Tanisha G. Hill-Jarrett June 9, 2014

 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

 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

 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

 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

 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)

 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

 Biggest difference observed on psychiatric variables (diagnosed with psychotic disorder [OR = 7.96]; history previous hospitalization [OR = 1.86]) (Pirelli, Gottdiener, & Zapf, 2011)

 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

Measure# of studies Competent group, M (SD) Incompetent group, M (SD) Cohen’s d Odds ratio Wechsler Tests14 (total) FSIQ386.8 (14.0)80.6 (14.1) Performance IQ484.9 (14.0)79.6 (13.4) Verbal IQ/Verbal Cognitive Function (13.5)82.1 (12.3) MMPI/MMPI-22 F scale Scale 6 (Paranoia) Scale 8 (Schizophrenia) BPRS432.0 (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

 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

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

 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”