Competency to Stand Trial: Legal Issues and Developments in Assessment (2002)

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Assessing Competency to Stand Trial
Traditionally CST evaluations were performed in public psychiatric hospitals. Partly because of expense, most states had moved toward community based CST assessments by the early 1990's (Grisso, Cocozza, Steadman, Fisher, & Greer, 1994).

There are currently no clear standards of practice for competency evaluations (Cruise & Rogers, 1998). Two general approaches exist. The first treats the CST evaluation as a general psychiatric or psychological examination. The defendant will be questioned about psychiatric symptoms, a brief social history will be taken, and perhaps a few questions about the legal system or the current legal problem asked. Although this approach is increasingly viewed with disfavor, Veiel and Coles (1999) argue that defendants are presumed to be competent unless there are psychiatric symptoms that intervene. The authors assert that "a psychiatrist's testimony should be directed toward conditions which would establish unfitness" (p. 357)-presumably symptoms of mental illness.

Most other authorities recommend that questionnaires and instruments specifically designed to assess knowledge of the court system and reasoning about legal matters be utilized. The Competency Assessment Instrument (CAI) is a structured interview guide consisting of thirteen categories designed "to cover all possible grounds for a finding of incompetency" (Laboratory for Community Psychiatry, 1973, p. 99). Sample questions are provided for each topic area, and a 1-5 scoring scheme is suggested. However, the administration is not standardized, scores are not totaled, and there are no norms. The CAI remains a viable assessment device because of its flexibility, broad coverage, and coverage of content areas that are obviously and intuitively relevant to competence to stand trial. It has not been subjected to much systematic research (Melton, et al., 1997), and some have faulted it for its unsubstantiated claims of comprehensiveness (Brakel, 1974).

The MacArthur Competency Assessment Tool-Criminal Adjudication (MacCAT-CA) is the result of a multidisciplinary work group's effort over the past ten years to develop a standardized measure of adjudicative competency. As the word "adjudication" in the title implies, the MacCAT-CA seeks to cover competency for the full scope of criminal proceedings, not just competencies involved in going to trial. It gauges defendant's adjudicative-relevant abilities in three domains:

Understanding - Knowledge of the legal system; roles of attorney, DA, and judge; advantages and disadvantages of plea bargains

Reasoning - Ability to identify relevant facts and explain why they are important

Appreciation - Ability to think rationally about one's own legal situation

The MacCAT-CA focuses more on the defendant's ability to think and make rational judgments than any other CST measure. It also indirectly taps the defendant's ability to attend to and recall information, to reason about a hypothetical legal case, and provides a partial assessment of decisional competence. It is also the only instrument with good norms: There are average scores provided for both defendants who are found competent and those found incompetent by an independent (non-MacCAT) assessment. The major weakness of the MacCAT is that it doesn't address the defendant's own case in detail. A defendant may score poorly on the MacCAT for any of several reasons, but be able to adequately discuss and reason about his own case.

Every defendant will face the decision to plead guilty or go to trial, and the rationality of this decision is arguably a crucial element of adjudicative competence. Although not specifically addressed by the Dusky standard, Skeem and Golding (1998) declare "…it is absolutely critical that decisional capacities be addressed in CST assessments and reports" (p. 360)-assuming the defendant is cooperative. If pleading guilty, the defendant should be aware of the practical implications and constitutional rights he will be giving up, and appreciate the obligations he may face if probation is part of the bargain. If proceeding to trial, the defendant should be able to intelligently address the major decisions involved: whether to waive right to a jury trial or to testify, and whether to represent himself,. All such decisions should be made in a voluntary, knowing, and intelligent manner--"with his eyes wide open" (Godinez v. Moran). Now, defendants often make unwise decisions, but if mental illness appears to play a significant contributing role, this may be grounds for a finding of incompetence.

A recent survey of CST reports in thirty-one Texas counties found that decisional competence is almost never specifically assessed or reported. This is also true of evaluations from the state hospitals, which are often completed without knowledge of his legal situation (other than the defendant's account and the official charge).

Deficient knowledge of the court system is rarely a major barrier to competence. Mentally ill persons have problems with attention, concentration, organization of thinking, judgment, and occasionally delusions, but their knowledge base is relatively unaffected. Therefore, assessments that focus on simple facts such as knowing the role of one's attorney will not address the most relevant issues. For the mentally retarded, basic knowledge is an important consideration, but should not replace the other issues discussed elsewhere in this article. In my experience, defendants with an IQ over 60, and no other psychiatric impairments, are usually competent to stand trial. Those with a valid IQ under 50 will probably never be.

Capacity FOR JUSTICE, an Austin-based advocacy group for the mentally ill in the criminal justice system, has sponsored training in CST and insanity evaluations for forensic examiners. It also provided the impetus behind the Texas legislature's recently created, multidisciplinary task force to review CST practices and create standards for evaluations and the accompanying reports.

Restoring Competency
Published research indicates that about 90% of incompetent defendants will attain competency (Jager, 2000; Melton et al., 1997), with most requiring a mean time for restoration of less than 6 months (Melton et al., 1997). Defendants in Harris County charged felonies that are found incompetent are sent are sent to Vernon State Hospital. Figures from this facility indicate that in fiscal year 2000, 73.2% of their patients are returned to court as competent to stand trial (Michael Junes, personal communication, May 22, 2001). Identifying which incompetent defendants will not attain competency has proved difficult. Therefore, examiners should predict the defendant will attain competence in the foreseeable future unless there is: (a) a clearly documented, irreversible medical condition causally related to the incompetence (brain injury or mental retardation), or (b) a lack of response to "appropriate and varied interventions until …it seems reasonably clear…. that competency will not be restored in the foreseeable future" (Carbonell, Heilbrun, & Friedman, 1992, p. 75).

Lastly, malingering (faking) occurs in about 15-20% of the defendants referred to MHMRA in Harris County for competency assessment. Some defendants may be legitimately impaired and faking. Therefore, evidence of faking does not necessarily indicate competence, although this is sometimes assumed. If a defendant cannot be persuaded to give up his act, observation at one of the state hospitals may be necessary to disentangle how much of the defendant's apparent deficits are real. It is hard for most people to keep up a performance 24 hours a day over a period of months-but not impossible. I recently evaluated two accomplished malingerers who apparently fooled both Vernon and Rusk state hospitals even after several months of evaluation. They eloped together from Rusk.

Referrals in Harris County
Attorneys are often asked to justify the request for the evaluation on the motion to the judge. This explanation is usually not forwarded to MHMRA, which is the default provider of CST evaluations in Harris County. In other words, examiners will not know what prompted the evaluation or the attorney's problems in handling the client. Attorneys should also be aware that time and resource allotments for typical CST evaluations are minimal. A thorough examination may require multiple interviews with the defendant, review of medical records, interviews with family members, complainants, jail staff, and the defense attorney. Sometimes, a defendant seems perfectly rational until his account is compared to those from family members or the defense attorney. Input about the penalties faced, plea bargain offered or the strength of the case can be essential in assessing the defendant's competence to make decisions. Therefore, I encourage attorneys who question a defendant's competence to make an initial exploration of these issues before making a referral-and to pass this information on to the examiner.

Standards for evaluations of CST are evolving rapidly. Reports should specify what procedures and data sources were used, and clearly document the reasoning to support the conclusion reached. Some relevant content areas are included in Tables 1 & 2 (adapted from Skeem & Golding, 1998). Other things being equal, more time spent with the defendant and more input from collateral sources yields better conclusions. Although some evaluations can be done adequately in forty-five minutes, many others cannot. Mentally ill people often show wide fluctuations in their functioning over even brief periods. If a mentally defendant isn't going to court for three weeks, his mental state during an interview (weeks earlier) may not accurately predict his mental state by the time he appears in court. Review of medical records and interviews with family members put these assessments on much firmer ground. However, competent defendants can become incompetent, and vice versa, between the time of the assessment and the next court appearance. Attorneys should not attach any more stability to such findings than is warranted.

Lastly, remember that any assessment has its limitations. If a defendant is found competent but you do not agree, request a second opinion.

MHMRA provides second opinions, whether from the same examiner or someone else-at your request. A private practitioner can also be retained. If a request for a second opinion is denied, call the examiner, express your concerns, and ask for reconsideration of the issue.

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