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.
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
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.
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
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
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
32 Court Review - Summer 2000
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