forensic psychology exam 2

Difference in definitions of competency and capacity

Competency traditionally used to indicate legal findings/status whereas Capacity referred to clinical findings/status

In clinical and legal settings, what do evaluations focus on?

focus on specific functional capacities in contrast to a more difficult to define global type of legal or clinical status

Evaluations may address capacities for:

• Giving medical consent; managing one’s healthcare (including refusing psychotropics)

• Giving consent for sexual relations

• Independently managing one’s finances

• Executing a valid will

• Driving

• Independent living 

• Making a confession

• Pleading guilty

• Waiving right to counsel

• Even choosing homelessness (Want et al., 2015)

Is it possible for a person to lack capacity for some but not other functional areas?

YES.

What is the Competency to Stand Trial Assessment (CST) and what does it require?

• Is a current status assessment such that the same person may be found incompetent at one point in time but not another

• Requires assessment of specific psychological and functional capacities which may or may not be relevant to other types of legal competency

competency to stand trial may also be referred to as:

• Fitness to Stand Trial

• Fitness to Proceed

• Competence to Proceed

• Adjudicative Competence 

Why perform CST exams (3 reasons)?

1. Create fairness for a defendant in the criminal trial process (accused should be mentally fit for trial) – Fair Fight Principle 

2. Maintain integrity of justice system

3. Maximize likelihood of accurate information in a trial (Grisso, 2014)

What does the sixth amendment guarantee defendants and how does this relate to CST?

• The rights to effective counsel, to confront their accusers, and to present evidence

• Mental impairments may prevent a defendant from effectively working with their attorney and participating in their defense

The Dusky Standard Context

• 32 year old man charged with kidnapping and rape of underage female. Suffering from schizophrenia but found competent to stand trial. Given sentence of 45 years in prison. The Supreme Court reversed the sentence on grounds that he wasn’t competent enough to stand trial. New trial- sentenced to 20 years.

• 1960 Supreme Court Decision which provides definition of competence to stand trial

• Utilized as standard in federal and in most state courts

Per Dusky v. US: Result

The test must be whether the defendant had sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and rational as well as factual understanding of the proceedings against him

CST test includes “two prongs”:

1. Defendant’s capacity to understand the criminal process as it relates to them and others involved in the process

2. Defendant’s capacity to participate in this process, especially as concerns working with counsel to prepare a defense

UARC Organizing Concepts for CST

• Understanding: Defendant’s factual understanding of courtroom functions and procedures (e.g., Defendant with ability to describe basic functions of a defense attorney demonstrates factual knowledge of this role

• Appreciation: defendant’s capacity to appreciate the connection between that they factually understand and their own legal situation. Impairments here often have basis in delusional beliefs (e.g., understanding the role of the prosecuting attorney but being convinced that in this case this attorney is Satan)

• Reasoning: Capacity for logical information processed during legal decision making (e.g., as would be needed to properly weigh advantages/disadvantages of various plea agreements)

• Communication: Relates to defendant’s capacity to both receive information and be understood by others during legal process (relevant to capacity to effectively consult with attorney)

Issue of competency relates to defendant’s (present/past) capacity to understand legal proceedings and work with attorney

present

Does the Dusky standard focus on capacity, interest, or willingness to consult with counsel and understand proceedings?

CAPACITY

What kind of level of understanding must defendants possess?

reasonable but not perfect

Does the relationship between defendant and attorney need to be meaningful under the Dusky standard?

No, people have the right for counsel but not perfect counsel

Presence of low IQ or mental illness for CST per Dusky Standard?

Given focus on rational and factual understanding, cognitive functioning must be considered. However, presence of low IQ or mental illness does not direct determination of incompetence unless it prevents factual and rational understanding and capacity to consult with attorney

Dusky Standard: Understanding must be both _____ and _____

factual and rational

• ex: defendant may have factual understanding of courtroom procedures and charges against them yet have delusional belief that the judge is strongly attracted to them and that they will never be sentenced to jail time as a result).

What are some sample items from lists of functional abilities needed for CST that have been published?

• Defendant understands they are accused of a crime

• That court will decide on guilt or innocence

• That trial might result in punishment

• That defendant’s beliefs about their trial are rational

• That they can consistently provide details of events relevant to their charges

• That the prosecutor’s role is to pursue a conviction

• That they can comprehend instructions and advice

Requesting a CST Exam: Who and When

• Typically occurs prior to start of trial (but can occur any time in criminal process)

• Most often issue is raised by defense attorney (but can be raised by court or prosecutor)

• Rarely is request for exam denied by court when mental illness potentially interferes with competence – could be basis for appeal if denied

What does the court order for a CST exam include?

• Court order includes charges and specifies that exam must be performed by either a “qualified psychiatrist” or “certified psychologist”

Typical next steps after requesting a CST exam

• Judge orders Competency to Stand Trial Exam (C.P.L Article 730 Examination)

• Defendant is then examined by one or more clinicians (two in NYS)

• Depending upon clinical/legal circumstances, exam is performed on outpatient basis in correctional setting or in hospital

• Completed reports are sent to the court within specified timeframe

Fundamental Question (posed on court order)

Does the defendant, as a result of mental disease or defect, lack the capacity to understand the proceedings against them or to assist in their defense?

Who decides the “ultimate question” regarding CST?

The ultimate decision regarding a defendant’s competence is made by the court but the clinician’s opinion is often followed.

Possible Causes of Incompetence

• Mental Illness (often psychosis but resulting functional deficits are more important than diagnostic classification)

• Developmental Disability (e.g., Intellectual Disability) limiting capacity for comprehension and decision making

• Developmental Immaturity as seen in younger individuals with reasoning and understanding limitations based upon yet to develop cognitive skills (e.g., appreciation of long term consequences)

Causes NOT establishing incompetence

• Lack of familiarity with legal process based primarily upon lack of exposure

• Situational problems which may temporarily limit performance during competency exam (e.g., fatigue; recently received bad news or misfortune such as job loss)

• Dissimulation— attempts on defendant’s part to distort their personal presentation often (but not always) in an attempt to be found incompetent. All CST exams must assess for dissimulation

Disposition following determination of competency

• if found competent the criminal proceedings go forward

• per Grisso, the vast majority defendants (90%) never participate in a formal trial as they usually plead guilty as part of a plea argument (a decision which itself requires competence)

If found not competent

• criminal proceedings are put on hold

• charges may be dropped with less serious (misdemeanor) offenses possibly with agreement that defendant seek treatment in community

• With more serious crimes, defendant may be committed to an institution to undergo treatment aimed at restoring competency

Jackson v. Indiana (1972) Established:

• A defendant cannot be committed by the state for restoration of competency unless there is a “substantial probability” that competency can be restored

• The commitment must be time limited (“a reasonable period of time”) during which an attempt to restore competency is made

If competency cannot be restored within timeframe set by state…

• continued hospitalization would need to be on civil (not criminal) commitment basis (where defendant is found seriously mentally ill and a danger to self or others)

• Jackson does not specify timeframe but many states use 6 months as a “reasonable period of time” to determine if competency can be achieved

The reality of restorability for incompetent defendants..

• Many states (25+) continue to permit defendants to be criminally committed beyond a “reasonable period of time”

• Some put no time limit on length of criminal commitment; some use maximum sentence defendant would receive if convicted; and some specify a timeframe (e.g., 5 years in Florida) not clearly linked to restoration issues (Melton et al.,)

What happens to criminal charges after the defendant is found incompetent and unrestorable?

• Jackson gives no clear direction regarding the charges for an unrestorably incompetent defendant

• In some states charges are dismissed “without prejudice” (leaving open option that they can be reinstituted in future)

NY State laws about incompetence?

Maximum defined competency treatment periods: 90 days for misdemeanors; 2/3rds of maximum sentence for felonies 

Favorable factors associated with restorability?

• Being female

• <60 years old

• Affective Disorder diagnosis

• Ability to understand legal process

• History of prior convictions (severely mentally ill or intellectually disabled less likely to be chronic legal offenders) – especially women

• Noncompliant with psychiatric medication at time of offense

• More likely to be viewed as restorable if exam requested by defense

Unfavorable factors associated with restorability

• Age >65 (even when controlling for dementia)

• Being male

• Chronic psychosis with length hospital admission and significant ADL limitations

• Cognitive Disorders including Intellectual Disability and Dementia

• Misdemeanor vs. Felony charges (interesting given greater legal complexities with felonies)

• Examiner’s having access to legal and psychological records (collateral information) decreased likelihood of a “restorable” opinion

• Psy.D examiners more likely to predict lack of restorability in contrast to Ph.D or MD

• Chronic substance abuse and personality disorders less likely to be viewed as restorable

What 4 types of information does Grisso suggest obtaining prior to interviewing defendant for competency?

More focus on competence related functional limitations than on diagnostic category

• Criminal accusations and legal charges (essential in order to evaluate understanding and appreciation)

• Legal History — involvement with legal system (consider attorneys as source)

• Mental health history including inpatient and outpatient intervention, response to treatment and diagnostic formulations

• Collateral reports from familiar others (e.g., family members, treating sources) to assist in developing reliable case impressions

Mental status exam is the psychiatric equivalent as the ____ ______ in medicine

physical exam

CST Interview Procedures

• interview with defendant which briefly reviews some areas covered by clinical interview (e.g., education and employment history, living situation, health problems)

• Past experiences with legal system, legal proceedings, and attorney

• Defendant’s ability to logically and understandably communicate about legal circumstances

• Conduct mental status exam which includes tasks which screen for orientation, attention/concentration, memory and reasoning capacities

Is psychological testing done for CST?

• traditional formal psychological testing is not automatically performed

• The above also applies to formal tests of malingering (despite need to consider possibility of dissimulation)

• Psychological testing can be done but is dependant on the case

How to directly evaluate competency skills

• May use standardized competency instruments in combination with questions pertaining to unique aspects of defendant’s case

• No single “CST Test”

Essential domains to assess in CST

• factual understanding of charges, possible penalties, courtroom roles and procedures, plea agreements

• attempts to “educate” defendant during exam and then evaluate recall and understanding. Attorney may be used to educate, allowing opportunity to observe interaction

• evaluate defendant’s capacity to apply factual knowledge to their case

• Evaluate defendant’s capacity to process information during legal decision making

• Evaluate defendant’s capacity to communicate with attorney about case related matters (including capacities for emotional and behavioral control while doing so). This may have implications for ability to testify in one’s own defense

MacCAT-CA Test Structure

• MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) 

• Contains 22 items

• Semi-structured interview format

• Administration time 25-45 minutes

How is the MacCAT-CA administered and scored?

• The defendant is read a vignette involving a criminal act (assault) and is required to answer a number of questions regarding legal facts, options, and decisions facing the individual charged with this crime

• Opportunities for education are provided to evaluate capacity to learn and apply relevant legal information regarding the hypothetical scenario

• Scores are generated for the 3 domains providing impairment levels and percentiles allow comparisons with various offender samples

What three domains (associated with Dusky) are examined in the MacCAT-CA?

1. Factual understanding of proceedings

2. Ability to assist counsel

3. Rational understanding of proceedings

Competency Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR)

Consists of 50 questions (40 multiple choice) which can be read to defendant (4th grade reading level). Score comparisons are made with various defendant groups. 

What sections are included in the CAST-MR?

1.  Basic Legal Concepts (e.g., “What is a crime”?; “What do judges do”?)

2. Skills to Assist Defense (What if the prosecutor asks you something you don’t understand? What might you do?)

3. Understanding Case Events (“What were you charged with”?; “What do those charges mean”?)

What is examined to address restorability?

• Whether restorability to competence is possible 

• What type(s) of intervention will be needed for this to occur

• In what setting should this treatment be offered

• What is a reasonable period of time for restoration to occur utilizing treatment methods proposed

General findings regarding restorability

• Majority of defendants are restored to competence within 6 (or fewer) months

• Rates of restorability for incompetent defendants with intellectual disability is much lower (e.g., <35%)

Competence to Waive Right to Counsel

• Important to establish given aim of fair trial

• Faretta v. California (1975): Per 6th Amendment criminal defendant has right to represent self

• Rights associated with due process belong to accused, not their attorney

• Free choice exists here even if it ultimately is not in defendant’s best interest

Is the defendant considered incompetent because they do not understand technical legal issues (e.g., rules for selecting jury)?

NO

Godinez v. Moran (1993) Established:

• If defendant is competent to stand trial, they are also competent to waive right to counsel

• Trial judge must decide waiver is both voluntary and knowing

Voluntary/Knowing meaning in context regarding competency to waive counsel

• Understand seriousness and possible consequences of decision

• Decision is made freely, not on basis of coercion (e.g., threats or pressure)

• If right is waived & there is trial, Court has authority to appoint “standby counsel”

Edwards v. Indiana (2008) Established:

• If one is competent to stand trial and waives right to counsel, they may still be required to have attorney if severe mental illness prevents them from managing trial proceedings

• This goes against Moran but does not specify how to determine how someone competent to waive counsel is then not competent to represent self. 

• Only guidance provided is person is unable to perform "basic trial tasks”

What is included in the forensic psych assessment when issue of waiving counsel is present: 

Step 1: Conduct Competence of Stand trial exam

Step 2: Supplement with questions assessing understanding process of self representation

• What tasks are performed by attorney (Jury selection, open/closing arguments, examining witnesses…)

• Carefully consider reasons defendants want to defend self. Are these impacted by mental illness (e.g., paranoia, grandiosity…)?

• Cognitive abilities must be evaluated

Long Island Railroad Shooting

• Colin Ferguson (1993)

• 6 killed; 19 wounded

• Decided to defend himself/waive counsel

• Convicted (1995): 6 counts murder; 19 counts attempted murder

Ferguson Case

• Found competent to stand trial and hence competent to waive right to attorney

• Case was 1993, before Edwards v. Indiana (2008) so only “standby attorney” appointed

• Note presence of thought disorder interfering with capacity to represent himself.

Why are child custody evaluations a difficult field?

• Challenging & Emotionally Demanding area of practice

• Requires awareness of one’s values & personal bias regarding how children should be raised (& who makes the “best” parent)

• Note that personal values/beliefs held by psychologist re: parenting may be inconsistent with empirical findings

• Courts NOT as likely to adopt conclusions of forensic psychologists here (vs. other types of cases)

• Agreement rate 30-60% vs. >90% in cases of Competency of Insanity

Example of child custody considerations?

• Are children best raised in 2 parent homes?

• Should parenting couple consist of man & woman?

• Does spanking constitute poor parenting?

• What role should religion play in raising a child?

Who makes the majority of custody decisions in divorce cases?

The parents

Sole custody arrangement

1 parent granted custody of children

Joint custody arrangement

custody shared by parents

Split custody arrangement

each parent has sole custody of 1 or more child

Divided custody arrangement

each parent has sole custody at different times of year

Physical custody

Child lives with this parent who is their primary caregiver

Conceivably custody

1 parent can have sole physical custody while both have joint legal custody

Legal custody

Parent designated to make legal decisions regarding child (e.g., medical intervention)

What were children previously viewed as in the past for custody arrangements?

• Children at one time were viewed as Chattel (property other than real estate under law), to be divided at end of a marriage

• Children frequently would go to father as personal property went to husband

• Current views are much more complex with multiple variables considered.

Tender Years Doctrine

• Mother considered best parent especially in case of younger children given their “maternal instincts and caretaking abilities” (unless she was shown to be unfit for role)

• Doctrine continued to be used even when research described fathers as equally capable

• TYD widely used standard until 1970’s

Best Interest of the Child

• moved focus from parental rights to needs of child with consideration of child development

• Michigan uses list of 12 factors to guide determination of “best interest”

• One can argue that this standard should be adopted as we are actually better able to specify (via research) which factors lead to harmful outcomes as many of our instruments focus on detection of problems. 

Problem with BIC

• Vague & Nonspecific; Difficult to operationalize

• Some states have guidelines to determine “best interest of the child” but not at all

• Those critical of BICS state vagueness creates problems for judges applying clear legal standards in custody decisions

Michigan’s Best Interest of the Child Criteria

• The length of time child has lived in a stable criteria, satisfactory environment and the desirability of maintaining continuity

• The moral fitness of the parties involved

• Domestic violence

Most important criteria for custody decisions

• Emotional connections between parents and child

• Ability/willingness of 1 parent to encourage close parent-child relationship with other parent

• Absence of domestic violence

Optimal parent situation

• both available, psychologically health, and involved in child’s life

• children adjust best when parents, post-divorce, can interact without high levels of hostility and conflict and where each encourages relationship with the other

Best Interest Considerations (child custody arrangements)

• Where child spends time with each parent in ways that are developmentally appropriate (parenting plan should fit child’s age & developmental level) (E.g., less transitioning between homes on school nights for younger children)

• A strategy is in place to reduce and manage conflict between various family members when it occurs.

In a child custody situation where 1 parent is abusive, dysfunctional or relates to child in destructive manner, what happens?

highest priority is given to child’s safety

Schultz et al. (1989) Suggested:

• In reality judges base decisions on “the least detrimental alternative standard” – custody given to parents expected to cause the least amount of damage.

Performing the Custody Evaluation

• APA established guidelines for child custody evaluations

• These are professional and ethical guidelines (not laws).

Purpose of child custody evaluations

Determine best psychological interest of child; consider capacity to parent; and consider child’s developmental needs

APA guidelines for custody evaluations: 3 Sections

1. Focuses on purpose of child custody evaluation: Determine best psychological interest of child; consider capacity to parent; and consider child’s developmental needs

2. Psychologist must remain objective, professional, & impartial; must have specialized training/competence; be aware of personal (and societal) bias; and avoid multiple relationships 

3. Focuses on actual performance of evaluation:

• Obtain informed consent from all adults

• Inform children about process (Assent = agreement)

• Clarify limits of confidentiality

• Explain how information will be disclosed

• Use multiple methods of assessment

• DO NOT give opinions about those not directly evaluated

• Give recommendations which keep focus on BIC

• Make clear what the financial arrangements will be 

• Keep written records

• Essential to use best practice methods and remain aware of legal standards in practice area 

APA guidelines for actual performance during child custody evaluation (3rd section)

• Obtain informed consent from all adults

• Inform children about process (Assent = agreement)

• Clarify limits of confidentiality

• Explain how information will be disclosed

• Use multiple methods of assessment

• DO NOT give opinions about those not directly evaluated

• Give recommendations which keep focus on BIC

• Make clear what the financial arrangements will be 

• Keep written records

• Essential to use best practice methods and remain aware of legal standards in practice area 

Child custody evaluation procedures

• Clarify with referral source: Referral questions, Scope of evaluation requested, Role you will play in case, payment arrangements- all before talking with family

• Explain to attorneys on both sides process of custody exam; clarify what records can be expected

• Initial session often attended by both parents (unless domestic restraining order in place); assessment overview provided; observe interaction between parents

What information is gathered from individual custody interviews with parents?

• Obtain history and perspectives on relationship with spouse and children

• Viewpoints about best custody arrangements

• Parenting style & discipline methods

• View of other parent

• Any allegations of violence/abuse

• Thoughts about relocating

• Evaluate psych status including insight into personal contributions, tendency to rationalize/blame, externalize

• Each should feel their story (i.e., version of truth) is “heard” (expect many family “truths”)

• Psych testing may be performed

Sessions with Children for Custody Evaluations

• Attempt to establish rapport and reduce anxiety

• Careful (not leading or suggestive) questioning is essential

• Observe parents & children together (note type/levels of attachment)- especially important with younger children

• Child observations in various settings (office, home, school, playground…)

• Parent & children can be given tasks to allow assessment of interaction, capacity to cooperate with vs. oppose the other…

• Children interviewed individually, observed with parents, psychological testing may be completed

Age at which child’s wishes (regarding custody) should be given greater weight?

No clear answer-some expert polling suggests 15, BUT must carefully consider REASONING behind preferences

Final step of child custody evaluations?

Preparation of report, providing feedback & recommendations

“High Stakes" evaluations;

Malpractice allegations by side unhappy with findings possible

Gathering Collateral Data for Custody Evaluations

• Collateral interviews (in person, by phone); review of court records, medical/psych treatment records, school/teacher reports

Ackerman, Bow, & Mathy Study on time taken for child custody evaluations

• Time intensive

• On average, 18 hours report writing

• 21 hours interviewing

• Total time to perform these evaluations has tripled over the past 20 yrs.

Forensic Evaluators Role

• Role is to assist the court, not helping or supporting those involved in dispute

• Neutrality and objectivity essential

Reasons for Joint custody decisions (what do attorneys, judges, and psychologists recommend)

• Attorneys recommend when: Parents are able to separate difficulties 

• Judges recommend when: Couples cooperates with court orders 

• Psychologists recommend when: No substance abuse

Reasons for Sole custody

• Attorneys: when one parent is an active alcoholic

• Judges: when one parent is alienating the other parent or if there is an active alcoholic

• Psychologists: if one parent is an active alcoholic or has substance abuse issues

Self Determination

• People with mental impairments or mental disabilities have the right to self determination, unless well established reason exists that they should not

• Self Determination involves making one’s own decisions and personal choices and knowing what is best for them.

What are the exceptions for self determination for individuals with mental impairments?

1. If their behavior/choices will result in significant harm to others

2. When they lack competency to make particular decisions

Civil Commitment (Noncriminal Adjudication)

• Where state permits involuntary hospitalization of someone suffering from a mental disorder

• Sometimes confinement and treatment are needed due to potential for self harm or dangerousness to others

• Process allows person to be confined or mandated to receive care in community due to behavior which community defines as unacceptable

Criminal law vs Civil Commitment (Police Power vs. Parens Patriae)

• Police power: where state is authorized to protect the community often via deterring and punishing criminal behavior

• Civil commitment is based on Parens Patriae: States authority to act as the “general guardian” of children and those with mental illness. Focus here is more on needs of individual vs. society (i.e., the legal protector of citizens unable to protect themselves)

Parens Patriae

• States authority to act as the “general guardian” of children and those with mental illness

• Focus here is more on needs of individual vs. society (i.e., the legal protector of citizens unable to protect themselves)

Reality of Parens Patriae and Police Power in Society

• Current civil commitment proceedings involve some mixture of parens patriae and police power

• Emphasis though is more on treatment than punishment

What prompts a civil commitment?

• Same behavior (e.g., Trespass, Assault, Robbery…) may trigger need for a criminal or civil response

• If person found a danger to self or others

• While not usually possible to force treatment for physical illness, this can occur for some mental health conditions

• Police may be involved in both cases & person is processed through criminal justice system or taken to setting such as hospital for assessment & treatment (if needed)

• Civil commitment used for severe mental illness where there are concerns about dangerousness

What happens when civil commitment is used?

• When used, person may have little control over usual decisions such as when/where to sleep & eat, where one can go, what one can do with their money…

• Potential negative consequences include impacts on employment, reputation, self concept, self efficacy, capacity to be independent…

• Some have concerns about (especially lengthy) commitments fostering dependence on institutions and increasing likelihood of additional admissions

Thomas Szasz- Upstate Medical Center Psychiatrist

• Argued that mental illness is a “myth” – just a label used by a society or state to separate out those that most people view as inappropriate, undesirable, or unacceptable 

• Some express concern that involuntary commitment might be experienced as a type of prison sentence especially where setting is overcrowded, poorly staffed…IC does infringe on a person’s freedom.

• Important to be aware that person is likely facing multiple types and levels of stress