate incompetence with

psychosis (e.g., Skeem, 1996). However, there is clearly much

room for improvement.

The results of our study suggest that occasional experts rely

primarily on their traditional clinical skills and attempt to gener-

alize these to psycholegal assessments. Despite their adequate

substantiation of their clinical opinions, these examiners pro-

vided little substantiation and reasoning for their forensic opin-

ions. Despite their adequate rates of reliability with respect

to a defendant's diagnosis and symptomatology, they typically

disagreed with respect to a defendant's specific psycholegal

abilities and impairments (see Skeem et al., in press). Despite

their thorough testing of psychological functions, they rarely

used competence assessment instruments. Given their lack of

familiarity with the competence construct, these examiners ap-

parently focused primarily on assessing psychopathology. If psy-

chopathology was present concomitantly with even minimal psy-

cholegal impairment, they often deemed the defendant incompe-

tent (Skeem et al., in press) without describing the link between

the psychopathology and psycholegal impairment and without

considering the context of the case. These CST reports often

appeared to be modified standard clinical reports.

This finding indicates a need for more than minimal training.

Our study indicated that examiners' attendance at two annual

2-day workshops did not improve their reports (see Footnote

2). In the few states that provide forensic training, these brief

workshops are the modal form of training provided (Parkas et

al., 1997). These workshops appear to be of insufficient scope.

Melton and his associates (1985) found that community examin-

ers who completed a comprehensive training program in Vir-

ginia obtained higher scores on tests of forensic knowledge

and completed reports that were rated more favorably by legal

personnel than those completed by untrained examiners. Their

training program consisted of 50 hours of lecture, demonstra-

tion, and, perhaps most important, supervised evaluation.

Training programs would likely be most effective if they spe-

cifically targeted common problems with examiners' forensic

assessments. These include the three primary problems revealed

in this and other empirical studies (Heilbrun & Collins, 1995;

Nicholson et al., 1995) and the overlapping problems cited by

experts over the past two decades (see Grisso, 1986). Also,

as suggested above, training programs would ideally include a

supervised evaluation component in which examiners are pro-

vided with individualized feedback.

The institution of more comprehensive, focused training pro-

grams could be accompanied by the development of more strin-

gent certification requirements for forensic examiners and sys-

tems for systematically monitoring report quality by means of

processes such as peer review of reports (seeAppelbaum, 1992;

Farkas et al., 1997). With the institution of such measures, the

quality of forensic assessments and reports would improve to a

much greater extent over the next two decades than they have

in the past. This improvement would help promote the develop-

ment of forensic psychology into a more respected and' 'respon-

sible industry" (see Grisso, 1987, p. 836). More important,

instituting such programs would better protect the legal rights

implicated in forensic evaluation and would ultimately save con-

siderable sums of public moneys that are desperately needed

for general mental health treatment.

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Received October 10, 1996

Revision received January 9, 1998

Accepted February 6, 1998 •