INCOMPETENT TO
STAND TRIAL
ASSESSMENT AND TREATMENT
Munir A. Sewani, PhD
FMHAC CONFERENCE, SEASIDE,
CA 2007
Overview
• DEFINING COMPETENCY TO STAND
TRIAL
• CASE LAW
• CALIFORNIA STATUTE
• ASSESSMENT PROTOCOL
• TREATMENT TO RESTORE
COMPETENCY TO STAND TRIAL
What is Competency to Stand
Trial?
• Roesch, Zapf, Golding and Skeem (2004)
note that the practice to delay and/or
suspend criminal proceedings until the
issue of defendant’s competency to stand
trial is resolved is based in English
common law (Hale, 1736, cited in Silten &
Tulis, 1977)
• Before we get to assessment and
treatment/restoration of competency to
stand trial, it is important to look at the
concepts of competency to stand trial and
various legal decisions that influence and
impact both assessment and treatment of
defendants found to be incompetent to
stand trial.
COMPETENCY TEST
• In the United States the standard for
Competency to Stand Trial is based in Dusky v.
United States (1960). The Supreme Court held:
• “Whether the defendant has: (1) sufficient
present ability to consult with his attorney with a
reasonable degree of rational understanding;
and (2) a rational as well as factual
understanding of proceedings against him”
• The Dusky decision does create a problem
in defining and assessing competency.
• What is meant by “sufficient present
ability”? and how does one define “has a
rational as well as factual understanding”?
(Roesch, Zapf, Golding, and Skeem)
• Over the years the ambiguity in Dusky has
been cleared by increased knowledge of
the law, court challenges, and an increase
in forensic psychology practice.
• Yet most states do not require forensic
evaluator training.
• Most forensic examiners are “occasional
experts” (Grisso, 1987)
• Nevertheless, most states use Dusky
standard with some variation in the
wording. In California the statute is known
as PC1368/1369, as follows:
• If, during the pendency of an action and
prior to judgment, a doubt arises in the
mind of the judge as to the mental
competence of the defendant
• And having satisfied all other legal
challenges to the issue of defendant’s
Competency the court:
• 1369. A trial by court or jury of the
question of mental competence shall
proceed in the following order: (a)
The court shall appoint a psychiatrist
or licensed psychologist,
• and any other expert the court may
deem appropriate, to examine the
defendant. In any case where the
defendant or the defendant's counsel
informs the court that the defendant is
not seeking a finding of mental
incompetence, the court shall appoint
two psychiatrists, licensed
psychologists, or a combination there
• of. One of the psychiatrists or
licensed psychologists may be named
by the defense and one may be
named by the prosecution.
• The examining psychiatrists or
licensed psychologists shall evaluate
the nature of the defendant's mental
disorder,
• if any, the defendant's ability or
inability to understand the
nature of the criminal
proceedings or assist counsel
in the conduct of a defense in
a rational manner as a result
of a mental disorder and,
• if within the scope of their
licenses and appropriate to their
opinions, whether or not
treatment with antipsychotic
medication is medically
appropriate for the defendant and
whether antipsychotic medication
is likely to restore the defendant
to mental competence.
• If an examining psychologist is of
the opinion that antipsychotic
medication may be medically
appropriate for the defendant and
that the defendant should be
evaluated by a psychiatrist to
determine if antipsychotic
medication is medically
appropriate,
• the psychologist shall inform
the court of this opinion and
his or her recommendation
as to whether a psychiatrist
should examine the
defendant.
• The examining psychiatrists or
licensed psychologists shall also
address the issues of whether the
defendant has capacity to make
decisions regarding antipsychotic
medication and whether the
defendant is a danger to self or
others.
• If the defendant is examined by a
psychiatrist and the psychiatrist forms an
opinion as to whether or not treatment with
antipsychotic medication is medically
appropriate, the psychiatrist shall inform
the court of his or her opinions as to the
likely or potential side effects of the
medication, the expected efficacy of the
medication, and the possible alternative
treatments.
ASSESSMENT FOR
COMPETENCY
• Researchers have argued that
competence be assessed within the
context in which it is being used.
• Golding and Roesch (1988) stated that the
psychopathological criteria is only a part of
a bigger question that must address, this
defendant facing these charges given this
evidence, with the unique characteristics
between this attorney ant this defendant.
• The defendant is unable to rationally
cooperate with the attorney or to
understand the nature of the proceedings
and their likely outcome.
• The importance of contextual competency
has been well established.
• However, in Godinez v. Moran (1993), the
United States Supreme Court held that the
standard for various types of competency
should be considered the same .i.e.
competency to plead guilty, to waive
counsel, to stand trial.
• The decision in Godinez has been
criticized by legal scholars. The issue is
not that the standards of various
psycholegal competencies are higher,
different or the same, but was the
defendant assessed in respect to the
certain issue?
• Hence, the assessment for competency to
stand trial is complex and must be
approached with knowledge of the
psycholegal issues involved with a
particular defendant.
• Roesch, Zapf, Golding, and
Skeem,(2004): Stated that the most
reasonable approach to the assessment of
competency to stand trial is based on a
functional evaluation of a defendant’s
ability matched to the contextualized
demands of the case.
• While assessment of the mental status is
important, it is not sufficient as a method
of evaluating competency. The mental
status information must satisfy the
demands of the legal case.
ASSESSMENT MEASURES FOR
COMPETENCY
• The Competency Screening Test
(developed by Lipsit, Lelos, and McGarry
1971) is a 22-item sentence completion
instrument that helps determine if further
extensive assessment for competency to
stand trail maybe necessary.
• It takes approx. 25 minutes to complete.
For an individual who has difficulty
reading, the items can be read to them.
• Strengths of CST
• The CST does have some benefits and
the examiner must be clear about the
purpose of evaluation? Is it for screening
or is it for comprehensive competency
evaluation.
• Weakness of CST
• Conceptual constructs are not empirically
related to competency.
• Scoring is questionable.
• The Competency to Stand Trial
Assessment Instrument:
• This is a semi-structured interview and
rating scale.
• It was developed as a companion to CST.
• Whereas CST is a screening instrument,
the CIA is a full-scale complementary
assessment tool.
• The CAI was developed by the Harvard
Laboratory of Community Psychiatry
project for the Center for Studies of Crime
and Delinquency, funded by NIMH.
• CAI was developed from the review of
appellate cases,
• legal literature,
• actual pretrial competency hearings, and
• interviews with the judges and attorneys.
• From the review of the data, the authors
conceptualized competency to stand trial
• as the ability to cooperate with one’s
attorney in one’s defense,
• an awareness and understanding of the
nature and purpose of the proceedings,
and
• an understanding of the consequences of
the proceedings.
• The CAI addresses 13 functions that are
relevant to factors addressing competency
to stand trial.
• The 13 functions are conceptualized in the
manual and three sample questions are
provided for each function.
•
1.
2.
3.
4.
The 13 functions are:
Appraisal of available legal defenses
Unmanageable behavior
Quality of relating to attorney
Planning of legal strategy, including guilty
pleas to lesser charges where pertinent
5. Appraisal of role of persons involved in a trial
6. Understanding of court procedure
7. Appreciation of charges
8. Appreciation of range and nature of
possible penalties
9. Appraisal of likely outcome
10. Capacity to disclose to attorney available
pertinent facts surrounding the offense
11. Capacity to realistically challenge
prosecution witness
12. Capacity to testify relevantly
13. Self-defeating versus self-serving
motivation (legal sense)
The items are rated on Likert scale from 1
(reflecting total lack of capacity to
function) to 5 (reflecting no impairment,
defendant can function adequately)
Strength and Weakness of CAI
• The CAI has been criticized for lacking
empirical support.
• Nevertheless, the items show face validity
which, increase attractiveness for
attorneys and judges.
• The MacArthur Competence Assessment
Tool-Criminal Adjudication (MacCAT-CA,
Hoge, Bonnie, Poythress & Monahan,
1999)
• This is a 22-item structured interview for
the pretrial assessment for competency.
• This test uses vignette format that can be
scored objectively using standardized
questions.
•
Mac-CAT-CA measures three
competence related abilities:
1. Understanding (capacity for factual
understanding of the legal system and
the adjudication process)
2. Reasoning (ability to distinguish more
relevant from less relevant factual
information and ability to reason about
two legal options, guilty or not guilty)
• 3. Appreciation (capacity to understand
his or her own legal situation and
circumstances).
• The authors have emphasized that this
instrument must be used as tool as
opposed to a test of competence. The
results must be interpreted in context of
other relevant and specific data about the
defendant’s case.
• The Interdisciplinary Fitness Interview (IFI)
Requires more than one evaluator.
• The Fitness Interview Test (FIT), is based
on Criminal Code of Canada.
• The Georgia Court Competency Test, now
called, Mississippi State Hospital Revision.
(maybe more relevant for defendants
undergoing inpatient treatment for
competency)
• There are competency tests for special
populations such as juveniles and
individuals with mental retardation.
• Malingering must be considered,
evaluated and ruled out in legal issues
during assessment.
• Structured Inventory of Malingered
Symptomatology (SIMS)
• Structured Interview of Reported
Symptoms (SIRS)
• Miller Forensic Assessment of Symptoms
Test (M-FAST)
• Legal process after the individual is adjudicated as Incompetent to
Stand Trial (IST).
• In California, the process is defined in PC1370.
• 1370. (a) (1) (A) If the defendant is found mentally competent, the
criminal process shall resume, the trial on the offense charged shall
proceed, and judgment may be pronounced. (B) If the defendant is
found mentally incompetent, the trial or judgment shall be
suspended until the person becomes mentally competent. (i) In the
meantime, the court shall order that the mentally incompetent
defendant be delivered by the sheriff to a state hospital for the care
and treatment of the mentally disordered, or to any other available
public or private treatment facility approved by the community
program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as
specified in Section 1600.
• (c) (1) At the end of three years from the date of
commitment or a period of commitment equal to
the maximum term of imprisonment provided by
law for the most serious offense charged in the
information, indictment, or misdemeanor
complaint, whichever is shorter, a defendant
who has not recovered mental competence shall
be returned to the committing court. The court
shall notify the community program director or a
designee of the return and of any resulting court
orders.
• The three-year term for IST is a result of
the case law, Jackson v. Indiana (1972),
The U.S. Supreme Court ruled that a
defendant cannot be held indefinitely for
IST, but only for a “reasonable period of
time.”
• The three-year term applies to both
inpatient and outpatient treatment for
restoration of competency.
• Pursuant to PC1601 certain PC categorizes are not eligible for
outpatient consideration.
• Any judicially committed individual charged with, convicted of, or
found Not Guilty by Reason of Insanity of the following offenses will
not be eligible for outpatient treatment and supervision services until
he/she has been confined in a state hospital or other inpatient
treatment facility for a minimum period of 180 days:
• * Murder;
• * Mayhem;
• * PC 207 - Kidnapping, in which the victim suffers intentionally
inflicted great bodily injury;
• * PC 209 - Kidnapping for ransom or to commit robbery, in which
the victim suffers intentionally inflicted great bodily injury;
• *
• PC 220 - Assault to commit rape, in which
the victim suffers great bodily injury;
• * PC 261.2 - Rape by force;
• * PC 261.3 - Rape by threat;
• * PC 288 - Child molestation;
• * PC 451(a) or (b) - Arson;
• * PC 459 - Burglary, first degree;
* Assault with intent to commit murder;
• Robbery with a deadly or dangerous weapon, or
in which the victim suffers great bodily injury;
• * PC 12303.1 - Carrying/placing an explosive
device (in a vehicle);
• * PC 12303.2 - Possession of a destructive
device in a public place;
• * PC 12303.3 - Wrongful possession of an
explosive device with intent to injure or
intimidate;
• PC 12308 - Use of a destructive device with
intent to commit murder;
• * PC 12309 - Use of a destructive device
causing great bodily injury;
• * PC 12310 - Use of a destructive device
causing death, mayhem, or great bodily injury;
or
• Any felony involving death, great bodily injury, or
an act which poses a serious threat of bodily
harm to another
• In California a misdemeanant IST is
referred to County Mental Health and
felony IST are referred to State DMH
(Conditional Release Program) for
treatment disposition, i.e. restoration of
competency.
• A large percentage of felony ISTs in
California are referred to State Mental
Health Hospitals for treatment.
• The literature shows that most forensic hospitals
rely on both pharmacological and psychological
interventions to address psychiatric symptoms
that affect competency.
• Psychotropic medications have been used for
treatment of mental and emotional
symptoms/behaviors, including, violence,
aggression, self-injurious and suicidal behavior.
Psychological Treatment
• Includes, education about court
procedures, social skills, assertion
training, milieu therapy, individual therapy,
group therapy and activity therapy. At
times other forms of therapy such as
cognitive behavior therapy, reality therapy,
and vocation training have been used by
inpatient facilities.
Competency Training in Outpatient
Setting
• Not much is written in the literature
regarding treating IST in the outpatient
setting.
• There is limited information available
about misdemeanant IST (CA) in county
mental health system.
Inpatient treatment of IST
• Psychiatric Symptom Management
• Psychotropic Medications
• Psychosocial Support, Skills Development
and Education
• Court and Legal Procedures
• Mock Court Groups
Outpatient Treatment of IST
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Outpatient IST Treatment Referral
Treatment Components
Living Arrangement
Psychiatric Symptom Management
Psychosocial Support
Skill Acquisition
Court and Legal Education
Psychological Testing
Review of Police Reports and Alienist Reports
• Case Review
• DR. C
• A 72 to year old professional found IST for medical fraud. Suffered from a medical condition that
made it difficult for him to modulate his emotions
and impulsiveness when under stress.
(Competency as Dr.)
• C.P. Malingering
• J. A. Refused NGI and took a plea.
• M. S.
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CONREP Outcome Data:
No Recent Information
Last Report in 2000
ISTs Generally had higher failure rates in
outpatient treatment compared to NGI.