Tanisha G. Hill-Jarrett
June 9, 2014

Criminal versus civil competency
 Criminal contexts: capacity to stand trial, waive Miranda rights, and bear the
burden of criminal responsibility
 Civil context: capacity to make decisions and communicate them about money
and health care
 Dusky standard (Dusky v. United States, 1960)
 “It is not enough for the district judge to find that the defendant is oriented to
time and place and has some recollection of events, but that the test must be
whether he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational
as well as factual understanding of the proceedings against him.” (p.402)

Dusky prongs:
1.
2.

The defendant’s capacity to understand the criminal process, including the
role of the participants in that process (understanding of proceedings rational + factual )
Defendant’s ability to function in that process, primarily through consulting
in the preparation of a defense (ability to consult counsel)
Dusky criticized by many, but some variation has been adopted across all
states

Dusky: emphasis on “…whether individual has a rational and
factual understanding”
 Suggests the relevance of cognitive function
▪ BUT: Is poor cognitive function means for determining a person incompetent?
▪ Depends on the nature of crime and the court proceedings
 Also implies that decision-making ability needs to be intact
(“decisional competency”)
 What constitutes “decision-making capacity?”
▪ Models have relied on four global constructs (Moberg & Kniele, 2006)
(1)
(2)
(3)
(4)
Expression of a choice
Understanding of information relevant to the choice
Appreciation of the significance of the choice
Ability to reason or rationally evaluate a choice
▪ What cognitive constructs comprise decision-making capacity?
 “Traditional” vs. competency-based measures
General paradigm shift in the practice of neuropsychology,
but our current tests do not reflect this shift
 Ecological validity of neuropsychology tests?

 Attempts to address this issue: Test of Everyday Attention,
Rivermead Behavioral Memory Test
 Cognitive status vs. functional abilities within courtroom
 Fluidity of Dusky criteria based on nature of trial and person’s
specific case

Clinicians are cautioned against making definitive
statements— competency is an issue of the law.
 It has been estimated that the courts agree with the conclusions
of evaluations with respect to competency in over 90% of cases

Structured & Semi-Structured Evaluation Forms
(May improve reliability, but what about validity?)

Competency Screening Test (CST)
▪
▪

Competency Assessment Instrument (CAI)
▪
▪
▪


Interview-based
Items pertain only to legal issues
No norms available
Interdisciplinary Fitness Interview (IFI)
▪

Screening measure
22-item sentence-completion task (scored 0 vs. 1 vs. 2)
Legal issues, psychopathological issues, overall evaluation
MacArthur Competence Assessment Tool –Criminal Adjudication
Competence Assessment for Standing Trial for Defendants with
MR (CAST-MR)
What about test-equivalence across populations?
 Advocates of this view suggest that administration of
neuropsychological tests are unlikely to be a costefficient means of gathering

Sample content from MacArthur
Competence Assessment Tool-Criminal
Adjudication
“Two men, Fred and Reggie, are
playing pool at a bar and get into a
fight. Fred hits Reggie with a pool
stick. Reggie falls and hits his head
on the floor so hard that he nearly
dies.”

Mean base rate of incompetency to stand trial is 20%
 What implications does this have for test selection? What
about resource utilization in competency evaluations?
Which approach is best for assessing competency
(traditional neuropsych or competency assessment
instruments)?
 Three most commonly researched “clinical
assessment” instruments:

 MMPI/MMPI-2
 Wechsler Adult Intelligence Scales (WASI, WAIS-R, WAIS-III)
 Brief Psychiatric Rating Scale (BPRS)

Goal was to quantitatively synthesize comparative
research on competent and incompetent defendants
via meta analysis
 Determine which variables are related to defendant’s
competency/incompetency
 Determining the utility of traditional vs. competencyspecific assessment measures in differentiating competent
and incompetent defendants

Biggest difference observed on psychiatric variables (diagnosed with
psychotic disorder [OR = 7.96]; history previous hospitalization [OR = 1.86])
(Pirelli, Gottdiener, & Zapf, 2011)
Overall – incompetent and competent defendants’ scores across competency
assessment instruments significantly differed and a rather large effect size found
(d = 1.4); OR = 2.5





CST = Competency Screening Test
GCCT-MSH = Georgia Court Competency Test
FIT = Fitness Interview Test
MFQ = Metropolitan Toronto Forensic Service
MFCS = Mosely Forensic Competency Scale
Measure
Wechsler Tests
# of
studies
Competent
group,
M (SD)
Incompetent
group,
M (SD)
Cohen’s
d
14
(total)
FSIQ
3
86.8 (14.0)
80.6 (14.1)
--
0.58
Performance IQ
4
84.9 (14.0)
79.6 (13.4)
--
0.69
Verbal IQ/Verbal Cognitive
Function
7
87.2 (13.5)
82.1 (12.3)
--
0.67
MMPI/MMPI-2
2
F scale
--
--
--
0.33
0.59
Scale 6 (Paranoia)
--
--
--
0.39
0.71
0.33
0.59
--
--
Scale 8 (Schizophrenia)
BPRS
Odds
ratio
4
32.0 (7.9)
39.6 (9.2)
Effect sizes associated with competency measures were substantially larger (i.e., approximately
1 Cohen’s d point) than those for traditional measures

Recall: The Daubert standard requires that expert
testimony be relevant to the matter at hand
 “Requires a valid scientific connection to the pertinent inquiry as
a precondition to admissibility”
 Relevance as a matter of “fit” – scientific validity is not
sufficient unless it fits the specific matter under consideration by
the trial court

Rogers & Johansson-Love (2009) study:
 Sought to use Daubert as a conceptual framework to determine
the congruence between the Dusky standard and competency
measures
 Do competency measures used exhibit appropriate “fit” – i.e.,
do these measures appropriately assess:
▪ Ability to consult with one’s own attorney
▪ Factual understanding of the proceedings
▪ Rational understanding of the proceedings
Hypoth = content is unrelated to defendant’s case
Case = case specific – i.e., content focuses on the defendant’s case
Psychiatric evaluation
suggested that he had a
mental illness (the actual
diagnosis was debatable)
 Lawyers planned to
introduce his mental
illness as a defense
 Wrote letters to judge
requesting that he
represent himself to avoid
a mental illness defense

Ted Kaczynski
“Unabomber”
 Did not want to be labeled
“mentally ill”
Can a defendant be competent to stand trial if, as a result of mental illness, he will
not consider a plea of insanity in jurisdictions in which the plea is available?