AAPL Practice Resource for the Forensic Psychiatric Evaluation of Competence to Stand Trial

A. History of the Competence Requirement

Anglo-American legal doctrine concerning competence to stand trial extends back at least as far as the mid-17th century in England.³ According to some commentators, the requirement for mental competence originally arose in English courts as a reaction to those defendants who, rather than enter a plea of guilt or innocence, stood mute. In such cases, courts impaneled juries to decide whether the accused was “obstinately mute, or whether he be dumb ex visitatione Dei [by visitation of God]” (Ref. 4, Book 4, Chap 25, p 477). Those defendants found “obstinately mute” were subjected to peine forte et dure, a procedure (continued, albeit rarely, as late as the 18th century) in which increasingly heavy weights were placed on the defendant's chest until he responded or died.^4,5 Defendants found mute ex visitatione Dei, however, were spared this ordeal. This category originally referred to individuals who were literally deaf and mute, but over time, it came to include persons with mental illness.⁶

By the time Blackstone wrote his famous Commentaries, competence in defendants was regarded as intrinsic to the fairness of a trial process in which the use of attorneys was often forbidden. Thus, common law held that a defendant who was “mad” should “not to be arraigned … because he is not able to plead to [the charge] with that advice and caution that he ought,” nor should he undergo trial, “for how can he make his defense?” (Ref. 4, Book 4, Chap. 289). In a late 18th-century case in England, the trial was postponed until the defendant “by collecting together his intellects, and having them entire, … shall be able to model his defense and toward off the punishment of the law” (Ref. 7, p 307).

Historically, courts and commentators in English-speaking jurisdictions have offered several reasons for requiring mental fitness of criminal defendants during their legal proceedings. A defendant who lacked competence might fail to communicate exculpatory information to defense counsel.⁸ If trials are conceived of as contests, then a courtroom battle in which an accused could not present evidence in his own defense seems like combat between unequal adversaries: one overpowering, the other defenseless.⁷ The requirement for adjudicative competence also has been justified as a way to avoid cruel treatment of defendants: “It would be inhumane, and to a certain extent a denial of a trial on the merits, to require one who has been disabled by the act of God from intelligently making his defense to plead or to be tried for his life or liberty” (Ref. 9, p 328).

In an era when even poor criminal defendants have access to legal counsel, the practical requirement that an accused be able to formulate his own defense no longer holds in many cases. Nonetheless, the U.S. Supreme Court still regards the competence requirement as an important safeguard that assures the fairness, accuracy, and dignity of the trial process.¹⁰

One of the earliest and most cited English formulations for judging adjudicative competence appears in King v. Pritchard, 173 Eng. Rep. 135 (1836),¹¹ in which the court instructed a jury first to consider whether a defendant was “mute of malice or not; second, whether he can plead to the indictment or not; third, whether he is of sufficient intellect to comprehend the course of proceedings on the trial.” During the 19th century, U.S. jurisdictions continued English common law tradition, explicitly recognizing the competence requirement and formulating their own tests for it. In 1899 one federal appeals court noted that requiring defendants to be competent at trial was a fundamental protection guaranteed by the U.S. Constitution: “It is not ‘due process of law’ to subject an insane person to trial upon an indictment involving liberty or life” (Ref. 12, p 941).

In the early 20th century, another federal appeals court articulated the following test for deciding whether a defendant is competent: Does the mental impairment of the prisoner's mind, if such there be, whatever it is, disable him … from fairly presenting his defense, whatever it may be, and make it unjust to go on with his trial at this time, or is he feigning to be in that condition … ? [Ref. 8, p 298]. A later test asked courts to consider whether the defendant was “capable of properly appreciating his peril and of rationally assisting in his own defense” (Ref. 13, p 725).

B. Landmark U.S. Cases

A. Mental Conditions and Adjudicative Incompetence

As explained in the previous section, the U.S. Supreme Court has construed the Sixth and Fourteenth Amendments as forbidding trial of incompetent defendants and as requiring courts to hold hearings about a defendant's fitness for trial whenever sufficient doubt about competence arises. There is no bright-line threshold about what constitutes sufficient doubt, but the Court has recommended that trial courts consider “a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion” (Ref. 17, p 180) in weighing whether to hold a hearing on competence.

In applying Drope, federal appeals courts have faulted trial courts for failure to hold hearings on competence to stand trial in cases in which:

• The defendant could not communicate intelligently, had a family history of mental disturbance, and had sustained a severe head injury.³⁷

• The trial judge was informed that the defendant had several mental disorders, had undergone many psychiatric hospitalizations, and probably had used antipsychotic medication, and defense counsel had repeatedly asked for assistance from mental health experts.³⁸

• The defendant who displayed odd, self-defeating behavior in court had believed his lawyer and the judge were part of a conspiracy.³⁹

• The defendant claimed to have experienced auditory and visual hallucinations at the time of the offense, his family had a history of mental illness, psychiatrists found that he had severe paranoid schizophrenia, and the judge had written a letter to the state department of corrections expressing concern about his competence.⁴⁰

Appellate courts have been clear, however, that “the presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to … assist in his own defense” (Ref. 41, p 445). Neither a past nor a current mental disorder, be it mental retardation (now called intellectual disability), mental illness, brain damage, or substance abuse, necessarily makes a defendant incompetent.^42,–,44 Thus, for example, appeals courts have ruled that:

• Despite indications of grandiose or paranoid delusions, the defendant was competent because an examining psychologist found no need for treatment and a psychiatrist testified that the defendant understood the legal proceedings and could assist counsel.⁴⁵

• Despite a history of depression, severe learning impairment, and suicidal tendencies, the defendant was competent because he showed that he understood legal proceedings and the appeals process.⁴⁶

• Although the defendant had brain damage caused by multiple head injuries and drug addiction, he was competent because the he had assisted counsel in preparing for trial; had given appropriate responses in interviews; and had written letters to the jury, counsel, and his wife and because neither the defendant's family nor counsel had doubted his competence.⁴⁷

• Despite the presence of structural brain abnormalities and a history of behavioral problems, the defendant was fit because a prosecution psychiatrist had testified to that effect.⁴⁸

• Although the defendant had mild intellectual disability and organic brain damage and had engaged in substance abuse, the opinion of the government's mental health experts, the defendant's own coherent testimony, his confession to police, and his two escapes all had represented evidence that he was competent.⁴⁹

• Although he had narcolepsy, the defendant had testified coherently at trial, and the trial court had verified that, throughout the trial, he had taken notes and conversed with counsel.⁵⁰

• Although the defendant gave “rambling and often nonresponsive answers to questions that he was asked,” most of his statements showed “that he simply wanted his day in court and wanted an opportunity to tell his story his way.”⁵¹ Defense counsel's observations that Defendant may have a below-average intelligence level, memory problems, and a history of attending special education classes in school do not indicate that Defendant is presently incompetent. The motion came only from the defense attorney's description of the defendant, without medical records or court observation of disorganized behavior [Ref. 52].

• However, the court may have not understood the nature of intellectual disability or other aspects of a defendant's mental state.⁵³

• When a defendant functions well enough at court and does not have a pre-existing mental disease or defect.⁵⁴

B. Competence and Criminal Responsibility

Courts have also repeatedly distinguished between findings regarding fitness for trial (which reflects a defendant's present mental capabilities during adjudication) and criminal responsibility (which is related to a defendant's mental state when the alleged offense took place), holding that these are independent determinations on distinct ultimate issues.^55,56 A finding that a defendant is competent to stand trial cannot not prevent him from trying to establish an insanity defense and such a finding is not admissible at trial.⁵⁷

C. Attorney's Failure to Challenge Competence

On occasion, forensic clinicians encounter referrals for competence evaluations that seem frivolous, because the defendant is obviously competent. Clinicians should recognize, however, that when a defendant displays signs of a competence-impairing mental disorder, defense counsel is obligated to question whether the client can proceed with adjudication.⁵⁸

The leading case in this area is Curry v. Zant, 371 S.E.2d 647 (Ga. 1988),⁵⁹ a Georgia Supreme Court habeas corpus ruling that set aside the guilty plea and death sentence of a defendant charged with committing murder in the course of a rape and burglary. The first of two attorneys appointed to represent the defendant believed that his client had a severe mental illness, and the trial court told this attorney that it would grant funds for an independent evaluation of the defendant's competence to stand trial. On its own motion, the trial court also had clinicians at a state hospital evaluate the defendant. The hospital's examining physician reported that the defendant was “not hitting on all cylinders” and had a borderline personality disorder, but might be malingering and manipulative.

A second appointed attorney ultimately represented the defendant, who entered a plea of guilty at trial and subsequently received the death sentence. The attorney never asked for the independent evaluation because, given his observations of the defendant and the report from the state hospital, he felt that a second evaluation “would be futile” (Ref. 59, p 649). At the habeas corpus hearing, however, a psychologist testified that the defendant had not been competent to waive his right to trial and that information from “an independent evaluation would have been invaluable to a jury trying his case” (Ref. 59, p 648). The Georgia Supreme Court believed that the second attorney had been conscientious. He had thoroughly discussed with the defendant and his family the decision to plead guilty and had prepared well for the trial's sentencing phase. Nonetheless, concluded the court, the attorney's failure to get a second psychiatric evaluation constituted ineffective assistance of counsel, because a second opinion might well have provided crucial information about incompetence and insanity, and may have resulted in death penalty mitigation.

D. Personality Disorders

Personality disorders usually are not conditions that render defendants incompetent to stand trial, and numerous appellate cases affirm convictions of defendants whom trial courts found competent despite their personality problems. However, several cases suggest that personality disorders could cause adjudicative incompetence and that failure to recognize this possibility could result in reversal of a conviction.⁶³

E. Defendants With Impaired Hearing

For several decades, courts have held that defendants with impaired hearing are constitutionally entitled to special accommodations during legal proceedings. In 1925, an Alabama appeals court ruled that a hearing-impaired defendant: … must not only be confronted by the witnesses against him, but he must be accorded all necessary means to know and understand the testimony given by said witnesses. The constitutional right [to confront one's accuser] would be meaningless and a vain and useless provision unless the testimony of the witnesses against him could be understood by the accused. Mere confrontation of the witnesses would be useless, bordering upon the farcical, if the accused could not hear or understand their testimony [Ref. 69, p 387]. More recently, a Louisiana court held, in State v. Barber, 617 So.2d 974 (La. Ct. App. 1993),⁷⁰ that: … the Constitution requires that a defendant sufficiently understand the proceedings against him to be able to assist in his own defense. Clearly, a defendant who has a severe hearing impairment, without an interpreter, cannot understand the testimony of witnesses against him so as to be able to assist in his own defense [Ref. 70, p 976]. Decisions from Ohio and New York liken the situation of a hearing-impaired defendant with that of a defendant who cannot understand English: Clearly, a non-English speaking defendant could not meaningfully assist in his/her own defense without the aid of an interpreter. A hearing impaired person is similarly deprived of due process in court proceedings conducted without assistance [Ref. 71, p 509].A defendant who cannot hear is analogous to a defendant who cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting reasonable measures to accommodate his or her disability [Ref. 72, p 672]. The Arizona Supreme Court said that without some form of assistance, hearing-impaired defendants were forced to view “proceedings from a soundproof booth” (Ref. 73, p 733).

Once the trial court decides that a hearing-impaired defendant requires some assistance, the trial court has broad discretion in accommodating the defendant's right to that assistance. However, two cases illustrate the potential sensitivity that trial courts must display concerning the competence of defendants with hearing impairments.

Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct. App. 1986),⁷⁴ appealed the second-degree murder conviction of a defendant with severe hearing impairment who, as a 17-year-old student, stabbed a teacher. Before trial, the judge considered the opinions of seven experts before concluding that the defendant was competent and took “every possible precaution to assure that Holmes' due process rights were protected” (Ref. 74, p 232). At trial, the defendant admitted that he had stabbed the victim, but claimed self-defense. His lawyer tried to show that the student had stabbed the teacher because the teacher had held him around the upper body, effectively cutting off his air supply, and that his client had believed he would be injured or killed if not released by the teacher, but when the defense attorney tried to question the student about what he thought would have happened if the teacher had continued to exert pressure, the student could not respond because of hearing impairment. The trial judge noted that the defendant could not answer questions crucial to his defense, and subsequently, his attorney moved for a hearing to present psychological testimony concerning his client's ability to present the defense of self-defense. However, the trial judge declined to conduct another hearing on the defendant's competence to stand trial. The appeals court held that the defendant's problems in testifying had raised a bona fide doubt about his competence to stand trial and that the trial court abused its discretion in denying his motion. The appeals court vacated his conviction and sent the case back to the trial court for a reevaluation of his competence to stand trial.

The kinds of courtroom accommodations that would preserve a hearing-impaired defendant's conviction appear in Shook v. State, 552 So.2d 841 (Miss. 1989), writ of habeas corpus denied, Shook v. Mississippi, 2000 U.S. Dist. LEXIS 8851 (N.D. Miss. 2000).⁷⁵ In this appeal, a defendant with hearing impairment who had been convicted for aggravated assault and firing into a dwelling contended that (1) he should not have been tried until he had learned sign language, and (2) he had been tried while he was physically (and possibly mentally) incompetent.

The appeals court rejected both claims. Concerning the first, the court noted that Mr. Shook could read and that an interpreter had “kept him well informed as the trial progressed. He is a high school graduate and was a college student. During the trial he was kept advised of what was being argued and what the testimony was” (Ref. 75, pp 844–5). The second claim, said the appeals court, was “totally refuted by the facts” (Ref. 75, p 845). At the trial, the judge had appointed an interpreter who sat at defense counsel's table during the trial and wrote notes to the defendant. Lay witnesses had testified that they could communicate with Mr. Shook and he could communicate with them. The trial court also had allowed members of the defendant's family to be with the defendant at counsel table to assist in communication, even though they might have been witnesses in the case. At a subsequent habeas corpus hearing, a federal court affirmed that Mr. Shook's criminal trial proceedings had adequately protected his due process rights because the trial court had taken all reasonable measures to compensate for Mr. Shook's hearing impairment and had also delayed the trial while he underwent a competence evaluation at the state hospital.

Hearing and communication impairment may be the basis for a court's finding of incompetence to stand trial, even when no evidence is presented concerning the defendant's mental disorder. For example, State v. Burnett, 2005 Ohio 49 (Ohio Ct. App. 2005),⁷⁶ affirmed the trial court's finding that a “deaf mute” defendant was incompetent to stand trial. The defendant's concrete thinking and idiosyncratic method of communication (which involved use of gestures, American Sign Language, and a system of “home signing” established among his family members) precluded having interpreters function as intermediaries between him and legal personnel. No mental health expert ever evaluated the defendant. The trial court based its finding on the testimony of a master's-level social worker who also had an associate's degree in sign language. In another case (United States v. Jones, 2006 U.S. Dist. LEXIS 9257 (E.D. Tenn. 2006))⁷⁷ involving a defendant with hearing impairment who could not understand standard sign language, a federal district court declared that the defendant was “physically incompetent” (Ref. 77, p 17) to stand trial under the Dusky standard.

F. Amnesia

Many U.S. cases have addressed whether trying a defendant who cannot remember the events that led to his arrest constitutes a denial of due process or of the right to effective assistance of counsel. The most-cited case in this area is Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968).⁷⁸ Robert Wilson and an accomplice stole a car and held up a pharmacy. Police pursued the pair in a high-speed chase that ended when the alleged thieves' vehicle left the road and crashed into a tree. The accomplice died, and Mr. Wilson fractured his skull and ruptured several blood vessels in his brain. He remained unconscious for three weeks, and at the time of trial, he could remember nothing that had happened from the afternoon of the robberies until he had regained consciousness. However, his mental condition was otherwise “normal,” and he had only minor neurological sequelae (partial paralysis and a slight speech defect). The trial court found Mr. Wilson competent to stand trial, and he was found guilty of assault with a pistol and robbery. He appealed his conviction on the grounds that he had been incompetent to stand trial and that his being tried while amnesic had violated his constitutional rights.

The appeals court remanded the case to the trial court for more extensive posttrial findings about whether Mr. Wilson's amnesia had indeed deprived him of his rights to a fair trial and effective assistance of counsel under the Fifth and Sixth Amendments. The appeals court held that to have a fair trial, a defendant must be competent under the Dusky standard. A trial court would have to predict before trial at a competence hearing whether an amnesic defendant has the capacities required under Dusky. But after a trial has taken place, continued the appeals court, “the trial judge should determine whether the defendant has in fact been able to perform the functions” (Ref. 78, p 463) required by Dusky. Further, the trial court should “make detailed written findings” (Ref. 79, p 463) concerning how the defendant's amnesia had affected the fairness of the trial, considering six factors:

• The effect of the amnesia on the defendant's ability to consult with and assist his lawyer;

• the effect of the amnesia on the defendant's ability to testify;

• how well the evidence could be extrinsically reconstructed, including evidence relating to the alleged offense and any plausible alibi;

• the extent to which the government assisted the defense in this reconstruction;

• the strength of the prosecution's case, including the possibility that the accused could, but for his amnesia, establish an alibi or other defense; and “[a]ny other facts and circumstances which would indicate whether or not the defendant had a fair trial” (Ref. 78, p 464).

Though many other courts have adopted features of the reasoning and approach in Wilson to the problem of the amnesic defendant (e.g., Refs. 79,–,84), some have declined to do so (e.g., Refs. 85,–,87).

United States v. Stubblefield, 325 F. Supp. 485 (D.C. Tenn. 1971),⁸⁸ illustrates the potential impact of the fourth point. The court held that a defendant's memory impairment and incapacity to testify were such as to require the prosecution to help the defense in reconstructing evidence relating to the crime charged and various possible defenses. To this end, the court ordered the prosecution to open its files to defense counsel and to keep those files open continually throughout the trial.

Wilson clearly implies that amnesia for the events that led to an arrest could be a ground for a finding of incompetence and that a trial court may have to examine whether a defendant is incompetent prospectively (before trial) and/or retrospectively (after adjudication has occurred). Thus, appellate courts have reversed convictions or remanded cases after finding that amnesia, coupled with other factors, may have prevented the defendant from intelligently testifying or remembering matters needed to make his defense. Courts have remanded or reversed in cases in which the amnesia had diverse causes, including traumatic brain injury,⁷⁸ “a psychotic type of regression,”⁸⁹ drugs administered by a sheriff,⁹⁰ self-administered narcotics,⁹¹ and psychogenic causes.^92,93

However, these cases held only that memory impairments may entitle defendants to trial court assessments of their competence to proceed with adjudication or to postconviction reviews of whether their amnesia had adversely affected their defense. In a 1967 case (Bradley v. Preston, 263 F.Supp. 283 (D.C. Dist. 1967), cert. den. 390 U.S. 990 (1967)),⁹⁴ the court stated that it was “unable to locate any case to support the contention that amnesia does preclude mental competency as a matter of law” (Ref. 95, p 285), nor was there any record of a court's holding a defendant incompetent to stand trial solely because of amnesia. In subsequent years, courts have consistently hewed “to the well-accepted principle that a loss of memory of the alleged offense does not in and of itself preclude fitness to proceed” (Ref. 92, p 566; see also Ref. 95). “[C]ases without exception reject the notion that an accused possesses that ability [to stand trial] only if he is able to remember the circumstances of the crime with which he is charged” (Ref. 96, p 301).

By itself, amnesia is only one factor for the trial court to consider when determining whether a defendant is competent and will receive a fair trial.⁹⁷ Indeed, courts have held this, even in cases in which defendants' cognitive problems arose from gunshot wounds to the head.^98,–,101 In one of these cases, State v. McClendon, 437 P.2d 421 (Ariz. 1968),⁹⁸ the Arizona Supreme Court concluded that limited amnesia would not totally incapacitate the defense or prevent the defendant from assisting counsel in numerous ways, commenting, “We believe that a defendant is entitled to a fair trial, but not necessarily to a perfect trial” (Ref. 98, p 425). McClendon noted that amnesia was nothing more than a failure of memory concerning facts or events to which an individual has been exposed, that everyone's memory is marked by some postevent distortion, that no one's memory is ever complete, and that therefore, everyone is amnesic to some degree. The ruling in McClendon also voiced a persistent concern of the courts in this area: that defendants could easily feign amnesia and that discovery and proof of feigning and malingering are difficult, especially if a defendant refuses to take the stand.

G. The Pro Se Defense

H. Malingering

Many defendants referred for evaluations of competence to stand trial are found to be malingering. Two reports from the 1990s suggest that at least 10 percent of defendants referred for competence evaluations attempt to feign mental problems that would impair competence.^129,130 Judges persistently raise the possibility of malingering as a reason for skepticism about the defendant's having a genuine mental disorder.^131,132 In at least two federal cases, appeals courts have held that deliberate efforts to feign mental problems could be grounds for imposing a longer prison term under federal sentencing guidelines.

United States v. Greer, 158 F.3d 228 (5th Cir. 1998), concerned the sentencing of Charles Greer, found guilty of kidnapping and several firearms charges. Psychiatrists at the two federal facilities where he was held concluded that he was competent and malingering mental illness, though he also had “a personality disorder with antisocial and borderline tendencies that could not be treated” (Ref. 133, p 231).

Mr. Greer's provocative behavior at trial ultimately led the trial judge to rule that he had “consciously, deliberately, and voluntarily” (Ref. 133, p 233) waived his right to be present in the courtroom. The trial continued with Mr. Greer absent, and he was convicted on all counts against him. The government then recommended that, because he had faked mental illness before and during his trial, he should receive a two-level enhancement of his prison sentence, as is required under the federal sentencing guidelines when a defendant “willfully” attempts to obstruct justice. The trial judge agreed, and Mr. Greer received a 210-month sentence.

Mr. Greer appealed the enhancement but lost. The appeals court acknowledged that the sentencing guidelines did not specifically list malingering as an action meriting a longer sentence. However, feigning mental symptoms was similar in purpose to other actions aimed at avoiding punishment, such as lying on the stand about one's mental state or submitting a willfully disguised handwriting sample, which courts have held are forms of obstruction that justify a sentence enhancement.

Mr. Greer also argued that because his faking had been a manifestation of his personality disorder, he had not acted “willfully” in trying to mislead the trial court. However, the appeals court noted that the criminal justice system consistently holds persons “who are ‘antisocial’ or ‘borderline’” accountable for their criminal conduct. “Thus, the mere fact that a defendant suffers from a personality disorder does not make him immune to a [sentence] enhancement” (Ref. 133, p 239).

In the second case, defendant Dammeon Binion (United States v. Binion, 132 Fed.Appx. 89 (8th Cir. 2005), cert. denied, 546 U.S. 919 (2005))¹³⁴ faced a charge of being a felon in possession of a firearm. He filed a pro se motion requesting an examination of his competence to stand trial, which a magistrate judge granted. Mr. Binion underwent evaluation at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, where doctors concluded that he had no present mental illness and that his reports of past symptoms sounded implausible. The evaluating psychiatrist believed that Mr. Binion's dishonesty probably was a form of recreation, and that Mr. Binion did not seem to be planning his false complaints for a specific material gain. After he entered a guilty plea, a presentence investigation report recommended a sentence enhancement because his fabrication of mental illness had necessitated a labor-intensive, time-consuming, costly evaluation. Although Mr. Binion objected, the district court added a two-level increase to his charge for obstruction of justice and sentenced him to six and one-half years in prison followed by two years of supervised release.

Mr. Binion appealed his sentence, and the appeals court upheld it. One aspect that the appeals court held was that the facts in his case supported the trial court's conclusion that, by faking a mental illness, he had knowingly obstructed justice to affect his case favorably. Mr. Binion filed a pro se motion requesting an evaluation for competence to stand trial, and the examining psychiatrist told him that the evaluation was to determine whether he was competent to proceed with adjudication. He clearly knew why he was undergoing evaluation, and the appeals court concluded that the trial court did not err in finding that he had tried to hinder his prosecution by malingering and in enhancing his sentence accordingly.

Like Greer, Binion raises concerns for examiners about how courts use their findings. Ordinarily, an examiner who undertakes an evaluation of adjudicative competence does so in the belief that information obtained during the evaluation will not be used for purposes unrelated to fitness for trial, unless the defendant raises the question of his mental condition during his defense or during sentencing. Mr. Binion pleaded guilty without claiming a mental illness defense, yet the court used psychiatrists' findings and opinions to enhance his sentence.

A. The Ethics Framework

The ethics framework that guides forensic psychiatric evaluations has several sources. The Hippocratic tradition in medical ethics informs physicians that their primary duties are beneficence and nonmaleficence, which implies that clinical efforts should be to help patients and, above all, to do no harm (primum non nocere).¹⁵⁶ Within the Hippocratic framework, one might regard competence evaluations as benefiting defendants by protecting them from being tried and convicted when they cannot assist counsel or participate rationally in their defense. In addition, determinations that defendants are competent to stand trial may allow them to proceed to trial and gain an acquittal.

In many instances, however, undertaking a competence evaluation appears to conflict with traditional Hippocratic obligations because findings supporting competence to stand trial may enable the criminal court to try, convict, and impose punishment on the defendant. Moreover, the lack of a physician-patient relationship during most evaluations of trial competence suggests that Hippocratic obligations may not be relevant or should not apply in the way that they do in contexts in which an evaluation takes place solely for purposes of treatment. Indeed, the examiner is not the patient's caregiver; the examiner's goal is not to treat or diminish the suffering of a patient, but to provide the court or retaining attorney with psychiatric expertise that will assist in a legal determination. For this reason, many examiners regard evaluating trial competence as a task for which the physician's traditional concerns about helping patients and alleviating their pain are not paramount. When examiners function as medicolegal experts, the values that assume primacy include truth-telling, objectivity, and respect for the humanity of the evaluee.^150,157,158 The physician's responsibility to “assist in the administration of justice” receives endorsement in guideline E-9.07 of the American Medical Association's Code of Ethics.¹⁵⁹

Though they are not functioning as treating physicians when they assess adjudicative competence, examiners still should act responsibly concerning their evaluees' health needs, in a manner analogous to ethics guidelines for work-related independent medical examinations set out by the American Medical Association. That is, examiners should conduct objective psychiatric evaluations, even though they will not be monitoring evaluees' health over time or providing treatment. AMA opinion E10.03¹⁶⁰ states, “a limited patient-physician relationship should be considered to exist during isolated assessments” of a defendant's competence to stand trial. Within this limited relationship, an examiner may elect to tell an evaluee about important health information or problems discovered during an examination or to recommend that an evaluee seek treatment from a qualified caregiver. If necessary (e.g., if the evaluee is confined in jail and needs treatment urgently or poses a high risk of harming himself or someone else), an examiner should facilitate the evaluee's receiving further evaluation and follow-up care. In such cases, the examiner should also notify the defendant's attorney and, if the evaluation was initiated by the court or prosecution, the court.¹⁴⁵ In taking such health-related actions for a defendant-evaluee, the examiner should disclose the minimum information necessary to permit appropriate management.

Since 1987, AAPL has promulgated ethics guidelines for psychiatrists that are applicable to evaluations of adjudicative competence. The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry published by the American Psychiatric Association (APA)¹⁵¹ also contains guidelines that are of particular importance to examiners conducting assessments of competence to stand trial. These include:

• the obligation to practice within the bounds of one's professional competence (§ 2, No. 3);

• the obligation to release information only under proper legal compulsion (§ 4, No. 2);

• the obligation to disclose only the information that is relevant to a given situation and to avoid offering speculation as fact (§ 4, No. 5);

• the obligation not to evaluate (for purposes other than providing treatment) a person charged with criminal acts before that person has had access to counsel (§ 4, No. 13); and

• the obligation to refrain from offering a professional opinion about an individual without conducting or attempting to conduct a personal examination (§ 7, No. 3).

B. Conflicting Roles

When conducting evaluations of adjudicative competence, examiners apply their skills to satisfy legal needs rather than clinical goals. Examiners who function in forensic roles therefore have a primary duty to serve the criminal justice system properly rather than to serve the interest of defendants.¹⁵⁰ In general, treating examiners should try to avoid conducting forensic evaluations on their own patients; ideally, independent, nontreating examiners should perform such evaluations.^152,161 In the context of evaluations of competence to stand trial, role conflicts can arise when an examiner who has been treating a patient serves as the forensic examiner, because the responsibility to “do no harm” within a physician-patient relationship may not be consonant with the examiner's obligation to be objective and truthful, regardless of the effect on the ultimate legal outcome for the defendant. Performance of these evaluations by an examiner who has been treating a patient can also adversely affect the therapeutic relationship, especially if the defendant-patient disagrees with the examiner's opinion. In addition, a treating clinician may be aware of a great deal of potentially damaging, incriminating, or embarrassing information that he or she could elicit were he or she to become an evaluator. Finally, evaluating adjudicative competence may require an examiner to interview persons outside of the treatment relationship, and reporting a defendant's competence may involve disclosure of information obtained during psychiatric treatment. If the examiner were also the treating clinician, such collateral contact or disclosure of personal health information might raise concerns about breaching doctor–patient confidentiality.¹⁶²

The problem of having treating clinicians serve as expert witnesses arises most often in public (government-operated) psychiatric hospitals. Indeed, statutes in many states require public institutions and their clinicians to function simultaneously as treatment providers, competence restorers, and competence assessors. Trying to fulfill these multiple roles may require clinicians to satisfy conflicting obligations. As treating clinicians, psychiatrists have fiduciary relationships to act in their patients' best medical interests, yet at the same time, psychiatrists' statutorily prescribed duty to provide data and opinions to courts may run counter to the patient's perception of his or her best interest. If sufficient forensic mental health expertise is available, it may be possible to eliminate (or at least mitigate the impact of) these role conflicts by assigning the evaluating and treating roles to different clinicians at a mental health facility, and we recommend doing so.

As noted, in some settings and situations, however, psychiatrists cannot avoid acting as both treatment providers and expert witnesses. In inpatient settings to which patients have been referred under court order for competence restoration and where the principal goal of treatment is to render patients competent to stand trial, treatment is partially guided by assessments of whether patients are moving toward competence. Under these circumstances, treating clinicians cannot and should not ignore the impact of their treatment on patients' competence-related mental capacities. In addition, records created to document treatment frequently are relevant to and used in formulating an assessment of an inpatient's adjudicative competence. Finally, statutes sometimes specify that the individual (or institution) who provides treatment must submit a report concerning the patient's competence, and courts sometimes require the testimony of the treating clinician. When the separation of evaluating and treating roles is impractical or is precluded by courts' expectations, clinicians should disclose their potential dual roles at the beginning of treatment and should remind defendant-patients of their dual functions at key points (e.g., before an upcoming court hearing) during clinical care. At the same time, treatment teams that work with individuals committed for restoration must be cognizant of continuity of care and maintenance of competence concerns. For example, in many jurisdictions, medication decisions in a hospital-based restoration programs may not be the same as those in a jail setting. Thus, the prescribers in forensic settings work with individuals who are often returned to jail once rendered competent. Also, although not directly related to restoration, treatment planning for community settings as a follow-up to restoration, in the event that the defendant returns to court and is released, can be prudent, though restoration programs generally must focus on resolution of the court case.

In most states, a legal finding of adjudicative incompetence may lead to court-ordered treatment (and usually, psychiatric hospitalization) to restore the defendant's competence.¹⁶³ As noted in Section I, recent court decisions have approved the use of involuntary medications for competence restoration under certain circumstances.^25,31 The use of psychotropic drugs to bring about trial competence nonetheless remains a controversial subject. Some critics argue that so-called chemical competence is artificial, that involuntary psychotropic medication may not be effective, and that side effects of psychotropic medication may prevent an involuntarily treated defendant from receiving a fair trial.^164,–,166 Although most psychiatrists support providing appropriate treatment to psychotic defendants (involuntarily, if necessary), forced treatment for competence restoration confronts treating physicians with the potential problem in ethics of “dual loyalty.”¹⁶⁷ On the one hand, a treating physician's ethical duty is to act in ways that benefit the patient. On the other hand, when medication is forced on a defendant-patient to make him fit for prosecution, the government is seeking to have the patient medicated irrespective of his wishes, with the goal of making the patient eligible for prosecution and the possibility of punishment, and doctors are participating in this process.¹⁶⁸ The American Psychiatric Association nonetheless advocates the forced use of medications when they are medically appropriate and represent the best hope of restoring adjudicative competence.¹⁶⁹

C. Scope of Participation

The American Medical Association's Code of Ethics (Opinion 9.07)¹⁷⁰states, “As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice.” The legal basis for expert participation in legal proceedings is articulated in Federal Rule of Evidence 702 (“Testimony by Experts”), which states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.¹⁷¹

Most states and other jurisdictions have a comparable rule governing expert testimony in general. Concerning expert psychiatric testimony, the Criminal Justice Mental Health Standards of the American Bar Association state that: … expert testimony, in the form of an opinion or otherwise, concerning a person's present mental condition or mental condition in the past should be admissible whenever the testimony is based on and is within the specialized knowledge of the witness and will assist the trier of fact [Ref. 145]. Psychiatrists and other professionals with specialized training and experience in the forensic setting may consult, and indeed are encouraged to consult, within the criminal justice system regarding competence to stand trial. By serving as experts, examiners can help legal decision-makers understand how mental illness affects a defendant's ability to assist an attorney and negotiate the adversarial process of a criminal trial.

Examiners who undertake examinations of adjudicative competence should conduct these evaluations properly. They should know the legal definitions of competence to stand trial in the jurisdictions where they practice. They should understand the essential elements of a competence evaluation and should have sufficient professional education, training, and experience to acquire the clinical data relevant to an evaluation of competence to stand trial. They should know how to apply their specialized knowledge in a way that permits them to address the specific legal issues related to adjudicative competence (Ref. 145). At the same time, psychiatrists are ethically obliged to refrain from testifying about matters that lie outside their expertise.^162,170

D. Honesty and Objectivity

Psychiatrists should strive to provide courts with opinions and testimony that are honest and as objective as possible (Ref. 152, § IV). When retained by one side in a criminal matter, experts may feel or actually experience pressure to arrive at an opinion that is useful to the retaining party. The pressure may manifest itself in several ways, including the retaining party's assuming what the expert's opinion will be, withholding of information by the retaining party, excessive flattery of the retained expert, subtle or overt bribery, or extortion.¹⁵⁹ Examiners should guard against the potential for bias or distortions of their opinions that may arise unintentionally out of a desire to satisfy the retaining attorney. The U.S. Supreme Court decision in Ake v. Oklahoma¹⁴³ endorses a psychiatric expert's acting as a consultant to the defendant's attorney. Advocacy for one's opinion is ethical if the opinion is based on careful, thoughtful, disinterested examination of available data, examiners should not knowingly give false or misleading testimony.

Examiners should make sure that they have adequately considered sufficient relevant data in formulating their opinions on competence. They should arrange with courts or retaining attorneys to obtain any additional information needed to arrive at an accurate opinion. They should note in their reports if they have requested but have not received information (e.g., hospital records or information from defense counsel) that may be relevant to their conclusions.

Despite their best efforts to remain objective, forensic experts are human and cannot avoid developing biases. One source of highly significant bias that forensic experts have identified in criminal cases is working exclusively for either the defense or the prosecution.¹⁷² This source of bias may be avoided by accepting referrals for competence evaluations from both defense and prosecuting attorneys. Countertransference can also represent a significant source of bias.¹⁷³ Techniques for addressing possible counter-transference include discussion of cases with colleagues or supervisors, presenting one's work to peers, and taking time to think about potential countertransference reactions before reaching a final opinion.

E. Confidentiality, Notice, and Assent

When beginning an examination of competence to stand trial, the examiner should attempt to communicate the following to the evaluee:

• the reason for the evaluation;

• the party who has appointed or retained the examiner;

• the lack of confidentiality of the interview and findings;

• the persons who will receive the examiner's report;

• the possibility of the examiner's testifying about the results of the evaluation; and

• the right of the evaluee to decline to answer specific questions, with a warning that the examiner may have to report noncooperation or refusal to answer questions to the retaining attorney or to the court.

In addition to the verbal warning, the examiner may provide evaluees with a written document summarizing these points and ask the interviewee to sign it. Examiners who are “covered entities” or employees of covered entities (as defined in 45 CFR 160.103, the section of the federal regulations governing the Health Insurance Portability and Accountability Act of 1996 (HIPAA))¹⁷⁴ should also consider whether they must offer the evaluee a copy of the covered entity's privacy statement.

When a clinician is serving strictly in a forensic role, he should also tell the defendant-evaluee that he or she is not the defendant's treating physician; that is, the examiner is not there to “help” the evaluee. Despite hearing such warnings, even a competent evaluee may come to view the examiner as a therapist during an examination. If this occurs to a significant degree during a forensic examination, the examiner should remind the evaluee that the examiner is functioning only as an examiner, not as the evaluee's therapist or treatment provider.

According to the AAPL Ethics Guidelines for the Practice of Forensic Psychiatry,¹⁵² absent a court order, psychiatrists should not perform forensic evaluations for the prosecution or the government of criminal defendants who have not consulted with legal counsel. This principle would apply to evaluations of adjudicative competence. Many defendants referred for competence evaluations are too impaired to understand why the evaluation is taking place or otherwise lack the capacity to consent to the examination. In these circumstances, a court order or the expressed permission of the defendant's attorney make it ethically acceptable for the psychiatrist to proceed with the evaluation.

Occasionally, defendants engage in little or no conversation with examiners. In some of these cases, the psychiatric expert still obtains enough information about adjudicative competence to render an opinion with reasonable medical certainty. However, experts' reports or testimony should clearly describe any paucity or lack of direct communication with the defendant and should state how limited interaction with the defendant may have affected the opinion.

Competence evaluations require that the evaluating examiner attempt a personal examination of the defendant. If the defendant refuses a court-ordered competence evaluation, the examiner should try to explain to the defendant that the court has ordered the evaluation and that the defendant's refusal to participate will be communicated to the court. Before so informing the court, however, the examiner may choose to ask defense counsel to encourage the defendant's participation. Examiners who have not been retained by the defense may also want to tell the evaluee that noncooperation may have legal consequences.¹⁷⁵ For example, in many states, a defendant's refusal to undergo a competence evaluation may lead to psychiatric hospitalization for prolonged observation, to allow examiners to attempt to reach an opinion regarding competence.

If retained by the defense attorney, examiners are ethically obliged to safeguard the contents of the opinion within the constraints of the law (Ref. 151, § 4). Defense-retained experts should not discuss their evaluations with opposing experts or opposing counsel unless the defense attorney approves such a discussion or until the expert is legally compelled to reveal the results.

F. Knowledge of the Jurisdiction's Standard

Though most jurisdictions have standards for competence to stand trial that are consonant with Dusky,¹⁴ there are minor jurisdictional differences. An evaluating examiner should know the legal definition of competence in the jurisdiction where the defendant is facing prosecution.

G. Interaction with Other Professions

Psychiatric expert witnesses should be polite and respectful in their dealings with opposing counsel and opposing experts. Experts should generally avoid disclosure of personal information about opposing experts, as such revelations do little to advance the interests of ascertaining truth in the courtroom.¹⁷⁶ Experts may share with retaining attorneys information about opposing experts that is relevant to the matter at hand and that could arise in cross-examination. Before doing so, however, experts should consider the relevance of the information and whether the potential disclosure would constitute a lapse in objectivity or unreasonable advocacy.

H. Fees

An examiner may charge a different fee for work in the forensic setting than for clinical work. It is ethical and often desirable for an examiner to request payment of a retainer fee or to receive payment before conducting a forensic evaluation. An examiner who serves as an expert witness should clarify the fee arrangement with the retaining attorney before beginning the forensic evaluation. If psychological consultation, imaging studies, or laboratory tests are needed to support an opinion, the examiner should discuss the need for the examinations with the retaining attorney before arranging for them to be performed.

Some jurisdictions or courts pay a fixed fee for forensic evaluations. The amount is often insufficient to cover the costs of tests such as magnetic resonance imaging or psychological testing that may be necessary for a competent evaluation. If fixed fees represent inadequate compensation for one's time and expertise, the examiner may (consciously or unconsciously) be resentful or have other reactions that would result in failure to perform an adequate evaluation. Clarifying compensation before accepting the referral may help the examiner to decide whether to undertake the evaluation.¹⁵³

Examiners should not perform evaluations of adjudicative competence (or for that matter, any type of forensic evaluation) on a contingency-fee basis, meaning with the fee conditional on the outcome of the evaluation or of the litigant's legal case (Ref. 152, § IV). Though contingency payments may be appropriate for attorneys, such fee arrangements may undermine the examiner's objectivity and are unethical.

I. Acknowledging Limitations of the Evaluation

Any limitations of an opinion should be expressed in the written report and, when possible, during testimony. When the examiner has requested materials (e.g., records of past treatment) that are not received in time to be considered in writing the report, he or she may still render an opinion if one can be rendered with reasonable medical certainty. The examiner may also tell the courts or retaining attorneys that he or she reserves the right to alter an opinion should the additional materials become available. If the requested materials are necessary to reach a conclusion about competence, however, the examiner should not offer opinions until the materials are received and examined. If the required data are ultimately not accessible, the examiner may inform the referral source that the evaluation is incomplete.

Examiners should be willing to disclose limitations in their training or experience and to subject their testimony to scrutiny and critique by peers. AAPL has a standing committee established for peer review.

When providing expert testimony, examiners may, and often should, act as advocates for their opinions. However, experts should not overstate the certainty of their findings and should acknowledge the limitations of their opinions. Evaluations of competence to stand trial involve assessments of defendants' capacities for logical communication and factual and rational understanding of the proceedings against them. These capacities typically are present to various degrees, rather than being completely uncompromised or missing. Thus, many defendants display relative strengths and weaknesses in the mental capacities needed for adjudicative competence. Ideally, an expert should describe the strengths and weaknesses of the defendant, regardless of whether the jurisdiction allows or requires an opinion on the ultimate issue. In so doing, the expert provides the information needed for the trial court to make an independent ruling on a defendant's competence.

J. Complaints of Ethics Violations

The AAPL refers complaints of unethical behavior by its members to the American Psychiatric Association for resolution. Usually, the APA district branch where the accused individual is a member reviews such complaints. Those regarding nonmembers of the AAPL or APA are usually filed with the medical board where the psychiatrist practices.

Although expert witnesses have traditionally received quasi-legal immunity for their testimony, a few physician experts have been held accountable through sanctions by professional organizations and through tort liability actions.¹⁷⁷ In recent appellate cases, courts have ruled that psychiatrists practicing in a forensic capacity can be found negligent for revealing confidential information to nonparties¹⁷⁸ and for inappropriate conduct during an evaluation,¹⁷⁹ though the psychiatrists had no doctor-patient treatment relationship with the evaluees.

A. The Cultural Context of Adjudicative Competence

When examiners consider competence to stand trial, they usually think the phrase refers to a legal concept or to a mental capacity that a criminal defendant may have or lack. Competence to stand trial is also a cultural notion, however, or at least a notion that reflects a set of cultural values.

Notwithstanding awareness of and sensitivity to the situations of criminal defendants (who typically are much less fortunate than most persons), most North American examiners share and identify with the dominant culture's view of criminal proceedings. In the dominant culture's view, criminal proceedings are adequately fair (though far from perfectly fair) efforts at rendering just decisions about the guilt of accused criminals. These efforts come about through an adversarial process that gives the accused many rights, among which is the right to confront and challenge one's accusers. Firmly embedded in Anglo-American legal tradition, the right to confront would be meaningless were the defendant not physically and mentally present in court, aware of the proceedings against him, and capable of responding rationally. Competence to stand trial thus embodies a cultural notion that the legal system is reasonably fair, that accused persons will get fair treatment and a reasonable chance to defend themselves, and that the dignity and fairness of criminal proceedings are vindicated when an accused person is a capable adversary of the prosecution.¹⁸⁰

In Anglo-American legal tradition and in mainstream North American culture, the act of raising a criminal defense is not a challenge to dominant social mores, but an affirmation of them. By raising a defense, an accused criminal reinforces cultural values that encourage innovation and individual expression, that endorse speaking one's mind and verbally challenging one's opponents, and that treat the state as having limited power that must be kept in check.

Things that North American examiners take for granted as essential features of fair criminal proceedings may puzzle and seem strange to individuals who come from social backgrounds that endorse conformity or deference to authority. When such individuals become criminal defendants in North America, they may have difficulty saying things that disagree with authority, or they may be reluctant to ask for clarification of explanations and procedures that they do not understand.¹⁸¹ Individuals who come from countries or cultures where governmental systems are all-powerful or corrupt may believe that persons in or appointed by authority do not have their interests at heart. For reasons other than psychopathology, therefore, such persons may be wary or suspicious of defense attorneys who purport to be on their side and say that they are trying to help them. Even defendants who have always lived in North America may come from social, class, religious, or ethnic contexts that give them attitudes and perspectives that differ from the well-educated, predominantly upper middle-class attorneys and judges who control legal proceedings, contexts that also differ from the fortunate, upper-middle-class backgrounds and lives of most examiners.

Though North American criminal courts honor their roots in English common law, the histories of the United States and Canada are those of nations forged from ongoing multicultural diversification. Much of North America's recent population growth has come from immigrants, whose arrival insures that cultural diversity will not diminish. Shifts in ethnic diversity are not just about the number of persons and the cultures from which they come, but the impact of cultural differences, too. An increasingly multicultural America is generating new demands, challenges, and stresses for many areas of human endeavor, including psychiatric assessment and the law.

Judges, attorneys, and legislators must understand the interplay between social, political, and cultural forces that shape the development and implementation of the law. In providing forensic services, examiners must recognize and understand the nuances of the multicultural population with whom they interact in the criminal justice system. To do this, examiners must have available and use a repertoire of behavior, attitudes, procedures, and policies that allow them to work effectively in cross-cultural situations. By developing culturally sensitive clinical and evaluative practices, examiners can improve their evaluative skills and awareness of their personal assumptions, while reducing barriers to accurate psycholegal determinations.

B. Cultural Competence

In the clinical area, cultural competence is a requisite for sensitive, effective delivery of service. Cultural competence includes acceptance and respect for persons' differences, continuous self-assessment regarding one's own cultural assumptions, attention to how cultural differences affect the dynamics of therapeutic encounters, ongoing development of cultural knowledge, and development of resources and flexibility to provide services to minority populations.¹⁸² According to Davis,¹⁸³ a culturally competent clinician integrates knowledge and information about individuals and groups of people into clinical encounters, service approaches, and techniques that fit an individual's cultural background, thereby enhancing the quality and appropriateness of health care. The notion of a culturally competent clinician expresses the hope that better knowledge of folkways, traditions, customs, helping networks, and rituals can allow clinicians and organizations to provide services that better meet patients' needs.¹⁸⁴

C. Culturally Competent Evaluations

Examiners can find several articles^185,–,190 and entire texts^181,191 that describe the effect of cultural differences on forensic practice and that discuss ways that experts can improve the cultural competence of their assessments. The general mental health literature contains hundreds of articles on delivering culturally sensitive care. It is beyond the scope of this Resource to summarize this ever-developing body of literature, but it is important to remember that there is a lack of systematic data about how persons from other cultures perform in competence evaluations in the United States.¹⁹² The following points illustrate how recognizing the potential impact of cultural background and social differences may allow examiners to provide more accurate descriptions of defendants' adjudicative competence and, in turn, more useful information for courts.

A. Preparing for the Interview

Before interviewing a defendant, the psychiatrist should learn about the state's allegations and the reasons or actions that led the referring attorney or court to question the defendant's competence. He or she should review copies of relevant court orders, available discovery materials (including the arrest reports prepared by police), criminal court filings, and indictments. When available, transcripts or recordings of hearings, depositions, or interrogations may contain information relevant to understanding a defendant's current mental condition and competence. Collateral records, including medical and psychiatric treatment records, can provide a longitudinal view of a defendant's mental illness and can thereby shed diagnostic light on current symptoms. Reviewing these materials may also help the psychiatrist to decide whether collateral interviews will be necessary. A defendant's attorney will often have information that is not otherwise available, such as what has happened during previous attorney–client contacts and the reasons that the attorney believes the defendant may be incompetent to stand trial. Information about the quality of the attorney–client relationship may be especially valuable, as is information about behavioral disturbances that the attorney has observed.

B. General Considerations

The psychiatrist should interview the defendant for enough time and with enough thoroughness to permit assessment of the functional characteristics relevant to the jurisdiction's legal criteria for adjudicative competence. If reasonable attempts to examine the defendant fail because of lack of cooperation or other factors, the he or she should report such limitations to the referral source, recognizing that poor performance or lack of participation are not, by themselves, determinative of incapacity. In cases in which the psychiatrist anticipates that language barriers, religious beliefs, sensory impairments (e.g., hearing impairments), or other communication factors will create impediments to accurate assessment, he or she should arrange (with the prior agreement of the referring attorney or court) to use interpreters or other individuals who can facilitate communication. The interview should always be conducted in a secure location.

The primary purpose of a competence evaluation is neither diagnosis nor treatment. The goal is to learn whether and how mental symptoms impair competence-related abilities. The relevance of even severe symptoms to the question of competence varies from case to case. Nevertheless, it is still valuable to obtain enough information about a defendant's condition to allow identification of the diagnoses that are relevant to the expert's opinion. In cases in which the psychiatrist believes that the defendant lacks adjudicative competence, diagnostic information will inform the judgments about the defendant's restorability and the proper setting for restoration.

C. Providing Notice

The psychiatrist should begin the interview with the notifications described in Section IV.E. of the Resource. If the clinical examination is taking place for multiple purposes (i.e., to evaluate criminal responsibility), the psychiatrist should tell the defendant of these additional uses of information obtained during the interview. To find out whether evaluees have understood this information, many examiners ask evaluees to paraphrase what they have told them about the nature, purpose, and conditions of the interview. The defendant's repeating the information tells the psychiatrist whether the defendant has understood what the examination is about and simultaneously provides an initial indication of how well the defendant can assimilate verbally communicated information.

D. Obtaining Background Information

After hearing about the reason for the examination, some defendants immediately begin telling the psychiatrist about their legal situations and how they incurred their criminal charges. However, in many interviews, focusing initial questions on the defendant's background, including personal and family history, current living arrangements, academic history, and occupational history, accomplishes several things:

• It helps the psychiatrist establish rapport while simultaneously providing a helpful perspective on the defendant's intelligence and social functioning.

• While gathering this information, the psychiatrist can also assess the defendant's behavior and verbalizations, which may permit inferences about mood, self-control, thought content, mental organization, and concentration.

• The psychiatrist can compare the defendant's version of events with information available from independent, verifiable sources. Such a comparison may help the psychiatrist to assess the defendant's willingness and ability to report background information accurately.

• Taking a social history may provide insight into how the defendant establishes or sustains relationships, which may help the psychiatrist gauge the defendant's capacity to relate to the defense attorney.

• Inquiry into the defendant's medical, psychiatric, and substance use history may aid the psychiatrist in reaching a diagnosis and may direct the psychiatrist to additional sources of collateral data about the defendant.

• The defendant's psychiatric history helps the psychiatrist compare how the defendant reports current symptoms with symptoms reported in past episodes of illness.

• Asking the defendant about earlier experiences with the criminal justice system (including previous arrests, charges, and convictions) provides the psychiatrist with clues about the defendant's first-hand experience with and knowledge of criminal proceedings.

E. Mental Status Examination

A systematic mental status examination provides the psychiatrist with specific information about psychiatric symptoms, thought content, mood, memory, information processing, and concentration that may not be apparent in more conversational portions of the interview. Typically, a psychiatrist's mental status examination supplements clinical observations and the evaluee's spontaneous reports, by including questions about several types of symptoms (e.g., current mood, possible delusional beliefs, and perceptual disturbances) and brief tests (e.g., arithmetic, repeating and recalling items, and assessment of orientation). Although these inquiries yield data helpful in reaching a psychiatric diagnosis, they may also help the psychiatrist to assess the defendant's mental strengths, along with any vulnerabilities that stem from cognitive limitations or psychiatric syndromes, the objective being to identify, characterize, and quantify the severity of any substantive psychopathology that might impair trial participation or courtroom demeanor.

In evaluating defendants suspected of malingering, the psychiatrist may focus the interview, asking for more details about symptoms and looking for inconsistencies between reporting and behavior.¹⁹⁵ Collateral information may help guide the psychiatrist's inquiries and place in perspective any responses that suggest deception. Further information about malingering is noted below.

F. Questions Specific to Adjudicative Competence

The distinguishing feature of a competence evaluation is the assessment of the functional abilities needed to proceed with criminal adjudication. To make such an assessment, the psychiatrist asks questions that will lead to a determination of whether competence-related abilities are “sufficiently present.” Bonnie¹⁹⁶ has characterized these abilities as falling into two key functional domains: “competence to assist counsel” and “decisional competence.”

• Competence to assist counsel encompasses the defendant's abilities to understand criminal charges, the implications of being a defendant, the adversarial nature of criminal proceedings, and the role of defense counsel. Competence to assist also includes the defendant's ability to work with and relate pertinent information to defense counsel.

• Decisional competence refers to the defendant's ability to make independent decisions about matters that arise in the adjudicative process. Among these decisions are whether to testify, whether to plead guilty, and, if the case goes to trial, what strategy should be used.

Examinations of adjudicative competence are concerned with defendants' case-specific capacity to proceed with criminal adjudication, as distinguished from their general legal knowledge, actual current knowledge about the case, or willingness to proceed with adjudication. A defendant's ignorance of some aspects of how the legal system works, the charges faced, or possible penalties does not necessarily imply incompetence. The defendant may simply not have been provided this information, but may be able to incorporate and use information in making decisions after being told these things. To distinguish mere ignorance from incapacity to learn, the psychiatrist may use structured interviews (discussed later) or other teaching and retesting approaches that involve instruction on factual legal matters. In cases in which the psychiatrist has learned that a defendant has had problems in collaborating with defense counsel, the psychiatrist should try to learn whether the defendant could work with an attorney and participate in defense planning, but has chosen not to do so for reasons not related to mental illness, intellectual disability, or other developmental limitations.

Assessing and documenting a defendant's functional status usually requires asking specific questions that systematically explore the defendant's general knowledge about criminal proceedings, his understanding of matters specific to his legal case, and his ability to relate to defense counsel. Areas that the psychiatrist typically assesses during an interview include the defendant's:

• knowledge about the roles of principal courtroom personnel (the judge, jury, witnesses, defense attorney, and prosecutor) and of the evaluee's role as a defendant;

• awareness of being charged with a crime and facing prosecution;

• knowledge of specific charges, the meanings of those charges, and potential penalties if convicted;

• knowledge about what specific actions the state alleges (“what the police say you did” to generate the charges);

• ability to behave properly during court proceedings and at trial;

• capacity to appraise the impact of evidence (e.g., adverse witness testimony) that could be adduced;

• understanding of available pleas and their implications, including plea bargaining;

• perceptions and expectations of defense counsel; and

• description of the quality and quantity of previous interactions with defense counsel.

Along with gathering specific information about the defendant's grasp of factual knowledge, the psychiatrist can make inquiries and observations that will help elucidate:

• the defendant's capacity for and willingness to engage in appropriate, self-protective behavior; if present, the extent and impact of the defendant's self-defeating behavior, and the reasons for the behavior;

• the defendant's ability to retain and apply new information effectively;

• the defendant's capacity to pay attention at trial and remember what has occurred;

• the defendant's capacity to use information to make reasonable decisions related to his defense; and

• whether the defendant has sufficient impulse control to maintain proper courtroom decorum.

Questions should be open-ended and not imply involvement in the alleged offense. Often, however, defendants may do better at displaying their understanding of and capacities to manipulate information when discussing concrete matters arising in their own cases. For example, they may not be able to provide good definitions of legal terms, but they may demonstrate their understanding of key legal concepts by describing how they anticipate that events will unfold as the case proceeds. Having defendants recount past experiences in the courtroom may also reveal details about how well they understand their current legal circumstances.

Competence interviews should reach beyond defendants' factual understanding of legal terms and procedures to examine the ability to reason about the cases and appreciate the legal situation.^197,198 Evaluating reasoning ability may include questions that assess how well the defendant distinguishes between information with more or less legal relevance, and the defendant's capacity to weigh advantages and disadvantages of available legal options. In assessing the defendants' appreciation of their circumstances, examiners should analyze the rationality of the defendants' beliefs about how they expect the case to proceed, how they perceive their relationship with their attorneys, and how they anticipate being treated by the legal system. Examiners should keep in mind that delusional beliefs may seriously influence a defendant's reasoning or appreciation of the situation, while leaving factual understanding and knowledge of the legal system unimpaired.¹⁹⁹

Although this Resource cannot anticipate all the situations that examiners may encounter, the following comments address some of the special circumstances that they encounter:

• Competence to stand trial relates to a defendant's capacity to proceed with adjudication on a specific criminal charge. Defendants who might not be competent to undergo trial in a complex tax case might be competent to proceed with adjudication of a misdemeanor assault.

• Occasionally, examiners may encounter defendants with multiple charges who are incompetent to proceed on some charges but are competent to proceed on others. Thus, for an evaluee facing multiple charges, a psychiatrist should anticipate what behavioral and cognitive abilities will be necessary for a defense on each charge and should formulate questions to assess the evaluee's capacity to accomplish these tasks.

• Individually tailored interview techniques may help with certain types of evaluees. For example, using illustrations of a courtroom or sketches of crime scenes may help defendants who have limited verbal capacity to convey what they know, understand, and appreciate.

• In evaluating individuals with intellectual disability, examiners may want to devote extra time to explaining concepts and testing defendants' knowledge later, to find out how well these individuals can retain information and apply it to their specific legal circumstances.

• As explained in Section II, amnesia for the period surrounding an alleged offense does not preclude the defendant's being competent to stand trial on that offense. In some cases, a defendant's comments or collateral information signal the psychiatrist that a claim of amnesia is not genuine. In such cases, the psychiatrist can record and later adduce the information concerning the defendant's actual capacity to recall and relate events that led to his arrest. In other cases, examiners discover clinical information that supports a defendant's claim of amnesia. The psychiatrist can still assess the defendant's capacity to consult with the attorney and understand the criminal process (which may remain well intact), along with the defendant's ability to evaluate the prosecution's evidence depicting alleged conduct at the time of the offense. The psychiatrist should also attempt to obtain information from the defendant and collateral sources that will delineate the scope and likely cause of the defendant's amnesia.

G. Eliciting the Defendant's Account of Events That Led to the Charge

A key factor in many defendant-attorney interactions is the defendant's ability to provide a rational, consistent, and coherent account of the offense to his attorney. Some of the members of this Practice Resource committee, along with others,¹⁴⁶ recommend that examiners assess this ability by asking evaluees to describe their versions of events before, during, and after the alleged offense. The ability to record responses varies across jurisdictions, and examiners must be familiar with local laws and customs. When inquiring into the defendant's version of the circumstances surrounding the arrest, the examiner must consider whether the evaluation is being conducted on behalf of the court, the prosecutor, or the defendant, to determine whether privilege may apply. Incriminating statements unknown to prosection should not be documented in the report, although some jurisdictions require that police reports be included. Instead, writing a summary statement regarding the defendant's ability to provide a rational account of the incident to counsel should suffice. Inquiries may be complicated further by electronic recordings if a defendant spontaneously makes comments about the incident. In jurisdictions that require more than one examiner to assess competence to stand trial, various descriptions of accounts of the incident may be erroneously viewed as contradictory.

Examiners should also ask defendants to describe how their activities have been or will be described by victims or witnesses and (especially) by the police. Having a defendant relate his or her recollection of the events that led to the arrest helps the psychiatrist assess (among other things) the defendant's understanding of the reasons for the charges and his or her ability to communicate key information to defense counsel. The defendant's description of events often provides information about whether he or she rationally perceives the reasons for the prosecution and can realistically appraise available defenses (including the insanity defense). Hearing the defendant's description of events leading to the allegations may also help the psychiatrist to assess the defendant's memory and ability to identify others who might testify on the defendant's behalf.

If a psychiatrist is barred from a direct inquiry about the offense or does not want to make such an inquiry (discussed later), an alternative action would be to contact the defense attorney to ask how well the defendant has been able to communicate details related to the alleged offense. When seeking such information, however, examiners should remember that attorneys owe their allegiance to their clients and should have this in mind when formulating their subsequent opinions.

When asked by examiners to describe the events that led to their arrest, some defendants decline to answer because they fear that what they say will be used against them or because their attorneys have instructed them not to discuss the matter. In such cases, the psychiatrist can ask about a defendant's reason for withholding information. The psychiatrist also can ask whether the defendant recalls and can relate this information to defense counsel. The defendant's responses, coupled with other information from the interview, may help the psychiatrist decide whether the defendant has the capacity to communicate satisfactorily with defense counsel. For example, if a defendant calmly explains that he recalls arrest-related events clearly and that counsel has forbidden him from discussing his actions, and if the defendant also gives a logical, reality-based description of what the police allege against him, that defendant has demonstrated satisfactory ability to communicate with defense counsel (not to mention good capacity to follow his attorney's instructions).

Obviously, one way to avoid these potential problems is not to ask the defendant what he recalls about why the police arrested him. In many cases, however, this approach is not practicable, because (for example) a court has ordered examinations of competence and criminal responsibility, which examiners usually perform during the same interview or set of interviews. Except in those unusual circumstances in which the psychiatrist can determine quickly that a defendant is not competent, the psychiatrist often has elicited or been told the defendant's version of the events that led to his arrest before realizing that the defendant may not be competent. Also, getting a defendant's version of arrest-related events as close as possible to the time those events occurred is the best way to learn what a defendant did and why. Defendants' memories (like those of everyone else) may fade with time, are reconstructive, and reflect the current state of mind. For those defendants with a psychotic illness that is most likely to merit the insanity defense, obtaining their version of events before they receive competence-restoring treatment can address the possibility that, once their rationality improves, they will recast their actions and motives into behavior and reasons that seem more plausible but that are also less exculpatory.

If a psychiatrist believes that asking the defendant about his or her version of events is important, the psychiatrist can deal with concerns about having to testify about the defendant's statements by preparing a response that will alert the court to the matters that are at stake. For example, if the prosecution asks the psychiatrist to testify at a competence hearing about what the defendant said concerning the alleged offense, the psychiatrist may wish to respond, “Before I answer that question, I must ask whether the defense attorney or the court objects, because if I do answer, I may reveal information that will incriminate the defendant or that might compromise his defense strategy.”

H. Psychological Testing

Melton and colleagues believe that “outine administration of conventional psychological tests (i.e., measures of intelligence and personality) is unlikely to be a cost-efficient means of gathering information in most competency cases” (Ref. 6, p 153). Although some psychologists regard conventional psychological testing as an essential element of a competence evaluation,²⁰⁰ and although most forensic psychologists recommend IQ testing,²⁰¹ this Resource takes the same position as do Melton and colleagues.⁶ Examiners can usually ascertain the crucial psychological data relevant to functioning as a competent criminal defendant directly from interviewing defendants and evaluating information provided by collateral sources.

Psychological testing can play an important role in clarifying some diagnostic questions or in evaluating cognitive disability, however, especially when records are scant and interview findings are ambiguous. Other circumstances in which testing may prove useful include those in which there is a question of neuropsychological impairment or intellectual disability. Neuropsychological testing often can help the mental health professional to sort out and characterize subtle cognitive impairments, for example, problems in a defendant's abilities to consider alternatives or process complex verbal information.

Because a substantial fraction of competence evaluees feign or exaggerate emotional or cognitive impairment, examiners may find that the MMPI-2 and tests specifically designed to detect malingering are frequently useful. Although interpretation of MMPI results is beyond the knowledge and skills of most examiners, examiners can learn to administer and score several of the available measures designed specifically to assess malingering.

I. Instruments Specifically Designed to Aid Assessment of Adjudicative Competence

Over the past four decades several instruments for assessing adjudicative competence have been developed, including structured interviews with standardized instructions for scoring and interpreting a defendant's responses. A discussion of several currently available assessment instruments appears in Section VIII. Use of these instruments is not mandatory. In some cases, attempting to use a structured competence-assessment tool will be impossible (e.g., when the evaluee is catatonically mute or has a manic psychosis) or pointless (e.g., when examining a defendant who is also an attorney). Examiners should be familiar with the strengths and weaknesses of these instruments in various evaluation contexts (Pinals et al.²⁰²). Some potential advantages of structured instruments include the following:

• Using a structured instrument assures that the psychiatrist will consistently cover relevant topic areas.

• Some defendants who are reluctant to discuss their personal situation may respond to hypothetical inquiries such as those used in the assessment tool developed by the MacArthur group.¹⁹⁸

• Some competence-assessment instruments use standardized scoring systems that make possible comparisons between a specific defendant's performance and the performances of groups of previously evaluated defendants.

When using a structured instrument, the psychiatrist should be familiar with the instrument's instructions for administration and should follow those instructions as closely as possible. Although a flexible approach to administration may seem desirable, too much deviation from proper test procedure may reduce the instrument's reliability and validity and may make it difficult to assess the evaluee's performance in relation to the instrument's published norms.

The designers of structured instruments do not intend that the instruments be used as diagnostic tests that decide whether an individual can proceed with adjudication. Rather, the instruments' designers recommend that examiners treat test results as one source of information, interpreting those results in light of the full clinical interview and other available data. A discussion of several currently available assessment instruments appears later in the Resource.

J. Special Populations

Studies of the adjudicative competence of older defendants generally find that deficits in orientation and memory best distinguish older defendants who are competent from those who are incompetent to stand trial.^203,–,206 Both advanced age and dementia diagnosis are associated with nonrestorability, and increased age retains its correlation with nonrestorability, even after correcting for dementia diagnosis. One study found that a brief cognitive screening instrument, the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), indicates that older and more cognitively impaired defendants are hospitalized for as long as three times the average length of stay.²⁰⁷ Being familiar with geropsychiatric concerns, consulting with other disciplines such as neurology, and ruling out treatable causes of neurocognitive disorder are important elements of conducting competence assessments in this population.

A recent survey of 101 participants investigated whether the formal classification of a defendant as having a learning disability affects attitudes toward various legal matters, including adjudicative competence. The authors concluded that a learning disability can influence perceptions regarding a defendant's competence.²⁰⁸ Research on intellectual disability and adjudicative competence focus mainly on competence attainment and are discussed later.

K. Contextual Variables and Assessment Accuracy

A body of literature is developing on the contextual variables related to the accuracy of adjudicative competence. There are views that different cases correctly require different competence thresholds, such as Buchanan's proportionality argument.²⁰⁹ For example, variables such as the severity of the charge or political pressures on the proceedings should translate into different competence levels for different situations.²¹⁰

Mossman²⁰⁷ considered Buchanan's²⁰⁹ position regarding proportionality of case-specific variables in devising a mathematical framework for conceptualizing the accuracy of expert opinions on competence. He described how four elements, including contextual variables (discussed above), personal attributes of the defendant that are relevant to competence, an expert's intrinsic ability to distinguish defendants who are competent from those who are incompetent, and the wish to favor or avoid certain types of outcomes, may allow for inferences about accuracy of opinions in the absence of a gold standard. There are also articles pertaining to variation in clinicians' opinions of adjudicative competence, the roles that examiner bias imply, different thresholds for giving opinions of competence, and random error.^211,–,213

A. Value and Scope

In most competence evaluations, collateral data can help psychiatrists formulate and support their opinions. By providing additional perspectives on the defendant, collateral sources help the evaluating psychiatrist gain a more comprehensive understanding of the information about the defendant's current mental state and mental abilities than was derived from the interview. Often, defendants' accounts of symptoms, past treatment, and other relevant events differ substantially from the reports of witnesses or other informants. Defendants may deny or not want to discuss their participation in an offense, or they may claim to have amnesia for events related to the offense. Collateral sources may corroborate or fail to confirm elements of the defendant's account of his symptoms and functioning, which may help in assessing the defendant's accuracy and truthfulness about his mental condition. For this reason, collateral sources may aid in clarifying diagnoses.

Because the competence evaluation focuses on the defendant's current mental state and ability, collateral sources may not be necessary to form an opinion on competence. Present-state evaluations generally require less evaluation of collateral data than does a retrospective evaluation (e.g., evaluations of criminal responsibility). At a minimum, however, the psychiatrist should review police records, when they are available, and the indictment concerning alleged incidents leading to the criminal charges.

B. Incriminating Information

Examiners must recognize that the collateral data that they obtain may occasionally include incriminating and self-incriminating information that was previously unknown to the prosecution. The prosecution and the trial court can initiate an evaluation of adjudicative competence, and the defendant may not invoke his or her right against compelled incrimination to avoid submitting to a competence examination.²¹⁴ Although most states prohibit introduction of information from the competence evaluation into the trial itself, in other states this protection extends only to statements made by defendants. Attorneys in states that do not have protective provisions may insert language in a court order to limit the use of report information from a competence assessment. Despite these safeguards, concerns about the possibly incriminating effect of collateral data lead some examiners to favor focused assessments of adjudicative competence in which only limited collateral information is presented. If a psychiatrist chooses to use collateral sources in conducting an evaluation of adjudicative competence, such sources serve primarily for obtaining or supplementing information about past or current psychiatric symptoms, but not for gaining information that might facilitate prosecution and criminal conviction.

C. Obtaining Collateral Information

In many cases, the referring attorney or court will obtain documents containing collateral information and will provide these to the examining psychiatrist. When retained by either the prosecuting or defense attorney, the psychiatrist may include a statement in the retainer agreement that the attorney will give the psychiatrist access to all relevant information available and that the attorney will make reasonable efforts to obtain any additional information requested by the psychiatrist. Sometimes a court order is necessary to compel opposing counsel to produce information deemed relevant by the psychiatrist.

When retained by the defense or directly by the court, the psychiatrist may obtain written consent directly from the defendant for the release of the defendant's medical records, provided that the defendant is competent to authorize the release. Those who have been retained by the defense or prosecution should not contact opposing counsel or other persons who could provide collateral data before consulting with the retaining attorney. After obtaining approval of retaining counsel, defense- or prosecution-retained examiners may then interview collateral sources. Court-appointed examiners may want to speak with both the prosecution and defense attorneys.

Ideally, when using collateral sources of information, the psychiatrist should personally review any critical information that is summarized or referred to in other documents and should not simply accept another clinician's summary of original documents. Besides obtaining original sources when appropriate, the psychiatrist may identify missing information that may help formulate the forensic opinion. For example, the psychiatrist may realize that educational records would serve to verify intellectual disability when it appears that cognitive limitations affect a defendant's competence to stand trial.

If requested information did not arrive before submission of the report, the psychiatrist should note this in the report, along with the reason that the psychiatrist did not have access to the information. In some cases, the psychiatrist may want to include in the report a statement reserving the right to change an opinion, should any conflicting information subsequently become available.

D. Managing Collateral Information

All material reviewed by the psychiatrist is considered confidential and under the control of the court or the attorney providing it, and it should not be disclosed or discussed without the consent of the referring party. The psychiatrist should realize that notations made on this material may be subject to direct and cross-examination if referred to during testimony. Material generated by the psychiatrist during an evaluation (e.g., interview notes, videotapes) is initially considered the work product of the referring attorney. As such, it should not be disclosed or discussed without the defendant's, attorney's, or court's consent. The psychiatrist should furnish copies of this material to the referring attorney or court, however, if requested to do so.

E. Common Types of Collateral Information

A. Psychiatric Symptoms or Diagnosis

B. Relationship Between Psychiatric Impairment and Trial-Related Abilities

Once the presence of indicia of mental disorder is established, the psychiatrist focuses on any relationship between signs or symptoms of any mental condition and the defendant's trial-related abilities. Knowing a defendant's psychiatric history may help to substantiate noted symptoms or to clarify their diagnostic significance, but a history of impairment does not imply that a defendant currently is incompetent to stand trial. The psychiatrist must decide whether any current mental symptoms are causing impairment in the defendant's trial-related abilities.

Because U.S. jurisdictions use competence standards that closely follow the Dusky decision,¹⁴ forensic clinicians can use Dusky's three prongs, including factual understanding of the proceedings, rational understanding of the proceedings, and ability to consult with counsel, as a guide for thinking about how a defendant's psychiatric impairments affect adjudicative competence.

C. Potential for Restoration: Least Restrictive Alternative

Although not required by the Dusky standard, most statutes (following Jackson v. Indiana²³; see Section I) explicitly require that the psychiatrist formulate an opinion about whether restoration of competence is likely within some statutorily designated time frame (usually linked to the severity of the potential penalty for the alleged crime) and whether restoration services should take place in an inpatient or outpatient setting. A national survey of State Mental Health Program Forensic Directors indicated that court orders for restoration services vary across jurisdictions from very few to more than 1,540 per year (Florida).¹ In that same survey, 20 states reported that over 90 percent of incompetent-to-stand-trial defendants are referred to inpatient programs for restoration services. Most restoration programs occur in state hospitals. However, for a variety of systemic reasons, many states have adopted provisions and techniques for outpatient restoration,²⁵⁷ and several states have opted to begin jail restoration services.^258,259 A description of restoration programs is detailed below. Regardless of setting, on the restoration side, it is imperative that treatment providers make efforts to maximize treatment approaches.

In addressing the probability of restoration in a specific case, the psychiatrist should consider several factors, including:

• whether the defendant's incompetence results from a “treatable” deficit such as lack of prior exposure to information about the trial process or psychiatric symptoms caused by an illness that typically responds to medication, as opposed to a static and relatively irremediable condition such as intellectual disability;

• the defendant's previous psychiatric treatment and responses to treatment; and

• the character of presenting symptoms and current scientific knowledge about how well those symptoms respond to treatment.

When assessing restorability, examiners should bear in mind that research on competence restoration shows that most individuals referred for treatment after being found incompetent do in fact become competent to stand trial.^260,–,264 Summarizing previous research findings in the mid-1990s, Nicholson and colleagues concluded that “the ability of clinicians to predict competency restoration is poor, at least when compared with the base rate of failed restoration” (Ref. 233, p 373). Studies of defendants from Los Angeles,²⁶⁰ Michigan,²⁶¹ Ohio,^262,263 and Oklahoma²⁶⁴ have shown that most defendants hospitalized for competence restoration regain their competence. Because of the high base rate of successful restoration, it is difficult to determine which defendants have very low likelihoods of achieving competence if provided with treatment.^265,–,267 Wall et al., however, describe that with defendants with cognitive limitations, the time frame for restoration may need to be longer to see positive change in competence-related matters.

An Illinois study found that clinicians were wrong in predicting the treatment outcomes of 85 percent of the defendants who ultimately were not restored to competence,²⁶⁶ and Florida researchers concluded that a discriminant function they developed had “little or no better than chance utility in predicting” restorability (Ref. 267, p 73). A retrospective Oklahoma study²³³ found that having a previous criminal record and alcohol use at the time of the offense modestly increased the likelihood of competence restoration, impairment in psycholegal ability, having psychotic symptoms, and aggression toward others after arrest correlated with failure to attain competence. Nonetheless, the study's authors concluded that their results were “consistent with prior research in suggesting that psychiatrists should exercise caution in providing feedback to courts concerning [the likely success of] competency restoration” (Ref. 233, p 377). An Alabama study²⁵⁰ found few differences between defendants who the psychiatrist predicted were restorable or nonrestorable. Those differences that did exist reflected mainly nonpsychiatric variables such as criminal record, current criminal charge, and understanding of the legal process. An Ohio²⁶⁸ study showed that two types of incompetent evaluees had probabilities of being restored that were well below average: chronically psychotic defendants with histories of lengthy inpatient hospitalizations and defendants whose incompetence stems from irremediable cognitive disorders (such as intellectual disability).

A study using the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) to help predict length of stay for incompetent defendants showed that defendants who were older or had lower RBANS scores took longer to be deemed competent to stand trial.²⁰⁷

In the studies that have assessed characteristics of defendants predicted to be either restorable or nonrestorable, two factors are most commonly associated with nonrestorability: impairment in psycholegal ability and the presence of severe psychotic symptoms.²⁶⁹ A study of 2,260 defendants recommended as incompetent to stand trial found that psychiatric diagnosis was the most powerful variable in classifying opinions concerning restorability.²⁷⁰ Defendants with a mood or psychotic disorder were more likely to be assessed as restorable compared with those with autism spectrum, cognitive, personality, or substance use disorders.²⁷¹ A Connecticut study²⁷² reviewed the records of 71 defendants, and the results indicated that nonrestorable defendants had more prior hospitalizations, incarcerations, and episodes of incompetence; had lower level charges; were diagnosed with a psychotic and cognitive disorder; were prescribed more medications; and had lower global assessment functioning. Nonrestorable defendants were hospitalized almost twice as long as those ultimately deemed competent.

The recent literature notes the need to study what constitutes a reasonable length of time to determine restorability, as most states appear to be out of compliance with the ruling in Jackson v. Indiana²³ that commitment be based on the likelihood of restorability.^273,274 A study of this topic, from Indiana,²⁷⁵ focused on long-term competence restoration. A majority (64.2%) of its cohort of 81 defendants undergoing competence restoration after six months were eventually deemed restored to competence. Older defendants were less likely to be restored and successfully adjudicated, whereas defendants with more severe charges and greater factual legal understanding were more likely to be restored and adjudicated. Regardless of the time frame for competence efforts, psychiatrists should recognize, however, that courts may regard a “low” but greater-than-zero probability of success to be “substantial” enough to warrant a trial of restoration. In a recent study by Johnson and Candilis,²⁵⁷ a review of restored defendants showed that defendants were restored to competence, on average, within a 45-day period. Whether this outpatient restoration program was geared for less clinically complex individuals is unclear.

If successful restoration appears likely, examiners in some jurisdictions must also render an opinion about the range of services that will be necessary to restore the defendant to competence. Restoration usually involves two simultaneous processes: education about the court process and treatment (usually, with psychotropic medication²⁷⁶) of psychiatric symptoms that are interfering with the defendant's competence-related abilities. The potential sites for restoration treatment services may vary depending on local customs, state law, court (juvenile versus adult), and jurisdiction (e.g., federal versus state) and may be available in inpatient facilities, outpatient settings, or jails. In states that allow both inpatient and outpatient restoration services, the psychiatrist may have to form an opinion about which treatment setting represents the least-restrictive alternative; that is, which setting is necessary to maximize the chances of restoration while preserving the defendant's liberty rights to the greatest extent possible. In most jurisdictions, the psychiatrist may recommend inpatient treatment, even for defendants who do not meet statutory criteria for inpatient commitment. For example, in the case of a psychotic defendant who has a history of a good response to treatment in the hospital followed by repeated episodes of substance abuse and noncompliance with medication while living in the community, a recommendation for inpatient restoration services may be appropriate.

Defendants whose competence cannot be restored present conundrums for case processing, especially when charges are serious. Some states permit that a charge may be dismissed altogether or dismissed without prejudice at some point after the restoration period. Often, however, states are caught in a complex interplay of forces that raise questions about the original Jackson v. Indiana tenets regarding the dangers of finding a person indefinitely incompetent and keeping him institutionalized for that reason.^273,274,277

For these reasons, forensic examiners may also be called upon to help develop a disposition plan for nonrestorable defendants who may no longer need hospital-level care.

A. General Considerations

Because competence evaluations often do not result in courtroom testimony, a written report usually is the chief product of the psychiatrist's evaluative efforts. The report provides the referring party with the psychiatrist's opinions relevant to adjudicative competence and the basis for those opinions. The report must provide a meaningful response to the competence inquiry and direct the response to the problems that led to the evaluation. Because the report's principal users are attorneys, the psychiatrist should describe data and express opinions in jargon-free language that a layperson can understand.²¹⁵ When the report must include clinical or technical terms that a well-informed nonclinician might not understand, the report writer should provide parenthetical or other forms of explanatory language (e.g., “haloperidol, an antipsychotic medication”).

The psychiatrist's report should serve an organizing function that helps readers grasp the significance of information gathered from the clinical interview and collateral sources. Whatever format the writer chooses, the written presentation should convey all relevant information concisely, allowing the reader to apprehend the facts and reasoning the expert used in formulating the opinion. The report should be a stand-alone document, that is, a document that provides or reproduces the data needed to support the opinions that the psychiatrist expresses. The report should also state clearly any limitations or qualifications of which the psychiatrist is aware. For example, if a defendant's poor cooperation leaves the psychiatrist with some doubt about the defendant's diagnosis, if the psychiatrist had limited access to important collateral information, or if the psychiatrist requested but did not receive records that might alter the opinion, the report should describe these limitations.

B. Report Formats

There is no single correct style or format for the report. Available examples include the Group for the Advancement of Psychiatry report format²⁷⁸ and the outline suggested by Melton and colleagues.⁶ Many state forensic mental health systems have manuals describing a preferred style for reporting the results of a competence evaluation. Jurisdictions vary in whether the psychiatrist's report should provide an explicit opinion on the ultimate legal issue (i.e., whether the defendant is competent to stand trial). A suggested report outline appears at the end of this section.

C. Introductory Material

Besides providing the defendant's name and the legal identification of the case, the report should identify the referring or requesting party, and state the purpose of the evaluation. The report may reference the jurisdiction's legal standard for adjudicative competence. It should provide the date, location, and length of any interview(s) conducted. (For example: “I examined the defendant at the Gevalt County Jail on June 30, 2006, for three hours.”) The introduction should include descriptions of how the defendant received information about the interview's purpose and lack of confidentiality and how well the defendant understood that information. The report also should list all data sources used for the evaluation, including records and other materials that the psychiatrist has read, the names of collateral informants (besides the principal examinee), the psychological tests or assessments administered, and any other sources of information.

D. Background Material

The background sections typically need not be as detailed or extensive as the background section of reports on criminal responsibility or nonforensic evaluations completed for treatment purposes. Instead, background sections should include just those facts that are pertinent to adjudicative competence and (in the case of incompetent defendants) restoration. In the background section and subsequent portions of the report, the psychiatrist should not reveal incriminating information gleaned from what the defendant said about the alleged offense, because prosecuting attorneys often receive a copy of the report. Even if the law prohibits the use of the competence report at trial or sentencing, courts may permit its entrance if the defendant later testifies and his prior statements are inconsistent with his testimony.

Findings from a physical examination, imaging studies, or laboratory tests should be included when they play a role in guiding the psychiatrist's opinion. If the psychiatrist has used psychological testing or assessment instruments, the report should include dates of administration of the initial and repeated tests, along with comments about nonstandard instructions or administration.

E. Description of Mental Status

The report should contain clinical data regarding the nature of the defendant's mental and emotional condition that are specifically relevant to the competence analysis.²⁷⁹ All findings relevant to adjudicative competence should appear in the report, irrespective of the weight or priority that the clinician accords to any specific finding. The psychiatrist should also comment on any contradictions or inconsistencies. A mental status examination is an important component of a competence report, but it does not by itself provide a description of those functional abilities and limitations that are relevant to adjudicative competence. A defendant who is psychotic or has amnesia for events is not necessarily incompetent to stand trial.¹⁹⁸

F. Description of Functioning Related to Adjudicative Competence

Competence reports should go beyond describing signs and symptoms of mental impairment and should discuss how those signs and symptoms affect functional abilities relevant to the legal construct of competence. The heart of a competence report is a description of the defendant's abilities and deficits concerning the tasks that the defendant must perform during a criminal defense.²⁰⁰ Using competence-assessment instruments during the interview can facilitate enumeration and description of these key abilities and deficits,²³⁶ because those instruments help focus the psychiatrist's attention on what the defendant knows and can do related to working with counsel in preparation for or participation in criminal proceedings. Examiners should not base their opinions on the results of these instruments alone, however. Information obtained from the use of competence-assessment instruments may not be automatically admissible in court²⁰² and may affect admissibility of other information. Often, the best use of information from assessment instruments is to provide specific examples that illustrate the defendant's strengths or weaknesses with respect to reasoning and understanding, along with other types of data that allow the psychiatrist to convey key information about the defendant.

G. Diagnosis

A few writers (e.g., Ref. 280) argue that psychiatric diagnoses generally should not appear in forensic reports. In the context of adjudicative competence, they argue that the legal issue is not whether an individual has a recognized mental disorder. Rather, the question is whether a mental condition (which need not be an officially recognized disorder) prevents the individual from functioning properly as a defendant.

This guideline disagrees with the position of those who are against including psychiatric diagnoses in forensic reports. Although we acknowledge that the position has some merit in that it encourages appropriate circumspection, psychiatric diagnoses serve valuable purposes in reports on adjudicative competence.

First, the federal standard and standards in many jurisdictions require that the psychiatrist state whether the defendant has a mental disorder (sometimes using the phrase “mental disease or defect”). Providing a diagnosis assures that the psychiatrist satisfies the statutory guidelines for competence evaluations. Specifying the diagnosis identifies a defendant's symptom pattern as matching the profession's recognized definition of a mental disorder, though the psychiatrist may have to explain this to the court.

Second, including diagnoses helps the psychiatrist tell nonclinicians what kinds of problems a defendant has and why those problems affect the defendant's competence-related function. If, for example, a defendant does not cooperate with his attorney because he irrationally perceives the attorney as plotting against him, informing the reader that the defendant has paranoid schizophrenia helps the reader understand that the defendant's fears stem from a well-known form of mental illness and not from quirkiness or unwillingness to cooperate.

Third, for defendants who appear incompetent, the specification of a diagnosis and communicating it in the forensic report helps to support a psychiatrist's opinion about whether the defendant is restorable. To return to the example in the previous paragraph, knowledge that a defendant's fears about his attorney are signs of paranoid schizophrenia, coupled with knowledge of that disorder's typical response to pharmacotherapy, would support the psychiatrist's opinion that the defendant is likely to become competent if provided with a course of treatment.

Psychiatrists take different approaches in relating clinical diagnoses to competence to stand trial. Some experts believe that a formally recognized diagnosis is not necessary when a description of a defendant's mental condition reflects symptom clusters or syndromes that meet the relevant jurisdictional requirements for the presence of a mental disorder. This Resource recommends, however, that when possible, examiners should offer officially recognized diagnoses in one of the formats described in the current edition of the DSM. A report should include the findings that support the psychiatrist's diagnosis, perhaps referring to criteria in the DSM. If the psychiatrist uses a diagnosis that does not appear in the current DSM or International Classification of Diseases, the psychiatrist should support the diagnosis with citations to relevant publications. After rendering a less-specific diagnosis (e.g., “unspecified psychotic disorder “) examiners may want to include a differential diagnosis of more specific disorders, explaining the reasons why each disorder is a possibility. If the diagnosis turns on a fact in dispute (for example, whether the defendant's symptoms were induced by intoxication), the psychiatrist should provide an explanation of how the disputed fact affects the differential diagnosis.

In jurisdictions where a diagnosis is not required, a description of symptoms that affect the defendant's competence to stand trial may suffice. Acceptable practices include, at a minimum, providing a narrative description of a scientifically based disorder, symptom cluster, or syndrome. Examiners should always keep in mind that “official” DSM diagnoses are often more than a decade old and do not include newly recognized syndromes or illnesses. Yet reference to specific, recognized diagnoses helps the expert organize patterns of symptoms and explain the conclusions drawn. (For further discussion of the methodological value of psychiatric diagnoses in testimony, see the APA's Task Force Report on the Use of Psychiatric Diagnoses in the Legal Process.²⁸¹)

A report concerning adjudicative competence is often delivered to nonclinicians, typically a judge, defense attorney, and prosecutor. Although defendants are told at the outset of the examination that the interview is not confidential, it is still important to respect a possibly incompetent defendant's privacy rights. A competence report should contain only information necessary and relevant to the legal point in question. Therefore, it may not be necessary or appropriate to provide a diagnosis in the opinion section. If a diagnosis is included, the report should define and explain the diagnosis to the extent that it is relevant to the defendant's presentation and affects the defendant's trial-related capacities.

H. The Opinion

After presenting the relevant history, examination findings, and diagnostic assessment, the psychiatrist must offer an opinion and carefully explain the reasoning process used to formulate the opinion.²⁸²

Some authors have recommended that mental health professionals confine their reports or testimony on adjudicative competence to a description of the evaluee's functional capacities and refrain from giving an explicit opinion on the ultimate issue of whether a defendant is competent to stand trial. They argue that the ultimate question of a defendant's legal competence calls for a court's interpretation of a legal matter and is therefore beyond the special expertise of the forensic clinician.^6,283,284 Because one cannot give a clinical or operational definition of what is fair or unfair in a particular case, the examiner has no clear guidance in making the judgment.¹⁴³ Moreover, they say that it is the responsibility of courts, not mental health professionals, to decide whether the degree of disability manifested by a defendant is severe enough that it would be unfair to subject the defendant to criminal proceedings.

In some jurisdictions, examiners are barred from expressing ultimate-issue opinions, or they are directed to offer only opinions about the defendants' competence-specific capacities in language from the jurisdiction's competence statute. For example, statutes in Ohio²⁸⁵ and South Carolina²⁸⁶ instruct examiners to state whether a defendant understands the nature and objective of the proceedings against him or her and can assist counsel in preparing a defense, but do not ask examiners to provide their opinion on the ultimate issue of whether the defendant is competent to stand trial. In other jurisdictions (e.g., Rhode Island,²⁸⁷ South Dakota,²⁸⁸ and Texas²⁸⁹), however, statutes or case law allow or direct examiners to address the ultimate issue explicitly. Irrespective of statutory requirements, some courts and attorneys prefer ultimate-issue testimony.^290,291

Given the preceding considerations, many examiners refrain from expressing their opinions on the ultimate issue unless the jurisdiction requires it (see, e.g., 18 U.S.C. § 4247(c)(4)(A)(2007 Supp.)). (Adopting this practice may require some prior discussion with the judges in the jurisdiction where the examiner works who may otherwise question why psychiatrists have stopped addressing the ultimate issue in their reports.) However, the forensic report should describe how diagnostic conclusions arise from clinical findings and how the clinical findings arise from the defendant's mental disorder (if any), thereby delineating the factual basis for the conclusions relevant to adjudicative competence.²⁹² Examiners also should explain how their findings affect the defendant's competence-related abilities by linking those findings to elements of the jurisdiction's competence standard. Whatever form the psychiatrist's opinion takes, the written report should explain the psychiatrist's reasoning and the connections between clinical findings and the behavioral components of adjudicative competence. In some cases in which a defendant faces more than one charge, the psychiatrist may have to determine competence for each alleged offense.

Examiners should generally state their opinions with a “reasonable degree of medical certainty” or a “reasonable degree of medical probability,” depending on the language used in the jurisdiction. Sometimes, the psychiatrist may not be able to render an opinion with a reasonable degree of medical certainty or probability. When no opinion is reached, the report should clearly communicate this result along with any suggestions for additional data that could allow the psychiatrist or the court to reach an opinion. On some occasions, the psychiatrist may want to point out that more information would increase the level of confidence in the opinion. When this is the case, the report should specify the types or sources of information that would help.

When the opinion suggests lack of adjudicative competence, the report should provide an opinion concerning restorability and the appropriate setting for such restoration. It should also identify any additional requirements for reports in the jurisdiction where the evaluation is conducted. For example, in some jurisdictions (e.g., Massachusetts²⁹³), a psychiatrist is required to discuss the defendant's eligibility for civil commitment proceedings, along with the basis for the opinions concerning these matters. Even when the opinion does not suggest incompetence, the report may include a discussion of restorability and commitment status if the psychiatrist believes the court might conclude that the defendant is incompetent.

I. Other Considerations

Reports should be free of gratuitous comments about defendants' behavior, need for incapacitation, dangerousness, or lack of remorse. In general, reports on adjudicative competence should not take up other legal matters (such as future dangerousness or considerations that may make up a presentencing evaluation) unless that jurisdiction's case law or statutes require comments about these matters. In cases in which the court has requested an opinion about another psycholegal matter (e.g., criminal responsibility) and where it is appropriate to provide such an opinion (e.g., the psychiatrist believes the evaluee is competent and can validly consent to an evaluation of criminal responsibility), a separate report about that other matter should be submitted.

J. Signature

All the professionals involved in preparing the report should sign the document. Such individuals may include supervisors and reviewers, as well as the principal psychiatrist. Under the psychiatrist's signature, the report may summarize special qualifications that characterize the psychiatrist's professional status (e.g., academic degrees, board and society memberships, and academic degrees in related subspecialties) (Table 1).

A. Preadjudicative Competence

B. Psychosocial Domain

For many centuries, society has recognized that adolescents are generally more susceptible to succumbing to peer pressure, more prone to seek immediate gratification, more impulsive, and much more likely to engage in risky behavior than adults. Therefore, youths are not permitted to participate in certain activities until they have reached certain chronological ages (e.g., driving, entering into contracts, serving in the military, and consuming alcohol). Because universally accepted and reliable metrics measuring a juvenile's overall degree of developmental maturity do not currently exist, researchers have started to attempt to define more precisely particular domains of “impairment,” quantify the degree of these impairments by age, and examine how these impairments may affect the adjudicative process. When compared with adults, most adolescents manifest deficits in the following areas²⁹⁴:

• Risk appraisal: adolescents tend to discount and undervalue risk.²⁹⁴

• Reward sensitivity: adolescents tend to be more sensitive than adults to rewards (particularly, immediate rewards), which likely contributes to the increased sensation-seeking behavior noted during adolescence.²³⁸

• Time perspective: adolescents tend to care more about short-term rewards than long-term consequences and are less future oriented than adults.²⁹⁴

• Peer influence: adolescents are much more likely than adults to be subject to and succumb to peer influence. In contrast to most adult offending, adolescent offending generally occurs in groups.³¹³

• Abstract thinking: children's and adolescents' perceptions and decisions may be based on overly concrete ideas. They may view rights as discretionary or conditional, as opposed to automatic and inalienable.²⁹⁴

• Perceived autonomy: children's and adolescents' lack of perceived autonomy can manifest as passivity, inattention, or compliance with authority.

• Self-regulation: children and adolescents tend to be less able to control impulsive behavior and choices compared with adults.³⁰¹

Case examples illustrate this psychosocial immaturity in adolescents:

• A 9-year-old agrees to plead “guilty” to a charge despite limited evidence against him because he wants to be released to his parents quickly and pleading “not guilty” would require him to remain in custody. Here, the minor does not appropriately weigh the longer-term consequences of pleading guilty (time perspective).

• A 15-year-old who has stolen property and faces strong evidence against him may refuse to agree to a plea bargain in an attempt to appear “cool” to his peer group (peer influence).

• A 10-year-old arrested for and charged with a serious crime may believe, “The judge always finds the truth, so I don't have anything to worry about” (abstract thinking).

C. Mental Disorders and Illness

Youths in juvenile detention facilities are much more likely to have mental disorders than are youths in the general population. Approximately 69 percent of juvenile pretrial detainees or delinquents meet DSM criteria for a mental disorder (including substance abuse and dependence or conduct disorder, as defined by DSM-IV-TR).³¹⁴ However, research is mixed with regard to the strength of psychopathology as a risk factor for incompetence.^238,309,315 Generally, conventional wisdom has held that mental disorders have less impact on JAC than developmental immaturity (DI), perhaps because psychotic disorders are relatively rare in minors (with a mean age at onset in the late teens or early 20s), whereas cognitive and psychosocial DI is a characteristic of almost all juveniles.

In adult offenders, psychotic disorders (e.g., schizophrenia, bipolar type I (manic phase with psychosis)) and intellectual developmental disorder (IDD) are those mental disorders that typically call adjudicative competence into question. Disorders such as major depressive disorder or attention-deficit/hyperactivity disorder (ADHD) typically are not considered serious enough to impair adjudicative competence in a significant fashion. In contrast, subthreshold disorders can have significantly more negative repercussions on JAC, mostly because of the relatively immature cognitive processes of those individuals younger than 15 years. This factor is especially relevant because many juvenile detainees who require mental health services for potentially competence-impairing mental disorders do not receive treatment before adjudication of their cases. For example, Teplin et al.³¹⁶ found that only 16 percent of youths with potentially competence-impairing mental disorders receive treatment before adjudication or within six months of intake at a juvenile detention facility.

Despite these factors, most youths with mental disorders meet the minimum threshold for adjudicative competence. However, these disorders often negatively affect the effectiveness of these youths' participation in the trial process, particularly when combined with their baseline cognitive and psychosocial immaturity.

D. Other Factors

Although one might suppose that a youth would have learned about legal processes from previous contacts with the juvenile court, research suggests that adolescents are not necessarily well informed about the process.^238,308

Of course, many never-arrested juveniles have little or no experience with police, lawyers, or juvenile courts. Most never-arrested adults gain some knowledge of how the legal system works from movies and television programs, but many preadolescent or early adolescent children have not seen these types of media depictions, or if they have seen them, they have not understood them well. Thus, many juveniles will not have adult-like capacities or the types of vicarious experiences that would allow them to understand plea bargaining and possible defense strategies or to recognize the significance of certain types of evidence or testimony.

A final factor is the competence standard pertinent to a case and whether the court may modify its procedures to take into account the juvenile defendant's limitations.

E. Competence Assessment Instruments

Although the cornerstone of assessing competence is a thorough forensic psychiatric and psychological examination by a skilled examiner, competence assessment instruments can serve as adjunctive tools that can help guide and assist the examiner. Use of these instruments constitutes a newly evolving field, and there are no generally accepted instruments. Formalized assessments may be part of a jurisdictional practice.

Much like their utility in adults, structured tools assist with the evaluation of juveniles' adjudicative competence. Sometimes, these tools have been adapted from an existing adult tool, with adaptations designed to investigate in a developmentally appropriate fashion a youth's adjudicative competence. Unfortunately, no tool currently in use has been validated or normed for a juvenile population. In addition, there is currently no psychological tool or test available to assess for malingering in an evaluation of a youth's adjudicative competence. Although the lack of a tool to detect malingering is likely a less frequent problem in juveniles than in adults, it is a limitation of the instruments. Several of the commonly used juvenile competence assessent instruments are discussed briefly below.

F. Examiner Qualifications

The availability of child-and-adolescent–trained examiners varies throughout the United States. Whenever possible, it is ideal to have an examiner who is specifically trained in child and adolescent psychiatry or psychology conduct juvenile competence evaluations. Jurisdictions vary in whether they allow examiners of other disciplines to conduct assessments of juvenile competence.³¹⁸ Examiners trained in adult psychiatry or psychology must determine whether they have the qualifications and experience to conduct such evaluations. Pressures for adult-trained psychiatrists and psychologists to conduct juvenile competence assessments may be greater in rural areas. The Accreditation Council for Graduate Medical Education requires that forensic psychiatry fellows examining a juvenile under the age of 14 be supervised by a child-trained psychiatrist.³¹⁹; this age cutoff may serve as a guide to assessing one's qualifications.

G. Remediation of Juveniles' Incompetence to Stand Trial

In adult criminal court, the term restoration is used to describe the process an incompetent defendant undergoes to regain competence, except for those incompetent defendants with intellectual disabilities where the terms remediation or rehabilitation may be used. The term restoration implies that the defendant was competent before the onset of his mental illness or symptoms, his incompetence was the result of a mental illness, and his competence could be restored if the mental illness or symptoms were treated sufficiently and, in most cases, if the individual were educated about the trial process.

Although the term restoration may be applicable to some juveniles (i.e., those whose primary cause of incompetence is mental illness), many, if not most juveniles who are incompetent to stand trial are so because of intellectual disability (ID; also known as developmental disability (DD)) or simply as developmental immaturity (DI). These individuals may never have been competent. Therefore, the term restoration may be misleading, and the term remediation is generally preferred. Also, and probably more important, remediation services will vary, depending on the cause of the youth's incompetence.

H. Juveniles' Remediation of Incompetence vs. Adults' Restoration of Competence

I. Dispositions and Continued Services in Nonrestored and Nonremediated Cases

In certain juvenile (or adult) defendants, remediation of competence may not be possible. A judicial officer may make this determination at any point in the adjudicative process (e.g., at a preliminary hearing, after one or more restoration or remediation attempts, or after the legally allowable period for restoration or remediation has expired). At this point, the court must dismiss the charges (which can, in some cases, be refiled at a later date) and determine the most appropriate placement for the defendant. Frequently, these determinations are based in significant part on the seriousness of the offense(s) with which the individual is charged.

Adults deemed IST and nonrestorable typically have serious mental disorders and often meet their state's criteria for continued civil commitment, unless they are incompetent because of dementia, intellectual or developmental disability, or brain injury. On the other hand, youths found to be IST because of ID or DI are unlikely to meet criteria for civil commitment. Therefore, other dispositions and placements may have to be identified for them, particularly if they are charged with a serious crimes. Because of this, some experts have recommended that states provide judicial officers the authority to transfer or refer incompetent,³⁰³ nonremediable youths for services under that state's child welfare or protection provisions. Such a provision or statute would allow the court to (1) continue to have oversight over the youths, such that it can ensure that they are receiving (and benefitting from) appropriate services; (2) enlist input from mental health and child welfare professionals about the youths progress; and (3) proactively reduce recidivism risk, thereby protecting the public's safety interests.

J. Remediation Services

The remediation services provided to youths determined to be IST should vary, depending on the etiology of the incompetence.³⁰³ For youths who are IST primarily (or at least in part) because of mental illness, some sort of psychiatric services should be provided. Obviously, the goal of such services is to reduce psychiatric symptoms, thereby remediating and correcting the youths' incompetence. This type of remediation service can be provided in either an inpatient or community setting, typically by a child and adolescent psychiatrist.

For youths whose incompetence is at least partially related to ID or DI, competence education services should be used to help improve youths' competence-related abilities. To provide such services, individuals should have specialized training in and knowledge about the intellectual capacities of children and adolescents based on their chronological age and development level and techniques or standardized programs for teaching youths information likely to remediate their incompetence, as defined by that jurisdiction.

Unfortunately, there is still a dearth of empirical evidence in general available on competence remediation for youths who are IST. Similarly, at present there is not sufficient support in the scientific literature for any specific remediation program, such that it could be considered an evidence-based practice. However, a few states, such as Florida and Virginia, have developed and operated juvenile competence remediation programs for several years, and these states (or local jurisdictions) are in the process of collecting and collating outcome data. Other jurisdictions (e.g., Los Angeles County) are in the process of implementing remediation programs and collecting initial data. Los Angeles County's program is somewhat shorter in duration and intensity than other programs (i.e., one to two hours/week for seven to eight weeks).

Generally speaking, successful juvenile competence remediation programs:

• attempt to help juveniles attain adjudicative competence if at all possible;

• provide services in the least restrictive setting allowed by the court;

• travel to where the youth is located to provide services;

• use counselors with a background in (special) education, social work, or psychology and special expertise in child mental health and forensic matters;

• are tailored to the individual needs of youths (generally via flexible implementation of a curriculum, although some jurisdictions have opted not to use a standardized program).

Regarding the limited remediation outcomes that are available, data from the Virginia program, which includes 563 juveniles from age 8 to 17 (at the time of their alleged offense), indicate that 73 percent of youths who underwent an outpatient competence remediation program eventually were found competent by the court.³²¹ The average length of remediation was 61 to 90 days. Perhaps not surprisingly, the highest rates of restoration (91%) were found for youths without mental illness (MI) or ID (presumably they were incompetent because of DI), youths with MI only (84%), youths with ID (56%), and those with both MI and ID (54%).

Data from the Florida program demonstrated that youths in the outpatient remediation program with IQs ≥50 eventually were deemed competent by their evaluators 60 percent of the time. The data are consistent with those in a prior study of Florida youths who were IST.³²² Among youths in the inpatient program, who underwent 155 to 185 days of remediation, 85 percent were said to be competent. Those with MI as the primary etiology of incompetence were restored (the nomenclature used in Florida) 86 percent of the time, whereas those with ID were restored 70 percent of the time.³⁰³

A. Number and Description of Competence Restorees

As noted in the introduction, although actual data are lacking for the number of evaluations conducted, if recent estimates concerning frequency of competence evaluations (60,000 a year) are correct and if around one-fifth of evaluees are deemed incompetent,^{6,247,323,324} approximately 12,000 U.S. defendants are found incompetent to stand trial each year.

Psychoses and intellectual disability are the most frequent causes of adjudicative incompetence.^226,275,323 A smaller number of defendants are rendered incompetent by mood disorders. Courts send most criminal defendants found incompetent to psychiatric hospitals for restoration, that is, for psychiatric treatment and education aimed at enabling the defendants to proceed with adjudication. At any point, roughly 4,000 U.S. defendants are hospitalized for this purpose.^146,168

A brief explanation may be necessary regarding the use of the word restoration in this context. Courts typically apply this term to the potential treatment of any defendant who is not competent, and to simplify exposition, the Resource follows this practice. However, some incompetent defendants (e.g., some persons with intellectual deficits or limited education) have never been competent and are therefore not having any previous condition restored. In their cases, competence-creating services might better be termed education, habilitation, or attainment.

B. Timely and Effective Restoration

Jackson v. Indiana²³ places on forensic hospitals some responsibility for developing efficient and effective treatment programs to comply with the limited periods allowed for restoration.

Studies examining the variables that lead to successful restoration have yielded mixed findings. Some have suggested that factors associated with failure of efforts at competence restoration and greater lengths of hospital stay include severe impairment in psycholegal ability, aggression toward others after arrest, and more severe psychopathology. A history of criminality and substance abuse at the time of the offense are associated with successful restoration.^233,266,326 Other research suggests that the use of psychotropic medications to treat psychotic symptoms is the only reliable correlate of competence restoration.²⁶⁷

C. Setting

In most jurisdictions, competence restoration takes place in inpatient settings. In 2003, Miller¹⁶³ reported that, in 18 states, judges were required to hospitalize defendants adjudicated as incompetent to stand trial, and an additional 21 states permitted hospitalization of incompetent defendants. Only five states required that incompetent defendants meet civil commitment criteria to be hospitalized for competence restoration. Despite the availability of some outpatient restoration programs, few states regularly used outpatient restoration. Wisconsin has an outpatient restoration program, consistent with the least restrictive alternative for placement.³²⁶ Jail-based competence restoration is nascent. A jail-based competence restoration program at West Valley Detention Center in Rancho Cucamonga, California, provided jail-based competence restoration for 192 defendants. It restored 55 percent of defendants to competence, substantially cutting cost and average days toward restoration compared with state hospital forensic bed restoration.²⁵⁹ Kapoor, on the other hand raised practical and ethical questions about its use.²⁵⁸ More recently, states have been faced with pressures to admit defendants to public state hospitals for restoration services who otherwise would be waiting in jails. Fuller et al.³²⁷ found that 18 states of those surveyed had waitlists for the IST population to enter the hospital, and several were facing litigation as a result, often related to waits in jail.

D. Methods of Restoration

Zapf³²⁸ developed guidelines for restoration programs and timeframes expected for restoration. In her review, typical restoration times for the most restorable defendants range from 90 to 180 days, except for defendants with ID or DD, who generally require more time. Many states have put tremendous resources into restoration services. Restoration of competence to stand trial involves two simultaneous processes. First, clinicians address treatable underlying mental disorders. This process does not differ from the treatment of mental disorders in nonforensic patients. It involves accurate assessment, appropriate medication when indicated, and psychosocial rehabilitation. Second, incompetent defendants are usually provided instruction in the legal concepts and details of the trial process. Although state budgets generally cover resources for restoration programming, recently the National Judicial College has indicated that the benefit of adding psychoeducation programs to restore competence to stand trial (e.g., education about trial participants and legal processes) for defendants with mental illness who could otherwise improve by treatment as usual has not been firmly established, nor has it been established that, when provided, the defendants are restored faster than they would have been if they had just received medication and rehabilitation for their underlying illness. Programs for individuals with intellectual disabilities, however, may require more intense programming and resources, and psychoeducational efforts may be the only method available to help them achieve sufficient competence to proceed to trial.³²⁹ Often, defendants' cognitive problems limit their capacities to benefit from instruction. For example, many intellectually disabled defendants have difficulty learning and retaining new information. Persons with schizophrenia may have cognitive impairments along with their psychotic symptoms that interfere with their ability to benefit from educational efforts.

Despite the findings of the National Judicial College, it is routine for incompetent defendants to receive psychoeducational programming to help restore their competence. Treatment planning on restoration units generally reflect the reasons for the incompetence and assignment to groups to help address the specific deficits involved. A few articles have provided descriptions of nonpharmacologic aspects of successful competence-restoration programs. (Defendants in most of these programs were also exhibiting symptoms of major mental illness and were probably receiving psychotropic medication in addition to the educational components of the program.) The following is a summary of these reports.

In 1980, Pendleton³³⁰ described the competence-restoration program at Atascadero State Hospital (California), which had restored 90 percent of the 205 criminal defendants admitted in 1978. Upon arrival, defendants underwent evaluation with the Competency to Stand Trial Assessment Instrument²²³ (discussed in Section VIII). This instrument identified specific deficits in each defendant's competence, and clinicians developed an individualized treatment plan to address each deficit. Defendants attended a competence education class and took a written competence test for which the passing score was 70 percent. Defendants then underwent mock trial proceedings with real judges and attorneys. After a passing the written competence test and successfully completing the mock trial exercise, defendants underwent formal clinical competence assessments by mental health professionals.

In 1985, Davis³³¹ described the competence-restoration program at a maximum-security forensic hospital in Columbus, Ohio. The hospital used problem-oriented individualized treatment plans for incompetent patients that followed the format used for most other psychiatric problems. Restoration of competence to stand trial was the main goal of the defendant–patient's treatment and took priority over other psychosocial problems such as poor job skills, lack of education or housing, or residual psychosis. Accordingly, each patient's treatments plan listed the following items that became a focus of treatment:

• knowledge of the charge;

• knowledge of the possible consequences of the charge;

• ability to communicate rationally with defense counsel; and

• knowledge of courtroom procedures; and capacity to integrate and efficiently use the knowledge and abilities outlined herein in either a trial or a plea bargain.

The incompetent defendant-patients became members of one of five groups, with specific treatment programs designed for each group. For example, patients placed in the “psychotic confused” group were those whose thought disturbances interfered with their grasp of the legal process or their ability to communicate. Their treatment programming focused on reality-testing skills and other standard treatment approaches of psychosis. Treatment teams monitored defendants' progress in these groups, and a mock trial took place at the end of the programming.

Brown³³² described competence restoration at the Alton (Illinois) Mental Health and Developmental Center. This program consisted of psychologist-led didactic groups that met daily for 30 to 45 minutes per session. The programming included discrete educational modules that lasted several days each and that addressed topics such as the elements of criminal charges, potential sentences, roles of courtroom participants, sequence of trial events, and consequences of pleas. Each module used handouts, videotapes, and a mock trial, and participants took written tests at the end of each module.

Noffsinger²⁶³ described educational modules used in the competence-restoration curriculum at Northcoast Behavioral Health care in Cleveland, Ohio. Table 2 describes the program's use of learning formats for various subject areas.

Wall and colleagues³³³ at the Rhode Island Department of Mental Health designed a program for restoring adjudicative competence of individuals with intellectual disability. The program included the following five modules presented in sequential order over a variable period: charges, pleas, and potential consequences; the role of courtroom personnel; courtroom proceedings, trial, and plea bargaining; communicating with one's attorney, giving testimony, and assisting in one's defense; and tolerating the stress of court proceedings. A retrospective study of 30 defendants found that significantly more persons who received the program (61.1%) attained competence than did persons who received traditional treatment alone (16.7%).³³⁴

Trainers met with defendants one to five days per week in sessions lasting for a few minutes to an hour and reviewed each module a minimum of three times. In the first phase of the program, defendants received basic information about the legal system for them to learn by rote. In the second phase, trainers again presented each module in sequential order, but asked defendants understanding-based questions in addition to knowledge-based questions.

The program was not intended to guarantee that every defendant with intellectual disability would become competent. Instead, the goal was to provide consistent education toward competence restoration, to communicate that effort to the courts, and to make accurate competence assessments. An independent psychiatrist assessed each defendant's progress toward competence, applying the same evaluation criteria as were used to evaluate persons with normal intelligence.

E. Proposed Elements of a Model Competence Restoration Program