Mental Competency Evaluations – American Judges Association

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Mental Competency Evaluations:
                            Guidelines for Judges and Attorneys
                                                   Patricia A. Zapf and Ronald Roesch

                                                                           The modern standard in U.S. law was established in Dusky v.

C
       ompetency to stand trial is a concept of jurisprudence
       allowing the postponement of criminal proceedings for            United States.5 Although the exact wording varies, all states use
       those defendants who are considered unable to participate        a variant of the Dusky standard to define competency.6 In
in their defense on account of mental or physical disorder. It          Dusky, the United States Supreme Court ruled that a minimum
has been estimated that between 25,000 and 39,000 competen-             level of rational understanding of the proceedings and ability to
cy evaluations are conducted in the United States annually.1            help one's attorney was required:
That is, between 2% and 8% of all felony defendants are referred               [I]t is not enough for the district judge to find that
for competency evaluations.2                                                "the defendant [is] oriented to time and place and [has]
   In this article, we will present an overview of competency               some recollection of events," but that the "test must be
laws, research, methods of assessment, and the content of                   whether he has sufficient present ability to consult with
reports to the courts conducted by clinicians, with the aim of              his lawyer with a reasonable degree of rational under-
providing a summary of relevant information about competen-                 standing--and whether he has a rational as well as fac-
cy issues. The purpose of this article is to inform key partici-            tual understanding of the proceedings against him."7
pants in the legal system (prosecutors and defense attorneys, as           Although the concept of competency to stand trial has been
well as judges) about the current state of the discipline of foren-     long established in law, its definition, as exemplified by the
sic psychology with respect to evaluations of competency.3              ambiguities of Dusky, has never been explicit. What is meant by
                                                                        "sufficient present ability"? How does one determine whether a
BACKGROUND & DEFINITION                                                 defendant "has a rational as well as factual understanding"? To
    Provisions allowing for a delay of trial because a defendant        be sure, some courts8 and legislatures9 have provided general
was incompetent to proceed have long been a part of legal due           direction to evaluators in the form of articulated Dusky stan-
process. English common law allowed for the arraignment,                dards,10 but the typical forensic evaluation is left largely unguid-
trial, judgment, or execution of an alleged capital offender to be      ed except by a common principle, in most published cases, that
stayed if he or she "be(came) absolutely mad."4 Over time,              evaluators cannot reach a finding of incompetency independent
statutes have been created that have further defined and extend-        of the facts of the case at hand.
ed the common-law practice.


This article was adapted from Ronald Roesch, Patricia A. Zapf,                 American Standards for Competence to Stand Trial, INTL. J. L. &
Stephen L. Golding & Jennifer L. Skeem, Defining and Assessing                 PSYCH. (in press).
Competency to Stand Trial, in HANDBOOK OF FORENSIC PSYCHOLOGY 327        4.    Hale, 1973, cited in P  . R. Silten & R. Tullis, Mental Competency in
(Irving B. Weiner & Allen K. Hess, eds., 2d ed. 1999)                          Criminal Proceedings, 28 HASTINGS L.J. 1053, 1053 (1977).
                                                                         5.    362 U.S. 402 (1960).
Footnotes                                                                6.    R. J. Favole, Mental Disability in the American Criminal Process: A
1. Steven K. Hoge, et al., The MacArthur Adjudicative Competence               Four Issue Survey, in MENTALLY DISORDERED OFFENDERS:
   Study: Development and Validation of a Research Instrument, 21 LAW          PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 247 (John Monahan &
   & HUM. BEHAV. 141 (1997); Henry J. Steadman & E. Hartstone,                 Henry J. Steadman eds., 1983).
   Defendants Incompetent to Stand Trial, in MENTALLY DISORDERED         7.    362 U.S. at 402 (quoting from brief of U.S. Solicitor General).
   OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 39 (John          8.    See, e.g., Wieter v. Settle, 193 F . Supp. 318 (W.D. Mo. 1961).
   Monahan & Henry J. Steadman eds., 1983).                              9.    See, e.g., Utah Code Ann.  77-15-1 et seq. (2000).
2. Richard J. Bonnie, The Competence of Criminal Defendants: A           10.   Standards of competence have been one area of inquiry; the con-
   Theoretical Reformulation, 10 BEHAV. SCI. & L. 291 (1992); STEPHEN          ceptualization of competence is another. Some researchers and
   L. GOLDING, INTERDISCIPLINARY FITNESS INTERVIEW-REVISED: A TRAIN-           scholars have provided reconceptualizations of competence to
   ING MANUAL (1992); Steven K. Hoge, et al., Attorney-client                  stand trial. Bruce J. Winick has persuasively argued that, in some
   Decision-making in Criminal Cases: Client Competence and                    circumstances, it might be in the best interests of the defendant to
   Participation as Perceived by Their Attorneys, 10 BEHAV. SCI. & L.          proceed with a trial, even if he or she is incompetent. See Bruce
   385 (1992).                                                                 J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L.
3. This article focuses on competency issues within the United                 REV. 921 (1985); and Bruce J. Winick, Reforming Incompetency to
   States. For a review of competency issues with respect to                   Stand Trial and Plead Guilty: A Restated Proposal and a Response to
   Canadian laws and practice, the reader is referred to Patricia A.           Professor Bonnie, 85 J. CRIM. L. & CRIMINOLOGY 571 (1995).
   Zapf & Ronald Roesch, Assessing Fitness to Stand Trial: A                   Winick postulated that this could take the form of a provisional
   Comparison of Institution-based Evaluations and a Brief Screening           trial in which the support of the defense attorney would serve to
   Interview, 16 CAN. J. COMMUNITY MENTAL HEALTH 53 (1997); and                ensure protection of the defendant. This would allow the defen-
   Patricia A. Zapf & Ronald Roesch, A Comparison of Canadian and              dant to proceed with his or her case while maintaining decorum


28 Court Review - Summer 2000
OVERVIEW OF LEGAL PROCEDURES                                                 case. For defendants found
    The issue of competency may be raised at any point in the                incompetent, either their trials
                                                                                                                    Although the
adjudication process.11 If a court determines that a bona fide               are postponed until competen-         exact wording
doubt exists as to a defendant's competency, it must consider                cy is regained or the charges are    varies, all states
this issue formally,12 and usually after a forensic evaluation,              dismissed, usually without
which can take place in a jail, an outpatient facility, or in an             prejudice. The disposition of
                                                                                                                  use a variant of
institutional setting.                                                       incompetent defendants is per-       the Dusky stan-
    One legal issue that may concern evaluators of competency                haps the most problematic area        dard to define
to stand trial is whether information obtained in a competency               of the competency procedures.
evaluation can be used against a defendant during the guilt                  Until the case of Jackson v.
                                                                                                                     competency.
phase of a trial or at sentencing. While some concerns have                  Indiana,19 virtually all states
been raised about possible self-incrimination,13 all jurisdictions           allowed the automatic and indefinite commitment of incompe-
in the United States provide, either statutorily or through case             tent defendants. In Jackson, the U.S. Supreme Court held that
law, that information obtained in a competency evaluation can-               defendants committed solely on the basis of incompetency
not be introduced on the issue of guilt unless the defendant                 "cannot be held more than the reasonable period of time neces-
places his or her mental state into evidence at either trial or sen-         sary to determine whether there is a substantial probability that
tencing hearings.14                                                          he will attain that capacity in the foreseeable future."20 The
    Once a competency evaluation has been completed and the                  Supreme Court did not specify how long a period of time would
written report submitted,15 the court may schedule a hearing.                be reasonable nor did it indicate how progress toward the goal
If, however, both the defense and the prosecution accept the                 of regaining competency could be assessed.
findings and recommendations in the report, a hearing does not                  The Jackson decision led to revisions in state statutes to pro-
have to take place. It is likely that in the majority of the states,         vide for alternatives to commitment as well as limits on the
a formal hearing is not held for most cases. If a hearing is held,           length of commitment.21 The length of confinement varies from
the evaluators may be asked to testify, but most hearings are                state to state, with some states having specific time limits (e.g.,
quite brief and usually only the written report of an evaluator is           18 months) while other states base length of treatment on a pro-
used. In fact, the majority of hearings last only a few minutes              portion of the length of sentence that would have been given
and are held simply to confirm the findings of evaluators.16 The             had the defendant been convicted.
ultimate decision about competency rests with the court, which                  Once defendants are found incompetent, they may have only
is not bound by the evaluators' recommendations.17 In most                   limited rights to refuse treatment.22 Medication is the most
cases, however, the court accepts the recommendations of the                 common form of treatment, although some jurisdictions have
evaluators.18                                                                established treatment programs designed to increase under-
    At this point defendants found competent proceed with their              standing of the legal process,23 or that confront problems that


      in the courtroom and without violating the defendant's constitu-              Slobogin, PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A
      tional rights. As well, Richard J. Bonnie has provided a reformu-             HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS
      lation of competence to stand trial. Bonnie proposed a distinction            (1987); Russell C. Petrella & Norman G. Poythress, The Quality
      between two types of competencies--competence to assist coun-                 of Forensic Evaluations: An Interdisciplinary Study, 51 J.
      sel and decisional competence. He argued that defendants found                CONSULTING & CLINICAL PSYCH. 76 (1983); Jennifer L. Skeem,
      incompetent to assist counsel would be barred from proceeding                 Stephen L. Golding, Nancy B. Cohn & Gerald Berge, The Logic
      until they were restored to competence. See Richard J. Bonnie,                and Reliability of Evaluations of Competence to Stand Trial, 22 LAW
      The Competence of Criminal Defendants: Beyond Dusky and Drope,                & HUMAN BEHAV. 519 (1998).
      47 U. MIAMI L. REV. 539 (1993). Defendants found decisionally           16.   HENRY J. STEADMAN, BEATING A RAP?: DEFENDANTS FOUND
      incompetent, on the other hand, may be able to proceed in certain             INCOMPETENT TO STAND TRIAL (1979).
      cases where his or her lawyer is able to present a defense.             17.   See, e.g., State v. Heger, 326 N.W.2d 855 (N.D. 1982).
      Although these reformulations are consistent with psychological         18.   Stephen D. Hart & Robert D. Hare, Predicting Fitness for Trial: The
      perspectives on competence, they have not yet been adopted by                 Relative Power of Demographic, Criminal and Clinical Variables, 5
      the courts. Until the courts have accepted these ideas they will              FORENSIC REP. 53 (1992); Steadman, supra note 16.
      not significantly impact psychological practice.                        19.   406 U.S. 715 (1972).
11.   Stephen. L. Golding & Ronald Roesch, Competency for                     20.   406 U.S. at 738.
      Adjudication: An International Analysis, in LAW AND MENTAL              21.   RONALD ROESCH & STEPHEN L. GOLDING, COMPETENCY TO STAND
      HEALTH: INTERNATIONAL PERSPECTIVES 73 (David N. Weisstub ed.,                 TRIAL (1980).
      Vol. 4. 1988).                                                          22.   See generally, Bruce J. Winick, Incompetency to Stand Trial:
12.   Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383                 Developments in the Law, in MENTALLY DISORDERED OFFENDERS:
      U.S. 375 (1966).                                                              PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 3 (John Monahan &
13.   See, e.g., W. T. Pizzi, Competency to Stand Trial in Federal Courts:          Henry J. Steadman eds., 1983).
      Conceptual and Constitutional Problems, 45 U. CHI. L. REV. 20           23.   L. Pendleton, Treatment of Persons Found Incompetent to Stand
      (1977).                                                                       Trial, 137 AM. J. PSYCH. 1098 (1980); Christopher D. Webster, F    .
14.   Estelle v. Smith, 451 U.S. 454 (1981); GOLDING & ROESCH, supra                A. S. Jenson, L. Stermac, K. Gardner & D. Slomen,
      note 11.                                                                      Psychoeducational Programmes for Forensic Psychiatric Patients, 26
15.   See, for a discussion of the content of these reports, Gary B.                CANADIAN PSYCH. 50 (1985).
      Melton, John Petrila, Norman G. Poythress & Christopher
                                                                                                                 Summer 2000 - Court Review 29
                                        hinder a defendant's ability      criteria for determining psychosis, the reliability of their final
 Jennifer Skeem and                     to participate in the             judgments about competency will be high. It is quite possible
    her colleagues                      defense.24 Laws regarding         that the criteria used by too many evaluators inappropriately
  demonstrated that                     competence vary from state        rely on traditional mental status issues without considering the
                                        to state, although most           functional aspects of a particular defendant's case.
 examiner agreement                     jurisdictions follow proce-          As we have indicated, the courts usually accept mental health
      on specific                       dures similar to those            judgments about competency. Does this mean that the judg-
  psycholegal deficits                  described above.                  ments are valid? Not necessarily, since courts often accept the
                                                                          evaluator's definition of competency and his or her conclusions
    (as opposed to                      RESEARCH FINDINGS                 without review, leading to very high levels of examiner-judge
 general competency)                    Though there has been             agreement.28
    averaged only                    some confusion over the                 We have argued that the only ultimate way of assessing the
                                     definition of competency             validity of decisions about incompetency is to allow defendants
       25% . . . .                   per se, there nevertheless           who are believed to be incompetent to proceed with a trial any-
                                     appears to be generally good         way.29 This could be a provisional trial (on the Illinois model),
agreement between evaluators about whether a defendant is                 in which assessment of a defendant's performance could contin-
competent or not. The few studies of reliability that have been           ue. If a defendant was unable to participate, then the trial could
completed report that pairs of evaluators agree in 80% or more            be stopped. If a verdict had already been reached and the defen-
of the cases.25 When evaluators are highly trained and use semi-          dant was convicted, the verdict could be set aside.
structured competence assessment instruments, even higher                    We suspect that in a significant percentage of trials, alleged
rates of agreement have been reported.26                                  incompetent defendants would be able to participate. In addi-
   When base rates of findings of competency are considered,              tion to the obvious advantages to defendants, the use of a pro-
however, these high levels of agreement are less impressive and           visional trial could provide valuable information about what
they do not suggest that evaluators are necessarily in agreement          should be expected of a defendant in certain judicial proceed-
about the criteria for a determination of competency. A psy-              ings (e.g., the ability to testify, identify witnesses, describe
chologist, without even directly assessing a group of defendants,         events, evaluate the testimony of other witnesses, etc.). Short of
could achieve high levels of agreement with an examining clin-            a provisional trial, it may be possible to address the validity
ician, simply by calling all defendants competent (base-rate              issue by having independent experts evaluate the information
decision). Since in most jurisdictions, approximately 80% of all          provided by evaluators and other collateral information sources.
referred defendants are competent, the psychologist and the               In the next section, we will review various methods for assess-
examiner would have modest agreement, even with making no                 ing competency.
decisions at all. Most disturbingly, Jennifer Skeem and her col-
leagues demonstrated that examiner agreement on specific psy-             CURRENT STATE OF ASSESSMENT
cholegal deficits (as opposed to overall competency) averaged                A major change that has occurred within the past few
only 25% across a series of competency domains.27 It is the               decades has been the development of a number of instruments
more difficult decisions, involving cases where competency is             specifically designed for assessing competence. This work was
truly a serious question, that are of concern. How reliable are           pioneered by A. Louis McGarry and his colleagues.30 Their
decisions about these cases? To date, no study has accumulat-             work was the starting point for a more sophisticated and sys-
ed enough of these cases to answer this question.                         tematic approach to the assessment of competency. In 1986,
   High levels of reliability do not, of course, ensure that valid        Thomas Grisso coined the term "forensic assessment instru-
decisions are being made. Two evaluators could agree that the             ment" (FAI) to refer to instruments that provide frameworks for
presence of psychosis automatically leads to a finding of incom-          conducting forensic assessments.31
petency. As long as the evaluators are in agreement about their              FAIs are typically semistructured elicitation procedures and


24. D. L. Davis, Treatment Planning for the Patient Who Is Incompetent           tual understanding of the proceedings, and rational understand-
    to Stand Trial, 36 HOSPITAL & COMMUNITY PSYCH. 268 (1985); A.                ing of the proceedings and are set out in each state's competency
    M. Siegel & A. Elwork, Treating Incompetence to Stand Trial, 14              statutes.
    LAW & HUM. BEHAV. 57 (1990).                                           28.   Hart & Hare, supra note 18; Skeem, et al., supra note 15.
25. Norman G. Poythress & H. V. Stock, Competency to Stand Trial: A        29.   See ROESCH & GOLDING, supra note 21.
    Historical Review and Some New Data, 8 PSYCH. & LAW 131 (1980);        30.   Paul D. Lipsitt, D. Lelos & A. Louis McGarry, Competency for
    Roesch & Golding, supra note 21; Skeem, et al., supra note 15.               Trial: A Screening Instrument, 128 AMER. J. PSYCH. 105 (1971); A.
26. Stephen L. Golding, Ronald Roesch & Jan Schreiber, Assessment                Louis McGarry, Competency for Trial and Due Process via the State
    and Conceptualization of Competency to Stand Trial: Preliminary              Hospital, 122 AM. J. PSYCH. 623 (1965); A. LOUIS MCGARRY, & W.
    Data on the Interdisciplinary Fitness Interview, 8 LAW & HUM.                J. CURRAN, COMPETENCY TO STAND TRIAL AND MENTAL ILLNESS
    BEHAV. 321 (1984); Robert A. Nicholson, & Karen E. Kugler,                   (1973).
    Competent and Incompetent Criminal Defendants: A Quantitative          31.   THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS
    Review of Comparative Research, 109 PSYCH. BULL. 355 (1991).                 AND INSTRUMENTS (1986).
27. See Skeem, et al. supra note 15. Competency domains might
    include ability to understand the nature of the proceedings, a fac-


30 Court Review - Summer 2000
lack the characteristics of many traditional psychological tests.         assessment instruments for
However, they serve to make forensic assessments more sys-                specialized populations of
                                                                                                                  While an
tematic. These instruments help evaluators to collect impor-              defendants. We will not go       assessment of the
tant and relevant information and to follow the decision-mak-             into detail about these spe-      mental status of
ing process that is required under the law. Since the time that           cialized instruments here but
the term was coined, a number of assessment instruments have              the reader should be aware
                                                                                                              a defendant is
been developed that are designed to work in this way, and it              that they exist.        Carol       important, it is
appears that the use of FAIs has been slowly increasing.32 This           Everington has developed an        not sufficient as
trend is encouraging in that empirical data suggest that trained          instrument designed to assess
examiners using FAIs achieve the highest levels of inter-exam-            competence with mentally
                                                                                                                a method of
iner and examiner-adjudication agreement.33 Next, we will                 retarded defendants called             evaluating
briefly describe a few of these recently developed instruments.           the Competence Assessment             competency.
   The MacArthur Competence Assessment Tool--Criminal                     for Standing Trial for
Adjudication. This measure, known as the MacCAT-CA,34 was                 Defendants with Mental Retardation (CAST-MR).37 Recent
developed as part of the MacArthur Network on Mental Health               research on the CAST-MR has indicated that this instrument
and the Law. It was developed from a number of research                   shows good reliability and validity.38 Other researchers have
instruments35 and assesses three main abilities: understanding,           focused their efforts on another special population--juvenile
reasoning, and appreciation.                                              defendants,39 finding that younger defendants are more likely
   The MacCAT-CA consists of 22 items and takes approxi-                  to be found incompetent.
mately 30 minutes to administer. The basis of the items is a
short story about two men who get into a fight and one is sub-            THE FUNCTIONAL EVALUATION APPROACH
sequently charged with a criminal offense. The first eight items             Although there are numerous ways in which to conduct com-
assess the individual's understanding of the legal system. Most           petency evaluations, we believe that the most reasonable
of these items consist of two parts. The defendant's ability to           approach to the assessment of competency is based on a func-
understand is first assessed and, if it is unsatisfactory or              tional evaluation of a defendant's ability matched to the contex-
appears to be questionable, the information is then disclosed to          tualized demands of the case.40 While an assessment of the
the defendant and his or her understanding is again assessed.             mental status of a defendant is important, it is not sufficient as a
This allows the evaluator to determine whether or not the indi-           method of evaluating competency. Rather, the mental status
vidual is able to learn disclosed information. The next eight             information must be related to the specific demands of the legal
items assess the individual's reasoning skills by asking which of         case, as has been suggested by legal decisions such as the ones
two disclosed facts would be most relevant to the case. Finally,          involving amnesia. As in the case of psychosis, a defendant with
the last six items assess the individual's appreciation of his or         amnesia is not per se incompetent to stand trial, as has been held
her own circumstances. National norms for the MacCAT-CA                   in a number of cases.41 In State v. Davis,42 the defendant had
have been developed and published.36                                      memory problems due to brain damage. Nevertheless, the
   Other Specialized Assessment Instruments. In recent years,             Missouri Supreme Court held that amnesia by itself was not a
there has been a move toward the development of competence                sufficient reason to bar the trial of an otherwise competent defen-



32. Randy Borum & Thomas Grisso, Psychological Test Use in                    Competency to Stand Trial in Juvenile Delinquency Proceedings--
    Criminal Forensic Evaluations, 26 PROF. PSYCH.: RES. & PRAC. 465          Cognitive Maturity and the Attorney-Client Relationship, 33 U.
    (1995).                                                                   LOUISVILLE J. FAM. L. 629 (1995).
33. Golding, Roesch & Schreiber, supra note 26; Nicholson & Kugler,       40. A recent Supreme Court decision (Godinez v. Moran, 509 U.S. 389
    supra note 26; Skeem, et al., supra note 15.                              (1993), discussed later) has been interpreted by some as being in
34. STEVEN K. HOGE, RICHARD J. BONNIE, NORMAN G. POYTHRESS & JOHN             opposition to a functional evaluation approach and, therefore,
    MONAHAN, THE MACARTHUR COMPETENCE ASSESSMENT TOOL -                       indicative of tension between the application of good social sci-
    CRIMINAL ADJUDICATION (MACCAT-CA) (1999).                                 ence principles and the views of the U.S. Supreme Court. The rul-
35. For a complete discussion of its development, see Hoge, et al.,           ing in Godinez indicated that the standard for all types of compe-
    supra note 1.                                                             tence was to be the same (i.e., that set out in Dusky) to meet the
36. See HOGE, ET AL., supra note 34.                                          constitutional minimum. In Godinez, the Court noted that "while
37. Carol T. Everington, The Competence Assessment for Standing Trial         States are free to adopt competency standards that are more elab-
    for Defendants with Mental Retardation (CAST-MR): A Validation            orate than the Dusky formulation, the Due Process Clause does
    Study, 17 CRIM. J. & BEHAV. 147 (1990).                                   not impose these additional requirements." Id. at 402. Therefore,
38. Carol Everington & C. Dunn, A Second Validation Study of the              it appears that the functional evaluation approach may still be
    Competence Assessment for Standing Trial for Defendants with              used in those states that have adopted more elaborate standards of
    Mental Retardation (CAST-MR), 22 CRIM. J. & BEHAV. 44 (1995).             competence while still satisfying the minimum Dusky standard.
39. Deborah K. Cooper, Juvenile Competency to Stand Trial: The Effects    41. See, e.g., Wilson v. United States, 391 F. 2d. 460 (D.C. Cir. 1968);
    of Age and Presentation of Factual Information in the Attainment of       Ritchie v. Indiana, 468 N. E. 2d. 1369 (Ind. 1984).
    Competency in Juveniles, 56 (10-B) DISSERTATION ABSTRACTS             42. 653 S. W. 2d. 167 (Mo. 1983).
    INTERNATIONAL 5761 (1995); V. L. Cowden & G. R. McKee,



                                                                                                           Summer 2000 - Court Review 31
                                   dant. In State v. Austed,43 the               here will be whether the government's case is such as to
    [C]ompetence
                                   Montana Supreme Court held                    negate all reasonable hypotheses of innocence. If there
      should be                    that the bulk of the evidence                 is any substantial possibility that the accused could,
 considered within                 against the defendant was                     but for his amnesia, establish an alibi or other defense,
                                   physical and not affected by                  it should be presumed that he would have been able to
    the context in
                                   amnesia. Finally, in a Maryland               do so.
  which it is to be                decision,44 the court held that,           Any other facts and circumstances that would indicate
 used: the abilities               because of the potential for                  whether or not the defendant had a fair trial.46
                                   fraud, amnesia does not justify           One could substitute any symptom for amnesia in the above
  required by the
                                   a finding of incompetence. The         quote. If this were done, the evaluation of competency would
  defendant in his                 court also stated that everyone        certainly be one based on a determination of the manner in
   or her specific                 has amnesia to some degree             which a defendant's incapacity may have an effect on the legal
                                   since the passage of time erodes       proceedings. In fact, some states, such as Florida47 and Utah,48
   case should be
                                   memory. These decisions are of         already specify that the evaluators must relate a defendant's
      taken into                   interest because they support          mental condition to clearly defined legal factors, such as the
    account . . . .                the view that evaluators cannot        defendant's appreciation of the charges, the range and nature of
                                   reach a finding of incompeten-         possible penalties, and capacity to disclose to the defense attor-
cy independent of the facts of the legal case--an issue we will           ney pertinent facts surrounding the alleged offense.49 Utah's
return to later. Similarly, a defendant may be psychotic and still        statute goes the furthest in this direction, specifying the most
be found competent to stand trial if the symptoms do not impair           comprehensive range of psycholegal abilities to be addressed
the defendant's functional ability to consult with his or her attor-      by evaluators (including the negative effects of medication as
ney and otherwise rationally participate in the legal process.            well as decisional competencies) and also requiring judges to
    Some cases are more complex than others and may, as a                 identify specifically which psycholegal abilities are impaired
result, require different types of psycholegal abilities. Thus, it        when a defendant is found incompetent.
may be that the same defendant is competent for one type of                  The most important aspect of assessing competence, there-
legal proceeding but not for others. In certain cases, a defen-           fore, is an assessment of the specific psycholegal abilities
dant may be required to testify. In this instance, a defendant            required of a particular defendant. That is, competence should
who is likely to withdraw in a catatonic-like state may be                be considered within the context in which it is to be used: the
incompetent. But the same defendant may be able to proceed                abilities required by the defendant in his or her specific case
if the attorney intends to plea bargain (the way in which the             should be taken into account when assessing competence.
vast majority of all criminal cases are handled).                         This contextual perspective was summarized by Stephen
    The functional approach is illustrated in the famous amne-            Golding and Ronald Roesch50 as follows:
sia case of Wilson v. United States.45 In that decision, the U.S.                    Mere presence of severe disturbance (a psy-
Court of Appeals for the District of Columbia held that six fac-                 chopathological criterion) is only a threshold
tors should be considered in determining whether a defen-                        issue--it must be further demonstrated that such
dant's amnesia impaired the ability to stand trial:                              severe disturbance in this defendant, facing these
     The extent to which the amnesia affected the defendant's                   charges, in light of existing evidence, anticipating the
       ability to consult with and assist his lawyer.                            substantial effort of a particular attorney with a rela-
     The extent to which the amnesia affected the defendant's                   tionship of known characteristics, results in the
       ability to testify in his own behalf.                                     defendant being unable to rationally assist the attor-
     The extent to which the evidence in suit could be extrin-                  ney or to comprehend the nature of the proceedings
       sically reconstructed in view of the defendant's amnesia.                 and their likely outcome.51
       Such evidence would include evidence relating to the                  The importance of a contextual determination of specific
       crime itself as well as any reasonable possible alibi.             psycholegal abilities has been repeatedly demonstrated by
     The extent to which the government assisted the defen-              empirical findings that competency assessments in one area of
       dant and his counsel in that reconstruction.                       functioning are rarely homogeneous with assessments in other
     The strength of the prosecution's case. Most important              areas of functioning.52 For example, assessments of compe-



43.   641 P. 2d. 1373 (Mont. 1982).                                       52. Bonnie, supra note 2; Bonnie, supra note 10; Thomas Grisso, Paul
44.   Morrow v. Maryland, 443 A. 2d. 108 (Md. 1982).                          Appelbaum, Edward Mulvey & K. Fletcher, The MacArthur
45.   391 F . 2d. 460.                                                        Treatment Competence Study II: Measures of Abilities Related to
46.   Id. at 463-64.                                                          Competence to Consent to Treatment, 19 LAW & HUM. BEHAV. 127
47.   Fl. R. Crim. Pro.  3.21 (a)(1); see Bruce Winick, supra note 22,       (1995); Skeem, et al., supra note 15; Karen E. Whittemore, James
      at 38.                                                                  R. P. Ogloff & Ronald Roesch, An Investigation of Competency to
48.   Utah Code Ann.  77-15-1 et seq. (2000).                                Participate in Legal Proceedings in Canada, 42 CANADIAN J. PSYCH.
49.   Winick, supra note 22, at 38.                                           1 (1997); Patricia A. Zapf, An Investigation of the Construct of
50.   Golding & Roesch, supra note 11.                                        Competence in a Criminal and Civil Context: A Comparison of the
51.   Id. at 79 (emphasis in original).                                       FIT, the MacCAT-CA, and the MacCAT, DISSERTATION ABSTRACTS
                                                                              INTERNATIONAL (1998).

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