Psych and Law Chapter Outline Exam 2

8/3/2019 Psych and Law Chapter Outline Exam 2

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Chapter 6

Confessions

- Historical and background and Current Legal Standing

o Many confessions dont come spontaneously

Result from intense police questioning/interrogation

y Promises, threats, harassment, and even brutality

o Miranda v. Arizona

Supreme court held that a confession resulting from an in custody interrogation

was admissible only, if in addition to meeting the standard for voluntariness, it

had been obtained after the police had read Miranda warnings.(pg 175 double

check)

Did not solve all problems with validity of confessions

Many waive their Miranda rights, and after a suspect voluntarily enters the

interrogation room investigators can use any # of tactics to obtain a confessiony Colorado v. Connelly

o Mental and psychological limitations/problems dont necessarily

lead to the conclusion that the confession was involuntary

y Jackson v. Denno

o Criminal defendants are entitled to pretrial hearing that

determines whether any confession made to officials was

voluntary and not because of coercion

This explicitly acknowledged the possibility of coerced

confessions

- Whittling Away at Mirandao Miranda v. Arizona

One of the most controversial criminal procedure decisions

Dickerson v. U.s

y Miranda was an illegitimate exercise of judicial power that freed

thousands of guilty defendants on technicalities

y Miranda warnings dont significantly deter people from confessing and

thatMiranda has become part of the national culture

1) Confessions that violate Miranda may be used to impeach a defendant

2) Confessions by defendants who dont fully the warnings may still be

admissible 3) To stop and interrogation, a request for lawyer must be unequivocal

4) Miranda doesnt apply unless the suspect is in the custody of the police

5) Miranda doesnt apply unless the defendant is being interrogated

6) The police arent required to tell the defendant anything more than what is

combined in the Miranda warnings



7) The police can mislead defendants about the evidence in order to get them to

confess

8) Miranda warnings are not required in situations in which public safety is a

concern

- The Validity of Confession of Evidence

o False negatives

When guilty suspects fail to confess

o False positives

When innocent suspects confess

o Proving that a confession is false

1) a suspect could confess to a crime that didnt occur

2) a situation where it was physically impossible for the crime to occur

3)the actual perpetrator is identified and his guilt is objectively established

4) when there is scientific evidence (like DNA) that establishes the defendants

innocence

- Inside the Interrogation Room

o No 3rd party tactics more like psychologically oriented coercion

Less blatant, may be more insidious

o Criminal Interrogation and Confessions

Outlines an interviewing/interrogating protocol that can be used to elicit

statements from witnesses

Techniques of social influences

y Small, bare, soundproof room sued for interrogating

o Devoid of sensory stimulation and distractions

o Invade the suspects personal space during questioning

y Interview begin with confronting the suspect with the suspicion of their

guilt

o Emphasize/exaggerate the strength of evidence against them

o Coerced-compliant false confessions

Suspects confess in order to escape or avoid continuing aversive interrogation

or to gain some sort of promised reward

o Coerced-internalized false confessions

Related to the manipulative techniques that were used during the interrogation

Can be directly related to the manipulative techniques that were used during

the interrogation

o Behavioral Confirmation

Self fulfilling prophecy

Target person (suspect) behaves in ways that support the initial belief

o Interrogators who assumed that suspects were guilty used more guilt based

interrogative techniques

Underestimated risks of behavioral confirmation in actual interrogations

o Source Misattribution



Mistaking memories that arise primarily from ones thoughts and images for

memories that arise primarily from ones thoughts and images for memories

that come from actual, experienced events

Imagining events in their life can increase peoples belief in the occurrence

events that didnt occur

o Priniciples of adult interrogation are just as applicable to use on juveniles

Juveniles sometimes confess falsely

- Inside the Courtroom

o If a defendant confesses while under sever interrogation, that confession may be

viewed as either as a reflection of the defendants true guilt or as means of avoiding the

negative consequences of silence

o Discounting principle

Have more doubts about the truth and reliability of a confession elicited by

threat than about one made in the absence of threat

y Give less weight to the confession because it was generated by the

threat of force

o Fundamental Attribution Error

When making attributions about other peoples behavior they dont give

significant importance to the external situation as a determinant

Instead they believe the behavior is caused by stable internal factors unique to

the actor

o Positive Coercion Bias

When confessions are non-coercively encouraged by interrogators who

sympathetically attempt to minimize the severity of the charges or the

culpability of suspects during questioning

Willing to vote guilty even when they see the confessions as being involuntary

- Reforming the System to Prevent False Confessions

o Many advocate the recording of all police interrogations

o More than half of all alw enforcement agencies record at least some of their

interrogations

o Filming can be an effective tool but it must be used judiciously

Entrapment

- In efforts to catch criminals police may induce law-abiding citizens to commit crimes they

otherwise wouldnt have committedo This practice is called entrapment

- Defendants can claim entrapment under two explanations

o 1) they were induced to break the law by a person/persons working for the police

o 2) they werent predisposed to break that law

Police created a crime that wouldnt have otherwise occurred

- Proactive law enforcement necessitates deception



- Sherman v. U.S

o trap for the unwary innocent and the trap for the unwary criminal

- Objective Approach

o Focuses on the situational factors that may have prompted commission of a crime

- Subjective Approach

o Focuses on the offenders subjective state of mind rather than the objective facts of the

police methods

Must prove they were induced or persuaded to commit the crime

- Respond to the claim of Entrapment

o 1) the police didnt induce the defendant to commit the offense but rather just provided

an opportunity

o 2) even though police induced the defendant to commit the offense, he/she was

predisposed to commit it anyway

If so, whether the predisposition originated before or after police contacts

y Jacobson v. U.S

o Child porno

- U.S. v. Twigg

o Most often cited authority for the due process defense

Speed Lab

y Government too involvedgovernment has manufactured the drug the

defendants were accused of conspiring to sell

o Supplying the person who harbors general criminal tendencies with the means and

opportunity to commit a crime that they wouldnt have otherwise committed is

unacceptable

- Average citizens reaction to the defense of entrapment?

o 1) difficulty understanding the judges definitions of entrapment

o 2) when evidence indicates that the defendant may have been ready to commit the

offense in the absence of inducement and when he has a prior conviction he is more

likely to be convicted

o Most likely to acquit the defendant in the scenario that described low predisposition

and high inducement



Chapter 7

Steps Between Arrest and Trial

- Initial Appearance

o Taken soon after the arrest

o Key players: judge and defense counsel

o 4th

amendment requires that the arrestee be brought before the judge w/in 48hrs of his

arrest

We inherited this from England

o Primary purpose

Judge review the evidence summarized by the prosecutor to determine whether

probable cause exists for believing the suspects committed the crimes charged

- Preliminary Hearing

o One purpose: to filter out those cases in which the prosecutions proof is insufficient

o Hearsay

One witness may summarized what another said earlier

Is admissible at this hearing

A victims account of a crime may be presented thru the testimony of the

investigating officer

o Cross examination by defense lawyers is limited to the issue of probable cause

Defense lawyers often waive prelim because of publicity it may receive and

make it difficult to find an impartial jury

o At times serves an opportunity for defense to seize up prosecutions case and their chief

witnesses

o Judge bind defendant to grand jury, or reduce charges, reviewed the amount of bail

originally set

- Grand Jury

o Meets in private w/prosecutor to investigate criminal activity and return indictments

Indictments: a complaint prepared and signed by the prosecutor describing the

crime charged

y Written by grand jury accusing one or more persons of one or more

crimes

y Inform defendants of the nature of the charges against them

o Gives them an opportunity to prepare a defense

o Issues subpoenas, compels reluctant witnesses to testify, protecting those accused of acrime from unjust prosecution

o Listens to the witnesses called in by prosecutor

o In all states the defendant may testify with the consent of the grand jury

Often interested in both sides of the story and may reward testifying defendants

by refusing to indict

- Arraignment



o Judge makes sure the defendant has an attorney and appoints one if necessary

o Indictment read to the defendant and then asked to plead guilty or not guilty

o Provide opportunity for discovery

Which means that the defendants attorney gets to examine some of the

evidence against the defendant

o Also opportunity for plea bargaining

- Discovery and Pretrial Motions

o Defendants and their attorneys want to be aware of the materials the prosecution will

use to prove its case

o Exculpatory evidence

Tends to show the defendant to not be guilty or suggests that prosecution

witnesses are not credible

o Brady V. Maryland prosecution must disclose to the defense evidence in its possession

favorable to the defendant

o The extent to which discovery occurs is determined by local statues not constitutional

right

o Many cases prosecutors provide open file discovery even tho theyre not obligated to

do so

Encourages a guilty plea and avoids a trial

o Discovery 2 way street

Defense turns over materials that the prosecution is also required to turn over

Give pretrial notice to give the state an opportunity to investigate the claim and

avoid being surprised at trial

y State required to notify the defendant of witnesses it would call to

refute the defense

o During discovery phase, pretrial motions are filed by both sides

Defense usually wants dismissal

Both seek favorable rulings on admissibility of evidence and explore the

possibility of a plea bargain

o Most common pretrial motions

1) Defense motion for separate trials

y If 2 people are jointly indicted one of them can be counted on to move

for a separate trial

2) Defense motion to sever counts

y Defendant may move for separate trials on different offenses

y Jury will be tempted to combine evidence and introduce on separate

crimes to find defendant guilty

3) Defense motion for change of venue

y Community opinion (usually product of prejudice pretrial publicity)

make it impossible for fair jury

4)Defense motion to dismiss on speedy trial grounds



y Delay in trial is cause for dismissal if prosecutor was attempting to

obtain an unfair advantage and defendant was harmed by the delay

o Like cruicial defense witness died

y Dismissals with prejudice are rarely granted

5) Defense motion to dismiss on grounds of selective prosecution

y Many participants but only a few are charged

y Selective enforcement and prosecution are unconstitutional

y Drug trafficking crimes

y 12% of U.S population is black and 90% of defendants prosecuted in

federal courts for trafficking crack coke are black

o Mere disparitycant claim defendants were selected for

prosecution based on race

6) Defense motion to dismiss on double jeopardy grounds

y 5th amendment: no person shall be subject for the same offense to be

twice put in jeopardy of life or limb

o Only and only one fair chance to convict

o Cant be retried

o Doesnt protect against 2nd prosecutions for some crime by

another state or by federal government after a state

prosecution

7) Defense motion to suppress evidence on 4th

amendment grounds

y Exclusionary rule

o Requires court to suppress evidence obtained in violation of

defendants right under 4th

amendment to be free from

unreasonable search and seizures 8) Defense motion to suppress a confession or other statement by defendant

y 5th

amendment protects against self incrimination

y Typically defense counsel files a motion alleging the confession was

obtained in violation of the defendants constitutional rights

o Prosecutor files written response and court holds hearing at

which defendant and police give their versions of what

happened under which the confession was obtained

o Who is telling the truth usually ruled in favor of the police

y 9) Discovery motions

o When a dispute arises in the discovery process either side canask the trial court for assistance

y 10) Motions in limine

o Most common pretrial motions are those that seek advance

rulings on evidentiary issues that will arise at trial

o Pretrial ruling on a certain piece of evidence to plan the opening

statement



o Motion in Limine

Simply a request for a pretrial ruling

Judges not constitutionally required to grant this but

most will cooperate with attorneys who are trying to

avoid mid trial problems

Decision to Set Bail

- Released on Recognizance (ROR)

o Minor offenders

Their promise to appear

- Purpose of Bail

o Determines whether theyre detained or released before trial

o When bail is higher than what they can afford they have no choice but to remain in jail

- What Considerations Affect the Decision to Set Bail

o Traditionally, The degree of risk that the defendant will not appear for their trial

o Around 1970 increase the use of preventive detention

Detention of arrested persons who pose a risk of flight or dangerous

o Bail Reform Act of 1984

Ensure that judges consider community safety when they set bail for criminal

defendants

o Preventative Detention of Defendants

If prosecutors could establish probable cause that the defendants committed

the crimes charged and convince judge that safety of community or other

person would be jeopardized if defendant released on bail

Based on the grounds that theyre dangerous; not a federal law but on the books

Race and gender influence pretrial detention

y Hispanic and AAs

Ability to post bail

y Minority defendants less able to do so

Female more likely to be released than males

o Best predictor of judicial behavior on the bail question if what the prosecutor asks for

Prosecutors request

Position of the police

Actions of previous court

*these are all better predictors than other models incorporsting various factorsthought to be relevant to the bail setting decision*

**E.g, defendants record, seriousness of defense*

- Can High Risk Defendants Be Identified?

o Judges have difficulty knowing which defendants are dangerous and which can be

trusted



o Assessing risks and predicting violent behavior are difficult tasks and difficult making

accurate long term predictions

o Goldkamp and Gottfredson Study

Within 90 days of release, 17% had been arrested either for a new crime or for

failing to appear as required in court

Factors that predicted new offense/failure to appear in court

y If defendant lived alone, orginal charge was for robbery or property

offense, they had previously had failed to show up, arresting officer

noted factors at time of arrested suggesting a risk of fleeting

- Does Pretrial Release Affect Trial Outcome?

o Yes

o Defendants who are detained in jail are more likely to plead guilty or be convicted and

to receive higher sentences than those who can afford bail..even when seriousness and

evidence against them are the same

o Some suggest that prosecutors use pretrial detention as a resource to

encourage/coerce guilty pleas

o Likely to cost defendants their jobs = harder to pay for attorney threat of it may make

them more likely to plead guilty

o Jailed defendants cant meet with lawyers and less time to prepare for trial, less access

to records and witnesses, erodes family and community ties

o Opposition to Pretrial Detention

Conflicts with society fundamental assumption that youre innocent until proven

guilty

Plea Bargaining

- Sometimes pretrial detention is used as a bargaining chip to encourage/coerce a guilty plea

- No better example of the dilemma between truth and conflict resolution like plea bargaining

- 85% of criminal cases end between arrest and trial

o Primarily when the defendant pleads guilty to some charge usually in exchange for a

concession by the prosecutor

Both mundane and serious cases

- Some defendants plead guilty with no promise of leniency because they chose to end the

process as quickly as possible and get on w/serving their sentences

o However most plead guilty as a result of negotiation

Part of the bargain is admission of guilt

- Prosecutors offer plea deals cause they worry they might have trouble w/their evidence at trial

- Many states allow deferred prosecution for minor crimes

o 1st time offenders placed on probation and have charges against them dismissed if they

stay out of trouble during probation

Saves time, expense, and uncertainty of trial



- Charge Bargaining

o Common procedure

o Prosecutor drops some charges in return for a guilty plea

o overcharging effective

More likely to accept a plea bargain when relatively many charges had been

filed against them

- Sentence Bargaining

o Plea bargaining may take this form

o Prosecutors recommend reduced sentences in return for guilty pleas

o Defendants try to negotiate a plea to get less severe punishment if they were to go to

trial

- Prosecutors are motivated for plea bargaining because

o 1) to dispose of cases in which the evidence against the defendant is weak or defense

attorney is a formidable foe

o 2) to obtain the testimony of one defendant against a more culpable or infamous

codefendant

o 3) to expedite the flow of cases for an overworked staff

o 4) maintain cordial working relationship with defense attorneys from whom they might

want favors from in the future

o 5) avoid trials that might be unpopular because defendant is well liked figure in the

community

- U.S Sentencing Comissions Sentencing Guidelines

o Assign an offense level to each offense

Adjusting up or down according to what happened

o Defendant assigned a criminal history category

o presumptive sentence range

However if defendant accepts responsibility theyre entitled to a 2 level

decrease in the offense level

o Court may not use these when the defendant has provided assistance in the

investigation aka snitched

- Evaluations of Plea Bargaining

o Supreme Court calls it an essential component of the administration of justice

o Guilty pleas must be voluntary, intelligent, and knowing

o Plea can be voluntary even if encouraged by threat of more charges should they insist

on going to trial

o Remains a controversial procedure

o Advocates justify by

1)admission of guilt is 1st

step of rehabilitation

2) guilty pleas relieve backlogged cases

3) outcomes reached promptly and with finality

4)other participants benefit (officers, victims, etc)

5) defendants cooperation my facilitate prosecution of others



o Critics urge abolishment.

1) improper sentences

2) encourages to surrender constitutional rights

3) prosecutors exert too much power in negotiating guilty pleas

4) process is private and encourages shady deals

5) innocent defendants maye feel coerced to please guilty because they fear the

more severe consequences of being convicted by a jury

o Not as evil or essential as both sides claim

Rate of plea bargain are consistent across rural and urban jurisdictions

o Risk of innocent parties pleading guilty is uncertain

Guilty parties are more likely to plea-bargain than are the innocent

o Defense attorneys appeal plea bargains to prosecutors by...

1) Trying to offer something to benefit the prosecutor, enhancing the value of

the benefit as much possible without misstating facts

y Guilty pleas eliminate uncertainty of outcome of trial

2) offer prosecutor the chance to do the right thing for a client who deserves a

break

Many prosecutors are open to alternatives to jail

o Its wrong for someone to be able to plead guilty cause the system lacks the resources to

handle the case

- Ethical Issues in Plea Bargaining

o May work against the long range goal of achieving justice

o May prevent families of victims from seeing the defendant get justice or hearing them

acknowledge full responsibility for their offenses

o The use of criminals as prosecution witnesses

Occurs when lawbreakers turn states evidence to avoid prosecution or to

reduce their own penalties

y Ex: drug trafficking; the mule has no info and doesnt get a break

Reward informants to find/convict perpetrators of more heinous crimes

Pretrial Publicity

- Conflicting Rights

o 1st

amendment: freedom of speech

Written and spoken word; press and individuals

o 6th

amendment: right to a speedy, public trial before an impartial juryo Press published info that can threaten a defendants right to a trial by impartial jurors

Ex: Martha Stewart, Michael Jackson, Catholic Priests, etc

o Common problem

Local media releases incriminating info that is later ruled as inadmissible at a

trial

y Can bias the opinion about the defendant



y Difficult to disregard previously acquired info

Local new coverage in small towns have a greater impact than in large cities

o Cases w/extensive pretrial publicity courts must answer 2 basic questions

1) does publicity threaten the fairness of a defendants trial?

2) if the answer to above is yes what steps should be taken to remedy the

situation?

- Court Decisions on Pretrial Publicity

o free press/fair trial controversy has several phases

o Phase 1

Q uestion of pretrial publicity was evaluated in terms of effects of jurors

reported it to have on their minds

o Phase 2

Whether jurors own assurances of impartiality in the face of massive amounts

of prejudicial publicity constituted a sufficient protection for defendants

subjected to this publicity

Exposure to news that included info strongly pointing to the defendants guilt

was a violation of due process

o Phase 3

Concerned with various preventive or remedial techniques for adverse pretrial

publicity

Judge to order the press not to publish pretrial info likely to be prejudicial aka a

Gag Order

y Press cant be barred from attending and reporting a trial because of 1st

amendment (guarantees public access to criminal trials)

y Press can be excluded from pretrial hearings in which prejudicial

material might be an issue

o Phase 4

presumption of correctness should be given to the trial judges opinion

because being present at the trial, the judge was in a better position to evaluate

the demeanor, credibility, and competence of prospective jurors

o Issue is that there are many reasons why ppl may not admit the full measure of their

prejudice in public

o Evaluation Apprehension

Provide answers that they perceive the judge wants to hear, regardless if theyre

being truthful or noto Defendants dont have the constitutional right to ask prospective jurors if theyve been

exposed to pretrial publicity

- Effects of Pretrial Publicity

o Experimental Studies

Participants are exposed (or not exposed) to some form of publicity and then

asked to assume the role of juror in a simulated trial



y Points to the conclusion that jurors may adversely be affected by

pretrial publicity and that can prejudice them in surprising ways

Researcher manipulates presence of publicity and measures impact on juror

decisions

y Recently looked at effects of varying amounts of negative info in pretrial

publicity

These studies generally show the pretrial publicity affect jurors evaluations of

defendants character, their feelings of liking and sympathy of them, pretrial

sentiments of guilt, and their final verdicts

y Also defendant will be more likely to find liable in the aftermath of

negative pretrial information

TV publicity has the greatest biasing impact but combined TV and newspaper

had the greatest impact of all

y People usually generally unaware their opinions have been biased

Specific Pretrial Publicity

y Showing that case specific information made available prior ro trial can

affect sentiments of jurors in that trial

General Pretrial Publicity

y Media coverage of issues not specifically related to a particular case but

relevant to the issues at hand

y Probably works by transferring preexisting prejudices and stereotypes

about categories of ppl to a particular defendant in a trial setting

o Racial and ethnic most common

o Field Studies

Consistently find that ppl exposed to pretrial publicity posses more knowledgeabout events in question and more likely to have prejudged the case, more

knowledgeable of incriminating facts that would be inadmissible at the trial

y Move trial?

o Ex: Oklahoma City Bombing

Participants typically asked about their knowledge of the crime in question,

their perception of defendants culpability, and their ability to be impartial in

light of their knowledge

Generic prejudices can also be endangered by publicity about jury damage

awards and tort reform in civil cases

Survey studies have several strengthsy Use large representative samples of prospective jurors

y Rely on naturally occurring publicity about actual cases

Survey studies also have several weaknesses

y Data is correlational in nature

o Cant indicate direction of relationship b/w exposure of publicity

and prejudice



y Courts shouldnt conclude that pretrial publicity biases jurors because it

saffects their attitudesto be truly prejudicial it must also affect their

verdicts

o Prospective jurors influenced by other things

Juror has direct ot indirect interest in outcome of the trial or perceives there is a

strong community sentiment in favor of a particular outcome in the case

- Remedies for the Effects of Pretrial Publicity

o 1) Continuance

Trial can be postponed for a later date with the expectation that the passage of

time will lessen the effects of prejudicial material

May decrease jurors recall of factual evidence and use emotional instead

(biasing)

o 2) Expanded Voir Dire

Q uestioning of potential jurors

Can be valuable but not always adequate

Can hide their true feelings if they choose

Allows attorney to make informed decisions about which jurors to excuse

o 3) Judicial Instructions

Involves instruction from a judge to the jurors to base their decision on the

evidence rather than on nonevidentiary info

y May have unintended consequence of drawing their attention to it

(bad)

o Boomerang effect

o 4) Imported Jurors

Imported jurors from another county

Judges often reluctant to do this because its inconvenient and expensive

- ** first 3 ineffective based on research and 4th is seen as not practical**

- Once the idea that someone is guilty it may become an organizing principle for the processing of

additional information about the person

o Also if people try to suppress forbidden thoughts they often find that the thoughts

become stronger/more frequent

o 5) Change of Venue

Most extreme remedy for pretrial prejudice

Expensive, inconvenient, time consuming so courts reluctant to use them

Trials should be moved to locations where the demo are similar to those of

original venue

o When pretrial contimaination is extensive a professionally conducted public opinion

survey is the technique of choice for evaluating the degree of prejudice in the

community

Change of Venue Surveys



1) Planning the survey and designing the questionnaire

o Scripts written for telephone interviews

2) Training the interviewers

o Administer questionnaire in standardized fashion

o Interviewers, if poss, be blind to the purpose of survey

3) Drawing the sample

o Must be drawn at random for the results to be valid

o Surveyed in e2 places; original county and a comparison county

4) Presenting the results

o Prepare an affidavit

Written report sworn to be truthful

o OR expert tstifies in person about the design, results, and meaning

This way is stronger



Chapter 8

The Scope of Forensic Psychology

- Use knowledge and techniques from psychology, psychiatry, and other behave sciences to

answer qs about indiv involved in legal proceedings

- Of expert witnesses called 40% were in the mental health field

- The law permits and encourages the use of expert testimony in a host of areas

- Daubert Standard

o Suggests that for expert testimony to be admitted the expert should have relied on

methods and knowledge that are scientifically based

o This requirement also applies to opinions that are tied to the technical or professional

skills of practitioners and clinicians

Competence

- Refers to defendants capacity to function meaningfully and knowingly in a legal proceedingo If declared incompetent they are seriously deficient in one or more abilities

Like understanding the legal system, communicating with their attorneys,

appreciating their role in proceedings, and making legally relevant decisions

- One fundamental principle

o Criminal proceedings should not continue against someone who cannot understand

their nature and purpose

- Have to be competent because

o Competent defendants must be able to understand the charges against them

o Punishment of convicted is morally acceptable only if they understand why theyre being

punishedo Have capacity to defend themselves against the charges of the state

- Adjunctive Competence

o Competence to Stand Trial

Sufficient present ability to consult with ones attorney with a reasonable

degree of rational understanding amd as well as factual understanding

o Competence to Plead Guilty

Would require defendants understand the alternatives they face and have the

ability to make the reasoned choice among them

o Dusky Standard is what the majority use for both competencies

o No plea of guilty (nolo contendere)

Should be accepted from a defendant who is mentally incompetent to enter a

plea of guilty

o Adjunctive competence

A better concept for describing the multiple abilities that criminal defendants

are expected to exercise in diff legal contexts

o Foundational Competence



Q uestion of whether the defendant has the capacity to assist counsel

3 requirements

y 1) ability to understand the basic elements of the adversary system

y 2) ability to relate to ones attorney information that is relevant to the

case

y 3) ability to understand ones situation as criminal defendant

o Decisional Competence

4 interrelated abilities

1) understanding info relevant to decisions the defendant must make

2) thinking rationally about the alternatives involved

3) appreciating he specific legal questions one must resolve

4) making and expressing a choice about ones legal alternatives

o This is standard across all American courts

Basic criteria for competence

These refer to PRESENT abilities rather than mental state of the defendant at

the time

- Evaluating Competence

o Physicians, psychologists, psychiatrists, social workers all authorized

o Presence of mental illness/retardation doesnt guarantee theyll be found imcompetant

to stand trial

o Current competent evaluations focus on the defendants present ability to function

adequately in the legal process

o CST Competency Screening Test

22 item sentence completion tasl

Q uickly identified those who are competent

o CAI

More indepth, one hr interview

o IFI

Specific legal areas

o GCGT

Highly reliable, 3 dimensions

o Malingering

Faking or grossly exaggerating mental illness

18%

M

-F

AST

: identify those who are faking mental disorderso State can require defendant to prove that theyre incompetent

Not Oklahoma, Pennsylvania, Connecticut, and Rhode Island

y Higher standard of proof: clear cut and convincing

- Results of Competence Evaluations

o About 70% of those referred for evaluation are found to be competent to stand trial



o Judges seldom disagree with clinicians decisions about competence and opposing

attporney will often stipulate (agree without further examination) to their findings

o IST Defendants: For crimes that arent serious, the charges are occasionally dropped,

sometimes in exchange for them to receive treatment

o Most defendants have their adjunctive competency restored with about 6 months of

treatment

o Many state permit the defendant to be hospitalized for a period up to the maximum

sentence they could receive if they were convicted of charges

They can be found unrestorably competent

y State must show person is mentally ill and danger to themselves or

others or so disabled they cannot care for themselves

y Some states confine incompetent individuals for indefinite periods

- Amensia and Competence to Stand Trial

o Law doesnt assume per se that amnesia is incapacitating

Case-by-case basis

y Extent of amnesia to consult and assist counsel

y Ability to testify at trial

y Extent that evidence reconstructed by others

y Extent prosecution assisted in that reconstruction

o Must judges believe amnesia can be easily faked

- Competent with Medication, Imcompetent without

o Meds have been treatment of choice because its assumed its the best for restoring

competence

o If medicated will they be found to be competent to stand trial even though the

medication might undercut a defense such as insanity?- Other competence issues

o Waive Miranda Rights

6th amendment

y Right to be represented by counsel when in police custody

y Have right to waive counsel and represent yourself at trial, provide this

decision is made competently

o Ex: Colin Fergurson

o Competency to Refuse Insanity Defense

o Competence to be sentenced

Do they understand the punishment and the reasons why its being imposed?

The Insanity Defense

- Harder to find someone not guilty by reason of insanity in some states than others because of

diff definitions of insanity

o Idaho, Kansas,Montana, Utah abolished insanity defense

They do allow info about mental condition at the time of the offense



- Must determine whether they were insane at the time of the crime, possibly months or years

before

- Fewer instruments designed to specifically asses insanity than to asses competency

o RCRAS

Only formal instrument w/some proven reliability and validity for insanity

evaluations

- Insanity is a legal concept, not a medical or psychological one

- Rationale for Insanity Defense

o Allowing someone to plead not guilty by reason of insanity reflects a fundamental belief

that society shouldnt punish people who dont know what theyre doing or incapable of

controlling their conduct

o Judgment that someone is not competent doesnt make the individual not responsible

for an illegal act

It only delays the determination of whether the individual is guilty

Competency refers to the defendents relevant legal capacities at the time of the

proceeding

Insanity refers to the defendants mental state at the time the offense was

committed

o If pleading insanity you have to present evidence that would disprove the presumption

of criminal responsibility in their case

Known as affirmative defense

o Mens Rea

Mental state of knowing the nature and quality of the forbidden act

- MNaughten Rule

o In all cases every man is presumed to be sane, posses a sufficient degree of reason to be

responsible for his crime until the contrary can be proved to their satisfaction, defense

on grounds of insanity must be clearly proved that at the time of committing the act

Disease of mind, didnt know what they were doing was wrong, or the

quality/nature of it

o Criticized for being too restrictive

- Brawner Rule

o Defendant is not responsible for criminal conduct if at the time the conduct was a result

of mental disease/defect

Appreciate criminality of their conduct

o This standard alloes consideration to whether mentally ill defendants have the capacity

to understand the nature of their acts or to behave in a lawful way

Incorporates emotional, cognitive determinats of criminal actions

Also includes both a cognitive and volitional element making the inability to

control ones actions a sufficient criterion by itself for insanity

- Insanity Reform Act

o Prohibited experts from giving ultimate opinions about insanity



o Placed on the defendant the burden to prove insanity by clear and convincing evidence

replacing that the prosecution prove a defendants sanity beyond reasonable doubt

- Empirical Evidence to Insanity Defense

o Jurors only 51% correct on series of questions testing their comprehension about the

MNaghten rule

o Thousands of seriously mentally ill people live disoriented and disrupted lived byt they

never murder anyone

- NGRI (not guilty by reason of insanity)

o 22.5% of insanity acquitees had been charged with murder

o 64% had been charged with crimes against persons

o Majority have been diagnosed as psychotic

o Dont appear crafty

Significantly lower IQ scores than those who pleaded insanity but were

convicted

o 1 out of 4 or 5 defendants being assessed for insanity engages in at least moderate

malingering mental disorders

Research has found

y Most NGRI defendants have record of prior arrests and convictions but

this rate doesnt exceed that of other felons

y Come from lower SES

y Prior history of psychiatric hospitalizations and been diagnosed with

serious forms of mental illness

y Previously had been found incompetent to stand trial

y Female backgrounds similar to male counterparts

o The more serious the crime the longer the confinement for those found NGRI

o Conditional Release

Monitored and supervised by mental health personnel

o Are quickly committed to an institution following their acquittal

- Current Criticisms of Insanity Defense

o Confinement is indeterminate for NGRI whereas criminal convictions are determinate

- Revisions and Reforms of Insanity Defense

o Guilty but Mentally Ill (GBMI)

Typically will sentence as the same defendant found guilty of same offense

Intent for prisoner to start term in hospital then transferred to prison after

treatment is completedy Problems over overcrowding at hospitals, some sent straight to prison

with no treatment

- Diminished Capacity Defense

o Legal doctrine that applies to defendants who lack the ability to commit a crime

purposely and knowingly

Usually involves evidence that they suffer a mental disorder



Differs from insanity because It focuses on whether defendants had the state of

mind to act w/purpose and intent to commit a crime

y Thats to think through the consequences of their contemplated actions

o Not one whether they knew the crime was wrong or control

their behavior

y Offenders should be convicted of the crime that matches their mental

state

Psych and Law Chapter Outline Exam 2

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