Fitness to Stand Trial Alberto L. Choy MD FRCPC Psychology 344 Forensic Psychology Fall 2003 University of Toronto, Mississauga

readings  Forensic Psychology Lawrence S. Wrightsman Chapter 10 (pp )  The Criminal Code of Canada ss

Outline  Reasons for assessments of fitness  Ways to assess fitness  Canada: definition of fitness

Introduction  competency to stand trial / fitness to stand trial the ability to understand the ability to defend oneself  2-8% of felons in the USA assessed for fitness

History  English common law (1763): allowed for (court proceedings) and execution to be stayed if “be(came) absolutely mad”  Modern US law: Dusky vs. United States (1960)  but terms poorly defined - not consistent  a mental health perspective: psychosis = unfit  not a legal perspective

Approaches to determining fitness  Dusky: mental health perspective  Further revisions: context / legal perspective - specificity: “this specific crime, in these circumstances, with this lawyer”  Further revisions in US and Canada (less specific, more functional)

Canadian law:  R. v. Taylor (1992) “The test to be applied in determining D’s ability to communicate with counsel is one of limited cognitive capacity…It is not necessary that D be able to act in his/her own best interests.” C.C.C. s.2 functional, not specific, less emphasis on medical

Canadian law:  R. v. Whittle (1994) “D need not have analytical ability, rather the mental capacity of an “operating mind”.” D must be capable to communicate…to instruct counsel (D must) understand the function of counsel and that he or she may dispense with counsel even if it is not in D’s best interest  We will cover essential elements of fitness later

Canadian law:  C.C.C. ss  Presumption of fitness  Who can raise the question of fitness  When can fitness be raised

Canadian law: (walkthrough) (1/6)  at any point in trial / sentencing (fitness is dynamic)  detainment continues  location of assessment of fitness detention setting courts hospital outpatient facility

Canadian law: (walkthrough) (2/6)  cautions and warnings “information from (competency) evaluations may not be used in the issue of determining guilt unless the defendant raises his mental state as evidence at the trial or sentencing proceedings”

Canadian law: (walkthrough) (3/6)  content of the assessment of fitness: 1. general understanding of legal issues  charges / phase in proceedings  personnel in the court  pleas available  witnesses / oath  potential outcomes

Canadian law: (walkthrough) (4/6) 2. specific understanding of legal issues  phase in proceedings  outcomes of delays  outcomes of trial 3. ability (to defend self)  ability to communicate with counsel  to direct defense

Canadian law: (walkthrough) (5/6)  evidence / report  decision by the Court  if unfit: return treatment order  likely to be fit in specified time  benefits outweigh the risks  the least intrusive option  medication and/or training

Canadian law: (walkthrough) (6/6)  if still unfit: Ontario Review Board - (unfit) Prima Facie case to be made every two years  if becomes fit at a later time: back to criminal proceeding

US law:  variable  Illinois: provisional trial

stats  2-8% of felons in the US sent for assessment  10-30% of those referred were found incompetent  11% in Canada  other reasons for “fitness assessment”

Instruments to determine fitness  screening instruments  Competency Screening Test (CST) high false positive rate  Competency Assessment Instrument (CAI) 13 items, reliability and validity to come

Instruments to determine fitness  The Fitness Interview Test (FIT-R) Canadian good screening tool  a. the nature and the object of the proceedings or factual knowledge of criminal procedure  b. possible consequences of the proceedings or appreciate personal involvement and importance of  c. ability to participate in the defense or communicate with counsel

Instruments to determine fitness  The Georgia Court Competency Test (GCCT) visual task / pictorial representation reliable revisions  others: specific populations

Instruments to determine fitness  MacArthur Competence Assessment Tool - Criminal Adjudication (MacCAT-CA) Understanding of Trial/charges appreciation relevance of information logic / reasoning ability / decision making ability to make a choice  congruent with other psychological issues  scenarios

Other issues  Testamentary capacity: wills, evidence  Assessment of juveniles Gault (1967), USA: same due process cognitive development  age 14: ability to use logic  special needs of juvenile defendants