1. 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

2. Forensic Assessment in Criminal Domains
Chapter 3
Forensic Assessment in
Criminal Domains

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. Web Links Forensic Psychiatry.ca: www.forensicpsychiatry.ca.
Government of Canada Justice Laws:
Mental competencies best practice model:
Historical Clinical Risk Management-20:
Roesch et al. Forensic Psychology and the Law: A Canadian Perspective

30. Copyright
Copyright © 2013 John Wiley & Sons Canada, Ltd. All rights reserved. Reproduction or translation of this work beyond that permitted by Access Copyright (The Canadian Copyright Licensing Agency) is unlawful. Requests for further information should be addressed to the Permissions Department, John Wiley & Sons Canada, Ltd. The purchaser may make back-up copies for his or her own use only and not for distribution or resale. The author and the publisher assume no responsibility for errors, omissions, or damages caused by the use of these programs or from the use of the information contained herein.