Handbook of Forensic Assessment

Psychological and Psychiatric Perspectives

Eric Y. Drogin, Frank M. Dattilio, Robert L. Sadoff, Thomas G. Gutheil

• Publisher: Wiley
• Year: 2011
• Print ISBN: 9780470484050
• eBook ISBN: 9781118028001
• Edition: 1
• Topic: Psicología
• Subtopic: Psicología forense

The first handbook to explore forensic assessment from psychiatric and psychological perspectives

"The editors have assembled a magnificent collaboration between psychiatrists and psychologists to bring forth critical knowledge and insight to the core competency of forensic assessment. This handbook is essential reading and a comprehensive resource for both newly minted and seasoned forensic practitioners."
— Robert I. Simon, MD, Director, Program in Psychiatry and Law, Georgetown University School of Medicine

"This long-awaited resource blows the dust off traditional standards, shakes the cobwebs out of our old ways of thinking, and shows the practical steps in producing work that will make sense to juries and withstand the most skillful cross-examination.... [T]here is no better resource."
— Kenneth S. Pope, PhD, ABPP, Diplomate in Clinical Psychology; coauthor, Ethics in Psychotherapy and Counseling, Fourth Edition

"From preparation to collection to interpretation to communication of the results, this excellent, comprehensive treasure shows how to conduct forensic assessments. Each splendid evidence-based chapter is presented from the collaboration between psychologists and psychiatrists. It is a must-have resource for forensic experts as well as general practitioners or anyone wishing to understand standard of care in forensic assessment."
— Melba Vasquez, PhD, ABPP, 2011 American Psychological Association President

The practitioner-oriented coverage in the Handbook of Forensic Assessment examines:

• The current state of psychology and psychiatry—including requisite clinical competencies, ethical guidelines, and considerations of multidisciplinary collaboration
  
  

• Various approaches to assessments in criminal and civil matters
  
  

• The principles of effective preparation, data collection, and interpretation, as well as communication for each special situation
  
  

• Topics including competence to stand trial, sexual offender evaluations, addictions, child abuse, and education
  
  

• Overarching practice issues, such as practice development, retention, compensation, consultation, and forensic treatment
  
  

• Includes sample reports that demonstrate the integrative potential of both psychology and psychiatry
  
  

Incorporating a wealth of current and multidisciplinary research, the Handbook of Forensic Assessment is destined to become every mental health professional's most valuable one-stop reference for their forensic work.

Part 1

Criminal Matters

Chapter 1

Competence to Stand Trial

Kathleen P. Stafford and Robert L. Sadoff

Introduction

Competence to stand trial has long been recognized as “the most significant mental health inquiry pursued in the system of criminal law” (Stone, 1975, p. 200), reflecting both the prevalence of court-ordered competency evaluations, and the concern regarding trial competence reflected in the body of case law on this subject.

Hoge, Bonnie, Poythress, and Monahan (1992) estimated that pretrial competence evaluations are sought in 2% to 8% of all felony cases. LaFortune and Nicholson (1995) reported that judges and attorneys estimate that competency is a legitimate issue in approximately 5% of criminal cases, although only two-thirds of these defendants whose competency is questionable are actually referred for formal competency evaluations. Stafford and Wygant (2005) found that nearly all defendants referred for competency evaluation by a mental health court in misdemeanor cases were found incompetent to proceed, and remained incompetent after 60 days of hospitalization.

Trial Competence Defined

The Supreme Court of the United States, in Dusky v. U.S. (1960), established the minimal constitutional standard for competency to stand trial as whether the defendant “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. 789).

In the case of Wieter v. Settle (1961), the Court outlined functional criteria for competence, noting that mental illness does not necessarily mean that a defendant lacks the mental faculties required to stand trial. According to Wieter, defendants should have the mental capacity:

1. To appreciate their presence in relation to time, place, and things.

2. To appreciate that they are in a court of justice, charged with a criminal offense, with a judge on the bench, a prosecutor who will try to convict them of a criminal charge, and a lawyer who will undertake to defend them against that charge.

3. To appreciate that they will be expected to tell their lawyer to the best of their mental ability the circumstances, the facts surrounding them at the time and place where the offense is alleged to have been committed.

4. To appreciate that there is, or will be, a jury present to pass upon evidence adduced as to their guilt or innocence.

5. For memory sufficient to relate those things in their own personal manner. (pp. 321–322)

Basis for Raising the Issue of Competence

In Pate v. Robinson (1966), the Supreme Court of the United States held that a trial judge must raise the issue of competency if either the court's own evidence, or that presented by the prosecution or defense, raises a “bona fide doubt” about the defendant's competency. In Drope v. Missouri (1975), the Court clarified that evidence of the defendant's irrational behavior, demeanor at trial, and any prior medical opinion on competence to stand trial are relevant to determine whether further inquiry is required during the course of the proceedings.

Amnesia and Competence

In Wilson v. U.S. (1968), a federal appellate court upheld the conviction of a man who had sustained head injuries in the course of a high-speed chase by police and was therefore amnesic for the offenses. However, the court remanded the case for more extensive posttrial findings on the issue of whether amnesia deprived the defendant of a fair trial and effective assistance of counsel. Six factors were articulated to assist the trial court in determining whether the fairness and accuracy of the proceedings had been compromised and the conviction should be vacated:

1. The extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer.

2. The extent to which the amnesia affected the defendant's ability to testify in his own behalf.

3. The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant's amnesia (such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi).

4. The extent to which the prosecution assisted the defendant and his counsel in that reconstruction.

5. The strength of the prosecution's case.

6. Any other facts and circumstances that would indicate whether or not the defendant had a fair trial. (pp. 463–464)

Competence to Plead Guilty

Over 90% of criminal cases in the United States are resolved by pleas of guilty, often the result of plea bargaining. The competency of defendants to plead guilty involves the waiver of the right to a jury trial, of the right to confront one's accusers, and of the privilege against self-incrimination. The majority of the circuits have concluded that the standard of incompetence to plead is the same as that of incompetence to stand trial (Allard v. Hedgemoe, 1978). The Allard court agreed that the waiver of rights and the plea of guilty need to be closely examined, but suggested that the capacity to make such decisions be considered part of the Dusky standard.

In an earlier decision (North Carolina v. Alford, 1970), the Supreme Court of the United States had ruled in a capital case that defendants may waive their right to trial and plead guilty even if they deny their guilt. The court focused on the logic of the defendant's reasoning in choosing to plead guilty to a murder he stated he did not commit.

Competence to Refuse the Insanity Defense

The prevailing view by federal appeals courts is that a trial judge may not impose a defense of insanity over the defendant's objections if a competent defendant intelligently and voluntarily decides to forgo a defense of insanity (Frendak v. U.S., 1979). An earlier case, Whalem v. U.S. (1965), did provide that a trial judge may impose an insanity defense when the defense would be likely to succeed, but it was overturned by U.S. v. Marble (1991) and is not followed in most jurisdictions. If it appears that competency to waive an insanity defense may be an issue in a given case, it is prudent for the evaluator to address it as part of the trial competency evaluation.

Competence to Waive Counsel

The Supreme Court of the United States ruled in Westbrook v. Arizona (1966) that a competency to stand trial hearing was not sufficient to determine competence to waive constitutional rights to the assistance of counsel and to conduct one's own defense. In Faretta v. California (1975), the Court noted that waiver of counsel must be knowing and intelligent, but that defendants' ability to represent themselves has no bearing on their competence to choose self-representation. In Godinez v. Moran (1993), the Court held that the competency standard for pleading guilty or waiving the right to counsel is the same as the Dusky standard for competency to stand trial, reasoning that “the defendant has to make a number of complicated decisions during the course of a trial, and that a trial court must in addition satisfy itself that the waiver of his constitutional rights is knowing and voluntary . . . . In this sense, there is a heightened standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence” (pp. 400–401).

The concurring opinion in Godinez suggests that the Dusky competence standard should not be viewed too narrowly, as a defendant must be competent throughout the proceedings, from arraignment to pleading, trial, conviction, and sentencing, and whenever the defendant must make a variety of decisions during the course of the proceedings. In this regard, Melton et al. (2007) noted that to ensure that defendants are competent to stand trial, it is important to ask every defendant about his or her understanding of the rights that are waived by a plea of guilty.

In Indiana v. Edwards (2008), the Court considered the issue of competence to waive counsel in the case of a mentally ill defendant who intended to represent himself at trial, rather than to plead guilty. Mr. Edwards disagreed with counsel's defense strategy, lack of intent, and instead wished to claim self-defense. The Court ruled that the Constitution does not preclude states from adopting a higher standard for competency to waive counsel than for competency to stand trial. For the examiner conducting competency evaluations, this finding implies that the capacity to waive counsel, as well as the capacity to make decisions about trial strategy, is a consideration in conducting a competency evaluation in such cases. Input from defense counsel, always important in conducting competency evaluations, would be critical in terms of understanding the basis of the defendant's preferences. Morris and Frierson (2008) articulate the challenge of addressing the individual's unique abilities and limitations without addressing legal abilities or points of law beyond the experience of most forensic psychologists and psychiatrists.

Decisional Competence

In U.S. v. Duhon (2000), a federal district court emphasized the ability to make decisions in rejecting the opinion of hospital forensic examiners that a mentally retarded defendant was competent to stand trial. The court ruled that the defendant's factual understanding of the proceedings, after hospital staff taught him to memorize and retain some information, was insufficient. Rather, the defendant lacked the ability to consult with an attorney with a reasonable degree of rational understanding, to otherwise assist in his defense, and to have a rational understanding of the proceedings.

The Standard of Proof

In Cooper v. Oklahoma (1996), the Supreme Court of the United States ruled unanimously that Oklahoma, in imposing the higher standard of clear and convincing evidence for a defendant to prove incompetence (rather than the lower standard of preponderance of the evidence) violated due process by allowing “the State to put to trial a defendant who is more likely than not incompetent” (p. 369). The Court termed the consequences of an erroneous competency determination dire, impinging on the defendant's right to a fair trial. In contrast, the consequence to the state of an erroneous finding of incompetence when a defendant is malingering was termed modest, as it is unlikely that even an accomplished malingerer could “feign incompetence successfully for a period of time while under professional care” (p. 365). The Court added that “the defendant's fundamental right to be tried only while competent outweighs the State's interest in the efficient operation of its criminal justice system” (p. 367).

Length of Treatment for Incompetence to Stand Trial

In Jackson v. Indiana (1972), regarding a hearing-impaired defendant who could not speak, and whom treatment staff did not believe would ever learn the communication skills necessary to stand trial, the Supreme Court of the United States ruled that incompetent defendants can be hospitalized only for the “reasonable” period of time necessary to determine whether there is a substantial probability that competency can be attained in the foreseeable future. The Court held that continued commitment could be justified only on the basis of progress toward the goal of competency restoration. Otherwise, the alternatives would be release of the defendant or initiation of civil commitment proceedings.

Similarly, in the above-referenced U.S. v. Duhon (2000), a federal district court ordered the release of a mentally retarded defendant who was not dangerous to any persons or property and would never achieve trial competency.

Involuntary Medication

The issue of involuntary medication of defendants during trial was addressed by a federal appellate court in U.S. v. Charters (1987). In this case, the court held that forced administration of psychotropic medication to an incompetent defendant requires a separate judicial decision, using the substituted judgment/best interests standard. One year later, the court endorsed a reasonable professional judgment standard with the availability of judicial review (U.S. v. Charters, 1988). The Charters cases were not appealed to the Supreme Court of the United States in light of the Court's 1990 decision in Washington v. Harper (1990). In this prison case, the Court held that the reasonable professional judgment review of involuntary medication in the treatment of prisoners was constitutional.

In Riggins v. Nevada (1992), the Supreme Court considered the issue of involuntary administration of psychotropic medication of pretrial detainees. The trial court had found Riggins competent and denied his motion to suspend administration of psychotropic medication duri...

Table of contents

• Cover
• Title Page
• Copyright
• Foreword
• Preface
• Contributors
• Part 1: Criminal Matters
• Part 2: Civil Matters
• Part 3: Forensic Practice Considerations
• Appendix A: Scientific Glossary
• Appendix B: Legal Glossary
• Appendix C: Compendium of Cited Psychological Tests
• Appendix D: Sample Reports
• Author Index
• Subject Index