Saturday, December 4, 2010

Competency to stand trial: Guest blog post by Joe Feranti

The following is a guest blog post. Our guest describes himself as follows:

Joe Feranti always had a passion for writing about the law, so it was a perfect fit when he began writing about criminal justice and general law practice for He enjoys spending time with his wife and 2 children, and although at times he misses the rat race, he wouldn't trade his quiet Texas life for the world.

Guest post

The ability to understand the proceedings of the judicial system is essential in order for a defendant to be tried in a criminal proceeding. In order to assess the defendant’s ability to understand the court proceedings there must be a set of standards or guidelines to assess competency. In the United States, most courts use the Dusky criteria. These criteria are based on the case of Milton Dusky, a 33 year-old schizophrenic man who was charged with the rape of a 15 year-old girl in 1959. Dusky’s attorney found him unable to fully understand his situation and attempted to declare him incompetent to stand trial. A court psychiatrist declared Dusky competent and he was convicted, but his attorney appealed the conviction and the Supreme Court eventually heard the appeal. The Supreme Court determined Dusky was not competent to stand trial, set the standards for competency, and overturned the conviction and ordered a new trial if Dusky was found competent.

The Dusky criteria are based on two domains: 1) the cognitive or intellectual capacity to actually understand the procedures and concepts used in the legal system and 2) the functional capacity to utilize all the information suitably in one’s defense and to perform effectively within the court setting. These criteria mean that if the defendant is competent to stand trial then he/she must have both the capacity and ability to demonstrate a sound understanding of the court proceedings and actively participate in their defense. This would include demonstrating an understanding of the roles of the individuals involved in court proceedings (judge, attorneys, witnesses, etc.) and demonstrating an adequate ability to communicate with attorneys and appropriately assist in their case (understanding the ramifications of pleading guilty or not guilty, outcomes of the trial, understanding basic legal concepts, etc.).

The goal in assessing for competency to stand trial involves evaluating the defendant’s state of mind, which includes their ability to reasonably understand possible outcomes their current situation. This differs from the so-called “irresistible impulse” defense that states that the defendant did not understand right and wrong at the time he/she committed the crime. Since the Dusky decision there have been efforts to develop formal tests to measure these criteria. Both clinicians and researchers have developed different checklists or interview formats to access competency. For example, in 1961 the Federal Court for Missouri District offered a set of eight criteria for competency. There have been formal tools to assess these different criteria; however, no one tool is perfect and many of the tools suffer from issues of reliability (consistency across interviewers and defendants) and validity (not actually fully assessing the areas they are meant to assess).

Most often a forensic psychiatrist or forensic psychologist is asked to assess for competency issues. Professional approaches to such an evaluation occur in one of two ways, which simply reflects two standard approaches to assessment in mental health. The first method is an ideographic approach (qualitative or personal approach) using a semi-structured interview and self-report measures (more often used by psychiatrists). This method has the advantage of allowing for more leeway in the interpretation on the part of the mental health professional and offers more flexibility. The downside is that there will often be significant disagreement between different assessments. The second approach is a nomothetic approach (a quantitative approach based on group normative results) and uses structured instruments. Structured inventories (used more often by psychologists who understand statistics) allow the metal health professional the ability compare the defendant’s results to previous scores of others. These techniques have the advantage of providing more consistency in the findings and more agreement between different testers, but allow for less flexibility in assessment. Both methods have their strengths and weaknesses.

Before deciding the evaluation approach the mental health professional should acquire clarification from the requesting party wants from the evaluation. Often video and/or audio records of the formal competency evaluation can provide further evidence to the conclusion and using more than one test for evaluating for competency will assist in the confirmation of the findings. The assessor may provide a cautionary opinion to the court, but most often judges will accept the findings of a mental health professional. The question of whether one is competent to stand trial does not represent a final verdict. For example, Dusky was eventually reevaluated and found competent to stand trial. He was sentenced to 20 years in prison.

Understanding theories of human behavior, cognition, and mental illness is crucial before one can assess competency. One must acquire an advanced degree in either psychology or psychiatry before one can perform such assessments. In order to be able to assess for a defendant’s competency to stand trial one must first obtain at least a Master’s degree in psychology. However, it would be preferable to obtain a Ph.D. in psychology via one of the online law schools or formal attendance at a university

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