forensic psych exam 3

legal competency

whether an individual has sufficient present ability to perform necessary personal or legal functions

Types:

to waive Miranda rights

to confess

to make treatment decisions

to agree upon a will or contract, etc.

adjudicative competence

Defendant’s ability (not willingness) needed to participate effectively in all legal processes

Two Components

Foundational competence

Decisional competence

capacity to assist counsel

foundational competence

decisional competence

Capacity to make informed, independent decisions

A functional standard

The Dusky Standard

Modern conception defined by Dusky v. United States (1960)

Addresses defendant’s psychological state at time of trial (not the time of crime)

difference between competency as a legal, vs. psychological, concept

legal not psychological concept

does not certify mental health/functioning

Defendants must demonstrate understanding:

Current legal situation

Penalties if convicted

Charges against them

Possible pleas

Roles of judge, defense counsel, prosecutor

Is it safe to trust & communicate w/ counsel

Defendants must demonstrate abilities:

Locate witnesses

Act appropriately during trial

Make appropriate trial strategy decisions

Help develop strategy for cross-examining witnesses

10 court-related functions that demonstrate competency

CST Evaluation request

typically raised at pretrial hearing, or during trial if “bona fide doubt “ about competence

Defense attorney ethically obligated to inform court about potential incompetence either side can request

‘bona fide’ doubt; rarely disputed strategy? (delay, avoid bail, prep for insanity defense, etc.)

evaluation cannot be used once trial begins (unless defendant’s defense requires it, e.g., insanity

role of expert in determining competency

Evaluator = clinical psychologist, psychiatrist, social worker; no uniform standard for certifying/selecting assessors

Interviews defendant

review’s defendant history

administers psychological tests

Most common forensic evaluation performed in U.S.

judicial standards

Governs decisions about guilt in criminal cases

Highest - beyond a reasonable doubt (criminal cases)

85-90%

Clear & convincing evidence (civil commitment hearings)

75% certain involuntary commitment

Preponderance of evidence

CST standard >50% certain - competence evaluations

tests for determining competency

No gold standard or legally mandated test (e.g., properly controlled study is unethical)

common tests (not specific to CST)

• IQ test (address ability to answer questions etc.)

• MMPI (general psychopathology) - doesn’t nec. address CST...

• Specific Tests: Forensic Assessment Instruments (FAIs)

  • Comp. Screening Test & Assessment inst. (1st ever, 1971, Harvard)

  • The “Mac” tests

Comp. Assessment Ins (CAI)

• 1 hr interview

• Appraisal of Available Legal Defenses

  • “How do you think you can be defended against these charges?”

• Unmanageable Behavior

  • What do you think would happen if you spoke out or moved around in the courtroom without permission?”

• Quality of Relating to Attorney Indirect:

  • “Do you have confidence in your lawyer?”

• Appraising roles (defense counsel, prosecutor, judge, jury, defendant, witnesses)

  • “In court, what is the role of the ....”

Competency Screening Test

Complete 22 setence fragments

• e.g. When I go to court the lawyer will___________

• If the jury finds me guilty, I ______________

MAC Tests (MacArthur Structured Assessment of the Competencies of Criminal Defendants )

Questions are structured around hypothetical bar fight

2 men, Fred & Reggie, are playing pool at a bar and fight. Fred hits Reggie with a pool stick.

Reggie falls and hits his head on the floor so hard that he nearly dies.

If Fred pleads ‘guilty’ he would give up some legal rights and protections. What are they?

malingering

• Intentional faking of illness motivated by external incentives/goals

• Faking incompetence to avoid trial/jail

• Difficult to detect (~15% of defendants!)

• tests for detecting w/ moderate results

  • Inventory of Legal Knowledge

  • Evaluation of Competency to Stand Trial-Revised (ECST-R)

• But successful fakers only delay procedure

competency and adolescence

Transfer of juveniles to adult court allowed for serious offenses (since 90’s)

~12 year-olds in some serious cases!

determining CST is controversial…

Immaturity

Poor judgment

Poor decision making

More apt to confess

Abilities depend on age, brain, & experience of juvenile

studies on adolescence and competency

• Research: 11- to 13-year olds are more likely to have deficits in CST, to confess, and to accept plea bargains. (Grisso et al., 2003) 

• Recent Study (2015): <15 years much more likely to be be found incompetent for trial

controversies around refusing treatment

Antipsychotic medications may have side effects, such as muscle tremors, rigidity, and risk of Tardive Dyskinesia

Anosognosia

agnosognosia

Defendants may lack awareness of illness and see medication as unnecessary

beyond a reasonable doubt (BRD)

The standard of proof used in criminal trials. To convict a criminal defendant, the jury or judge must be strongly persuaded (i.e., have no reasonable doubt) that the defendant is guilty. In a criminal trial, the prosecution bears the burden of convincing the jury or judge of guilt beyond a reasonable doubt.

bonafide doubt

any reasonable or good faith doubt

clear and convincing evidence

A standard of proof used in civil commitment hearings, falling between the less demanding standard of preponderance of the evidence (used in most civil cases) and the more demanding standard of beyond a reasonable doubt (used in criminal cases). It is often equated with “highly probable” by courts.

collateral sources of info

Third parties who can offer useful information about the behavior of a person being evaluated by the court.

competency for execution (CFE)

A prisoner’s present ability to rationally understand the connection between the prisoner’s crime and the prisoner’s approaching execution.

competency to plead guilty

A person can plead guilty if that plea is “knowing, voluntary, and intelligent.”

competency to stand trial (CST)

The ability to participate adequately in criminal proceedings and to aid in one’s own defense.

competency to waive an attorney

The ability to understand the legal consequences of self-representation and to carry out the responsibilities of self-representation. The Supreme Court held that, for a mentally ill defendant, it can have a higher standard than competency to stand trial.

contextual or function approach

In the evaluation of competency to stand trial, an approach requiring that evaluators assess the specific demands of the particular legal case in determining an individual’s competency.

Evaluation of Competency to Stand Trial — Revised (ECST-R)

An 18-item assessment instrument designed to measure a person’s competency to stand trial; it uses a semistructured interview to specifically assess a defendant’s factual and rational understanding of courtroom proceedings as well as the defendant’s ability to consult with counsel.

flexible standard

A standard of competency to stand trial that may be raised or lowered depending on the complexity of the trial and the abilities a defendant will need to navigate a particular legal proceeding.

forensic assessment instruments (FAIs)

Psychological tests designed to answer questions specific to a particular legal standard.

foreseeable future

A term used in the U.S. Supreme Court decision in Jackson v. Indiana (1972); the period of confinement of a defendant judged incompetent to stand trial is limited to the time necessary to determine if the defendant could be returned to competence in the _______________

Hinckley case

The 1983 trial of John Hinckley Jr. for the attempted assassination of President Ronald Reagan. The court used the ALI standard for determining whether the defendant should be found not guilty by reason of insanity (NGRI). Many scholars believed that Hinckley was found NGRI because the burden of proof for showing insanity rested on the prosecution instead of the defense. Public outcry over this verdict led to the 1984 Insanity Defense Reform Act (IDRA).

Indiana v. Edwards (2008)

A U.S. Supreme Court case that held that the dignity and fairness of the trial process required that a judge appoint an attorney for a competent but mentally ill defendant if necessary. The decision also allowed for a jurisdiction to use a higher level of competence for competency to waive an attorney than for competency to stand trial.

inventory of legal knowledge

an instrument designed to detect malingering in competency to stand trial evaluations. This 61-item true–false test is designed for English-speaking defendants who have some knowledge of the U.S. criminal justice system.

Jackson v. Indiana (1972)

A U.S. Supreme Court case that limited the period of confinement of a defendant judged to be incompetent to the time necessary to determine if the defendant could be returned to competency in the foreseeable future.

knowing, voluntary, and intelligent

standard for competency to plead guilty; a defendant who admits guilt must understand the charges and the potential consequences of conviction and must plead voluntarily, without coercion

Madison v. Alabama

A U.S. Supreme Court case clarifying that the critical question in determining whether someone is competent to be executed is “whether a ‘prisoner’s mental state is so distorted by a mental illness’ that he lacks a ‘rational understanding’ of ‘the State’s rationale for [his] execution.’ Or put differently, the issue is whether a ‘prisoner’s concept of reality’ is ‘so impair[ed]’ that he cannot grasp the execution’s ‘meaning and purpose’ or the ‘link between [his] crime and its punishment.’”

Minnesota Multiphasic Personality Inventory, second edition (MMPI-2)

A widely used psychological test in evaluations of competency to stand trial. It is a general measure of psychopathology based on a participant’s responses to 567 true–false questions. It offers information on the participant’s psychological distress, symptoms, and possible diagnosis.

Panetti v. Quarterman (2007)

A U.S. Supreme Court case that held that a criminal defendant needs more than a mere factual awareness of the state’s justification for execution but must also understand the meaning of the punishment.

preponderance of the evidence standard (POE standard)

A standard of proof often used in civil cases. For example, in determining competency to stand trial, the defense must prove that it is more likely than not that the defendant is incompetent. That is, a judge or jury must be more than 50% certain that the defendant is incompetent.

presumption of competency to stand trial

Defendants are presumed to be competent unless proven otherwise. The defense bears the burden to prove incompetence.

competency restoration

A defendant’s acquisition or reacquisition of the abilities required to stand trial; it typically involves treatment with antipsychotic medication.

Sell v. U.S. (2003)

A U.S. Supreme Court case that held that an incompetent criminal defendant who was not a danger to himself or others could be forcibly medicated if and only if such treatment was (1) medically appropriate; (2) unlikely to have side effects that would undermine the trial fairness; and (3) necessary to further a significant government interest, such as the prosecution of a serious crime.

statutory exclusions

statutory transfer policies in certain states, automatically requiring adolescent defendants who commit certain serious crimes and are of a certain minimum age to be tried in adult court.

ultimate issue testimony

Expert testimony that specifically answers the legal question at the heart of a particular case, a question that the trier of fact (a judge or jury) must decide.

Jared Lougher

• intrigued by anti government conspiracy theories (e.g., 9/11 etc)

• Dropped out of HS

• expelled from college rejected by army

• 2011 in Tucson AZ, opened fire at meet & greet event for Congress Wommen Gabby Giffords

• 6 killed (9 y.o., Fed Judge...)

• 13 wounded

• evaluated as schizophrenic 

• judged incompetent to stand trial several times over 1.5 years=no trials. 

• forcibly medicated. then trial. 

• sentenced to 7 consecutive life terms

Milton Dusky

33 year-old man accused of raping & transporting an underaged girl across state lines

pre-trial psych evaluation indicated severe schizophrenia

could not properly assist counsel (e.g., suspicious thoughts, believed he was being framed)

ruled competent, convicted and sentenced to 45 years

Supreme Court ruled competence standard was too low

retried, sentenced to 20 years

Ted kaczynski

• Unabomber

• Mailed series of explosive packages to universities and airlines

• Math prodigy

• Prof. at UC Berkeley 

• Quit, became a recluse & mailed/delivered bombs for 16 over 20 yrs

• Killed 3, injured 23

• Rejected lawyer’s insanity defense proposal 

• Diagnosed w/ personality disorder, but CST

• Attempted to waive attorney: was denied

• Pled guilty to avoid death penalty

Manson Family

• Manson - cult leader - killed wealthy white people and wanted to pin it on black people to start race war

• Lynette fromme - Tried to shoot the president (Ford)

  • Positively evaluated for CST & CWA

  • Said she has “probably a 70% chance on the percentage scale” to be found not guilty

  • Represented self, lectured court about environment

  • Boycotted trial after judge refused to let her call Charles Manson as witness

    • Sentenced to life in prison

  • Escaped prison in ‘87 to meet Manson and captured 2 days later

  • Released in 2009

Ted Bundy

• Sexually assaulted & killed 36 women

• MO = pretended to be injured, need help

• Charged with 3 killings in 1979

• Insisted on being his own attorney - trained as lawyer

• Numerous insignificant requests in court: more exercise time, a typewriter, menu change

• Relished having witnesses describe crime details

• Proposed to girlfriend during court

• Sentenced to death

should a mentally ill person who is CST be allowed to rep themselves

SUPREME COURT SAYS “NO” REFERENCING DUSKY CASE

• Re: other case

• Adjudicanting schizophrenic man who stole shoes and shot at security guard and killed bystander 

• Judged not competent to stand trial twice than restored

• Was he compenent enough to waive attorney?

• Ruled that the dusky standard says that competency test must be whether he has sufficient present ability to consult with his attorney

  • Waving attorney = different standard

Scott Panetti

• Diagnosed w/ schizophrenia at 18 

• 1992 while off meds murdered wife’s parents took wife and child hostage

• CST eval: 

  • did not know what year it was or who the president was

  • Hallucinations of seeing jesus, described himself as several different people

  • Judged CST

  • Fired his attorney + rep’d himself at capital murder trial wearing cowboy costume and purple bandana

    • Subpoenaed more than 200 people (e.g. jesus, JFK, etc.)

    • Gave excessive details about his life

    • Simulated the shooting

    • Rejected the state’s offer of life sentence in exchange for guilty plea

    • Sentenced to death

• On death row…

  • Multiple disruption charges

  • Incoherent defenses

  • Lawyers appealed death sentence to supreme court arguing not CFE (put to death)

  • Execution halted

    • More than factual awareness required

    • Must appreciate meaning and reason for punishment

    • Multiple death row inmates also suffering from schizophrenia

Lionel Tate

• 12 yr old boy put on trial for death of little girl

• Charged with first degree murder

• Competency not evaluated prior to trial

Insanity defense logic

• Responsibility

• Retribution

• Deterrence

responsibility

immoral to punish people who were not responsible for their actions. who commit crimes without full awareness or control etc. 

Retribution

(‘just desserts’ perspective) punishment should be proportionate to harm committed. but Free will matters (not fair to punish people who didn’t have a choice) 

deterrence

 mentally ill prob. won’t learn consequences or be deterred by punishment (i.e., specific deterrence) •other mentally ill won’t be deterred by seeing others punished (i.e., general deterrence)

Free Will Issue of Insanity Defense

• Criminal law assumes that human behavior is the product of free will, the capacity to make choices and freely act on them.

• The assumption of free will makes people responsible for their actions in the eyes of the law.

• People are accountable for their actions when they violate the law because people act out of free will.

• No free will, no criminal responsibility!

Determinism Issue of Insanity Defense

• mental health expertise/science relies on determinism--view that human behavior is determined by biological, psychological, & social forces.

• Assumptions about free will and determinism collide in the insanity defense.

• In the U.S. law, insanity is an exception to criminal responsibility.

• The legally insane are assumed not to be acting out of free will.

evoltuon of insanity law

• Roman Empire

  • People w/o ‘mastery of mind’ should not be punished for crime

  • ‘mens rea’ = guilty mind: awareness of wrongfulness is req. to be found guilty

• 14th–16th Century England

  • Religiously inspired “good from evil” test (if knows the difference, then moral failing)

• 1724 England

  • Rev v. Arnold and the wild beast test (cognitive not moral failing) “totally deprived of his understanding & memory, and doth not know that he is doing, no more than a brute or wild beast.”

M’Naghten Case

(England,1843)

• paranoid delusions

• planned to kill prime minister

• accidentally killed secretary

• found ‘not guilty’ b/c insanity

• Queen Victoria demanded new laws

• 15 high court judges est. new standard

M’Naghten rule

(England,1843)

• A common insanity standard in the United States. It consists of four components: (1) a presumption that defendants are sane and responsible for their crime; (2) a requirement that, at the moment of the crime, the accused must have been laboring “under a defect of reason, from disease of the mind”; and (3) a requirement that the defendant “did not know the nature and quality of the act he was doing,” or (4) “if he did know it, that he did not know what he was doing was wrong.”

M’Naghten Influence

• imported into American law as a “cognitive test” of insanity

• some states add “irresistible impulse” & lack of “volitional capacity”

• “Could not” vs. “did not”control addressed by “policeman at the elbow” test

  • Imagine your about to commit the same crime again but theres a policeman right next to you and if you still try to commit the crime it’s b/c you didnt have control

• if his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the willpower to resist the insane impulse to perpetrate the deed, though knowing it to be wrong (Smith vs. U.S., 1954)

Durham v. U.S. 1954

•  psych eval. release from Navy, suicide attempts, hospitalization

•  convicted of car theft, bank fraud, home robbery…

•  Guilty verdict overturned on appeal:

durham standard

• not criminally responsibly if unlawful act was product of mental disease or defect

• reliance on expert eval. to determine cause

• Eventual Backlash: Removed from DC courts in 70s. Still used in NH!

durham standard revised

• American Law Institute (ALI) Revision (prohibits circular def. of mental disease; intoxication excuses)

post Hinckley changes to law

• 1984 Insanity Defense Reform Act (IDRA)

  • Sanity presumed

• Burden of proof placed on defense (“affirmative defense”)

•  ‘clear & convincing evidence’ of insanity

• Experts barred from ultimate issue testimony (i.e., can describe mental state but can’t state insanity opinion) more/less a rewind to M’Naghten

actus reus (“guilty act”)

physical act of committing a crime

affirmative defense

A defense in which the defendant bears the burden of proof in a trial, such as a legal finding of insanity in most jurisdictions.

ALI standard (Model Penal Code insanity standard)

A definition of insanity proposed by the American Law Institute (ALI): “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

cognitive test

An insanity test that emphasizes knowing and understanding whether one’s actions are right or wrong.

first-degree murder

The highest charge of homicide, requiring that the perpetrator engaged knowingly in the premeditated killing of another human being.

general deterrence

A perspective on punishment that suggests that offenders should be punished so that other similarly situated individuals will vicariously learn that criminal actions lead to punishment. The idea is that instilling fear of punishment in people will prevent future criminal acts.

guilty but mentally ill (GBMI)

An alternative verdict in which defendants are found guilty and sentenced to prison, but with the requirement that they receive treatment for their mental health problems.

insanity

A legal concept referring to a defendant’s state of mind at the time the crime was committed. It requires that, due to a mental illness, the defendant lacks moral responsibility and culpability for the crime and therefore should not be punished.

Insanity Defense Reform Act (IDRA)

A 1984 federal law passed after the Hinckley trial, requiring that there be a presumption of sanity and that in federal courts defendants prove “by clear and convincing evidence” that they were insane at the time of the crime.

irresistible impulse

An insanity defense based on defendants’ inability to control their behavior at the time of the offense, even if the defendant may have known the act was wrong.

mens rea (“guilty mind”)

An awareness of the wrongfulness of one’s criminal conduct. In modern times, the term has come to refer to blameworthiness in a general sense and, more specifically, to various legally specified mental states (e.g., premeditation) necessary to commit certain crimes.

Kahler v. Kansas (2020)

A U.S. Supreme Court case finding that a state is not required to have an insanity defense per se (i.e., a defense that would allow a verdict of not guilty for a defendant who did not understand the difference between right and wrong), as long as the state has some defense that addresses the issue of insanity by recognizing how mental illness could affect a defendant’s actions (e.g., a mens rea defense).

mens rea defense

A defense that concedes the defendant committed a supposedly illegal act but argues that the defendant lacked the capacity to possess the mental state required for the crime.

Mental State at the Time of Offense Screening Evaluation (MSE)

A test that attempts to assess whether a defendant’s crimes were influenced by a significant mental disorder.

Neurolaw

A legal approach intending to show a link between brain abnormalities and an individual’s illegal behavior.

not guilty by reason of insanity (NGRI)

A defense that suggests that, due to severe mental illness, defendants should not be held criminally responsible for behaviors because mental illness significantly affects their ability to understand and control their actions.

Guilty but Mentally ill (GBMI)

• usually additional verdict to guilty, not guilty, NGRI

•  like a normal guilty verdict w/treatment in prison, or in mental hospital until well enough to be jailed

policeman at the elbow test

A test of the irresistible impulse insanity defense, requiring that the defendant’s impulse had to be so overwhelming that the defendant would have committed the act even if a police officer had been standing beside the defendant at the time of the crime.

Rogers Criminal Responsibility Assessment Scales (R-CRAS)

A forensic assessment instrument that attempts to translate the legal standards of insanity into components such as the ability to control one’s thoughts and the ability to control one’s behavior.

second-degree murder

A charge of homicide that requires a lesser intent to kill than first-degree murder.

specific deterrence

A perspective on punishment that suggests that offenders should be punished so that they learn that committing a crime leads to punishment. The idea is that instilling fear of punishment in people will prevent future criminal acts.

volitional capacity

defendants ability to contorl their behavior at the time of the offense

wild beast test

Used formerly to determine whether a person is insane, it defines insanity as a mental deficiency in “understanding and memory” and asks whether a defendant acted like a “wild beast.”

Kennedy Case

• psychosis, postpartum depression

• pled NGRI for drowning children in bathtub

• expert testimony from multiple Forensic Psychologists (confirming psychosis, etc.

• Guilty verdict (aside: jurors =8 women, 4 men)

• sentenced to life in prison

• faulty expert witness testimony (Law & Order episode) leads to 2nd trial

• verdict: postpartum mental illness, not guilty by reason of insanity (NGRI)

• Declined release hearing from mental hospital

• Every year case comes up for review every year, her attorney says, she decliens hearing and choses to stay in hospital

Dan White

• Was fellow City Counselor

• quit counselor job, later asked to be reinstated but blocked/ denied.

•  killed the Mayor (shot twice in the body, twice in the head)

•  killed Milk (5 shots)

• used diminished capacity defense

• attorney & forensic psych testimony argued White suffered from depression; "a man pushed beyond his endurance”

•  symptoms? he turned to sugary sweets as a coping mechanism

  Verdict

• found innocent of 1st-degree murder

• charged with manslaughter

• sentenced to 7 years, paroled after 5

Clark v Arizona

• 2st SCOTUS insanity case since Reagan Shooting

•  Erik Clark paranoid schizophrenic (believed aliens had taken over Flagstaff, prev. admitted to mental health ctr, was hoarding survival gear, hung booby traps in room).

•  shot & killed police officer who he thought was an alien

•  initially not CST (took 3 years!) mens rea defense but expert testimony prohibited

•  verdict: 1st degree murder, life in prison (called guards aliens & refused to eat)

• Lawyer said right-wrong test of insanity too strict

•  SCOTUS upheld

Lorena & John Bobbit

• argued clinical depression and possible bout of PTSD due to the abuse

•  had ‘irresistible impulse’ to sexually wound husband

•  judge ordered her to undergo a 45-day evaluation period at Central State Hospital

• contrast w/a case that is much more insane

Dahmer

• insanity defense

• multiple forensic psychologists for defense diagnosed necrophilia, borderline personality disorder, schizotypal personality disorder, alcohol dependence, and a psychotic disorder.

•  prosecution exerts argued he was in control (at least before drinking), pre-meditation not impulsive (though conceded he didn’t choose sexual compulsion)

•  ruled sane & guilty, sentenced to life in prison (no death penalty in Wisconsin).

•  some see as ‘death sentence’ for insanity defense

failed insanity cases

• Murderer of Chris Kyle Army sniper

• Aurora Theater shooter 

• Oscar Pastorius 

Vampire Killer

• John Haigh 1949 London

• Arrested when the remains of a woman who'd been dissolved in acid were found on his property 

• Admitted to killing 9 people said b/c he needed to drink their blood

• He even drank his own urine to try to prove how demented he was (but only when he thought someone was watching)

• ‘Vampire defense’ failed convicted and executed

Hillside Stranglers

• Pretended to be cops as con to abduct and kill women

• pleaded insanity due to multiple personality disorder

•  fakery was discovered through fake hypnosis ploy

•  found guilty and sentenced to life in prison

•  still trying to lie to get out…

arguments about role of neuroscience in insanity defense.

expert witness during Hinckley trial showed brain scan of “widened sulci” in his brain

a deterministic view of human behavior that is at odds with the law’s assumptions of free will

Stephen Morse - contends that specific brain abnormalities are not sufficiently linked to criminal behavior to answer legal questions of culpability, responsibility, and volitional control