Criminal and Civil Competence

1. Criminal and Civil Competence Chapter 8

2. Raising the Issue of Competency in Criminal Proceedings • focus on present mental state, at any given instance • must understand the nature and purposes of the criminal proceeding • based in the 6th Amendment • right to be informed of the nature of the accusation, right to confront witness, and right to assistance of counsel

3. Differences between competency and insanity • Focus on mental state at time of crime versus focus on present • Insanity is a legal defense to a criminal charge whereas competency ensures fairness of the process • Standards are vastly different • Threshold for finding • Insanity requires presence of mental illness • Competency evaluation does not necessitate the defendant to admit guilt

4. Competency to Stand Trial (CST) • Related to notion of defendant being in abstentia • Dusky v. United States (1960) • "sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, and . . . a rational, as well as factual understanding of the proceedings against him”

5. Prevalence of CST • 60,000 competency evaluations each year • Most frequently occurring forensic evaluation • Occurs in 2-8% of all felony cases • Attorneys have doubts about their client’s competency in 15% of cases • 20% of defendants referred for competency evaluations are found incompetent

6. Procedure for CST • Reasons for ensuring competency • A competent defendant increases accuracy of trial • Defendant must be allowed to exercise full rights • Integrity of process could be questioned • Purpose of punishment is not upheld • Competency evaluation, hearing may be scheduled if competency is contested, delay of trial if found incompetent, process continues if found competent • “defendants could not be held more than a reasonable period of time necessary to determine whether there is a substantial probability that they will attain capacity in the foreseeable future” (Jackson v. Indiana, 1972)

7. Competency Evaluations • Significant agreement among experts and judges • No standard approach • Experts split on importance of using psychological testing • Most review past records (police report, mental health records, etc.)

8. Measures of Competence • Competency Screening Test (CST) • Georgia Court Competency Test (GCCT) • The Fitness Interview Test (FIT) • MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT- CA)

9. A Comprehensive Approach to Competency Evaluations • Functional - legally relevant psychological abilities • Causal - probable explanation for functional deficits • Interactive - differential abilities required for specific trials • Conclusory - expert’s ultimate opinion • Prescriptive - gather dispositionally relevant information

10. Characteristics of Incompetent Defendants • Psychotic, organic and mental retardation are most prominent diagnoses among incompetent defendants • No clear conclusion regarding demographic variables • Criminal charges are relevant but maybe only as they relate to mental illness

11. Other variables related to competence • Professional differences • Forensic psychologists • Use more collateral information • Produce more clinical notes • Complete more useful reports • More frequently use psychological testing • Use more and longer interviews • Spend more time preparing than forensic psychiatrists • Professional setting: outpatient v. inpatient • Outpatient settings are more likely to use psychological testing, take more time, use fewer evaluators, conduct fewer clinical interviews

12. Scope of Practice in Competency Evaluations • Potential confusion by mental health professionals of competency and insanity • May try to address both issues simultaneously • Total reliance of the court on professional opinion • Court and expert opinion agree in 90% of cases

13. Restoration of Competency • Process by which an incompetent defendant becomes competent • Hospitalizations are typically short • Over 75% of all individuals are restored to competency • Small number of failures makes research difficult • Restored individuals were more likely to have a previous criminal history, current violence charge, minor diagnosis, previous mental health contact, previous hospitalization, and prior use of psychotropic medication

14. Competency Restoration Programs • Administration of medication • Involuntary medication • Implementation of traditional treatment combined with psychoeducational interventions • Psychoeducational interventions are effective if defendant is able to pay attention, concentrate, and cooperate • Involuntary treatment can still be beneficial • Incompetent defendants don’t always received specialized treatment

15. Other Criminal Competencies • Competence to be Executed • Ford v. Wainwright (1986) • Competence to Waive Miranda • Competency to confess and waive counsel • Competence to Refuse Insanity Defense • Frendak v. United States (1979)

16. Civil Competencies • Core issues are very similar to criminal competencies • Generally focus on ability to make an everyday decision • Competence for Treatment • Real issues is competency to refuse treatment • Competence to Execute a Will • Must often rely on past records because if lack of availability of dead guy/gal • Competence Related to Guardianship • Lack of formal legal standards