Review of Empirical Methods for Assessing Competency to Stand Trial

Tanisha G. Hill-JarrettJune 9, 2014

Legal Definition of Competency

Criminal versus civil competency Criminal contexts: capacity to stand trial, waive Miranda rights, and bear the burden

of criminal responsibility Civil context: capacity to make decisions and communicate them about money and

health care Dusky standard (Dusky v. United States, 1960)

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

Dusky prongs: 1. The defendant’s capacity to understand the criminal process, including the role of

the participants in that process (understanding of proceedings - rational + factual )2. Defendant’s ability to function in that process, primarily through consulting in the

preparation of a defense (ability to consult counsel) Dusky criticized by many, but some variation has been adopted across all

states

In What Context are Competency Evaluations Performed?

Role of Neuropsychologist & General Issues

Dusky: emphasis on “…whether individual has a rational and factual understanding” Suggests the relevance of cognitive function ▪ BUT: Is poor cognitive function means for determining a person incompetent? ▪ Depends on the nature of crime and the court proceedings

Also implies that decision-making ability needs to be intact (“decisional competency”)

What constitutes “decision-making capacity?” ▪ Models have relied on four global constructs (Moberg & Kniele, 2006)

(1) Expression of a choice (2) Understanding of information relevant to the choice (3) Appreciation of the significance of the choice (4) Ability to reason or rationally evaluate a choice

▪ What cognitive constructs comprise decision-making capacity? “Traditional” vs. competency-based measures

Traditional Neuropsychological Measures: Critical Considerations

General paradigm shift in the practice of neuropsychology, but our current tests do not reflect this shift

Ecological validity of neuropsychology tests? Attempts to address this issue: Test of Everyday Attention,

Rivermead Behavioral Memory Test Cognitive status vs. functional abilities within courtroom Fluidity of Dusky criteria based on nature of trial and person’s

specific case Clinicians are cautioned against making definitive

statements— competency is an issue of the law. It has been estimated that the courts agree with the conclusions

of evaluations with respect to competency in over 90% of cases

Competency-Specific Assessments:Critical Considerations Structured & Semi-Structured Evaluation Forms (May improve reliability, but what about validity?)

Competency Screening Test (CST) ▪ Screening measure ▪ 22-item sentence-completion task (scored 0 vs. 1 vs. 2)

Competency Assessment Instrument (CAI)▪ Interview-based ▪ Items pertain only to legal issues ▪ No norms available

Interdisciplinary Fitness Interview (IFI)▪ Legal issues, psychopathological issues, overall evaluation

MacArthur Competence Assessment Tool –Criminal Adjudication Competence Assessment for Standing Trial for Defendants with

MR (CAST-MR) What about test-equivalence across populations? Advocates of this view suggest that administration of

neuropsychological tests are unlikely to be a cost-efficient means of gathering

“Two men, Fred and Reggie, are playing pool at a bar and get into a fight. Fred hits Reggie with a pool stick. Reggie falls and hits his head on the floor so hard that he nearly dies.”

Sample content from MacArthur Competence Assessment Tool-Criminal Adjudication

Neuropsychological Tests vs. Competency Assessment Instruments

Mean base rate of incompetency to stand trial is 20% What implications does this have for test selection? What about

resource utilization in competency evaluations? Which approach is best for assessing competency

(traditional neuropsych or competency assessment instruments)?

Three most commonly researched “clinical assessment” instruments: MMPI/MMPI-2 Wechsler Adult Intelligence Scales (WASI, WAIS-R, WAIS-III) Brief Psychiatric Rating Scale (BPRS)

Meta Analytic Review of Competency to Stand Trial Research (Pirelli, Gottdiener, & Zapf, 2011)

Goal was to quantitatively synthesize comparative research on competent and incompetent defendants via meta analysis Determine which variables are related to defendant’s

competency/incompetency Determining the utility of traditional vs. competency-

specific assessment measures in differentiating competent and incompetent defendants

Characteristics of Competence vs. Incompetence

Biggest difference observed on psychiatric variables (diagnosed with psychotic disorder [OR = 7.96]; history previous hospitalization [OR = 1.86])

(Pirelli, Gottdiener, & Zapf, 2011)

Competency Assessment Instruments

CST = Competency Screening Test GCCT-MSH = Georgia Court Competency Test FIT = Fitness Interview Test MFQ = Metropolitan Toronto Forensic Service MFCS = Mosely Forensic Competency Scale

Overall – incompetent and competent defendants’ scores across competency assessment instruments significantly differed and a rather large effect size found (d = 1.4); OR = 2.5

Traditional Neuropsychological Measures

Measure # of studies

Competent group, M (SD)

Incompetent group, M (SD)

Cohen’s d

Odds ratio

Wechsler Tests 14 (total)

FSIQ 3 86.8 (14.0) 80.6 (14.1) -- 0.58

Performance IQ 4 84.9 (14.0) 79.6 (13.4) -- 0.69

Verbal IQ/Verbal Cognitive Function

7 87.2 (13.5) 82.1 (12.3) -- 0.67

MMPI/MMPI-2 2

F scale -- -- -- 0.33 0.59

Scale 6 (Paranoia) -- -- -- 0.39 0.71

Scale 8 (Schizophrenia) 0.33 0.59

BPRS 4 32.0 (7.9) 39.6 (9.2) -- --

Effect sizes associated with competency measures were substantially larger (i.e., approximately 1 Cohen’s d point) than those for traditional measures

Evidence-Based Practice: Daubert as a Conceptual Model

Recall: The Daubert standard requires that expert testimony be relevant to the matter at hand “Requires a valid scientific connection to the pertinent inquiry as a

precondition to admissibility” Relevance as a matter of “fit” – scientific validity is not sufficient

unless it fits the specific matter under consideration by the trial court Rogers & Johansson-Love (2009) study:

Sought to use Daubert as a conceptual framework to determine the congruence between the Dusky standard and competency measures

Do competency measures used exhibit appropriate “fit” – i.e., do these measures appropriately assess: ▪ Ability to consult with one’s own attorney▪ Factual understanding of the proceedings▪ Rational understanding of the proceedings

Daubert as a Conceptual Model

Hypoth = content is unrelated to defendant’s caseCase = case specific – i.e., content focuses on the defendant’s case

Discussion

Competency to Stand Trial and Defendants Who Lack Insight into their Mental Illness

Psychiatric evaluation suggested that he had a mental illness (the actual diagnosis was debatable)

Lawyers planned to introduce his mental illness as a defense

Wrote letters to judge requesting that he represent himself to avoid a mental illness defense Did not want to be labeled

“mentally ill” Can a defendant be competent to stand trial if, as a result of mental illness, he will not consider a plea of insanity in jurisdictions in which the plea is available?

Ted Kaczynski“Unabomber”

Competence Restoration by State

Restoration of Competence