Forensic Psychology and the Law A Canadian Perspective Ronald Roesch, Simon Fraser University Patricia A. Zapf, City University of New York Stephen D. Hart, Simon Fraser University Deborah A. Connolly, Simon Fraser University PowerPoint Slides revised by Angela Book, Brock University

Forensic Assessment in Criminal Domains Chapter 3 Forensic Assessment in Criminal Domains

Learning Objectives 3.1 Summarize the legal standards and procedures for determining fitness to stand trial. 3.2 Summarize the legal standards and procedures for determining criminal responsibility or insanity. 3.3 Describe the points at which risk is assessed, the three approaches to risk assessment, and the factors used to assess risk. 3.4 Describe psychopathy and malingering and explain how they are assessed. Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies If a question arises about a defendant’s competency, he/she will be assessed by a psychologist, and this assessment will be used by the courts in deciding on competency Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies Competency Doctrine Allows postponement of proceedings if the accused is unable to participate in defence on account of mental defect or disease Rationale The accused has the right to assist counsel, confront accusers, and testify on own behalf Unfair to try defendant if unable to participate meaningfully in proceedings Protects dignity and integrity of court proceedings Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies Fitness to Stand Trial Proof of mental disorder is required R v. Whittle (1994): standards of competence should be the same for all stages of the criminal process R v. Swain (1991): Cogitive capacity evaluations apply equally to fitness to stand trial and fitness to conduct the defence (later extended to fitness to plead guilty) Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies Fitness to stand trial Defendant’s mental state during trial Ability to understand proceedings/assist in own defense Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies Formal inquiry must occur when doubt about fitness is raised Can be raised by defense/prosecution/court Mental health professional(s) evaluate and submit report to court Court typically agrees with conclusions (95% of cases) If the accused is found fit to stand trial, case proceeds Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Competencies Unfit to Stand Trial Usually sent to psychiatric/forensic hospital Competency usually restored within 6 months Jackson v. Indiana (1972) Competency restored Return to trial & resume case Competency cannot be restored charges dropped/dismissed w/o prejudice May be civilly committed to psychiatric institution Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Fitness/Competency Assessment Most common form of criminal forensic assessment Conducted by psychologists/psychiatrists Focus is on defendant’s current mental state Involves Interview; FAIs; third-party information Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Characteristics of Unfit Defendants Most commonly: male single unemployed living alone history of contact with justice and mental health systems diagnosis of major mental disorder Approximately 20% found incompetent More likely to be: Single, unemployed, minor offense, diagnosed with psychotic disorder Less likely to be charged with violent crime or have substance use disorders Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Restoration of Fitness Psychotropic medication most common method Can be administered involuntarily (Sell v. United States, 2003) Must be likely to restore competence w/o problematic side effects Only when less intrusive method not feasible Non-med based programs designed to increased understanding In Canada, defendants found to be unfit can be kept in hospital or conditionally discharged, with a review every 2 years to determine whether trial can be proceeded with Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Responsibility Defendant’s mental state at the time of the alleged offense Person must be considered responsible for behavior to be convicted In Canada, a person can be found not criminally responsible on account of mental disorder (NCRMD) Prosecution must prove actus reus physical act of the crime mens rea mental capacity and intent to commit the crime Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Responsibility “Defendants for whom mental disease or defect has resulted in an inability to form the intention to commit a crime or has resulted in an inability to know right from wrong may be considered not criminally responsible for their actions and thus found not guilty of the crime” (Ch. 2) Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Legal Standards for Criminal Responsibility M’Naghten Standard Defendant suffers from a disease of the mind Defendant does not understand nature the and quality of actions Defendant does not know actions were wrong This is the standard used in Canadian trials Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Criminal Code States that “no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong” Appreciating the nature and quality of the act encompasses 1) knowing what you are doing, and2) understanding the consequences of the act Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Public Perceptions Perceptions Frequently used (37%) Frequently successful (44% acquitted) Serves as “loophole” Majority are murderers Confined for <2 years Reality Actual use 0.9% 26% acquitted Rarely successful in Canada, in spite of increase in use of NCRMD defence 14% murder; 54% violent offenses Confined for >2.5 years (6.5 for murder) (Silver, Cirincione, & Steadman, 1994) Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Assessment of Criminal Responsibility Retrospective evaluation May include: Interview, record review, collateral interviews, FAIs/psychological tests Inpatient or outpatient basis Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Assessment of Criminal Responsibility (cont’d) Defendant presents evidence/report from psychological evaluation Prosecution may use 2nd expert If case goes to trial, experts for both sides may testify Judge or Jury decide accountability Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Characteristics of Insanity Acquitees (USA and Canada) male 20 – 29 single unemployed minimally educated diagnosed with major mental illness majority psychotic disorders/schizo- phrenia most common prior contact with justice & mental health systems acquitted for violent offense Cirincione, Steadman, & McGreevy, 1995 Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Treatment of Insanity Acquitees Canadian courts have three options: 1) absolute discharge 2) conditional discharge 3) hospitalization Majority hospitalized in psychiatric or forensic institution, and length of time is variable, often exceeding the length of time they could expect in prison Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Approaches to Risk Assessment Unstructured Clinical Judgment Ideographic and qualitative in nature Actuarial Decision Making Nomothetic and quantitative in nature Algorithmic, objective approach More accurate when directly compared to UCJ Structured Professional Judgment Melding of approaches Consideration of risk factors and professional experience temper actuarial prediction Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Violence Risk Factors Risk factors related to increased risk for violence past violent behaviour young age relationship instability employment instability substance use major mental disorder psychopathy early home/school maladjustment personality disorder violations of conditional release Incarceration escapes/attempted lack of insight negative attitudes/personality states psychiatric symptomatology behavioural/affective instability unresponsiveness to treatment lack of feasible release plan access to victims, weapons, drugs, and alcohol lack of support and supervision Treatment noncompliance stress Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Psychopathy and Risk Assessment Psychopathy is a personality style that encompasses both behavioral and affective components Significant relationship between psychopathy and violence “psychopaths, in comparison with nonpsychopaths, are at an increased risk for acting violently and for doing so more quickly and in more diverse ways and across various settings, whether they are mentally disordered, sex offenders, young offenders, or just ‘regular’ nonmentally ill offenders” (Douglas & Webster, 1999, p. 204). Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Violence Risk Assessment Must consider Nature, Severity, Frequency, Imminence, Likelihood Risk management a crucial component May occur in context Sentencing/release Capital Sentencing Dangerous offenders/sexually violent predator cases Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Psychopathy Constellation of affective, interpersonal, behavioural characteristics Cleckley’s The Mask of Sanity (1941) Lacking in emotional responsiveness, no sense of shame, superficially charming/manipulative, irresponsible behavior, inadequately motivated Robert Hare Psychopathy ≠ Antisocial Personality Disorder Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Malingering Malingering Must be considered in legal context “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as…evading criminal prosecution” (APA, 2000) Must be considered in legal context Validity of psychological assessments hinges on honesty/forthrightness/effort Evaluation may include FAI for malingering, scrutiny of self-report vs. records Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Summary Psychologists and mental health professionals frequently called on by courts Conduct a wide variety of assessments Competency to stand trial most, criminal responsibility evaluations, and violence risk are common Evaluations involve interviews and additional information, FAIs may also be used Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

Web Links Forensic Psychiatry.ca: www.forensicpsychiatry.ca. Government of Canada Justice Laws: www.laws-lois.justice.gc.ca. Mental competencies best practice model: www.mentalcompetency.org Historical Clinical Risk Management-20: http://hcr-20.com Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

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