Is There Bias in the Evaluation of Fitness to Stand Trial?

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Introduction

In both Canadian and U.S. criminal law, there is a principle that criminal defendants must be present mentally and physically during their court proceedings. In the United States, the Supreme Court provided a set of criteria known as the Dusky Standard to be used by courts in assessing a defendant’s “competency to stand trial.” This standard stipulates that the court must determine whether a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and whether the defendant has a “rational as well as factual understanding of the proceedings against him” (Dusky v. United States, 19601). In Canada, the Criminal Code (1991)2 defines a defendant as unfit to stand trial if, because of a mental disorder, the defendant is unable to understand the nature and object of the proceedings, understand the possible consequences of the proceedings, or communicate with counsel. Despite semantic differences in the legal terminology of these two countries, the Canadian and U.S. standards share the same conceptual basis Nicholson and Kugler 1991, Rogers, Gillis, McMain, & Dickens 1988.

Across various jurisdictions, the standards for assessing fitness have remained unclear Freckleton 1996, Whittemore and Ogloff 1994. At the same time, concern regarding a defendant’s fitness to stand trial is one of the most significant issues facing mental health professionals within the criminal law system (Stone, 1975). Investigators have attempted to identify the factors associated with competency decisions by examining demographic, clinical, and psychological variables that serve to differentiate defendants found fit from those found unfit (Cooper & Grisso, 1997). The underlying question is whether mental health professionals form judgments about competency in a fashion that is consistent with the legal standards. For example, Roesch and Golding (1980) reported that clinicians tend to judge a defendant fit to stand trial in the absence of psychosis, and unfit to stand trial if such a mental disorder exists. This simple dichotomy ignores the fact that the mere presence of mental illness is insufficient to meet the legal criteria defining unfitness to stand trial. Rogers, Gillis, McMain, and Dickens (1988) found that they could predict fitness decisions with 71% accuracy given information only about the defendant’s gender, race, and age, raising the question of possible extra-legal bias in the evaluation process.

In an effort to integrate the available research findings, Nicholson and Kugler (1991) quantitatively reviewed 30 studies that had focused on competent and incompetent defendants. They obtained strong and significant correlations between a finding of unfitness to stand trial and both a defendant’s (poor) performance on tests assessing legally relevant functional abilities, and the presence of a psychotic diagnosis and/or symptoms indicative of serious psychopathology (e.g., delusions, bizarre behaviours). Because these variables are consistent with the legal standard of fitness, Nicholson and Kugler concluded that decision makers appear to formulate their judgments according to the legally relevant criteria.

Nicholson and Kugler (1991) also reported reliable and significant correlations between fitness decisions and four of the sociodemographic variables they studied. However, the variance in fitness status accounted for by these legally irrelevant variables was less than 1%, leading the authors to conclude that the social and economic resources of the defendant appear to be largely irrelevant in the eyes of the clinical decision maker. In contrast, they found the absence of previous legal involvements and the presence of prior psychiatric hospitalizations to be strongly and significantly correlated with a finding of unfitness to stand trial. They also found a weaker, but nonetheless significant, correlation between the level of violence of the crime with which the defendant is charged and a finding of incompetency, but only in inpatient settings. These correlations between fitness decisions and three variables that are not dispositive of unfitness according to the legal criteria raise the possibility of bias in the fitness evaluation process.

Although the findings of Nicholson and Kugler (1991) suggest a relationship between judgments of unfitness and certain legally irrelevant variables, the correlational nature of their research prevents the determination of causal relationships. For example, their finding that defendants charged with violent crimes are more likely to be found unfit to stand trial than defendants charged with nonviolent crimes could indicate either that people who commit violent crimes are more likely to meet the legal criteria defining unfitness to stand trial, or that people who commit violent and nonviolent crimes are equally likely to meet these legal criteria, but that a charge of a violent crime serves to bias decision makers.

In the present investigation, the effects of legally relevant and legally irrelevant variables on evaluations of fitness to stand trial were examined by manipulating a specific set of variables in a series of hypothetical case vignettes.

Section snippets

Participants

All psychiatrists listed in the Ontario section of the 1988 Canadian Medical Directory were solicited to participate in the study. This group was selected because, in Ontario, opinions regarding the fitness of a defendant to stand trial may be rendered to the court only by a physician. Psychiatrists are the physicians most qualified to make such a determination.

Materials

A set of eight hypothetical case vignettes, each depicting a 32-year-old white male criminal defendant referred for a fitness

Respondents

One thousand sixty-four psychiatrists were solicited to take part in the study. Of this group, the 318 (30%) who returned the response form served as participants (18% were female). The sample appears to be representative of psychiatrists in Ontario. The participating psychiatrists represented all major practice environments6

Discussion

Psycholegal criteria have been set out in Canada11 and the United States12 to be used in determining whether a criminal defendant is fit to stand trial. Forensic clinicians have been criticized for paying too little attention to these criteria in making their fitness evaluations (e.g., Roesch & Golding 1980, Rogers, Gillis, McMain, & Dickens 1988). Recent evidence suggests that the strongest correlates of fitness decisions are indeed the appropriate psycholegal

Acknowledgements

This article was based on the doctoral dissertation of the first author. It was supported in part by a grant from the University of Windsor Research Board.

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