The Journal of the American Academy of Psychiatry and the...

The Journal of the American Academy of Psychiatry and the LawVolume 46, Number 3 Supplement

Table of Contents

Statement of Intent and Development Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S4

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S4

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S5I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S5

A. History of the Competence Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S5B. Landmark U.S. Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S6

1. The U.S. Constitutional Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S62. Required Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S73. Competence Evaluations and the Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S84. Burdens of Persuasion and Standards of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S85. Pretrial Management of Defendants with Mental Disabilities . . . . . . . . . . . . . . . . . . . . . . .S106. Standards for Waiving Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S12

II. Special Topics in Recent U.S. Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S13A. Mental Conditions and Adjudicative Incompetence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S13B. Competence and Criminal Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S14C. Attorney’s Failure to Challenge Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S14

1. Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S15D. Personality Disorders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S15

1. State Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S152. Federal Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S16

E. Defendants With Impaired Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S17F. Amnesia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S18G. The Pro Se Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S19

1. Historical Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S192. Legal Criteria for Permitting a Pro Se Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S203. Deportment and Rationality of Pro Se Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S21

H. Malingering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S21III. Agency Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S22IV. Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S24

A. The Ethics Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S24B. Conflicting Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S25C. Scope of Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S27D. Honesty and Objectivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S27E. Confidentiality, Notice, and Assent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S28F. Knowledge of the Jurisdiction’s Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S29G. Interaction with Other Professions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S29H. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S29I. Acknowledging Limitations of the Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S29J. Complaints of Ethics Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S30

V. Cultural Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S30A. The Cultural Context of Adjudicative Competence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S30B. Cultural Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S31C. Culturally Competent Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S31

S1Volume 46, Number 3, 2018 Supplement

1. Common Interview Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S312. Acceptance of Cultural Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S323. Knowledge, Skills, and Attributes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S324. Communication Styles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S325. Transference and Countertransference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S326. Language and Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S327. The Examination Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S33

VI. The Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S33A. Preparing for the Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S33B. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S33C. Providing Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S34D. Obtaining Background Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S34E. Mental Status Examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S34F. Questions Specific to Adjudicative Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S35G. Eliciting the Defendant’s Account of Events That Led to the Charge. . . . . . . . . . . . . . . . . .S37H. Psychological Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S38I. Instruments Specifically Designed to Aid Assessment of Adjudicative Competence . . . . .S38J. Special Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S39

K. Contextual Variables and Assessment Accuracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S39VII. Collateral Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S39

A. Value and Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S39B. Incriminating Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S40C. Obtaining Collateral Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S40D. Managing Collateral Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S40E. Common Types of Collateral Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S40

1. Written Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S402. Collateral Interviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S41

VIII. Assessment Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S41IX. Formulating the Forensic Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S46

A. Psychiatric Symptoms or Diagnosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S461. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S462. Special Diagnostic Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S47

B. Relationship Between Psychiatric Impairment and Trial-Related Abilities . . . . . . . . . . . . .S481. Factual Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S482. Rational Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S483. Ability to Assist Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S49

C. Potential for Restoration: Least Restrictive Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S49X. Preparing the Written Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S51

A. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S51B. Report Formats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S51C. Introductory Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S52D. Background Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S52E. Description of Mental Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S52F. Description of Functioning Related to Adjudicative Competence . . . . . . . . . . . . . . . . . . . . .S52G. Diagnosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S52H. The Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S53I. Other Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S54J. Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S55

XI. The Adjudicative Competence of Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S55A. Preadjudicative Competence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S55

Practice Resource: Evaluation of Competence to Stand Trial

S2 The Journal of the American Academy of Psychiatry and the Law

1. Minors Facing Delinquency Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S552. Minors Facing Prosecution in Adult Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S573. Factors Influencing JAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S57a. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S57b. Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S57c. Developmental Immaturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S58d. Cognitive Domain.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S58

B. Psychosocial Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S58C. Mental Disorders and Illness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S59D. Other Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S59E. Competence Assessment Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S60

1. Georgia Court Competency Test: Juvenile Revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S602. MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) . . . .S603. Juvenile Assessment of Competence Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S604. Other Limitations of Competence Assessent Instruments Used in Juveniles . . . . . . . . . .S60

F. Examiner Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S61G. Remediation of Juveniles’ Incompetence to Stand Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S61H. Juveniles’ Remediation of Incompetence vs. Adults’ Restoration of Competence . . . . . . .S61

1. Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S61I. Dispositions and Continued Services in Nonrestored and Nonremediated Cases . . . . . . .S62J. Remediation Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S62

XII. Restoration of Competence to Stand Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S63A. Number and Description of Competence Restorees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S63B. Timely and Effective Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S63C. Setting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S63D. Methods of Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S64E. Proposed Elements of a Model Competence Restoration Program . . . . . . . . . . . . . . . . . . . .S66

1. Systematic Competence Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S662. Individualized Treatment Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S663. Multimodal, Experiential Competence Restoration Educational Experiences . . . . . . . . .S664. Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S665. Anxiety Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S666. Additional Education Components for Defendants With Low Intelligence . . . . . . . . . . .S667. Periodic Reassessment of Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S668. Medication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S669. Capacity Assessments and Involuntary Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S66

XIII. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S73References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S73



AAPL Practice Resource for theForensic Psychiatric Evaluationof Competence to Stand Trial

Barry W. Wall, MD, Peter Ash, MD, Emily Keram, MD, Debra A. Pinals, MD, andChristopher R. Thompson, MD

Statement of Intent and DevelopmentProcess

This document is intended as a review of legal andpsychiatric factors to give practical guidance andassistance in the performance of competence tostand trial evaluations. This Resource was developedthrough the participation of forensic psychiatrists andother qualified forensic examiners who routinely con-duct evaluations of competence to stand trial and haveexpertise in this area. Some contributors are activelyinvolved in related academic endeavors. The process ofdeveloping the Resource incorporated a thorough re-view that integrated feedback and revisions into the fi-nal draft. This Resource was reviewed and approved bythe Council of the American Academy of Psychiatryand the Law on May 21, 2017. Thus, it reflects a con-sensus among members and experts about the princi-ples and practice applicable to the conduct of evalua-tions of competence to stand trial. This PracticeResource should not be construed as dictating the stan-dard for this type of evaluation. It is intended to informpractice in this area. This Resource does not present allacceptable current ways of performing these forensic

evaluations, and following it does not lead to a guaran-teed outcome. Differing fact patterns, clinical factors,relevant statutes, administrative and case law, and theexaminer’s judgment determine how to proceed in anyindividual forensic evaluation.

The Resource is directed toward psychiatristsand other clinicians who are working in a forensicrole in conducting evaluations and providingopinions related to competence to stand trial. It isexpected that any clinician who agrees to performforensic evaluations in this domain has appropri-ate qualifications.

Overview

“Adjudicative competence,” “competence tostand trial,” or “fitness to proceed” is a legal constructthat usually refers to a criminal defendant’s ability toparticipate meaningfully in legal proceedings relatedto an alleged offense. In a survey of State Public Men-tal Health Forensic Directors in 2014, it was notedthat directors who responded (n � 38 states) re-ported that public mental health systems conductfrom 50 evaluations per year to approximately 5,000,per state. Five other directors indicated that compe-tence to stand trial (CST) evaluations were not han-dled by the state but were conducted privately.1

Many states responded that the number of CST eval-uations had risen in recent years. Even in the stateswhere the public mental health system conductscourt-ordered evaluations, they may be conductedthrough private arrangement with attorneys. The ris-ing frequency of persons with mental illness and sub-stance use disorders appearing in courts makes deter-mining whether a defendant meets a jurisdiction’s

The original guideline was published as Douglas Mossman, MD,Stephen G. Noffsinger, MD, Peter Ash, MD, Richard L. FriersonMD, Joan Gerbasi, MD, Maureen Hackett, MD, Catherine F.Lewis, MD, Debra A. Pinals, MD, Charles L. Scott, MD, Karl G.Sieg, MD, Barry W. Wall, MD, and Howard V. Zonana, MD.AAPL Practice Guideline for the Forensic Psychiatric Evaluation ofCompetence to Stand Trial: J Am Acad Psychiatry Law Online,Online December 2007, 35 (Supplement 4) S3-S72.

Acknowledgements: The authors wish to thank the following AAPLmembers who provided written comments on drafts of this document:Jacob Holzer, MD, Susan Hatters-Friedman, MD, Douglas Moss-man, MD. Consultation and review by Jeffrey S. Janofsky, MD, Med-ical Director, AAPL, are acknowledged.

Disclosures of financial or other conflicts of interest: None.



criteria for competence to stand trial a core skill inforensic psychiatry.

This document provides a practical resource topsychiatrists and other qualified examiners whoagree to perform forensic evaluations of adjudica-tive competence. Psychiatrists in active private sec-tor, public sector, or academic practice developedthis Practice Resource after an in-depth review ofrelevant professional publications and case law andafter comparing actual practices of clinicians in abroad range of geographic and work settings. In-terested members of the American Academy ofPsychiatry and the Law (AAPL) have also reviewedthe document and have provided substantive andeditorial suggestions. The contents of and recom-mendations in this Resource address only evalua-tions of competence to stand trial and not othertypes of evaluations that examiners undertake.The Resource distinguishes between the legal re-quirements of various jurisdictions and the prin-ciples of ethics that govern clinicians’ actions. Dif-ferences in jurisdictional rules concerningdiscovery, hearsay evidence, and other legal mat-ters may require examiners to adopt differentpractices.

Definitions

Competence to stand trial: the legally determinedcapacity of a criminal defendant to proceed withcriminal adjudication. Jurisdictional statutesand case law set out the criteria for competenceto stand trial.

Adjudicative competence: The terms “adjudicativecompetence,” “competence to proceed with ad-judication,” “competence to stand trial,” and“fitness to stand trial” are used interchangeablythroughout the Resource. Competence to standtrial is the phrase that U.S. criminal courts havetraditionally used to designate the set of legalconcerns that will be discussed herein. As some2

have noted, however, these concerns encompassa defendant’s participation, not only in a court-room trial, but in all the other proceedings in thecourse of a criminal prosecution. Also, for mostcriminal defendants whose cases are disposed ofthrough guilty pleas and without trials, the termsadjudicative competence and fitness to proceedare more relevant and appropriate than is com-petence to stand trial.

Collateral data: information about the defendantthat comes from sources other than the defen-dant’s statements during the psychiatrist’s inter-view. Such sources include police reports, medi-cal records, statements by the defendant’sattorney, and reports from the defendant’s familymembers.

I. Background

A. History of the Competence Requirement

Anglo-American legal doctrine concerningcompetence to stand trial extends back at least asfar as the mid-17th century in England.3 Accord-ing to some commentators, the requirement formental competence originally arose in Englishcourts as a reaction to those defendants who,rather than enter a plea of guilt or innocence,stood mute. In such cases, courts impaneled juriesto decide whether the accused was “obstinatelymute, or whether he be dumb ex visitatione Dei [byvisitation of God]” (Ref. 4, Book 4, Chap 25, p477). Those defendants found “obstinately mute”were subjected to peine forte et dure, a procedure(continued, albeit rarely, as late as the 18th cen-tury) in which increasingly heavy weights wereplaced on the defendant’s chest until he respondedor died.4,5 Defendants found mute ex visitationeDei, however, were spared this ordeal. This cate-gory originally referred to individuals who wereliterally deaf and mute, but over time, it came toinclude persons with mental illness.6

By the time Blackstone wrote his famous Com-mentaries, competence in defendants was regardedas intrinsic to the fairness of a trial process inwhich the use of attorneys was often forbidden.Thus, common law held that a defendant who was“mad” should “not to be arraigned . . . because heis not able to plead to [the charge] with that adviceand caution that he ought,” nor should he undergotrial, “for how can he make his defense?” (Ref. 4,Book 4, Chap. 289). In a late 18th-century case inEngland, the trial was postponed until the defendant“by collecting together his intellects, and having thementire, . . . shall be able to model his defense and towardoff the punishment of the law” (Ref. 7, p 307).

Historically, courts and commentators in Eng-lish-speaking jurisdictions have offered several rea-sons for requiring mental fitness of criminal defen-dants during their legal proceedings. A defendant



who lacked competence might fail to communi-cate exculpatory information to defense counsel.8

If trials are conceived of as contests, then a court-room battle in which an accused could not presentevidence in his own defense seems like combatbetween unequal adversaries: one overpowering,the other defenseless.7 The requirement for adju-dicative competence also has been justified as away to avoid cruel treatment of defendants: “Itwould be inhumane, and to a certain extent a de-nial of a trial on the merits, to require one who hasbeen disabled by the act of God from intelligentlymaking his defense to plead or to be tried for hislife or liberty” (Ref. 9, p 328).

In an era when even poor criminal defendantshave access to legal counsel, the practical require-ment that an accused be able to formulate his owndefense no longer holds in many cases. Nonetheless,the U.S. Supreme Court still regards the competencerequirement as an important safeguard that assuresthe fairness, accuracy, and dignity of the trialprocess.10

One of the earliest and most cited English for-mulations for judging adjudicative competenceappears in King v. Pritchard, 173 Eng. Rep. 135(1836),11 in which the court instructed a jury firstto consider whether a defendant was “mute of mal-ice or not; second, whether he can plead to theindictment or not; third, whether he is of suffi-cient intellect to comprehend the course of pro-ceedings on the trial.” During the 19th century,U.S. jurisdictions continued English common lawtradition, explicitly recognizing the competencerequirement and formulating their own tests for it.In 1899 one federal appeals court noted that re-quiring defendants to be competent at trial was afundamental protection guaranteed by the U.S.Constitution: “It is not ‘due process of law’ tosubject an insane person to trial upon an indict-ment involving liberty or life” (Ref. 12, p 941).

In the early 20th century, another federal appealscourt articulated the following test for decidingwhether a defendant is competent:

Does the mental impairment of the prisoner’s mind, if suchthere be, whatever it is, disable him . . . from fairly present-ing his defense, whatever it may be, and make it unjust to goon with his trial at this time, or is he feigning to be in thatcondition . . . ? [Ref. 8, p 298].

A later test asked courts to consider whether the de-fendant was “capable of properly appreciating his

peril and of rationally assisting in his own defense”(Ref. 13, p 725).

B. Landmark U.S. Cases

1. The U.S. Constitutional Standard

In 1960, Dusky v. United States, 362 U.S. 402(1960),14 established what is usually taken to be theminimal constitutional standard for adjudicative fit-ness in the United States. The appellant, MiltonDusky, faced a charge of unlawfully transporting agirl across state lines and raping her. A pretrial psy-chiatric evaluation rendered a diagnosis of “schizo-phrenic reaction, chronic undifferentiated type.” Aseparate psychiatric report and psychiatric testimonyat trial stated that Dusky could not “properly assist”counsel because of suspicious thoughts, including abelief that he was being “framed.” Yet, the trial courtfound that Dusky was competent to stand trial. Hewas convicted of rape, and the Eighth Circuit Courtof Appeals affirmed his conviction.

The U.S. Supreme Court held, however, that thetrial court’s determination that Dusky was orientedand could recall events was not sufficient to establishhis competence to stand trial. Instead, the Courtstated that the test for his competence to stand trialwas “whether he [had] sufficient present ability toconsult with his lawyer with a reasonable degree ofrational understanding—and whether he [had] a ra-tional as well as factual understanding of the proceed-ings against him” (Ref. 14, p 402). Taking note of“the doubts and ambiguities regarding the legal sig-nificance of the psychiatric testimony in this case andthe resulting difficulties of retrospectively determin-ing the petitioner’s competency of more than a yearago” (Ref. 14, p 403), the Supreme Court remandedthe case to the trial court to ascertain Dusky’s presentcompetence to stand trial and to retry him if he wasfound competent.

Several points about the Dusky standard deservenoting (see Ref. 6):

Adjudicative competence hinges on a defen-dant’s present mental state, in contrast withother criminal forensic assessments (e.g., assess-ments of criminal responsibility or of compe-tence to waive Miranda rights at the time of ar-rest), which refer to past mental states.

The Dusky Court was silent about what condi-tions may make a person incompetent to standtrial. Although mental illness, intellectual dis-



ability, and neurologically based impairmentsin cognition would all be plausible candidates,the Dusky standard leaves open the possibilitythat other factors, such as cultural differencesor immaturity, could justify a finding ofincompetence.

Most jurisdictions’ statutes require the presenceof some mental abnormality for a finding of in-competence, thereby limiting the range of con-ditions for which defendants may be found in-competent to stand trial. For example, theInsanity Defense Reform Act (IDRA) of 198415

holds that a criminal defendant in federal court isincompetent to stand trial if a preponderance ofthe evidence shows that he “is presently sufferingfrom a mental disease or defect rendering himmentally incompetent to the extent that he isunable to understand the nature and conse-quences of the proceedings against him or to as-sist properly in his defense.”16

The attention of the courts (and, implicitly, theattention of the examiner) is directed to the de-fendant’s “ability” to consult rationally with anattorney, rather than the defendant’s willingnessto consult rationally.

The term “reasonable” connotes flexibility in de-termining competence, while the phrase “ratio-nal as well as factual understanding” requires thecourts and examiners to consider broadly howthe defendant exercises his cognitive abilities.

Evaluating clinicians are given no guidance con-cerning what level of capacity justifies a findingof competence. In stating that the defendantmust have “sufficient present ability” to workwith his attorney, the Court leaves it to the trialcourt to decide, in a given case, whether a defen-dant’s abilities suffice for a finding of adjudica-tive competence.

A subsequent decision, Drope v. Missouri, 420U.S. 162 (1975),17 amplified on the requirement inDusky for the defendant to be capable of consultationwith an attorney, stating that a criminal defendantmust be able “to assist in preparing his defense” (Ref.17, p 171). In Godinez v. Moran, 509 U.S. 389(1993),18 the Supreme Court declared explicitly thatstates may adopt criteria for competence that aremore elaborate than Dusky’s formulation. However,the Court stated that “the Due Process Clause does

not impose these additional requirements” (Ref. 18,p 402).

In observing that “all criminal defendants . . . maybe required to make important decisions once crim-inal proceedings have been initiated” (Ref. 18, p398), the majority opinion in Godinez appears tointerpret Dusky as requiring that a defendant havecertain decision-making capacities to be deemedcompetent to stand trial. As examples, Godinez notesthat standing trial often requires defendants to makechoices about whether to have a jury trial, to testify,and to cross-examine witnesses. Before trial, defen-dants may have to decide whether and how to put ona defense and whether to raise an “affirmative defense”(e.g., a claim of self-defense or an insanity plea). Instating that the Dusky definition of competence to standtrial encompasses such decision-making, Godinez sug-gests that the courts (and therefore the examiner)may have to evaluate at least some of a defendant’sdecision-making abilities when making judgmentsabout adjudicative competence.19

2. Required Hearings

Six years after establishing the constitutional stan-dard for adjudicative competence, the United StatesSupreme Court issued a decision regarding when ahearing on competence should occur. Pate v. Robin-son, 383 U.S. 375 (1966),20 concerned a man foundguilty of homicide. Two to three months before thetrial, a psychiatrist had examined Robinson andfound that he understood the charges against himand could cooperate with counsel. During the trial,however, defense counsel asserted that Robinson wasnot competent to stand trial and asked for additionalpsychiatric testimony on the matter. The trial courtrefused the request, despite uncontroverted testi-mony about Robinson’s history of head injuries,hearing voices, hallucinating, and “pronounced irra-tional behavior” (Ref. 20, p 386).

The Supreme Court ruled that the refusal was im-proper, holding that the Due Process Clause of theFourteenth Amendment requires trial courts to holda suitable hearing on competence to stand trial when-ever there is a “bona fide doubt” (Ref. 20, p 385)about a defendant’s adjudicative capacity. Bona fidedoubt sets a low threshold for holding a competencehearing, implying that, to protect all defendants’rights to a fair trial, many competent defendants mayhave to undergo evaluation, to avoid the prosecutionof a defendant who is not competent.



Drope v. Missouri,17 dealt with what level of evi-dence should trigger a hearing regarding a defen-dant’s competence. Drope faced a charge of rapinghis wife. Before trial, defense counsel filed a motionfor a continuance, attaching a psychiatrist’s reportstating that Drope needed psychiatric treatment. Onthe second day of trial, Drope shot himself in a sui-cide attempt and was hospitalized for three weeks.The trial continued in his absence. Although Drope’sattorney moved for a mistrial, the trial court deniedthe motion, stating that Drope shot himself volun-tarily in a specific effort to avoid trial. Drope wasconvicted. After a series of appeals, the U.S. SupremeCourt heard his case.

In a unanimous decision that reversed Drope’sconviction and remanded his case for a new trial, theSupreme Court held that the trial court had violatedthe defendant’s due process right to a fair trial by notsuspending the trial to hold a hearing on his compe-tence. Referring to Pate v. Robinson,20 the Courtfound that data available at the time of the trial,which included the psychiatrist’s report, the defen-dant’s suicide attempt, and his wife’s testimony, weresufficient to raise genuine doubts about Drope’scompetence. The Supreme Court said:

The import of our decision in Pate v. Robinson is that evi-dence of a defendant’s irrational behavior, his demeanor attrial, and any prior medical opinion on competence tostand trial are all relevant in determining whether furtherinquiry is required, but that even one of these facts standingalone may, in some circumstances, be sufficient. There are,of course, no fixed or immutable signs which invariablyindicate the need for further inquiry to determine fitness toproceed; the question is often a difficult one in which a widerange of manifestations and subtle nuances are implicated[Ref. 17, p 180].

Although Drope may have appeared competent atthe beginning of his trial, the Supreme Court heldthat “a trial court must always be alert to circum-stances suggesting a change that would render theaccused unable to meet the standards of competenceto stand trial” (Ref. 17, p 181). Because Drope’sabsence at trial precluded courtroom observationsabout his demeanor and ability to engage with hisattorney, the proper course would have been to sus-pend the trial until Drope could undergo evaluation.

3. Competence Evaluations and the Fifth Amendment

In virtually all jurisdictions, a defendant may beordered to undergo a mental health evaluation as aprelude to a hearing on his competence to stand trial.Such evaluations may implicate a defendant’s Fifth

Amendment protection against self-incrimination,because defendants may admit to certain actions ei-ther spontaneously or in response to the psychiatrist’squestion. Whether a court can convict a defendantbased on information in a competence assessmentbecame the subject of two U.S. Supreme Court cases.

Estelle v. Smith, 451 U.S. 454 (1981),21 arose fromthe murder conviction and death sentence of ErnestSmith who, while being held in jail before trial, hadundergone a court-ordered psychiatric examinationto assess his competence to stand trial. After beingfound competent, he was found guilty of murder andthen underwent a separate sentencing proceedingheld before the convicting jury. To impose a deathsentence under Texas law, jurors had to find that adefendant was likely to commit future criminal actsof violence that would constitute a continuing threatto society. At the sentencing hearing the psychiatristtestified that, based on his pretrial competence exam-ination, Smith lacked remorse, was untreatable, andwas destined to commit more violent criminal acts.The testimony supported the death penalty, and thejurors imposed it.

After unsuccessful appeals in state courts, a federaldistrict court vacated Smith’s death sentence, findingthat the trial court made a constitutional error inadmitting the psychiatrist’s testimony at the penaltyphase. The U.S. Court of Appeals affirmed, as didthe U.S. Supreme Court.

The Supreme Court found that the psychiatrist’suse of the competence evaluation violated Smith’sright to avoid self-incrimination, because the FifthAmendment applied to the sentencing as well as theguilt phase of the trial. Because the psychiatrist hadneither advised Smith of his right to remain silent norwarned him that his statements could be used duringcapital sentencing, Smith’s death sentence was over-turned. The Court also held that admitting the psy-chiatrist’s testimony at the penalty phase had violatedSmith’s Sixth Amendment right to assistance ofcounsel. Defense counsel had not known in ad-vance that the psychiatric examination would en-compass the question of future dangerousness, andthus Smith was prevented from receiving legal ad-vice about the competence examination and itspossible consequences.

4. Burdens of Persuasion and Standards of Proof

Legal decisions in the 1960s and 1970s made itclear that trial courts must be vigilant about the com-



petence of criminal defendants. Yet it was not untilthe 1990s that the U.S. Supreme Court clarified, intwo separate cases, who bears the burden of persua-sion in a competence hearing and the level of proofneeded to show that a defendant lacks adjudicativecompetence.

In the first case, Medina v. California, 505 U.S.437 (1992),22 a defendant faced several criminalcharges, including three counts of first-degree mur-der. Defense counsel requested and the trial courtgranted a hearing on his client’s competence, whichtook place pursuant to a California statute that pre-sumes defendants are competent and gives the partyclaiming incompetence the burden of proving it by apreponderance of the evidence. Over a six-day pe-riod, a jury heard conflicting expert testimony aboutMedina’s mental condition. He had made severalverbal and physical outbursts during the hearing; onone occasion, he overturned a table.

The jury found Medina competent to stand trialand after a trial at which he raised the insanity de-fense, a different jury found him guilty and recom-mended the death sentence. The trial court imposedthe death penalty for the murder convictions andsentenced Medina to prison for the remainingoffenses.

In appeals to the California and U.S. SupremeCourts, Medina argued that the statutory presump-tion of competence and placing the burden of proofon the defendant violated his right to due process.The California Supreme Court rejected these con-tentions, and the U.S. Supreme Court, after grantingcertiorari, affirmed. Reasoning that preventing anddealing with crime is primarily the business of states(rather than the federal government), and, findingthat there is “no settled tradition on the proper allo-cation of the burden of proof in a proceeding todetermine competence” (Ref. 22, p 446), the Courtconcluded:

Once a State provides a defendant access to procedures formaking a competency evaluation, . . . we perceive no basisfor holding that due process further requires the State toassume the burden of vindicating the defendant’s constitu-tional right by persuading the trier of fact that the defen-dant is competent to stand trial [Ref. 22, p 449].

Four years later, however, the U.S. SupremeCourt ruled unconstitutional an Oklahoma law thatpresumed that a defendant was competent to standtrial unless he proved otherwise by clear and convinc-ing evidence. Cooper v. Oklahoma, 517 U.S. 348(1996)10 challenged the conviction and death sen-

tence of a man whose competence had been consid-ered on five separate occasions. Cooper spent time ina psychiatric facility after an initial finding of incom-petence and then was ruled competent despite con-flicting testimony by mental health experts. Oneweek before trial, Cooper’s lawyer reported that thedefendant was still behaving oddly and refusing tocommunicate. On the first day of trial, Cooper’s bi-zarre behavior prompted the trial court judge to holdanother competence hearing that included testimonyof several lay witnesses, a psychologist, and Cooperhimself (who remained in prison overalls for the trialbecause he thought regular clothes were “burning”him). On the witness stand, Cooper expressed fearthat the lead defense attorney wanted to kill him, andduring the hearing, Cooper talked to himself and toan imaginary “spirit” who, he said, gave him counsel.The trial judge concluded:

My shirtsleeve opinion of Mr. Cooper is that he’s not nor-mal. Now, to say he’s not competent is something else. Ithink it’s going to take smarter people than me to make adecision here. I’m going to say that I don’t believe he hascarried the burden by clear and convincing evidence of hisincompetency and I’m going to say we’re going to go to trial[Ref. 10, p 352].

In his appeals, Cooper claimed that Oklahoma’spresumption of competence and its requirement thata criminal defendant establish incompetence by clearand convincing evidence placed too heavy a burdenon the defendant and therefore violated his right todue process. After a lower court rejected his argu-ment, the U.S. Supreme Court heard the case andagreed with Cooper. The Court interpreted earlyEnglish and U.S. case law as suggesting that thecommon-law standard of proof for incompetence isonly a preponderance of the evidence (that is, morelikely than not), and that the preponderance stan-dard was being used in federal courts and 46 of thestates. Holding that regulation of the procedural bur-den falls within the Due Process Clause of the Four-teenth Amendment, the Court concluded that thestandard of clear and convincing failed to safeguardthe fundamental right not to stand trial while incom-petent, because it allowed criminal courts to try de-fendants who had shown that they were probablyincompetent. The Court noted that “difficulty inascertaining whether a defendant is incompetent ormalingering may make it appropriate to place theburden of proof on him, but it does not justify theadditional onus of an especially high standard ofproof ” (Ref. 10, p 366).



5. Pretrial Management of Defendants with Mental Disabilities

As the Supreme Court addressed questions relatedto standards and procedures for determining a defen-dant’s incompetence to stand trial, it also issued rul-ings regarding pretrial management of defendantswith a mental disability. Jackson v. Indiana, 406 U.S.715 (1972),23 concerned “a mentally defective deafmute with a mental level of a preschool child” (Ref.23, p 717) who, at age 27 years, faced two separaterobbery charges involving a combined value of ninedollars. Upon receiving guilty pleas from Jackson,the trial court followed Indiana procedures for deter-mination of his competence to stand trial. The court-appointed psychiatrists opined that Jackson’s deficitsleft him unable to understand the nature of thecharges against him or to participate in his defense,and that his ability was unlikely to improve. The trialcourt found Jackson incompetent to stand trial andcommitted him to the Indiana Department of Men-tal Health until he could be certified competent.

Jackson’s defense counsel asked for a new trial andcontended that Jackson’s commitment, given the un-likelihood of his improvement, amounted to a lifesentence in the absence of any conviction. As such,Jackson’s confinement violated his FourteenthAmendment right to due process and equal protec-tion and his Eighth Amendment protection fromcruel and unusual punishment. After the trial courtand the Indiana Supreme Court rejected these argu-ments, the U.S. Supreme Court heard Jackson’s case.

The Court held that when Jackson was committedbecause he was deemed incompetent to stand trial, hehad been subjected to a more lenient standard forconfinement but a more stringent standard for re-lease than those persons who are committed undercivil statutes, and this imbalance constituted a viola-tion of the Fourteenth Amendment’s Equal Protec-tion Clause. The Court also held that indefinite com-mitment of a pretrial defendant solely because of hisincompetence to stand trial violated Jackson’s rightto due process. Writing for the Court, Justice Black-mun stated that a defendant who is not trial compe-tent might not “be held more than the reasonableperiod of time necessary to determine whether thereis a substantial probability that he will attain thatcompetency in the foreseeable future” (Ref. 23,p 738). If treatment could not restore a defendant tocompetence, the state must either initiate civil com-mitment proceedings or release the defendant.

In two U.S. Supreme Court cases, the right of apretrial defendant to refuse antipsychotic medica-tions has been examined. Riggins v. Nevada, 504 U.S.127 (1992),24 concerned a man charged with murderand robbery who, a few days after his apprehension,told a jail psychiatrist that he was hearing voices andhaving trouble sleeping. Riggins reported that he hadpreviously taken the antipsychotic drug thioridazine,and the psychiatrist prescribed the drug, graduallyincreasing the dose to 800 mg a day.

A few months later, Riggins underwent evaluationand was found competent to stand trial. The defensethen moved for suspension of the thioridazine (andphenytoin, which Riggins was also receiving) duringthe trial, arguing that his taking the drugs “infringedupon his freedom and that the drugs’ effect on hisdemeanor and mental state during trial would denyhim due process” (Ref. 24, p 130). The defense alsoargued that Riggins had a right to show jurors his“true mental state” in the presentation of a plannedinsanity defense. The trial court denied the motionto terminate the medication, the trial continued,Riggins was found guilty, and he received the deathsentence.

After Riggins’ Nevada appeals failed, the U.S. Su-preme Court granted certiorari to “decide whetherforced administration of antipsychotic medicationduring trial violated rights guaranteed by the Sixthand Fourteenth Amendments” (Ref. 24, pp 132–3).The Court found that due process would have beensatisfied if the trial court had found that antipsy-chotic medication was medically appropriate and es-sential for the sake of Riggins’ safety or the safety ofothers, taking into account “less intrusive” alterna-tives. The Court also stated that the state might havebeen able to justify medically appropriate involun-tary medication for Riggins if the trial court hadfound that no less intrusive measures would havepermitted adjudication of his case.

However, the trial court’s ruling requiring Rigginsto keep taking antipsychotic medication neither es-tablished that thioridazine would ensure that hecould be tried nor showed that safety considerationsor some other compelling concern outweighed hisinterest in being free of unwanted drugs. Thus,forced administration of antipsychotic medicationduring trial may have violated his trial-related rightsunder the Sixth and Fourteenth Amendments. TheSupreme Court reversed his conviction and re-manded his case for further proceedings.



Riggins left open the question of whether a defen-dant can be forcibly medicated solely to render himcompetent to stand trial. Eleven years after Riggins,Sell v. United States, 539 U.S. 166 (2003),25 pro-vided an answer. Charles T. Sell, a dentist, wascharged in May 1997 with submitting false insuranceclaims. After he was found incompetent to standtrial, Dr. Sell refused to accept the antipsychoticmedication that his doctors believed would be likelyto restore his competence. A federal magistrate and adistrict court judge both authorized administrationof medication over Dr. Sell’s objections, ruling thathis behavior in the hospital showed that he posed adanger to others. A divided panel of the court ofappeals affirmed the district court’s decision to au-thorize forced medication, but found that he was notdangerous while institutionalized. Therefore, in ac-cepting his case for review, the U.S. Supreme Courthad to decide whether psychotropic medication canbe forced on a nondangerous defendant solely to ren-der him competent to stand trial.

Jackson v. Indiana left unresolved whether statescould indefinitely maintain criminal charges againstincompetent defendants who are nonrestorable.Forty years after Jackson, the Indiana SupremeCourt revisited this question in Indiana v. Davis.26

The court ruled that maintaining criminal chargesover a permanently incompetent defendant, whenher pretrial confinement extended beyond the max-imum period of any sentence the trial court couldimpose, violated the notion of fundamental fairnessin the Due Process Clause of the FourteenthAmendment.27

In developing criteria for imposing competence-restoring medication on unwilling defendants, theCourt turned to Washington v. Harper, 494 U.S. 210(1990),28 (which had dealt with involuntary medica-tion of prison inmates) and Riggins.24 Taken to-gether, said the Court, these cases implied that:

. . . the Constitution permits the Government to involun-tarily administer antipsychotic drugs to a mentally ill de-fendant facing serious criminal charges to render that de-fendant competent to stand trial, but only if the treatmentis medically appropriate, is substantially unlikely to haveside effects that may undermine the fairness of the trial,and, taking account of less intrusive alternatives, is signifi-cantly necessary to further important governmental trial-related interests [Ref. 25, p 179].

Before imposing involuntary medication, said theSell majority, trial courts must address four factors:

Whether the government has an interest in pros-ecuting the defendant, by considering the seri-ousness of the charges; how long the defendanthas already been confined (time that wouldcount against a possible sentence); and whetherthe defendant might, if not treated, be confinedto a psychiatric hospital for a lengthy period,which “would diminish the risks that ordinarilyattach to freeing without punishment one whohas committed a serious crime” (Ref. 25, p 180).

Whether the proposed medication would “besubstantially likely” to render the defendantcompetent without causing side effects thatwould interfere with his ability to work with hisattorney.

Whether there is a less intrusive treatment thatwould restore the defendant’s competence.

Finally, whether the proposed involuntary med-ication would be “medically appropriate, i.e., inthe patient’s best medical interest in light of hismedical condition” (Ref. 25, p 181; emphasis inoriginal).

The Court also held that, before ordering forcedmedication to restore competence, trial courtsshould consider other possible grounds for forcedmedication, including a patient’s dangerousness tohimself or others and situations in which the pa-tient’s refusal to take medication poses a risk to hishealth. If medications were authorized on thesegrounds, it would not be necessary to decide whetherto force medication to restore trial competence. TheCourt commented:

. . . [M]edical experts may find it easier to provide an in-formed opinion about whether, given the risk of side ef-fects, particular drugs are medically appropriate and neces-sary to control a patient’s potentially dangerous behavior(or to avoid serious harm to the patient himself) than to tryto balance harms and benefits related to the more quintes-sentially legal questions of trial fairness and competence[Ref. 25, p 182].

In Sell, the Court ruled that the defendant’s exist-ing orders for forced medication could not stand,because lower courts had not adequately consideredtrial-related side effects, the impact on the sentenceof Sell’s already-lengthy confinement, and any po-tential future confinement that might lessen the im-portance of prosecuting him. The Court thereforeremanded Sell’s case for further proceedings in accor-dance with its ruling.



Subsequent cases have addressed standards of re-view for all four Sell factors noted above.

The first Sell factor, whether the government hasimportant interests at stake, is addressed in part inUnited States v. Dillon.29 Thomas Dillon was ar-rested for sending a threatening e-mail to the Presi-dent. After an initial period of civil commitment tooutpatient treatment, he was charged with threaten-ing bodily harm to the President. He had threecompetence-to-stand trial evaluations and was adju-dicated not competent to stand trial. He refusedmedications and to medicate him involuntarily, hisdoctors sought authorization under Sell, because theydid not believe that Mr. Dillon met criteria for dan-gerousness under Washington v. Harper. After a Sellhearing, the district court authorized the use of in-voluntary medication to restore his competence.Upon appeal, Mr. Dillon argued that he was not asignificant risk to the public; he had been committedas an outpatient, which would undermine the gov-ernment’s interest in his prosecution. The court ofappeals noted that the defendant’s underlying chargewas serious (a threat to harm the President) and thatthe only way to determine whether the he was dan-gerous as charged was to take the defendant to trial.Mr. Dillon, however, was incompetent to stand trialwithout medications. The court held that it was theseriousness of the charges in this case that precludeda finding that Mr. Dillon was not dangerous. Thecourt found that even assuming that Mr. Dillon washarmless in other respects, the seriousness of the un-derlying charge allowed the government to establishan important interest in prosecuting him. As Wasserand Trueblood30 pointed out, this case calls intoquestion how forensic examiners should opine ondangerousness during Sell hearings. Courts mayweigh alleged criminal behavior as a greater risk fac-tor for dangerousness at a Sell hearing to determinethat important interests are at stake. Legal determi-nations may therefore conflict with traditional civilcourt commitment criteria and clinical opinions re-garding risk.

Courts have defined Sell’s second factor, ofwhether medication will be “substantially likely” torestore a defendant competent, in various ways. InUnited States v. Gomes,31 the Second Circuit definedsubstantially likely as a 70 percent chance at restora-tion. In Utah v. Barzee,32 substantial likelihood forrestoration was defined as more than 70 percent.

Other courts have determined that more than 50percent does not meet the standard.

In New Mexico v. Dawna Cantrell,33 the NewMexico Supreme Court addressed whether orderinginvoluntary antipsychotic medication for the solepurpose of restoring competence to stand trial vio-lates due process rights. Dawna Cantrell was chargedwith the murder of her husband. Her “persecutorydelusional disorder” prompted several competence-to-stand trial evaluations, and after she was treatedwith antipsychotic medication and opined not to bedangerous, the trial court applied the due processguidelines from Sell and found clear and convincingevidence that the state met the burden for each cri-terion from Sell. She was ordered to take medicationaround the time of her trial, if medically appropriate.Upon appeal, the New Mexico Supreme Court ad-dressed an inconsistency in prior Sell cases as to howappeals of the second Sell criterion should be re-viewed, concluding that it is a “mixed question offact and law.” It also agreed with the precedent thatthe evidentiary standard in all the Sell criteria is clearand convincing evidence.34

A review of all incompetent defendants involuntarilytreated under Sell over a six-year period indicated thatthe majority (79%) of defendants treated for a psychoticdisorder were restored to competence,35 surpassing theclear-and-convincing-evidence standard established byfederal appellate courts.36 However, there is concernthat Sell leaves some defendants sufficiently ill to beincompetent, but not dangerous enough to allow invol-untary treatment.32

6. Standards for Waiving Constitutional Rights

Whether there should be a separate, higher stan-dard of competence for defendants who want towaive their constitutional rights to counsel and entera plea of guilty was settled in Godinez v. Moran,18 inwhich the U.S. Supreme Court stated that fitness tostand trial implies competence to waive counsel andplead guilty. After being charged with three counts offirst-degree murder, Richard Moran had initiallypleaded not guilty, and two psychiatrists who evalu-ated him opined that he was depressed but compe-tent to stand trial. Mr. Moran then told the Nevadatrial court that he wanted to change his plea to guiltyand dismiss his attorneys, his purpose being to pre-vent the presentation of mitigating evidence at hissentencing. The trial court found that Mr. Moranunderstood the charges against him, could assist his



lawyers, had waived his right to counsel knowinglyand intelligently, and had entered his guilty pleasfreely and voluntarily. He was sentenced to death onall three murder counts.

In a postconviction appeal hearing, a trial courtrejected Mr. Moran’s claim that he did not have thecompetence to represent himself. The Nevada Su-preme Court denied his appeal for dismissal, and afederal district court rejected his habeas corpus ap-plication. The federal court of appeals reversed,however, holding that the district court shouldhave held a hearing regarding his competence be-fore accepting his guilty plea and his decision towaive counsel. Further, the court of appeals heldthat competence to waive constitutional rights re-quires a higher level of mental functioning thanthat needed to stand trial. The correct standard forsuch a waiver requires that the defendant have thecapacity to make a “reasoned choice” among theavailable alternatives.

Rulings from various federal circuit courts had dis-agreed about whether a higher standard of compe-tence was necessary for pleading guilty or waiving theright to counsel, and the U.S. Supreme Courtgranted certiorari in Godinez to resolve the matter. ACourt majority, per Justice Thomas, “reject[ed] thenotion that competence to plead guilty or to waivethe right to counsel must be measured by a standardthat is higher than (or even different from) the Duskystandard” (Ref. 18, p 398), and cited the language ofDusky as the proper criterion in these situations.When a defendant waives the right to counsel, hemust do so “competently and intelligently.” To becompetent to waive counsel, however, the defendantneed only have the capacity to make an “intelligent andvoluntary” decision to choose self-representation.The defendant need not have the “technical legalskills” or heightened mental abilities necessary torepresent himself capably in a criminal proceed-ing. The Court also found that the decision toplead guilty is “no more complicated than the sumtotal of decisions that a defendant may have tomake during the course of a trial, such as whetherto testify, whether to waive a jury trial, andwhether to crossexamine witnesses for the prose-cution” (Ref. 18, p 398). The Supreme Courttherefore upheld Mr. Moran’s conviction anddeath sentence. His later appeals were unsuccess-ful, and the state of Nevada executed him inMarch 1996.

II. Special Topics in Recent U.S. Case Law

A. Mental Conditions and AdjudicativeIncompetence

As explained in the previous section, the U.S. Su-preme Court has construed the Sixth and FourteenthAmendments as forbidding trial of incompetent de-fendants and as requiring courts to hold hearingsabout a defendant’s fitness for trial whenever suffi-cient doubt about competence arises. There is nobright-line threshold about what constitutes suffi-cient doubt, but the Court has recommended thattrial courts consider “a defendant’s irrational behav-ior, his demeanor at trial, and any prior medicalopinion” (Ref. 17, p 180) in weighing whether tohold a hearing on competence.

In applying Drope, federal appeals courts havefaulted trial courts for failure to hold hearings oncompetence to stand trial in cases in which:

The defendant could not communicate intelli-gently, had a family history of mental distur-bance, and had sustained a severe head injury.37

The trial judge was informed that the defendanthad several mental disorders, had undergonemany psychiatric hospitalizations, and probablyhad used antipsychotic medication, and defensecounsel had repeatedly asked for assistance frommental health experts.38

The defendant who displayed odd, self-defeatingbehavior in court had believed his lawyer and thejudge were part of a conspiracy.39

The defendant claimed to have experienced au-ditory and visual hallucinations at the time of theoffense, his family had a history of mental illness,psychiatrists found that he had severe paranoidschizophrenia, and the judge had written a letterto the state department of corrections expressingconcern about his competence.40

Appellate courts have been clear, however, that“the presence of some degree of mental disorder inthe defendant does not necessarily mean that he isincompetent 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 dis-ability), mental illness, brain damage, or substanceabuse, necessarily makes a defendant incompe-tent.42–44 Thus, for example, appeals courts haveruled that:



Despite indications of grandiose or paranoid de-lusions, the defendant was competent because anexamining psychologist found no need for treat-ment and a psychiatrist testified that the defen-dant understood the legal proceedings and couldassist counsel.45

Despite a history of depression, severe learningimpairment, and suicidal tendencies, the defen-dant was competent because he showed that heunderstood legal proceedings and the appealsprocess.46

Although the defendant had brain damagecaused by multiple head injuries and drug ad-diction, he was competent because the he hadassisted counsel in preparing for trial; hadgiven appropriate responses in interviews; andhad written letters to the jury, counsel, and hiswife and because neither the defendant’s fam-ily nor counsel had doubted his competence.47

Despite the presence of structural brain abnor-malities and a history of behavioral problems, thedefendant was fit because a prosecution psychia-trist had testified to that effect.48

Although the defendant had mild intellectualdisability and organic brain damage and had en-gaged in substance abuse, the opinion of the gov-ernment’s mental health experts, the defendant’sown coherent testimony, his confession to po-lice, and his two escapes all had represented evi-dence that he was competent.49

Although he had narcolepsy, the defendant hadtestified coherently at trial, and the trial courthad verified that, throughout the trial, he hadtaken notes and conversed with counsel.50

Although the defendant gave “rambling and of-ten nonresponsive answers to questions that hewas asked,” most of his statements showed “thathe simply wanted his day in court and wanted anopportunity to tell his story his way.”51

Defense counsel’s observations that Defendant may have abelow-average intelligence level, memory problems, and ahistory of attending special education classes in school donot indicate that Defendant is presently incompetent. Themotion came only from the defense attorney’s descriptionof the defendant, without medical records or court obser-vation of disorganized behavior [Ref. 52].

However, the court may have not understood thenature of intellectual disability or other aspects ofa defendant’s mental state.53

When a defendant functions well enough atcourt and does not have a pre-existing mentaldisease or defect.54

B. Competence and Criminal Responsibility

Courts have also repeatedly distinguished betweenfindings regarding fitness for trial (which reflects adefendant’s present mental capabilities during adju-dication) and criminal responsibility (which is re-lated to a defendant’s mental state when the allegedoffense took place), holding that these are indepen-dent determinations on distinct ultimate issues.55,56

A finding that a defendant is competent to stand trialcannot not prevent him from trying to establish aninsanity defense and such a finding is not admissibleat trial.57

C. Attorney’s Failure to Challenge Competence

On occasion, forensic clinicians encounter re-ferrals for competence evaluations that seem friv-olous, because the defendant is obviously compe-tent. Clinicians should recognize, however, thatwhen a defendant displays signs of a competence-impairing mental disorder, defense counsel is ob-ligated to question whether the client can proceedwith adjudication.58

The leading case in this area is Curry v. Zant, 371S.E.2d 647 (Ga. 1988),59 a Georgia Supreme Courthabeas corpus ruling that set aside the guilty plea anddeath sentence of a defendant charged with commit-ting murder in the course of a rape and burglary. Thefirst of two attorneys appointed to represent the de-fendant believed that his client had a severe mentalillness, and the trial court told this attorney that itwould grant funds for an independent evaluation ofthe defendant’s competence to stand trial. On itsown motion, the trial court also had clinicians at astate hospital evaluate the defendant. The hospital’sexamining physician reported that the defendant was“not hitting on all cylinders” and had a borderlinepersonality disorder, but might be malingering andmanipulative.

A second appointed attorney ultimately repre-sented the defendant, who entered a plea of guilty attrial and subsequently received the death sentence.The attorney never asked for the independent evalu-ation because, given his observations of the defen-



dant and the report from the state hospital, he feltthat a second evaluation “would be futile” (Ref. 59, p649). At the habeas corpus hearing, however, a psy-chologist testified that the defendant had not beencompetent to waive his right to trial and that infor-mation from “an independent evaluation would havebeen invaluable to a jury trying his case” (Ref. 59, p648). The Georgia Supreme Court believed that thesecond attorney had been conscientious. He hadthoroughly discussed with the defendant and hisfamily the decision to plead guilty and had preparedwell for the trial’s sentencing phase. Nonetheless,concluded the court, the attorney’s failure to get asecond psychiatric evaluation constituted ineffectiveassistance of counsel, because a second opinionmight well have provided crucial information aboutincompetence and insanity, and may have resulted indeath penalty mitigation.

1. Other Cases

Recent cases from other jurisdictions support theview that a defense attorney’s failure to investigatebona fide signs of incompetence constitutes ineffec-tive assistance of counsel and grounds for reversal ofa criminal conviction.

Hull v. Kyler, 190 F.3d 88 (3rd Cir. 1999),60 con-cerned another defendant charged with murder whowas found incompetent soon after his arrest and washospitalized for four years. The trial court found thedefendant competent based on testimony from acourt-appointed psychiatrist who had seen the defen-dant three months earlier and who said the defendantcould understand proceedings and assist counsel “atthat time.” Defense counsel did not cross-examinethe expert and conceded competence, and the defen-dant pleaded guilty to murder. In finding defensecounsel ineffective, the appeals court noted that dur-ing his hospital stay, at least eight doctors had foundthe defendant incompetent because of intellectualdisability and schizophrenia, and an evaluation twoweeks before the court-appointed expert had foundno change in him from previous examinations.

Woods v. State, 994 S.W.2d 32 (Mo. Ct. App.1999),61 concerned a defendant with a manic-depressive disorder who tried to commit suicide theon day of his sentencing. The defendant seemed asdepressed as usual to the attorney when she talkedwith him after the suicide attempt, and she thoughthe was competent. “This was not counsel’s call,” saidthe appeals court (Ref. 61, p 39), and ruled that

counsel was ineffective in her failure to seek a com-petence evaluation after the suicide attempt.

In the Matter of Fleming, 16 P.3d 610 (Wash.2001) (en banc),62 concerned the potential impact offindings by a defense expert, who was retained toinvestigate the possibility of a diminished-capacitydefense, but who thought that the defendant wasincompetent to stand trial. Defense counsel did notinform the trial judge of the expert’s opinion, and thedefendant pleaded guilty to a burglary charge. TheWashington Supreme Court held that the defenseattorney’s failure to inform the judge constituted in-effective assistance of counsel because the defendant“might have been found incompetent and shouldhave had a competency hearing before entering a pleaof guilty” (Ref. 62, p 615).

D. Personality Disorders

Personality disorders usually are not conditionsthat render defendants incompetent to stand trial,and numerous appellate cases affirm convictions ofdefendants whom trial courts found competent de-spite their personality problems. However, severalcases suggest that personality disorders could causeadjudicative incompetence and that failure to recog-nize this possibility could result in reversal of aconviction.63

1. State Court Cases

In State v. Stock, 463 S.W.2d 889 (Mo. 1971),64

the Missouri Supreme Court held that the trial courthad erred in failing to hold a hearing concerning thedefendant’s competence to stand trial for selling mar-ijuana. After conviction but before sentencing, thedefense attorney moved for a new trial because hehad just learned that Mr. Stock had previously re-ceived psychiatric treatment. At a hearing on the mo-tion, the treating psychiatrist testified that his formerpatient “had schizoid traits . . . and a tendency to bewithdrawn, hostile, and sometimes paranoid” (Ref.64, p 893). A court-appointed physician examinedthe defendant and submitted a written report thatsaid that the defendant had “a personality disordercharacterized by general inadequacy,” but that this“would not interfere with his ability to participate inhis defense in a trial” (Ref. 64, p 893). Defense coun-sel contested the court-appointed physician’s conclu-sion. However, the trial court believed that the pe-riod during which competence could be consideredhad lapsed, and concluded, without holding a hear-ing, that there was no basis for finding that the ac-



cused lacked the mental capacity to proceed. TheMissouri Supreme Court found, however, that thedefendant was entitled under the state’s statutes to ahearing on his competence: “the trial court appar-ently considered that it had reasonable cause to be-lieve that the appellant had a mental disease or defectexcluding fitness to proceed, because it exercised itsdiscretion and appointed a private physician to makean examination and report” (Ref. 64, p 894).

Hayden v. Commonwealth, 563 S.W.2d 720 (Ky.1978),64 concerned the appeal of a Kentucky defen-dant after his conviction for manslaughter and rob-bery. Before trial, defense counsel had expresseddoubt about his client’s competence. An examiningpsychiatrist thought the defendant had a schizoidpersonality, would probably decompensate into apsychotic episode when under stress, and could par-ticipate only in trial procedures that were “very con-crete” and in which participants used only “ex-tremely” simple phrases to express simple ideas (Ref.65, p 722). Though the defendant had testified attrial, this did not constitute evidence sufficient toovercome the trial court’s previous doubts about thedefendant’s competence. Holding that the trial judgeerred when he failed to conduct an evidentiary hear-ing on the defendant’s competence, the KentuckySupreme Court reversed the defendant’s conviction.The court remanded the case for an evidentiary hear-ing on the defendant’s competence to stand trial,indicating that the defendant might be retried werehe found competent. (A subsequent Kentucky case,Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001),66 overruled the portion of Hayden that re-quired vacating a defendant’s sentence, holding thata retrospective hearing on whether a defendant hadbeen competent was permissible.)

2. Federal Court Cases

Two cases illustrate the potential role that person-ality disorders may play in federal court determina-tions of competence.

In United States v. Wayt, 24 Fed.Appx. 880 (10thCir. 2001),67 a Wyoming federal court indicted GlenWayt on charges of conspiracy and distributingmethamphetamine, and eventually he pleaded guiltyto the conspiracy charge. Before Mr. Wayt had en-tered his plea, the district (trial) court had heard tes-timony from two experts, one of whom testified thatalthough Mr. Wayt understood the proceedingsagainst him, his drug-induced paranoia would signif-

icantly affect his ability to assist counsel and preventhim from providing adequate information for hisdefense. Wayt appealed the district court’s decisionfinding him competent to stand trial, contendingthat the court incorrectly concluded, as a matter oflaw, that a personality disorder derived from long-term substance abuse cannot constitute a “mentaldisease or defect” under federal statute 18 U.S.C.§ 4241, which sets forth criteria of adjudicative in-competence. The government countered that a per-sonality disorder indeed should not be considered “amental disease or defect” for the purpose of finding adefendant incompetent to stand trial.

The appeals court accepted neither the appellant’snor the government’s position.67 Before trial, the dis-trict court considered the evidence before it and con-cluded that even if Wayt had a personality disorderwith paranoid features, the disorder, in his particularcase, did not meet the statutory criteria for findingthat Mr. Wayt was incompetent to stand trial. “Con-trary to Mr. Wayt’s contentions,” wrote the appealscourt, “the district court’s ruling does not convey ageneralized legal rule that personality disorders donot qualify for consideration” when a defendant’scompetence is in question (Ref. 67, p 883). Thislanguage seems to imply that had the district courtbased its decision on such “a generalized legal rule,” itwould have been in error, which, in turn, implies thata personality disorder could be a “mental disease ordefect” for the purpose of finding a defendant in-competent to stand trial.

A district court ruling in United States v. Veatch,842 F.Supp. 480 (W.D. Okla. 1993),68 illustrateshow a court might conclude that a personality disor-der renders a defendant incompetent to stand trial.The court heard testimony that the defendant’s “par-anoid thinking and mistrust of the judicial system ingeneral prevented him from participating in the pro-ceeding with the requisite degree of rationality” (Ref.69, p 482). The defendant believed, for example, that“his current incarceration was the direct result of thepersistence of the government in persecuting him forother acts.” Although Mr. Veatch understood whatwas happening in his criminal proceedings, “his se-vere personality disorder, which both experts agree iswrought with paranoid, narcissistic and antisocialtraits, rendered him incapable of effectively assistingcounsel in his defense or conducting his own defense.In sum, the defendant’s irrational thoughts pre-



vented him from being competent to stand trial”(Ref. 67, p 482).

E. Defendants With Impaired Hearing

For several decades, courts have held that defen-dants with impaired hearing are constitutionally en-titled to special accommodations during legal pro-ceedings. In 1925, an Alabama appeals court ruledthat a hearing-impaired defendant:

. . . must not only be confronted by the witnesses againsthim, but he must be accorded all necessary means to knowand understand the testimony given by said witnesses. Theconstitutional right [to confront one’s accuser] would bemeaningless and a vain and useless provision unless thetestimony of the witnesses against him could be understoodby the accused. Mere confrontation of the witnesses wouldbe useless, bordering upon the farcical, if the accused couldnot 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 sufficientlyunderstand the proceedings against him to be able to assistin his own defense. Clearly, a defendant who has a severehearing impairment, without an interpreter, cannot under-stand the testimony of witnesses against him so as to be ableto assist in his own defense [Ref. 70, p 976].

Decisions from Ohio and New York liken the situa-tion of a hearing-impaired defendant with that of adefendant who cannot understand English:

Clearly, a non-English speaking defendant could not mean-ingfully assist in his/her own defense without the aid of aninterpreter. A hearing impaired person is similarly deprivedof due process in court proceedings conducted without as-sistance [Ref. 71, p 509].

A defendant who cannot hear is analogous to a defendantwho cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting rea-sonable measures to accommodate his or her disability [Ref.72, p 672].

The Arizona Supreme Court said that without someform of assistance, hearing-impaired defendantswere forced to view “proceedings from a soundproofbooth” (Ref. 73, p 733).

Once the trial court decides that a hearing-impaired defendant requires some assistance, the trialcourt has broad discretion in accommodating thedefendant’s right to that assistance. However, twocases illustrate the potential sensitivity that trialcourts must display concerning the competence ofdefendants with hearing impairments.

Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct.App. 1986),74 appealed the second-degree murderconviction of a defendant with severe hearing im-

pairment who, as a 17-year-old student, stabbed ateacher. Before trial, the judge considered the opin-ions of seven experts before concluding that the de-fendant was competent and took “every possible pre-caution to assure that Holmes’ due process rightswere protected” (Ref. 74, p 232). At trial, the defen-dant admitted that he had stabbed the victim, butclaimed self-defense. His lawyer tried to show thatthe student had stabbed the teacher because theteacher had held him around the upper body, effec-tively cutting off his air supply, and that his clienthad believed he would be injured or killed if notreleased by the teacher, but when the defense attor-ney tried to question the student about what hethought would have happened if the teacher had con-tinued to exert pressure, the student could not re-spond because of hearing impairment. The trialjudge noted that the defendant could not answerquestions crucial to his defense, and subsequently,his attorney moved for a hearing to present psycho-logical testimony concerning his client’s ability topresent the defense of self-defense. However, the trialjudge declined to conduct another hearing on thedefendant’s competence to stand trial. The appealscourt held that the defendant’s problems in testifyinghad raised a bona fide doubt about his competence tostand trial and that the trial court abused its discre-tion in denying his motion. The appeals court va-cated his conviction and sent the case back to the trialcourt for a reevaluation of his competence to standtrial.

The kinds of courtroom accommodations thatwould preserve a hearing-impaired defendant’s con-viction 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 hear-ing impairment who had been convicted for aggra-vated assault and firing into a dwelling contendedthat (1) he should not have been tried until he hadlearned sign language, and (2) he had been triedwhile he was physically (and possibly mentally)incompetent.

The appeals court rejected both claims. Concern-ing the first, the court noted that Mr. Shook couldread and that an interpreter had “kept him well in-formed as the trial progressed. He is a high schoolgraduate and was a college student. During the trialhe was kept advised of what was being argued andwhat the testimony was” (Ref. 75, pp 844–5). The



second claim, said the appeals court, was “totally re-futed by the facts” (Ref. 75, p 845). At the trial, thejudge had appointed an interpreter who sat at defensecounsel’s table during the trial and wrote notes to thedefendant. Lay witnesses had testified that they couldcommunicate with Mr. Shook and he could commu-nicate with them. The trial court also had allowedmembers of the defendant’s family to be with thedefendant at counsel table to assist in communica-tion, even though they might have been witnesses inthe case. At a subsequent habeas corpus hearing, afederal court affirmed that Mr. Shook’s criminal trialproceedings had adequately protected his due pro-cess rights because the trial court had taken all rea-sonable measures to compensate for Mr. Shook’shearing impairment and had also delayed the trialwhile he underwent a competence evaluation at thestate hospital.

Hearing and communication impairment may bethe basis for a court’s finding of incompetence tostand trial, even when no evidence is presented con-cerning the defendant’s mental disorder. For exam-ple, State v. Burnett, 2005 Ohio 49 (Ohio Ct. App.2005),76 affirmed the trial court’s finding that a “deafmute” defendant was incompetent to stand trial. Thedefendant’s concrete thinking and idiosyncraticmethod of communication (which involved use ofgestures, American Sign Language, and a system of“home signing” established among his family mem-bers) precluded having interpreters function as inter-mediaries between him and legal personnel. No men-tal health expert ever evaluated the defendant. Thetrial court based its finding on the testimony of amaster’s-level social worker who also had an associ-ate’s degree in sign language. In another case (UnitedStates v. Jones, 2006 U.S. Dist. LEXIS 9257 (E.D.Tenn. 2006))77 involving a defendant with hearingimpairment who could not understand standard signlanguage, a federal district court declared that thedefendant was “physically incompetent” (Ref. 77, p17) to stand trial under the Dusky standard.

F. Amnesia

Many U.S. cases have addressed whether trying adefendant who cannot remember the events that ledto his arrest constitutes a denial of due process or ofthe right to effective assistance of counsel. The most-cited case in this area is Wilson v. United States, 391F.2d 460 (D.C. Cir. 1968).78 Robert Wilson and anaccomplice stole a car and held up a pharmacy. Police

pursued the pair in a high-speed chase that endedwhen the alleged thieves’ vehicle left the road andcrashed into a tree. The accomplice died, and Mr.Wilson fractured his skull and ruptured several bloodvessels in his brain. He remained unconscious forthree weeks, and at the time of trial, he could remem-ber nothing that had happened from the afternoon ofthe robberies until he had regained consciousness.However, his mental condition was otherwise “nor-mal,” and he had only minor neurological sequelae(partial paralysis and a slight speech defect). The trialcourt found Mr. Wilson competent to stand trial,and he was found guilty of assault with a pistol androbbery. He appealed his conviction on the groundsthat he had been incompetent to stand trial and thathis being tried while amnesic had violated his consti-tutional rights.

The appeals court remanded the case to the trialcourt for more extensive posttrial findings aboutwhether Mr. Wilson’s amnesia had indeed deprivedhim of his rights to a fair trial and effective assistanceof counsel under the Fifth and Sixth Amendments.The appeals court held that to have a fair trial, adefendant must be competent under the Dusky stan-dard. A trial court would have to predict before trialat a competence hearing whether an amnesic defen-dant has the capacities required under Dusky. Butafter a trial has taken place, continued the appealscourt, “the trial judge should determine whether thedefendant has in fact been able to perform the func-tions” (Ref. 78, p 463) required by Dusky. Further,the trial court should “make detailed written find-ings” (Ref. 79, p 463) concerning how the defen-dant’s amnesia had affected the fairness of the trial,considering six factors:

The effect of the amnesia on the defendant’s abil-ity to consult with and assist his lawyer;

the effect of the amnesia on the defendant’s abil-ity to testify;

how well the evidence could be extrinsically re-constructed, including evidence relating to thealleged offense and any plausible alibi;

the extent to which the government assisted thedefense in this reconstruction;

the strength of the prosecution’s case, includingthe possibility that the accused could, but for hisamnesia, establish an alibi or other defense; and“[a]ny other facts and circumstances which



would indicate whether or not the defendant hada fair trial” (Ref. 78, p 464).

Though many other courts have adopted featuresof the reasoning and approach in Wilson to the prob-lem 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 impactof the fourth point. The court held that a defendant’smemory impairment and incapacity to testify weresuch as to require the prosecution to help the defensein reconstructing evidence relating to the crimecharged and various possible defenses. To this end,the court ordered the prosecution to open its files todefense counsel and to keep those files open contin-ually throughout the trial.

Wilson clearly implies that amnesia for the eventsthat led to an arrest could be a ground for a finding ofincompetence and that a trial court may have to ex-amine whether a defendant is incompetent prospec-tively (before trial) and/or retrospectively (after adju-dication has occurred). Thus, appellate courts havereversed convictions or remanded cases after findingthat amnesia, coupled with other factors, may haveprevented the defendant from intelligently testifyingor remembering matters needed to make his defense.Courts have remanded or reversed in cases in whichthe amnesia had diverse causes, including traumaticbrain injury,78 “a psychotic type of regression,”89

drugs administered by a sheriff,90 self-administerednarcotics,91 and psychogenic causes.92,93

However, these cases held only that memory im-pairments may entitle defendants to trial court as-sessments of their competence to proceed with adju-dication or to postconviction reviews of whethertheir amnesia had adversely affected their defense. Ina 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 caseto support the contention that amnesia does precludemental competency as a matter of law” (Ref. 95, p285), nor was there any record of a court’s holding adefendant incompetent to stand trial solely becauseof amnesia. In subsequent years, courts have consis-tently hewed “to the well-accepted principle that aloss of memory of the alleged offense does not in andof itself preclude fitness to proceed” (Ref. 92, p 566;see also Ref. 95). “[C]ases without exception rejectthe notion that an accused possesses that ability [to

stand trial] only if he is able to remember the circum-stances of the crime with which he is charged” (Ref.96, p 301).

By itself, amnesia is only one factor for the trialcourt to consider when determining whether a defen-dant is competent and will receive a fair trial.97 In-deed, courts have held this, even in cases in whichdefendants’ cognitive problems arose from gunshotwounds to the head.98–101 In one of these cases, Statev. McClendon, 437 P.2d 421 (Ariz. 1968),98 the Ar-izona Supreme Court concluded that limited amne-sia would not totally incapacitate the defense or pre-vent the defendant from assisting counsel innumerous ways, commenting, “We believe that a de-fendant is entitled to a fair trial, but not necessarily toa perfect trial” (Ref. 98, p 425). McClendon notedthat amnesia was nothing more than a failure ofmemory concerning facts or events to which an indi-vidual has been exposed, that everyone’s memory ismarked by some postevent distortion, that no one’smemory is ever complete, and that therefore, every-one is amnesic to some degree. The ruling in McClen-don also voiced a persistent concern of the courts inthis area: that defendants could easily feign amnesiaand that discovery and proof of feigning and malin-gering are difficult, especially if a defendant refuses totake the stand.

G. The Pro Se Defense

1. Historical Background

The notion that an attorney should represent acriminal defendant is a recent historical develop-ment. Western literature contains many importanthistorical accounts of individuals (e.g., Socrates andThomas More) who defended themselves againstvarious types of criminal charges. Old English lawtraditionally denied the aid of counsel to felony de-fendants, and only after an 1836 act of Parliamentwere persons accused of felonies granted the full rightto legal representation.102,103

In the United States, the Sixth Amendment estab-lished a criminal defendant’s right to be representedby attorneys. Though a 1932 decision102 mandatedcounsel in death penalty cases under the Due ProcessClause, it was not until 1963104 that the U.S. Su-preme Court held that the Sixth Amendment guar-antees indigent felony defendants the right to court-appointed counsel in state criminal trials.U.S. lawdoes not require criminal defendants to use lawyersin criminal proceedings, however. In Faretta v. Cal-



ifornia, 422 U.S. 806 (1975),103 the U.S. SupremeCourt recognized a constitutionally protected right,derived from the Sixth Amendment as made appli-cable to the states by the Fourteenth, that lets a de-fendant proceed without counsel in a state criminalprosecution if the defendant voluntarily and intelli-gently elects to do so. The Faretta court held that theright to self-representation is implicit in the structureof the Sixth Amendment, which states that “the ac-cused [and not his attorney] shall enjoy the right tobe informed of the nature and cause of the accusa-tion; to be confronted with the witnesses againsthim; [and] to have compulsory process for obtainingwitnesses in his favor.”

2. Legal Criteria for Permitting a Pro Se Defense

Because pro se defendants relinquish many of thetraditional benefits associated with the right to coun-sel, Faretta required that accused persons knowinglyand intelligently forgo those relinquished benefitsbefore being permitted to represent themselves. Sub-sequent cases have held that when the defendantchooses self-representation, the record should showthat “he knows what he is doing and his choice ismade with eyes open” (Ref. 103, p 835).

To make a knowing and intelligent decision torepresent oneself, the defendant must have the men-tal competence to make a valid waiver of the right tocounsel. In the United States, a self-representingcriminal defendant has the right to have “a fool for aclient,” and the wisdom of representing oneself doesnot have a legal bearing on whether a decision toproceed pro se is intelligent and knowing.105 Further,when trial courts assess whether a defendant is mak-ing a knowing and intelligent decision to defendhimself, it does not consider his lack of skill or tech-nical legal knowledge to be relevant, because it is thedefendant who will experience the consequences of aconviction.106,107 Even in capital cases, defendantswho are competent to stand trial and who know-ingly, intelligently, and voluntarily waive the right toan attorney are entitled to represent themselves.108

In Indiana v. Edwards, 128 S. Ct. 2379 (2008),109

the United States Supreme Court held that statesmay use a higher competence standard for pro se de-fendants. In 1999, Ahmad Edwards tried to steal apair of shoes from a department store. When de-tected, he shot at a guard and wounded a bystander.His charges ranged from theft to attempted murder.After five years of commitment to a state hospital for

competence restoration, he was deemed competentin 2005. At Mr. Edwards’ first trial, the judge deniedhis request to represent himself, and although thejury convicted him on some charges, it was dead-locked on others. In the second trial, his request toproceed pro se was again denied, this time on therationale that he was competent to stand trial if rep-resented by an attorney but not sufficiently compe-tent to represent himself. He was convicted of batteryand attempted murder. Upon appeal, Indiana di-rectly asked the court to consider whether the Con-stitution allows an obviously impaired man to pro-ceed pro se. Although the court in Godinez v.Moran18 had refused to apply a standard higher thanthat in Dusky, Mr. Moran did not want to go to trial,so his capacity to proceed pro se was never at issue.Faretta103 never explicitly addressed whether theright to self-representation might be limited for per-sons with mental illness whose symptoms could in-terfere with their abilities to proceed pro se. Thecourt’s reasoning in Indiana v. Edwards reflected thatautonomy, dignity, and fairness are not achievedwhen mental illness impairs a person’s ability tomake his case before the court.110

Indiana v. Edwards 109 did not, however, articu-late what standards defendants must meet to proceedpro se. Exactly what trial courts must do when adefendant asks to proceed pro se appears to varybetween, and even within, jurisdictions and wasleft under individual judicial discretion based ondata presented in a particular case. White andGutheil111 articulated clinical approaches to as-sessing competence to proceed pro se, whichFitch112 reviewed in light of new standards of theAmerican Bar Association.

Some jurisdictions have spelled out specific factorsto be considered when deciding whether a waiver ofcounsel is valid. The Rhode Island Supreme Courtsuggested that trial courts consider: (1) the defen-dant’s background, experience, behavior at the hear-ing, age, education, and physical and mental health;(2) the defendant’s contact with lawyers before thehearing; (3) the defendant’s knowledge of the pro-ceedings and the sentence that may be imposed; (4)whether standby council has been appointed and isavailable; (5) whether mistreatment or coercion haveoccurred; and (6) whether the defendant is trying tomanipulate the events of the hearing.113 A Wisconsinappellate court held that the trial court must considerthe defendant’s education, literacy, fluency in Eng-



lish, and any physical or psychological disability thatmay significantly affect communication.114

3. Deportment and Rationality of Pro Se Defendants

Although the Faretta103 and Indiana v. Edwards109

decisions permit a criminal defendant to act pro se, it isnot a license to abuse the dignity of the courtroom, anda trial judge may terminate self-representation by a de-fendant who does not behave acceptably. Thus, severalappellate decisions (e.g., Refs. 115–118) have foundthat trial courts properly revoked the right to self-representation in cases in which pro se criminal defen-dants engaged in disruptive behavior at trial.

Several courts have held that a history or currentpresence of mental illness is not, by itself, a reason todeny the right to self-representation. In a 1975 Texascase (Stepp v. Estelle, 524 F.2d 447 (5th Cir.1975)),119 the appeals court found that the fact thatthe defendant had attempted suicide two or threedays before his trial did not by itself mean that helacked the appropriate mental capacity. In a 1981Arizona case, the court held that granting of the de-fendant’s request to represent himself at trial was notan error, although the defendant had a history ofmental illness, had been confined several times inmental institutions, and was at times disruptive incourt.120 In an appeal of a capital murder conviction,the Nevada Supreme Court held that the defendant’swaiver of his right to counsel had been valid, know-ing, voluntary, and intelligent, although the defen-dant had a narcissistic personality disorder.121

However, trial courts must recognize when mentalillness affects a defendant’s competence and ability tochoose self-representation. Granting a defendant’srequest to proceed pro se was held improper in a casein which the defendant said that his five differentpublic defenders were incompetent and in which hisdisruptive behavior and claims of ineffective assis-tance raised questions about his understanding oflegal proceedings.122 The Michigan Supreme Courtheld that a defendant was properly found to be in-competent to represent himself at trial when hewanted his appointed lawyer dismissed for “lack ofevidence” and told the trial judge that this evidenceconsisted of a “mask ruling of Jesse James’ case con-cerning the Supreme Court” (Ref. 123, p 860). If adefendant wants to represent himself, but his state-ments or behavior give the trial judge sufficient causeto doubt his competence to make a knowing, intel-ligent waiver of counsel, the court must appoint an

attorney to represent the defendant, and the attorneymust serve until the question of competence isresolved.124

The legal literature contains numerous appellatecases and articles about pro se defendants, and there issome empiric study of this topic in the medical liter-ature. In what they believe was the first effort tocharacterize pro se defendants systematically, Moss-man and Dunseith125 found that, although newspa-per descriptions of individuals who representedthemselves often contained indicia of mental problems,a substantial fraction of pro se defendants had rationalreasons for wanting to represent themselves. In a fewcases, pro se defendants were skillful and successful inrepresenting themselves and took advantage of oppor-tunities (e.g., establishing rapport with jurors) that arenot available to attorney-represented defendants.

Additional studies also cast doubt on the view thatall pro se defendants either have mental illness or arefoolish.126 A survey of New York State trial courtjudges’ views on factors that affect pro se competenceinclude cognitive and psychotic disorders, intellec-tual and analytical abilities, legal knowledge and ex-perience, language abilities, having a rational reasonfor proceeding pro se, and a willingness to accept helpfrom standby counsel.127 A survey of forensic mentalhealth experts indicates that examiners assessing prose competence may wish to determine the defen-dant’s appraisal of legal defenses and strategies andunderstanding of questioning and challenging wit-nesses for a higher standard of competence. It is alsoimportant to assess the defendant’s motivation forgoing pro se and willingness to accept standbycounsels.128

H. Malingering

Many defendants referred for evaluations of com-petence to stand trial are found to be malingering.Two reports from the 1990s suggest that at least 10percent of defendants referred for competence eval-uations attempt to feign mental problems that wouldimpair competence.129,130 Judges persistently raisethe possibility of malingering as a reason for skepti-cism about the defendant’s having a genuine mentaldisorder.131,132 In at least two federal cases, appealscourts have held that deliberate efforts to feign men-tal problems could be grounds for imposing a longerprison 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 firearmscharges. Psychiatrists at the two federal facilitieswhere he was held concluded that he was competentand malingering mental illness, though he also had “apersonality disorder with antisocial and borderlinetendencies that could not be treated” (Ref. 133, p231).

Mr. Greer’s provocative behavior at trial ulti-mately led the trial judge to rule that he had “con-sciously, deliberately, and voluntarily” (Ref. 133, p233) waived his right to be present in the courtroom.The trial continued with Mr. Greer absent, and hewas convicted on all counts against him. The govern-ment then recommended that, because he had fakedmental illness before and during his trial, he shouldreceive a two-level enhancement of his prison sen-tence, as is required under the federal sentencingguidelines when a defendant “willfully” attempts toobstruct 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 sentencingguidelines did not specifically list malingering as anaction meriting a longer sentence. However, feigningmental symptoms was similar in purpose to otheractions aimed at avoiding punishment, such as lyingon the stand about one’s mental state or submitting awillfully disguised handwriting sample, which courtshave held are forms of obstruction that justify a sen-tence enhancement.

Mr. Greer also argued that because his faking hadbeen a manifestation of his personality disorder, hehad not acted “willfully” in trying to mislead the trialcourt. However, the appeals court noted that thecriminal justice system consistently holds persons“who are ‘antisocial’ or ‘borderline’” accountable fortheir criminal conduct. “Thus, the mere fact that adefendant suffers from a personality disorder doesnot make him immune to a [sentence] enhance-ment” (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 acharge of being a felon in possession of a firearm. Hefiled a pro se motion requesting an examination of hiscompetence to stand trial, which a magistrate judgegranted. Mr. Binion underwent evaluation at theU.S. Medical Center for Federal Prisoners in Spring-field, Missouri, where doctors concluded that he hadno present mental illness and that his reports of past

symptoms sounded implausible. The evaluating psy-chiatrist believed that Mr. Binion’s dishonesty prob-ably was a form of recreation, and that Mr. Biniondid not seem to be planning his false complaints for aspecific material gain. After he entered a guilty plea, apresentence investigation report recommended asentence enhancement because his fabrication ofmental illness had necessitated a labor-intensive,time-consuming, costly evaluation. Although Mr.Binion objected, the district court added a two-levelincrease to his charge for obstruction of justice andsentenced him to six and one-half years in prisonfollowed by two years of supervised release.

Mr. Binion appealed his sentence, and the appealscourt upheld it. One aspect that the appeals courtheld was that the facts in his case supported the trialcourt’s conclusion that, by faking a mental illness, hehad knowingly obstructed justice to affect his casefavorably. Mr. Binion filed a pro se motion requestingan evaluation for competence to stand trial, and theexamining psychiatrist told him that the evaluationwas to determine whether he was competent to pro-ceed with adjudication. He clearly knew why he wasundergoing evaluation, and the appeals court con-cluded that the trial court did not err in finding thathe had tried to hinder his prosecution by malingeringand in enhancing his sentence accordingly.

Like Greer, Binion raises concerns for examinersabout how courts use their findings. Ordinarily, anexaminer who undertakes an evaluation of adjudica-tive competence does so in the belief that informa-tion obtained during the evaluation will not be usedfor purposes unrelated to fitness for trial, unless thedefendant raises the question of his mental conditionduring his defense or during sentencing. Mr. Binionpleaded guilty without claiming a mental illness de-fense, yet the court used psychiatrists’ findings andopinions to enhance his sentence.

III. Agency Relationships

Defense attorneys, prosecutors, and trial courtsmay all request that a criminal defendant undergo anevaluation of his competence to stand trial. Beforebeginning a competence evaluation, the examinershould know who requested it, because the source ofthe referral may affect how the examiner will reportfindings and the examiner’s obligation to maintainconfidentiality.

Every state has some mechanism that allows crim-inal courts to obtain an evaluation of a defendant’s



competence to stand trial.135 When performingcourt-ordered evaluations, examiners should antici-pate that they will report their findings and opinionsto the court and that their reports will be available tothe defendant’s lawyer and the prosecutor. In all U.S.jurisdictions, statutes or case law prohibit using in-formation obtained during a competence evaluationto prove criminal culpability, unless the defendantplaces his mental state at issue.21,35 If the defendantlater testifies, however, some courts may permit theprosecution to use contents of a competence reportfor impeachment purposes if the report affords evi-dence of the defendant’s prior inconsistent state-ments.136,137 For this reason, whenever possible, acompetence report should not mention potentiallyself-incriminating information obtained from inter-viewing a defendant.

Courts may request a competence evaluation forreasons other than wanting to obtain an expert opin-ion about a defendant’s ability to proceed with adju-dication. For example, requests for competence eval-uations occasionally reflect the court’s desire tofacilitate prompt treatment of a severely impaireddefendant. Rather than arrange for inpatient treat-ment of a defendant with mental illness by using civilcommitment procedures, courts may arrange for in-patient treatment based on incompetence to standtrial. Sometimes courts confuse questions of criminalresponsibility with questions of competence to standtrial.138,139 In such cases, the examiner can clarifywith the court the specific assessment question andcan recommend additional (or different types of)evaluations, if indicated.

When retained by the defense, the examinershould communicate data and opinions completelyand honestly to the retaining attorney. In many ju-risdictions, verbally communicated opinions ofdefense experts are covered under attorney work-product doctrine,140,141 which means that if the ex-pert’s opinions are not helpful to the defense, they arenot discoverable by the prosecution or the court,though a subsequent defense decision to retain otherexperts and have them testify may obviate this pro-tection.142 The examiner may want to clarify withthe retaining defense attorney whether privilege pro-tects the information obtained during the forensicevaluation and whether the attorney has discussedthis matter with the defendant. The defense-retainedexaminer should know whether information ob-tained during a competence evaluation would later

be discoverable by the prosecution. In cases in whichthe defense desires mental health expertise related tomatters besides competence (e.g., information thataddresses criminal responsibility or aid in plea bar-gaining) and believes that these other matters arecovered in competence evaluations, the examiner caneducate the defense attorney about the limited scopeof competence examinations and recommend addi-tional types of evaluations. The defense-retained ex-aminer also may actively consult with and advise thedefense attorney, a role explicitly countenanced bythe U.S. Supreme Court in Ake v. Oklahoma, 470U.S. 68 (1985).143

In unusual circumstances, prosecution-retainedexperts may face special ethics-related concerns. Anexaminer’s duty to be honest and to strive for objec-tivity requires communicating findings and opinionscompletely and honestly to the retaining attorney.

From time to time, examiners may sense thatcourts or attorneys are using their expertise or find-ings for reasons other than establishing whether adefendant is competent to stand trial. For example,the prosecution sometimes questions a defendant’sadjudicative competence, seeking to delay proceed-ings and get additional time to prepare the state’scase, to avoid a possible insanity acquittal, or to bringabout confinement of a mentally impaired defendantwhen there is insufficient evidence to convicthim.144,145 Judges may order competence evalua-tions to avoid having to release defendants on bailor as a way of confining defendants accused ofminor charges who do not meet criteria for civilcommitment.146 Defense attorneys may invokethe incompetence evaluation process to get moretime for trial preparation, to allow the passage oftime to weaken the prosecution’s case, or to seekpsychiatric data that may help with plea negotia-tions or with obtaining a disposition more favor-able than imprisonment.145,146 Although address-ing such matters is properly the concern of thejudicial system, examiners may prefer to declinereferrals or withdraw from cases in which theysense potential misuse of their expertise.

In cases where only the defendant’s adjudicativecompetence has been questioned (that is, in caseswhere the defendant will not enter or has not yetentered an insanity defense), an examiner should nottell prosecutors the defendant’s detailed account ofthe offense, new incriminating information obtainedfrom collateral sources and unknown to prosecution,



or information about the defendant’s trial strategy.In such situations, we suggest that the examiner com-ment only on the defendant’s functional capacitieswithout disclosing the detailed information that thedefendant or collateral sources revealed during inter-views. This approach would mean, for example, thatthe examiner would comment on whether a defen-dant could give a rational and coherent account ofthe events that led to his arrest or could formulate arealistic defense plan. The examiner would not dis-close specific information, however, such as what thedefendant said concerning his actions on the day ofthe alleged offense unless such disclosure is thoughtto be clinically necessary to advance the evaluation.

Evaluating a defendant in a case in which the prose-cution plans to seek the death penalty raises additionalconcerns regarding ethical behavior for court-appointed, defense-retained, and prosecution-re-tained examiners. When there is a bona fide doubtabout a defendant’s competence to stand trial, acriminal court is constitutionally obligated to ar-range for a hearing, which frequently requires inputfrom mental health experts. It is important to keep inmind that, as shown in Buchanan v. Kentucky, 483U.S. 402 (1987),147 if the defendant later raises hispsychiatric status during trial or sentencing, theprosecution may use mental state findings and de-tailed behavioral data that examiners obtainedduring a competence evaluation to persuade jurorsto impose the death penalty.148

The examiner has a duty to pursue objectivity, re-gardless of the identity of the retaining party. Prosecu-tion or court-retained examiners should be particularlycareful to follow the standards of ethics and legal guide-lines that protect the defendant’s rights.149,150

The American Psychiatric Association’s EthicalPrinciples (§ 4, Annotation 13)151 and the AAPL Eth-ics Guidelines (Ref. 152, Section III) preclude evalu-ation of a defendant before he is afforded access todefense counsel. While it is not necessary that thedefendant confer with counsel before the evaluation,appointed counsel must be available for the defen-dant to have a consultation, either directly or by tele-phone, before or during the competence evaluation.As is the case with evaluations of criminal responsi-bility,153 it is best that the defense attorney knowabout an upcoming competence evaluation beforethe psychiatrist initiates the evaluation. A nonde-fense psychiatrist should not evaluate a criminal de-fendant’s adjudicative competence until the trial

court has issued an order for the evaluation. If a de-fendant needs emergency medical or psychiatric eval-uation or treatment, however, a psychiatrist may eth-ically provide such services before the defendant hashad access to counsel.

Section 7-4.4(b) of the America Bar Association’sCriminal Justice Mental Health Standards145 recom-mends that the defendant’s mental condition at thetime of the alleged offense not be combined in anyevaluation to determine adjudicative competenceunless the defense requests it or unless good cause isshown. The Standards also recommend that judicialorders make a clear distinction between these twolegal issues and the reasons for evaluation.138 Not alljurisdictions follow this practice, however. Manystates have examiners conduct joint evaluations ofcompetence to stand trial and criminal responsibil-ity, and some states permit combining evaluations ofcompetence and criminal responsibility in the samedocument. This practice may create ethics-relatedproblems for a prosecution-retained or court-appointed examiner when it appears that an evalueeis incompetent to stand trial and is revealing poten-tially incriminating information. Some jurisdictionsprovide legal protection concerning potentially in-criminating information obtained from incompetentdefendants. In the absence of such protections, how-ever, we recommend that the examiner completeonly an evaluation that informs the retaining party ofthe defendant’s incompetence, not of the defendant’smental condition at the time of the alleged offense.

Contact between the forensic examiner and de-fense counsel is described by current defense stan-dards of practice as an important consideration andtask for defense counsel.154 Forensic examiners maynot always agree with defense counsel on the utilityof their information on competence, but the UnitedStates Supreme Court, and other courts, have com-mented on it repeatedly.155

IV. Ethics

A. The Ethics Framework

The ethics framework that guides forensic psychi-atric evaluations has several sources. The Hippocratictradition in medical ethics informs physicians thattheir primary duties are beneficence and nonmalefi-cence, which implies that clinical efforts should be tohelp patients and, above all, to do no harm (primumnon nocere).156 Within the Hippocratic framework,



one might regard competence evaluations as benefit-ing defendants by protecting them from being triedand convicted when they cannot assist counsel orparticipate rationally in their defense. In addition,determinations that defendants are competent tostand trial may allow them to proceed to trial andgain an acquittal.

In many instances, however, undertaking a com-petence evaluation appears to conflict with tradi-tional Hippocratic obligations because findings sup-porting competence to stand trial may enable thecriminal court to try, convict, and impose punish-ment on the defendant. Moreover, the lack of aphysician-patient relationship during most evalua-tions of trial competence suggests that Hippocraticobligations may not be relevant or should not applyin the way that they do in contexts in which an eval-uation 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 thesuffering of a patient, but to provide the court orretaining attorney with psychiatric expertise that willassist in a legal determination. For this reason, manyexaminers regard evaluating trial competence as atask for which the physician’s traditional concernsabout helping patients and alleviating their pain arenot paramount. When examiners function as medi-colegal experts, the values that assume primacy in-clude truth-telling, objectivity, and respect for thehumanity of the evaluee.150,157,158 The physician’sresponsibility to “assist in the administration of jus-tice” receives endorsement in guideline E-9.07 of theAmerican Medical Association’s Code of Ethics.159

Though they are not functioning as treating phy-sicians when they assess adjudicative competence, ex-aminers still should act responsibly concerning theirevaluees’ health needs, in a manner analogous to eth-ics guidelines for work-related independent medicalexaminations set out by the American Medical Asso-ciation. That is, examiners should conduct objectivepsychiatric evaluations, even though they will not bemonitoring evaluees’ health over time or providingtreatment. AMA opinion E10.03160 states, “a lim-ited patient-physician relationship should be consid-ered to exist during isolated assessments” of a defen-dant’s competence to stand trial. Within this limitedrelationship, an examiner may elect to tell an evalueeabout important health information or problems dis-covered during an examination or to recommendthat an evaluee seek treatment from a qualified care-

giver. If necessary (e.g., if the evaluee is confined injail and needs treatment urgently or poses a high riskof harming himself or someone else), an examinershould facilitate the evaluee’s receiving further eval-uation and follow-up care. In such cases, the exam-iner should also notify the defendant’s attorney and,if the evaluation was initiated by the court or prose-cution, the court.145 In taking such health-relatedactions for a defendant-evaluee, the examiner shoulddisclose the minimum information necessary to per-mit appropriate management.

Since 1987, AAPL has promulgated ethics guide-lines for psychiatrists that are applicable to evalua-tions of adjudicative competence. The Principles ofMedical Ethics With Annotations Especially Applicableto Psychiatry published by the American PsychiatricAssociation (APA)151 also contains guidelines thatare of particular importance to examiners conductingassessments of competence to stand trial. Theseinclude:

the obligation to practice within the bounds ofone’s professional competence (§ 2, No. 3);

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

the obligation to disclose only the informationthat is relevant to a given situation and to avoidoffering speculation as fact (§ 4, No. 5);

the obligation not to evaluate (for purposes otherthan providing treatment) a person charged withcriminal acts before that person has had access tocounsel (§ 4, No. 13); and

the obligation to refrain from offering a profes-sional opinion about an individual without con-ducting or attempting to conduct a personal ex-amination (§ 7, No. 3).

B. Conflicting Roles

When conducting evaluations of adjudicativecompetence, examiners apply their skills to satisfylegal needs rather than clinical goals. Examiners whofunction in forensic roles therefore have a primaryduty to serve the criminal justice system properlyrather than to serve the interest of defendants.150 Ingeneral, treating examiners should try to avoid con-ducting forensic evaluations on their own patients;ideally, independent, nontreating examiners shouldperform such evaluations.152,161 In the context ofevaluations of competence to stand trial, role con-



flicts can arise when an examiner who has been treat-ing a patient serves as the forensic examiner, becausethe responsibility to “do no harm” within a physician-patient relationship may not be consonant with theexaminer’s obligation to be objective and truthful,regardless of the effect on the ultimate legal outcomefor the defendant. Performance of these evaluationsby an examiner who has been treating a patient canalso adversely affect the therapeutic relationship, es-pecially if the defendant-patient disagrees with theexaminer’s opinion. In addition, a treating clinicianmay be aware of a great deal of potentially damaging,incriminating, or embarrassing information that heor she could elicit were he or she to become an eval-uator. Finally, evaluating adjudicative competencemay require an examiner to interview persons outsideof the treatment relationship, and reporting a defen-dant’s competence may involve disclosure of infor-mation obtained during psychiatric treatment. If theexaminer were also the treating clinician, such collat-eral contact or disclosure of personal health informa-tion might raise concerns about breaching doctor–patient confidentiality.162

The problem of having treating clinicians serve asexpert witnesses arises most often in public (government-operated) psychiatric hospitals. Indeed, statutes inmany states require public institutions and their cli-nicians to function simultaneously as treatment pro-viders, competence restorers, and competence asses-sors. Trying to fulfill these multiple roles may requireclinicians to satisfy conflicting obligations. As treat-ing clinicians, psychiatrists have fiduciary relation-ships to act in their patients’ best medical interests,yet at the same time, psychiatrists’ statutorily pre-scribed duty to provide data and opinions to courtsmay run counter to the patient’s perception of his orher best interest. If sufficient forensic mental healthexpertise is available, it may be possible to eliminate(or at least mitigate the impact of) these role conflictsby assigning the evaluating and treating roles to dif-ferent clinicians at a mental health facility, and werecommend doing so.

As noted, in some settings and situations, how-ever, psychiatrists cannot avoid acting as both treat-ment providers and expert witnesses. In inpatientsettings to which patients have been referred undercourt order for competence restoration and wherethe principal goal of treatment is to render patientscompetent to stand trial, treatment is partiallyguided by assessments of whether patients are mov-

ing toward competence. Under these circumstances,treating clinicians cannot and should not ignore theimpact of their treatment on patients’ competence-related mental capacities. In addition, records cre-ated to document treatment frequently are relevantto and used in formulating an assessment of an inpa-tient’s adjudicative competence. Finally, statutessometimes specify that the individual (or institution)who provides treatment must submit a report con-cerning the patient’s competence, and courts some-times require the testimony of the treating clinician.When the separation of evaluating and treating rolesis impractical or is precluded by courts’ expectations,clinicians should disclose their potential dual roles atthe beginning of treatment and should reminddefendant-patients of their dual functions at keypoints (e.g., before an upcoming court hearing) dur-ing clinical care. At the same time, treatment teamsthat work with individuals committed for restorationmust be cognizant of continuity of care and mainte-nance of competence concerns. For example, in manyjurisdictions, medication decisions in a hospital-basedrestoration programs may not be the same as those in ajail setting. Thus, the prescribers in forensic settingswork with individuals who are often returned to jailonce rendered competent. Also, although not directlyrelated to restoration, treatment planning for commu-nity settings as a follow-up to restoration, in the eventthat the defendant returns to court and is released, canbe prudent, though restoration programs generallymust focus on resolution of the court case.

In most states, a legal finding of adjudicative in-competence may lead to court-ordered treatment(and usually, psychiatric hospitalization) to restorethe defendant’s competence.163 As noted in SectionI, recent court decisions have approved the use ofinvoluntary medications for competence restorationunder certain circumstances.25,31 The use of psycho-tropic drugs to bring about trial competence none-theless remains a controversial subject. Some criticsargue that so-called chemical competence is artificial,that involuntary psychotropic medication may notbe effective, and that side effects of psychotropicmedication may prevent an involuntarily treated de-fendant from receiving a fair trial.164–166 Althoughmost psychiatrists support providing appropriatetreatment to psychotic defendants (involuntarily, ifnecessary), forced treatment for competence restora-tion confronts treating physicians with the potentialproblem in ethics of “dual loyalty.”167 On the one



hand, a treating physician’s ethical duty is to act inways that benefit the patient. On the other hand,when medication is forced on a defendant-patientto make him fit for prosecution, the government isseeking to have the patient medicated irrespectiveof his wishes, with the goal of making the patienteligible for prosecution and the possibility of pun-ishment, and doctors are participating in this pro-cess.168 The American Psychiatric Associationnonetheless advocates the forced use of medica-tions when they are medically appropriate and rep-resent the best hope of restoring adjudicativecompetence.169

C. Scope of Participation

The American Medical Association’s Code of Eth-ics (Opinion 9.07)170states, “As a citizen and as aprofessional with special training and experience, thephysician has an ethical obligation to assist in theadministration of justice.” The legal basis for expertparticipation in legal proceedings is articulated inFederal Rule of Evidence 702 (“Testimony by Ex-perts”), which states:

If scientific, technical, or other specialized knowledge willassist the trier of fact to understand the evidence or todetermine a fact in issue, a witness qualified as an expert byknowledge, skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise, if (1)the testimony is based upon sufficient facts or data, (2) thetestimony is the product of reliable principles and methods,and (3) the witness has applied the principles and methodsreliably to the facts of the case.171

Most states and other jurisdictions have a compa-rable rule governing expert testimony in general.Concerning expert psychiatric testimony, the Crim-inal Justice Mental Health Standards of the AmericanBar Association state that:

. . . expert testimony, in the form of an opinion or other-wise, concerning a person’s present mental condition ormental condition in the past should be admissible wheneverthe testimony is based on and is within the specializedknowledge of the witness and will assist the trier of fact [Ref.145].

Psychiatrists and other professionals with specializedtraining and experience in the forensic setting mayconsult, and indeed are encouraged to consult,within the criminal justice system regarding compe-tence to stand trial. By serving as experts, examinerscan help legal decision-makers understand how men-tal illness affects a defendant’s ability to assist an at-torney and negotiate the adversarial process of acriminal trial.

Examiners who undertake examinations of adju-dicative competence should conduct these evalua-tions properly. They should know the legal defini-tions of competence to stand trial in the jurisdictionswhere they practice. They should understand the es-sential elements of a competence evaluation andshould have sufficient professional education, train-ing, and experience to acquire the clinical data rele-vant to an evaluation of competence to stand trial.They should know how to apply their specializedknowledge in a way that permits them to address thespecific legal issues related to adjudicative compe-tence (Ref. 145). At the same time, psychiatrists areethically obliged to refrain from testifying about mat-ters that lie outside their expertise.162,170

D. Honesty and Objectivity

Psychiatrists should strive to provide courts withopinions and testimony that are honest and as objec-tive as possible (Ref. 152, § IV). When retained byone side in a criminal matter, experts may feel oractually experience pressure to arrive at an opinionthat is useful to the retaining party. The pressure maymanifest itself in several ways, including the retainingparty’s assuming what the expert’s opinion will be,withholding of information by the retaining party,excessive flattery of the retained expert, subtle orovert bribery, or extortion.159 Examiners shouldguard against the potential for bias or distortions oftheir opinions that may arise unintentionally out of adesire to satisfy the retaining attorney. The U.S. Su-preme Court decision in Ake v. Oklahoma143 en-dorses a psychiatric expert’s acting as a consultant tothe defendant’s attorney. Advocacy for one’s opinionis ethical if the opinion is based on careful, thought-ful, disinterested examination of available data, ex-aminers should not knowingly give false or mislead-ing testimony.

Examiners should make sure that they have ade-quately considered sufficient relevant data in formu-lating their opinions on competence. They shouldarrange with courts or retaining attorneys to obtainany additional information needed to arrive at anaccurate opinion. They should note in their reportsif they have requested but have not received infor-mation (e.g., hospital records or information fromdefense counsel) that may be relevant to theirconclusions.

Despite their best efforts to remain objective, fo-rensic experts are human and cannot avoid develop-



ing biases. One source of highly significant bias thatforensic experts have identified in criminal cases isworking exclusively for either the defense or the pros-ecution.172 This source of bias may be avoided byaccepting referrals for competence evaluations fromboth defense and prosecuting attorneys. Counter-transference can also represent a significant source ofbias.173 Techniques for addressing possible counter-transference include discussion of cases with col-leagues or supervisors, presenting one’s work topeers, and taking time to think about potentialcountertransference reactions before reaching afinal opinion.

E. Confidentiality, Notice, and Assent

When beginning an examination of competenceto stand trial, the examiner should attempt to com-municate the following to the evaluee:

the reason for the evaluation;

the party who has appointed or retained theexaminer;

the lack of confidentiality of the interview andfindings;

the persons who will receive the examiner’sreport;

the possibility of the examiner’s testifying aboutthe results of the evaluation; and

the right of the evaluee to decline to answer spe-cific questions, with a warning that the examinermay have to report noncooperation or refusal toanswer questions to the retaining attorney or tothe court.

In addition to the verbal warning, the examinermay provide evaluees with a written document sum-marizing these points and ask the interviewee to signit. Examiners who are “covered entities” or employ-ees of covered entities (as defined in 45 CFR160.103, the section of the federal regulations gov-erning the Health Insurance Portability and Ac-countability Act of 1996 (HIPAA))174 should alsoconsider whether they must offer the evaluee a copyof the covered entity’s privacy statement.

When a clinician is serving strictly in a forensicrole, he should also tell the defendant-evaluee that heor she is not the defendant’s treating physician; thatis, 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 therapistduring an examination. If this occurs to a significantdegree during a forensic examination, the examinershould remind the evaluee that the examiner is func-tioning only as an examiner, not as the evaluee’s ther-apist or treatment provider.

According to the AAPL Ethics Guidelines for thePractice of Forensic Psychiatry,152 absent a court or-der, psychiatrists should not perform forensic evalu-ations for the prosecution or the government of crim-inal defendants who have not consulted with legalcounsel. This principle would apply to evaluations ofadjudicative competence. Many defendants referredfor competence evaluations are too impaired to un-derstand why the evaluation is taking place or other-wise lack the capacity to consent to the examination.In these circumstances, a court order or the expressedpermission of the defendant’s attorney make it ethi-cally acceptable for the psychiatrist to proceed withthe evaluation.

Occasionally, defendants engage in little or noconversation with examiners. In some of these cases,the psychiatric expert still obtains enough informa-tion about adjudicative competence to render anopinion with reasonable medical certainty. However,experts’ reports or testimony should clearly describeany paucity or lack of direct communication with thedefendant and should state how limited interactionwith the defendant may have affected the opinion.

Competence evaluations require that the evaluat-ing examiner attempt a personal examination of thedefendant. If the defendant refuses a court-orderedcompetence evaluation, the examiner should try toexplain to the defendant that the court has orderedthe evaluation and that the defendant’s refusal toparticipate will be communicated to the court. Be-fore so informing the court, however, the examinermay choose to ask defense counsel to encourage thedefendant’s participation. Examiners who have notbeen retained by the defense may also want to tell theevaluee that noncooperation may have legal conse-quences.175 For example, in many states, a defen-dant’s refusal to undergo a competence evaluationmay lead to psychiatric hospitalization for prolongedobservation, to allow examiners to attempt to reachan opinion regarding competence.

If retained by the defense attorney, examiners areethically obliged to safeguard the contents of theopinion within the constraints of the law (Ref. 151,§ 4). Defense-retained experts should not discuss



their evaluations with opposing experts or opposingcounsel unless the defense attorney approves such adiscussion or until the expert is legally compelled toreveal the results.

F. Knowledge of the Jurisdiction’s Standard

Though most jurisdictions have standards forcompetence to stand trial that are consonant withDusky,14 there are minor jurisdictional differences.An evaluating examiner should know the legal defi-nition of competence in the jurisdiction where thedefendant is facing prosecution.

G. Interaction with Other Professions

Psychiatric expert witnesses should be polite andrespectful in their dealings with opposing counseland opposing experts. Experts should generally avoiddisclosure of personal information about opposingexperts, as such revelations do little to advance theinterests of ascertaining truth in the courtroom.176

Experts may share with retaining attorneys informationabout opposing experts that is relevant to the matter athand and that could arise in cross-examination. Beforedoing so, however, experts should consider the rele-vance of the information and whether the potential dis-closure would constitute a lapse in objectivity or unrea-sonable advocacy.

H. Fees

An examiner may charge a different fee for work inthe forensic setting than for clinical work. It is ethicaland often desirable for an examiner to request pay-ment of a retainer fee or to receive payment beforeconducting a forensic evaluation. An examiner whoserves as an expert witness should clarify the fee ar-rangement with the retaining attorney before begin-ning the forensic evaluation. If psychological consul-tation, imaging studies, or laboratory tests are neededto support an opinion, the examiner should discussthe need for the examinations with the retaining at-torney before arranging for them to be performed.

Some jurisdictions or courts pay a fixed fee forforensic evaluations. The amount is often insuffi-cient to cover the costs of tests such as magneticresonance imaging or psychological testing that maybe necessary for a competent evaluation. If fixed feesrepresent inadequate compensation for one’s timeand expertise, the examiner may (consciously or un-consciously) be resentful or have other reactions thatwould result in failure to perform an adequate eval-

uation. Clarifying compensation before acceptingthe referral may help the examiner to decide whetherto undertake the evaluation.153

Examiners should not perform evaluations of ad-judicative competence (or for that matter, any type offorensic evaluation) on a contingency-fee basis,meaning with the fee conditional on the outcome ofthe evaluation or of the litigant’s legal case (Ref. 152,§ IV). Though contingency payments may be appro-priate for attorneys, such fee arrangements may un-dermine the examiner’s objectivity and are unethical.

I. Acknowledging Limitations of the Evaluation

Any limitations of an opinion should be expressedin the written report and, when possible, during tes-timony. When the examiner has requested materials(e.g., records of past treatment) that are not receivedin time to be considered in writing the report, he orshe may still render an opinion if one can be renderedwith reasonable medical certainty. The examinermay also tell the courts or retaining attorneys that heor she reserves the right to alter an opinion should theadditional materials become available. If the re-quested materials are necessary to reach a conclusionabout competence, however, the examiner shouldnot offer opinions until the materials are received andexamined. If the required data are ultimately not ac-cessible, the examiner may inform the referral sourcethat the evaluation is incomplete.

Examiners should be willing to disclose limita-tions in their training or experience and to subjecttheir testimony to scrutiny and critique by peers.AAPL has a standing committee established for peerreview.

When providing expert testimony, examinersmay, and often should, act as advocates for theiropinions. However, experts should not overstate thecertainty of their findings and should acknowledgethe limitations of their opinions. Evaluations of com-petence to stand trial involve assessments of defen-dants’ capacities for logical communication and fac-tual and rational understanding of the proceedingsagainst them. These capacities typically are present tovarious degrees, rather than being completely un-compromised or missing. Thus, many defendantsdisplay relative strengths and weaknesses in the men-tal capacities needed for adjudicative competence.Ideally, an expert should describe the strengths andweaknesses of the defendant, regardless of whetherthe jurisdiction allows or requires an opinion on the



ultimate issue. In so doing, the expert provides theinformation needed for the trial court to make anindependent ruling on a defendant’s competence.

J. Complaints of Ethics Violations

The AAPL refers complaints of unethical behaviorby its members to the American Psychiatric Associa-tion for resolution. Usually, the APA district branchwhere the accused individual is a member reviewssuch complaints. Those regarding nonmembers ofthe AAPL or APA are usually filed with the medicalboard where the psychiatrist practices.

Although expert witnesses have traditionally re-ceived quasi-legal immunity for their testimony, afew physician experts have been held accountablethrough sanctions by professional organizations andthrough tort liability actions.177 In recent appellatecases, courts have ruled that psychiatrists practicingin a forensic capacity can be found negligent for reveal-ing confidential information to nonparties178 and forinappropriate conduct during an evaluation,179 thoughthe psychiatrists had no doctor-patient treatment rela-tionship with the evaluees.

V. Cultural Considerations

A. The Cultural Context of AdjudicativeCompetence

When examiners consider competence to standtrial, they usually think the phrase refers to a legalconcept or to a mental capacity that a criminal de-fendant may have or lack. Competence to stand trialis also a cultural notion, however, or at least a notionthat reflects a set of cultural values.

Notwithstanding awareness of and sensitivity tothe situations of criminal defendants (who typicallyare much less fortunate than most persons), mostNorth American examiners share and identify withthe dominant culture’s view of criminal proceedings.In the dominant culture’s view, criminal proceedingsare adequately fair (though far from perfectly fair)efforts at rendering just decisions about the guilt ofaccused criminals. These efforts come about throughan adversarial process that gives the accused manyrights, among which is the right to confront andchallenge one’s accusers. Firmly embedded in Anglo-American legal tradition, the right to confront wouldbe meaningless were the defendant not physicallyand mentally present in court, aware of the proceed-ings against him, and capable of responding ratio-

nally. Competence to stand trial thus embodies acultural notion that the legal system is reasonablyfair, that accused persons will get fair treatment and areasonable chance to defend themselves, and that thedignity and fairness of criminal proceedings are vin-dicated when an accused person is a capable adver-sary of the prosecution.180

In Anglo-American legal tradition and in main-stream North American culture, the act of raising acriminal defense is not a challenge to dominant socialmores, but an affirmation of them. By raising a de-fense, an accused criminal reinforces cultural valuesthat encourage innovation and individual expres-sion, that endorse speaking one’s mind and verballychallenging one’s opponents, and that treat the stateas having limited power that must be kept in check.

Things that North American examiners take forgranted as essential features of fair criminal proceed-ings may puzzle and seem strange to individuals whocome from social backgrounds that endorse confor-mity or deference to authority. When such individ-uals become criminal defendants in North America,they may have difficulty saying things that disagreewith authority, or they may be reluctant to ask forclarification of explanations and procedures that theydo not understand.181 Individuals who come fromcountries or cultures where governmental systems areall-powerful or corrupt may believe that persons in orappointed by authority do not have their interests atheart. For reasons other than psychopathology,therefore, such persons may be wary or suspicious ofdefense attorneys who purport to be on their side andsay that they are trying to help them. Even defen-dants who have always lived in North America maycome from social, class, religious, or ethnic con-texts that give them attitudes and perspectives thatdiffer from the well-educated, predominantly up-per middle-class attorneys and judges who controllegal proceedings, contexts that also differ fromthe fortunate, upper-middle-class backgroundsand lives of most examiners.

Though North American criminal courts honortheir roots in English common law, the histories ofthe United States and Canada are those of nationsforged from ongoing multicultural diversification.Much of North America’s recent population growthhas come from immigrants, whose arrival insuresthat cultural diversity will not diminish. Shifts inethnic diversity are not just about the number ofpersons and the cultures from which they come, but



the impact of cultural differences, too. An increas-ingly multicultural America is generating new de-mands, challenges, and stresses for many areas of hu-man endeavor, including psychiatric assessment andthe law.

Judges, attorneys, and legislators must understandthe interplay between social, political, and culturalforces that shape the development and implementa-tion of the law. In providing forensic services, exam-iners must recognize and understand the nuances ofthe multicultural population with whom they inter-act in the criminal justice system. To do this, exam-iners must have available and use a repertoire of be-havior, attitudes, procedures, and policies that allowthem to work effectively in cross-cultural situations.By developing culturally sensitive clinical and evalu-ative practices, examiners can improve their evalua-tive skills and awareness of their personal assump-tions, while reducing barriers to accurate psycholegaldeterminations.

B. Cultural Competence

In the clinical area, cultural competence is a req-uisite for sensitive, effective delivery of service. Cul-tural competence includes acceptance and respect forpersons’ differences, continuous self-assessment re-garding one’s own cultural assumptions, attention tohow cultural differences affect the dynamics of ther-apeutic encounters, ongoing development of culturalknowledge, and development of resources and flexi-bility to provide services to minority populations.182

According to Davis,183 a culturally competent clini-cian integrates knowledge and information about in-dividuals and groups of people into clinical encoun-ters, service approaches, and techniques that fit anindividual’s cultural background, thereby enhancingthe quality and appropriateness of health care. Thenotion of a culturally competent clinician expressesthe hope that better knowledge of folkways, tradi-tions, customs, helping networks, and rituals can al-low clinicians and organizations to provide servicesthat better meet patients’ needs.184

C. Culturally Competent Evaluations

Examiners can find several articles185–190 and en-tire texts181,191 that describe the effect of culturaldifferences on forensic practice and that discuss waysthat experts can improve the cultural competence oftheir assessments. The general mental health litera-ture contains hundreds of articles on delivering cul-

turally sensitive care. It is beyond the scope of thisResource to summarize this ever-developing body ofliterature, but it is important to remember that thereis a lack of systematic data about how persons fromother cultures perform in competence evaluations inthe United States.192 The following points illustratehow recognizing the potential impact of culturalbackground and social differences may allow exam-iners to provide more accurate descriptions of defen-dants’ adjudicative competence and, in turn, moreuseful information for courts.

1. Common Interview Situations

In North America, the most commonly occurringcross-cultural interview situation involves an evalueefrom an ethnic minority group and a psychiatristfrom mainstream U.S. culture. As earlier discussionin the section suggests, the cross-cultural componentadds complexity to the forensic psychiatric evalua-tion if the evaluee evinces a cultural value systemconcerning legal proceedings that differs from thevalue system of the examining clinician. Suspectingthat this is the case may require the psychiatrist tobecome acquainted with the evaluee’s social back-ground and specific cultural assumptions.

Culture does not exist in a vacuum; it manifestsitself in specific environments and is actuated by psy-chological factors and specific circumstances. Under-standing rules of moral conduct within the evaluee’sculture may help the psychiatrist interpret the eval-uee’s behavior, attitudes, or choices concerning hisdefense. To return to an earlier example, an evaluee’sreluctance to speak openly with defense counsel maynot reflect paranoia, but an expectation that disclos-ing information would be pointless or would makematters worse for the evaluee and loved ones.

As the arrest rate among females grows in theUnited States, the racial disparities seen with malesare also seen with females, with black and Hispanicfemales having higher arrest rates than white females.A study of 288 all-female inpatient competence eval-uations found that factors that predict opinions onfemale competence were similar to those that predictopinions on male competence. This study of a di-verse group of women did not significantly associateminority status with incompetence, which differsfrom much of the literature, but it remains importantto examine competence within a cross-culturalframework.193



2. Acceptance of Cultural Identity

Examiners must strive to feel comfortable withand accepting of an evaluee’s cultural identity. Theyneed not jettison their own values and ideas in thisprocess. Yet, if the psychiatrist approaches an inter-view with prejudicial and hostile ideas regarding theevaluee’s ethnic membership, the forensic assessmentand conclusions may be jeopardized. A psychiatrist’sunexplored or unconscious fears about an evaluee’sculture may interfere with data gathering and objectiv-ity and ultimately may affect conclusions. Prejudice-based difficulties in establishing cultural respect maycontribute to the evaluee’s conclusion that he shouldnot trust or be honest with the psychiatrist. Suchconclusions may be reinforced by those who seem(or are) resentful, ignorant, or uncomfortablewhen interacting with persons from cultures dif-ferent from their own.

3. Knowledge, Skills, and Attributes

Saldana184 has identified several areas of knowl-edge that can improve clinicians’ efforts to work withpersons from difference cultures. Adapted for the fo-rensic context, these include:

knowledge of the patient’s culture, including his-tory, traditions, values, and family systems;

awareness of how experiencing racism and pov-erty may affect behavior, attitudes, and values;knowledge of how ethnically different evalueesmay seek help and express mental distress;

awareness of how language, speech patterns, andcommunication styles differ among culturalcommunities;

recognition of how professional values may con-flict with or accommodate the emotional andlegal needs of evaluees from different cultures;and

awareness of how community and institutionalpower relationships affect persons in differentcultures.

4. Communication Styles

Cultures differ in their nonverbal communicationstyles as well as the type of contact deemed accept-able. Common cultural differences in nonverbalcommunication styles include:

Personal space: how far away to stand whentalking.

Tone and volume: how loudly to speak in ordi-nary conversation.

Making eye contact: whereas in the United States,middle-class individuals are taught to look ateach other and provide feedback (e.g., smiling ornodding), in other cultures not making eye con-tact is a way of showing deference or respect.

Gesturing: hand and arm movements that mayseem excessive to North Americans may be ordi-nary for persons of other backgrounds.

Physical contact: North Americans touch inter-locutors less than do persons of many other cul-tures. As a result, we may come across as aloof toothers; to us, persons from other cultures mayappear intrusive or uninhibited.

5. Transference and Countertransference

Although we usually regard transference andcountertransference as clinical, psychodynamic phe-nomena, they affect all types of human interactions,including forensic evaluations.173 Acknowledgingthe potential cultural contributions to transferenceand countertransference may help examiners recog-nize how these phenomena arise and their possibleinfluence on the evaluation. Here are some examplesof how transference and countertransference may oc-cur in forensic assessments:

When the both the psychiatrist and the defen-dant belong to the same racially or culturallydefined minority, some defendants may over-identify with the psychiatrist and disclose in-criminating information or information notrelevant to the assessment. Some examinersmay overidentify with defendants at the ex-pense of objectivity.

Culture-bound syndromes may go unrecog-nized, may be misread, or may be devalued.

Racial and ethnic differences influence the pre-sentation of psychiatric disorders, but uncon-scious processes may interfere with the commu-nication needed to sort through such matters.

6. Language and Testing

Although it might be ideal for defendants to beassessed in their native languages, it is often impossi-ble to do so. Moreover, given the way that criminaljustice proceedings are conducted in North America,it may be important to assess how a defendant who is



not a native English speaker can communicate andunderstand criminal proceedings conducted in Eng-lish. Interpreters can help bridge the language gap fordefendants who do not speak English well or are notcomfortable or confident about their English skills.However, examiner should recognize that the inter-action between examiner and evaluee is altered byinvolving a third party in the evaluative dialogue.Interpreters may introduce other forms of bias re-lated to their own perspectives. Such bias may beintroduced through translation choices that omit,add, condense, or replace some of the content ex-pressed by the interviewer or the evaluee.

Section VIII of the Resource describes various in-struments for conducting structured interviews ofcompetence evaluees. It is often the case that theseinstruments have been neither translated nor normedin languages other than standard American English.Individuals from other cultures vary in their use oflocal or idiomatic terms that may not correspondwell with a way of translating an instrument, makingit important to be sure that an evaluee understandsthe concepts and knowledge areas being assessed.Also, it may be misleading to interpret test resultsfrom evaluees of other cultures according to normsestablished by administering the tests to NorthAmericans.

7. The Examination Context

Finally, the backgrounds of some individuals fromother cultures may leave them unfamiliar with whatexaminers do or with the basic idea of a medicalinterview that explores thoughts, feelings, and be-liefs. Some individuals may not previously have un-dergone formal testing and may not understand itspurpose or uses. In such cases, examiners may have tomake special efforts to explain the purpose of inter-viewing and testing, along with the potential rele-vance of these procedures to the evaluee’s situation.

VI. The Interview

Evaluations of adjudicative competence are clini-cal assessments of a defendant’s ability to participatein criminal proceedings. Competence evaluations areneither retrospective (as are evaluations of criminalresponsibility) nor prospective (as are postconvictionevaluations); they focus on the defendant’s presentfunctional level, and they emphasize the evaluee’smental functioning and capacities rather than thepsychiatric diagnosis. AAPL’s Practice Guideline for

the Forensic Assessment reviews principles and prac-tices applicable to the conduct of forensic assess-ments generally and can be a useful resource for eval-uations of competence to stand trial.194

A. Preparing for the Interview

Before interviewing a defendant, the psychiatristshould learn about the state’s allegations and the rea-sons or actions that led the referring attorney or courtto question the defendant’s competence. He or sheshould review copies of relevant court orders, avail-able discovery materials (including the arrest reportsprepared by police), criminal court filings, and in-dictments. When available, transcripts or recordingsof hearings, depositions, or interrogations may con-tain information relevant to understanding a defen-dant’s current mental condition and competence.Collateral records, including medical and psychiatrictreatment records, can provide a longitudinal view ofa defendant’s mental illness and can thereby sheddiagnostic light on current symptoms. Reviewingthese materials may also help the psychiatrist to de-cide whether collateral interviews will be necessary. Adefendant’s attorney will often have information thatis not otherwise available, such as what has happenedduring previous attorney– client contacts and thereasons that the attorney believes the defendant maybe incompetent to stand trial. Information about thequality of the attorney–client relationship may beespecially valuable, as is information about behav-ioral disturbances that the attorney has observed.

B. General Considerations

The psychiatrist should interview the defendantfor enough time and with enough thoroughness topermit assessment of the functional characteristicsrelevant to the jurisdiction’s legal criteria for adjudi-cative competence. If reasonable attempts to examinethe defendant fail because of lack of cooperation orother factors, the he or she should report such limi-tations to the referral source, recognizing that poorperformance or lack of participation are not, bythemselves, determinative of incapacity. In cases inwhich the psychiatrist anticipates that language bar-riers, religious beliefs, sensory impairments (e.g.,hearing impairments), or other communication fac-tors will create impediments to accurate assessment,he or she should arrange (with the prior agreement ofthe referring attorney or court) to use interpreters orother individuals who can facilitate communication.



The interview should always be conducted in a securelocation.

The primary purpose of a competence evaluationis neither diagnosis nor treatment. The goal is tolearn whether and how mental symptoms impaircompetence-related abilities. The relevance of evensevere symptoms to the question of competence var-ies from case to case. Nevertheless, it is still valuableto obtain enough information about a defendant’scondition to allow identification of the diagnosesthat are relevant to the expert’s opinion. In cases inwhich the psychiatrist believes that the defendantlacks adjudicative competence, diagnostic informa-tion will inform the judgments about the defendant’srestorability and the proper setting for restoration.

C. Providing Notice

The psychiatrist should begin the interview withthe notifications described in Section IV.E. of theResource. If the clinical examination is taking placefor multiple purposes (i.e., to evaluate criminal re-sponsibility), the psychiatrist should tell the defen-dant of these additional uses of information obtainedduring the interview. To find out whether evalueeshave understood this information, many examinersask evaluees to paraphrase what they have told themabout the nature, purpose, and conditions of the in-terview. The defendant’s repeating the informationtells the psychiatrist whether the defendant has un-derstood what the examination is about and simul-taneously provides an initial indication of how wellthe defendant can assimilate verbally communicatedinformation.

D. Obtaining Background Information

After hearing about the reason for the examina-tion, some defendants immediately begin telling thepsychiatrist about their legal situations and how theyincurred their criminal charges. However, in manyinterviews, focusing initial questions on the defen-dant’s background, including personal and familyhistory, current living arrangements, academic his-tory, and occupational history, accomplishes severalthings:

It helps the psychiatrist establish rapport whilesimultaneously providing a helpful perspectiveon the defendant’s intelligence and socialfunctioning.

While gathering this information, the psychia-trist can also assess the defendant’s behavior and

verbalizations, which may permit inferencesabout mood, self-control, thought content, men-tal organization, and concentration.

The psychiatrist can compare the defendant’sversion of events with information available fromindependent, verifiable sources. Such a compar-ison may help the psychiatrist to assess the defen-dant’s willingness and ability to report back-ground information accurately.

Taking a social history may provide insight intohow the defendant establishes or sustains rela-tionships, which may help the psychiatrist gaugethe defendant’s capacity to relate to the defenseattorney.

Inquiry into the defendant’s medical, psychiat-ric, and substance use history may aid the psychi-atrist in reaching a diagnosis and may direct thepsychiatrist to additional sources of collateraldata about the defendant.

The defendant’s psychiatric history helps thepsychiatrist compare how the defendant reportscurrent symptoms with symptoms reported inpast episodes of illness.

Asking the defendant about earlier experienceswith the criminal justice system (including pre-vious arrests, charges, and convictions) providesthe psychiatrist with clues about the defendant’sfirst-hand experience with and knowledge ofcriminal proceedings.

E. Mental Status Examination

A systematic mental status examination providesthe psychiatrist with specific information about psy-chiatric symptoms, thought content, mood, mem-ory, information processing, and concentration thatmay not be apparent in more conversational portionsof the interview. Typically, a psychiatrist’s mentalstatus examination supplements clinical observationsand the evaluee’s spontaneous reports, by includingquestions about several types of symptoms (e.g., cur-rent mood, possible delusional beliefs, and percep-tual disturbances) and brief tests (e.g., arithmetic,repeating and recalling items, and assessment of ori-entation). Although these inquiries yield data helpfulin reaching a psychiatric diagnosis, they may alsohelp the psychiatrist to assess the defendant’s mentalstrengths, along with any vulnerabilities that stemfrom cognitive limitations or psychiatric syndromes,



the objective being to identify, characterize, andquantify the severity of any substantive psychopa-thology that might impair trial participation orcourtroom demeanor.

In evaluating defendants suspected of malinger-ing, the psychiatrist may focus the interview, askingfor more details about symptoms and looking forinconsistencies between reporting and behavior.195

Collateral information may help guide the psychia-trist’s inquiries and place in perspective any responsesthat suggest deception. Further information aboutmalingering is noted below.

F. Questions Specific to AdjudicativeCompetence

The distinguishing feature of a competence eval-uation is the assessment of the functional abilitiesneeded to proceed with criminal adjudication. Tomake such an assessment, the psychiatrist asks ques-tions that will lead to a determination of whethercompetence-related abilities are “sufficiently pres-ent.” Bonnie196 has characterized these abilities asfalling into two key functional domains: “compe-tence to assist counsel” and “decisional competence.”

Competence to assist counsel encompasses thedefendant’s abilities to understand criminalcharges, the implications of being a defendant,the adversarial nature of criminal proceedings,and the role of defense counsel. Competence toassist also includes the defendant’s ability to workwith and relate pertinent information to defensecounsel.

Decisional competence refers to the defen-dant’s ability to make independent decisionsabout matters that arise in the adjudicativeprocess. Among these decisions are whether totestify, whether to plead guilty, and, if the casegoes to trial, what strategy should be used.

Examinations of adjudicative competence are con-cerned with defendants’ case-specific capacity to pro-ceed with criminal adjudication, as distinguishedfrom their general legal knowledge, actual currentknowledge about the case, or willingness to proceedwith adjudication. A defendant’s ignorance of someaspects of how the legal system works, the chargesfaced, or possible penalties does not necessarily implyincompetence. The defendant may simply not havebeen provided this information, but may be able toincorporate and use information in making decisions

after being told these things. To distinguish mereignorance from incapacity to learn, the psychiatristmay use structured interviews (discussed later) orother teaching and retesting approaches that involveinstruction on factual legal matters. In cases in whichthe psychiatrist has learned that a defendant has hadproblems in collaborating with defense counsel, thepsychiatrist should try to learn whether the defen-dant could work with an attorney and participate indefense planning, but has chosen not to do so forreasons not related to mental illness, intellectual dis-ability, or other developmental limitations.

Assessing and documenting a defendant’s func-tional status usually requires asking specific questionsthat systematically explore the defendant’s generalknowledge about criminal proceedings, his under-standing of matters specific to his legal case, and hisability to relate to defense counsel. Areas that thepsychiatrist typically assesses during an interview in-clude the defendant’s:

knowledge about the roles of principal court-room personnel (the judge, jury, witnesses, de-fense attorney, and prosecutor) and of the eval-uee’s role as a defendant;

awareness of being charged with a crime and fac-ing prosecution;

knowledge of specific charges, the meanings ofthose charges, and potential penalties ifconvicted;

knowledge about what specific actions the statealleges (“what the police say you did” to generatethe charges);

ability to behave properly during court proceed-ings and at trial;

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

understanding of available pleas and their impli-cations, including plea bargaining;

perceptions and expectations of defense counsel;and

description of the quality and quantity of previ-ous interactions with defense counsel.

Along with gathering specific information aboutthe defendant’s grasp of factual knowledge, the psy-



chiatrist can make inquiries and observations thatwill help elucidate:

the defendant’s capacity for and willingness toengage in appropriate, self-protective behav-ior; if present, the extent and impact of thedefendant’s self-defeating behavior, and thereasons for the behavior;

the defendant’s ability to retain and apply newinformation effectively;

the defendant’s capacity to pay attention at trialand remember what has occurred;

the defendant’s capacity to use information tomake reasonable decisions related to his defense;and

whether the defendant has sufficient impulsecontrol to maintain proper courtroom decorum.

Questions should be open-ended and not implyinvolvement in the alleged offense. Often, however,defendants may do better at displaying their under-standing of and capacities to manipulate informationwhen discussing concrete matters arising in theirown cases. For example, they may not be able toprovide good definitions of legal terms, but they maydemonstrate their understanding of key legal con-cepts by describing how they anticipate that eventswill unfold as the case proceeds. Having defendantsrecount past experiences in the courtroom may alsoreveal details about how well they understand theircurrent legal circumstances.

Competence interviews should reach beyond de-fendants’ factual understanding of legal terms andprocedures to examine the ability to reason about thecases and appreciate the legal situation.197,198 Evalu-ating reasoning ability may include questions thatassess how well the defendant distinguishes betweeninformation with more or less legal relevance, and thedefendant’s capacity to weigh advantages and disad-vantages of available legal options. In assessing thedefendants’ appreciation of their circumstances, ex-aminers should analyze the rationality of the defen-dants’ beliefs about how they expect the case to pro-ceed, how they perceive their relationship with theirattorneys, and how they anticipate being treated bythe legal system. Examiners should keep in mind thatdelusional beliefs may seriously influence a defen-dant’s reasoning or appreciation of the situation,while leaving factual understanding and knowledgeof the legal system unimpaired.199

Although this Resource cannot anticipate all thesituations that examiners may encounter, the follow-ing comments address some of the special circum-stances that they encounter:

Competence to stand trial relates to a defendant’scapacity to proceed with adjudication on a spe-cific criminal charge. Defendants who might notbe competent to undergo trial in a complex taxcase might be competent to proceed with adju-dication of a misdemeanor assault.

Occasionally, examiners may encounter defen-dants with multiple charges who are incompe-tent to proceed on some charges but are compe-tent to proceed on others. Thus, for an evalueefacing multiple charges, a psychiatrist should an-ticipate what behavioral and cognitive abilitieswill be necessary for a defense on each charge andshould formulate questions to assess the evaluee’scapacity to accomplish these tasks.

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

In evaluating individuals with intellectual dis-ability, examiners may want to devote extra timeto explaining concepts and testing defendants’knowledge later, to find out how well these indi-viduals can retain information and apply it totheir specific legal circumstances.

As explained in Section II, amnesia for the periodsurrounding an alleged offense does not precludethe defendant’s being competent to stand trial onthat offense. In some cases, a defendant’s com-ments or collateral information signal the psychi-atrist that a claim of amnesia is not genuine. Insuch cases, the psychiatrist can record and lateradduce the information concerning the defen-dant’s actual capacity to recall and relate eventsthat led to his arrest. In other cases, examinersdiscover clinical information that supports a de-fendant’s claim of amnesia. The psychiatrist canstill assess the defendant’s capacity to consultwith the attorney and understand the criminalprocess (which may remain well intact), alongwith the defendant’s ability to evaluate the pros-ecution’s evidence depicting alleged conduct at



the time of the offense. The psychiatrist shouldalso attempt to obtain information from the de-fendant and collateral sources that will delineatethe scope and likely cause of the defendant’samnesia.

G. Eliciting the Defendant’s Account of EventsThat Led to the Charge

A key factor in many defendant-attorney interac-tions is the defendant’s ability to provide a rational,consistent, and coherent account of the offense to hisattorney. Some of the members of this Practice Re-source committee, along with others,146 recommendthat examiners assess this ability by asking evaluees todescribe their versions of events before, during, andafter the alleged offense. The ability to record re-sponses varies across jurisdictions, and examinersmust be familiar with local laws and customs. Wheninquiring into the defendant’s version of the circum-stances surrounding the arrest, the examiner mustconsider whether the evaluation is being conductedon behalf of the court, the prosecutor, or the defen-dant, to determine whether privilege may apply. In-criminating statements unknown to prosectionshould not be documented in the report, althoughsome jurisdictions require that police reports be in-cluded. Instead, writing a summary statement re-garding the defendant’s ability to provide a rationalaccount of the incident to counsel should suffice.Inquiries may be complicated further by electronicrecordings if a defendant spontaneously makes com-ments about the incident. In jurisdictions that re-quire more than one examiner to assess competenceto stand trial, various descriptions of accounts of theincident may be erroneously viewed as contradictory.

Examiners should also ask defendants to describehow their activities have been or will be described byvictims or witnesses and (especially) by the police.Having a defendant relate his or her recollection ofthe events that led to the arrest helps the psychiatristassess (among other things) the defendant’s under-standing of the reasons for the charges and his or herability to communicate key information to defensecounsel. The defendant’s description of events oftenprovides information about whether he or she ratio-nally perceives the reasons for the prosecution andcan realistically appraise available defenses (includingthe insanity defense). Hearing the defendant’s de-scription of events leading to the allegations may alsohelp the psychiatrist to assess the defendant’s mem-

ory and ability to identify others who might testify onthe defendant’s behalf.

If a psychiatrist is barred from a direct inquiryabout the offense or does not want to make such aninquiry (discussed later), an alternative action wouldbe to contact the defense attorney to ask how well thedefendant has been able to communicate details re-lated to the alleged offense. When seeking such in-formation, however, examiners should rememberthat attorneys owe their allegiance to their clients andshould have this in mind when formulating theirsubsequent opinions.

When asked by examiners to describe the eventsthat led to their arrest, some defendants decline toanswer because they fear that what they say will beused against them or because their attorneys haveinstructed them not to discuss the matter. In suchcases, the psychiatrist can ask about a defendant’sreason for withholding information. The psychiatristalso can ask whether the defendant recalls and canrelate this information to defense counsel. The de-fendant’s responses, coupled with other informationfrom the interview, may help the psychiatrist decidewhether the defendant has the capacity to communi-cate satisfactorily with defense counsel. For example,if a defendant calmly explains that he recalls arrest-related events clearly and that counsel has forbiddenhim from discussing his actions, and if the defendantalso gives a logical, reality-based description of whatthe police allege against him, that defendant hasdemonstrated satisfactory ability to communicatewith defense counsel (not to mention good capacityto follow his attorney’s instructions).

Obviously, one way to avoid these potential prob-lems is not to ask the defendant what he recalls aboutwhy the police arrested him. In many cases, however,this approach is not practicable, because (for exam-ple) a court has ordered examinations of competenceand criminal responsibility, which examiners usuallyperform during the same interview or set of inter-views. Except in those unusual circumstances inwhich the psychiatrist can determine quickly that adefendant is not competent, the psychiatrist oftenhas elicited or been told the defendant’s version ofthe events that led to his arrest before realizing thatthe defendant may not be competent. Also, getting adefendant’s version of arrest-related events as close aspossible to the time those events occurred is the bestway to learn what a defendant did and why. Defen-dants’ memories (like those of everyone else) may



fade with time, are reconstructive, and reflect thecurrent state of mind. For those defendants with apsychotic illness that is most likely to merit the in-sanity defense, obtaining their version of events be-fore they receive competence-restoring treatment canaddress the possibility that, once their rationality im-proves, they will recast their actions and motives intobehavior and reasons that seem more plausible butthat are also less exculpatory.

If a psychiatrist believes that asking the defendantabout his or her version of events is important, thepsychiatrist can deal with concerns about having totestify about the defendant’s statements by preparinga response that will alert the court to the matters thatare at stake. For example, if the prosecution asks thepsychiatrist to testify at a competence hearing aboutwhat the defendant said concerning the alleged of-fense, the psychiatrist may wish to respond, “Before Ianswer that question, I must ask whether the defenseattorney or the court objects, because if I do answer,I may reveal information that will incriminate thedefendant or that might compromise his defensestrategy.”

H. Psychological Testing

Melton and colleagues believe that “outine admin-istration of conventional psychological tests (i.e.,measures of intelligence and personality) is unlikelyto be a cost-efficient means of gathering informationin most competency cases” (Ref. 6, p 153). Althoughsome psychologists regard conventional psychologi-cal testing as an essential element of a competenceevaluation,200 and although most forensic psycholo-gists recommend IQ testing,201 this Resource takesthe same position as do Melton and colleagues.6 Ex-aminers can usually ascertain the crucial psychologi-cal data relevant to functioning as a competent crim-inal defendant directly from interviewing defendantsand evaluating information provided by collateralsources.

Psychological testing can play an important role inclarifying some diagnostic questions or in evaluatingcognitive disability, however, especially when re-cords are scant and interview findings are ambigu-ous. Other circumstances in which testing may proveuseful include those in which there is a question ofneuropsychological impairment or intellectual dis-ability. Neuropsychological testing often can helpthe mental health professional to sort out and char-acterize subtle cognitive impairments, for example,

problems in a defendant’s abilities to consider alter-natives or process complex verbal information.

Because a substantial fraction of competence eval-uees feign or exaggerate emotional or cognitive im-pairment, examiners may find that the MMPI-2 andtests specifically designed to detect malingering arefrequently useful. Although interpretation of MMPIresults is beyond the knowledge and skills of mostexaminers, examiners can learn to administer andscore several of the available measures designed spe-cifically to assess malingering.

I. Instruments Specifically Designed to AidAssessment of Adjudicative Competence

Over the past four decades several instruments forassessing adjudicative competence have been devel-oped, including structured interviews with standard-ized instructions for scoring and interpreting a defen-dant’s responses. A discussion of several currentlyavailable assessment instruments appears in SectionVIII. Use of these instruments is not mandatory. Insome cases, attempting to use a structured competence-assessment tool will be impossible (e.g., when the eval-uee is catatonically mute or has a manic psychosis) orpointless (e.g., when examining a defendant who is alsoan attorney). Examiners should be familiar with thestrengths and weaknesses of these instruments in vari-ous evaluation contexts (Pinals et al.202). Some poten-tial advantages of structured instruments include thefollowing:

Using a structured instrument assures that thepsychiatrist will consistently cover relevant topicareas.

Some defendants who are reluctant to discusstheir personal situation may respond to hypo-thetical inquiries such as those used in the as-sessment tool developed by the MacArthurgroup.198

Some competence-assessment instruments usestandardized scoring systems that make possiblecomparisons between a specific defendant’s per-formance and the performances of groups of pre-viously evaluated defendants.

When using a structured instrument, the psychia-trist should be familiar with the instrument’s instruc-tions for administration and should follow those in-structions as closely as possible. Although a flexibleapproach to administration may seem desirable, toomuch deviation from proper test procedure may re-



duce the instrument’s reliability and validity and maymake it difficult to assess the evaluee’s performancein relation to the instrument’s published norms.

The designers of structured instruments do notintend that the instruments be used as diagnostictests that decide whether an individual can proceedwith adjudication. Rather, the instruments’ design-ers recommend that examiners treat test results asone source of information, interpreting those resultsin light of the full clinical interview and other avail-able data. A discussion of several currently availableassessment instruments appears later in the Resource.

J. Special Populations

Studies of the adjudicative competence of olderdefendants generally find that deficits in orientationand memory best distinguish older defendants whoare competent from those who are incompetent tostand trial.203–206 Both advanced age and dementiadiagnosis are associated with nonrestorability, andincreased age retains its correlation with nonre-storability, even after correcting for dementia diag-nosis. One study found that a brief cognitive screen-ing instrument, the Repeatable Battery for theAssessment of Neuropsychological Status (RBANS),indicates that older and more cognitively impaireddefendants are hospitalized for as long as three timesthe average length of stay.207 Being familiar withgeropsychiatric concerns, consulting with other dis-ciplines such as neurology, and ruling out treatablecauses of neurocognitive disorder are important ele-ments of conducting competence assessments in thispopulation.

A recent survey of 101 participants investigatedwhether the formal classification of a defendant ashaving a learning disability affects attitudes towardvarious legal matters, including adjudicative compe-tence. The authors concluded that a learning disabil-ity can influence perceptions regarding a defendant’scompetence.208 Research on intellectual disabilityand adjudicative competence focus mainly on com-petence attainment and are discussed later.

K. Contextual Variables and Assessment Accuracy

A body of literature is developing on the contex-tual variables related to the accuracy of adjudicativecompetence. There are views that different cases cor-rectly require different competence thresholds, suchas Buchanan’s proportionality argument.209 For ex-ample, variables such as the severity of the charge or

political pressures on the proceedings should trans-late into different competence levels for differentsituations.210

Mossman207 considered Buchanan’s209 positionregarding proportionality of case-specific variables indevising a mathematical framework for conceptual-izing the accuracy of expert opinions on competence.He described how four elements, including contex-tual variables (discussed above), personal attributesof the defendant that are relevant to competence, anexpert’s intrinsic ability to distinguish defendantswho are competent from those who are incompetent,and the wish to favor or avoid certain types of out-comes, may allow for inferences about accuracy ofopinions in the absence of a gold standard. There arealso articles pertaining to variation in clinicians’opinions of adjudicative competence, the roles thatexaminer bias imply, different thresholds for givingopinions of competence, and random error.211–213

VII. Collateral Data

A. Value and Scope

In most competence evaluations, collateral datacan help psychiatrists formulate and support theiropinions. By providing additional perspectives onthe defendant, collateral sources help the evaluatingpsychiatrist gain a more comprehensive understand-ing of the information about the defendant’s currentmental state and mental abilities than was derivedfrom the interview. Often, defendants’ accounts ofsymptoms, past treatment, and other relevant eventsdiffer substantially from the reports of witnesses orother informants. Defendants may deny or not wantto discuss their participation in an offense, or theymay claim to have amnesia for events related to theoffense. Collateral sources may corroborate or fail toconfirm elements of the defendant’s account of hissymptoms and functioning, which may help in as-sessing the defendant’s accuracy and truthfulnessabout his mental condition. For this reason, collat-eral sources may aid in clarifying diagnoses.

Because the competence evaluation focuses on thedefendant’s current mental state and ability, collat-eral sources may not be necessary to form an opinionon competence. Present-state evaluations generallyrequire less evaluation of collateral data than does aretrospective evaluation (e.g., evaluations of criminalresponsibility). At a minimum, however, the psychi-atrist should review police records, when they are



available, and the indictment concerning alleged in-cidents leading to the criminal charges.

B. Incriminating Information

Examiners must recognize that the collateral datathat they obtain may occasionally include incrimi-nating and self-incriminating information that waspreviously unknown to the prosecution. The prose-cution and the trial court can initiate an evaluation ofadjudicative competence, and the defendant may notinvoke his or her right against compelled incrimina-tion to avoid submitting to a competence examina-tion.214 Although most states prohibit introductionof information from the competence evaluation intothe trial itself, in other states this protection extendsonly to statements made by defendants. Attorneys instates that do not have protective provisions may in-sert language in a court order to limit the use ofreport information from a competence assessment.Despite these safeguards, concerns about the possiblyincriminating effect of collateral data lead some ex-aminers to favor focused assessments of adjudicativecompetence in which only limited collateral infor-mation is presented. If a psychiatrist chooses to usecollateral sources in conducting an evaluation of ad-judicative competence, such sources serve primarilyfor obtaining or supplementing information aboutpast or current psychiatric symptoms, but not forgaining information that might facilitate prosecutionand criminal conviction.

C. Obtaining Collateral Information

In many cases, the referring attorney or court willobtain documents containing collateral informationand will provide these to the examining psychiatrist.When retained by either the prosecuting or defenseattorney, the psychiatrist may include a statement inthe retainer agreement that the attorney will give thepsychiatrist access to all relevant information avail-able and that the attorney will make reasonable ef-forts to obtain any additional information requestedby the psychiatrist. Sometimes a court order is nec-essary to compel opposing counsel to produce infor-mation deemed relevant by the psychiatrist.

When retained by the defense or directly by thecourt, the psychiatrist may obtain written consentdirectly from the defendant for the release of thedefendant’s medical records, provided that the de-fendant is competent to authorize the release. Thosewho have been retained by the defense or prosecution

should not contact opposing counsel or other per-sons who could provide collateral data before con-sulting with the retaining attorney. After obtainingapproval of retaining counsel, defense- or prosecution-retained examiners may then interview collateralsources. Court-appointed examiners may want tospeak with both the prosecution and defenseattorneys.

Ideally, when using collateral sources of informa-tion, the psychiatrist should personally review anycritical information that is summarized or referred toin other documents and should not simply acceptanother clinician’s summary of original documents.Besides obtaining original sources when appropriate,the psychiatrist may identify missing informationthat may help formulate the forensic opinion. Forexample, the psychiatrist may realize that educationalrecords would serve to verify intellectual disabilitywhen it appears that cognitive limitations affect adefendant’s competence to stand trial.

If requested information did not arrive before sub-mission of the report, the psychiatrist should notethis in the report, along with the reason that thepsychiatrist did not have access to the information.In some cases, the psychiatrist may want to include inthe report a statement reserving the right to changean opinion, should any conflicting information sub-sequently become available.

D. Managing Collateral Information

All material reviewed by the psychiatrist is consid-ered confidential and under the control of the courtor the attorney providing it, and it should not bedisclosed or discussed without the consent of thereferring party. The psychiatrist should realize thatnotations made on this material may be subject todirect and cross-examination if referred to duringtestimony. Material generated by the psychiatristduring an evaluation (e.g., interview notes, video-tapes) is initially considered the work product of thereferring attorney. As such, it should not be disclosedor discussed without the defendant’s, attorney’s, orcourt’s consent. The psychiatrist should furnish cop-ies of this material to the referring attorney or court,however, if requested to do so.

E. Common Types of Collateral Information

1. Written Records

Police reports and the indictment describing theinstant offense (or equivalent information that for-



mally document the allegations and charges), shouldbe reviewed, paying attention to police documenta-tion of underlying facts and the correspondence be-tween this documentation and any statements by thedefendant about events that led to the charges. State-ments made by the defendant, victim, and witnessescan provide valuable background information to fa-cilitate discussion with the defendant about his un-derstanding of the charges and evidence against him.When provided, a defendant’s arrest and plea historycan be helpful in learning about his experiences withthe legal system.

Psychiatric, substance use history, and medical re-cords may help the psychiatrist understand the de-fendant’s psychiatric symptoms and diagnosis, pastresponses to treatment, and previous levels of psychi-atric impairment. These records may also help clarifyelements of the family history that may prove usefulin arriving at a diagnosis.

School records may shed light on when psychiatricsymptoms (especially cognitive impairment) first de-veloped or were identified and can help the psychia-trist evaluate a defendant’s reports concerning possi-ble intellectual disability or borderline intellectualfunction. Special education records, including psy-chological testing, are specifically helpful in evaluat-ing claims of intellectual disability.

Employment records may corroborate or contra-dict a defendant’s account of impairment from psy-chiatric disability and level of work performance.Disciplinary actions and improvement plans mayprovide additional insights into a defendant’s pastproblems and functioning.

Military records may also corroborate or contra-dict a defendant’s account concerning past levels offunctioning and the time of onset and the severity ofpsychiatric symptoms. The data found in militaryrecords include descriptions of medals received, hon-ors earned, promotions, disciplinary actions, and thetype of military discharge.

Other expert evaluations and testimony by othermental health experts can help in assessing the con-sistency of the defendant’s reports and scores on psy-chometric testing. Expert evaluations and testimonyrelating to previous crimes may also be considered.

Jail and prison records may document behavioralproblems, medical treatment, and mental health in-terventions during incarceration. These records alsowill describe total length of incarceration and com-pliance with custodial requirements (e.g., disciplin-

ary actions or time spent in administrative segrega-tion). When available, prison work and schoolrecords may provide further information about pastfunctioning.

Personal records can also help a psychiatrist cor-roborate or disprove statements made during the in-terview. For example, records of sophisticated finan-cial transactions would argue against the presence ofintellectual disability. Diaries or journals may pro-vide insights into a defendant’s prearrest level of cog-nitive functioning.

2. Collateral Interviews

Interviewing other persons may be helpful as well.The psychiatrist retained by the court or the de-

fense attorney may speak directly with the defenseattorney to obtain information about counsel’s rea-sons for the referral and experiences relevant to thedefendant’s ability to assist in the defense.6,215 If re-tained by the prosecution, the psychiatrist can re-quest permission through the prosecutor to speakwith the defense attorney. A brief interview with thedefense attorney may provide valuable informationabout the attorney’s specific concerns about the de-fendant’s competence and examples of the defen-dant’s limitations related to trial proceedings.

Optimally, experts on all sides of a case shouldhave access to the same collateral data. Other sourcessuch as family members, friends, and employers canprovide information about a defendant’s level offunctioning and visible symptoms. Though the po-tential for self-incrimination is not generally at issue,it may be important to inform the interviewee of theintended use and nonconfidential nature of the in-formation. Interviewees should receive an explana-tion similar to the one that the defendant receives(see Section IV.E.), with the added warning that pro-viding information to the psychiatrist may lead tobeing called to testify in court. Besides providing averbal warning, the psychiatrist may also ask an in-terviewee to sign a written nonconfidentialitystatement.

VIII. Assessment Instruments

Although the cornerstone of assessing competenceis a thorough forensic examination by a skilled exam-iner, competence assessment instruments can serve asadjunctive tools to help guide and assist the exam-iner. They are not necessary for rendering an accurateopinion on competence to stand trial, but they can be



helpful on a case-by-case basis. The examiner mustuse professional judgment to determine whether theuse of such instruments is appropriate in an evalua-tion and whether he is qualified to administer, score,and interpret the test alone, or consultation is indi-cated. A competence assessment instrument score isnot determinative of competence to stand trial. Testscores may create an impression of the “correct”opinion, or that a superior standard has been usedwhen an opposing examiner has not used it. Compe-tence assessment instruments alone are not superiorto a structured clinical interview that evaluates allcomponents of competence. Clinical judgment iskey when interpreting test results, as statistical anal-yses may not accurately reflect the clinical picture.

One of the first instruments specifically designedfor assessing adjudicative competence was Robey’sChecklist for Psychiatrists.216 When Robey’s checklistappeared in 1965, psychiatrists who were evaluatingdefendants often rendered opinions based on thepresence of symptoms, without reference to legal cri-teria for adjudicative competence.217–219 In subse-quent years, forensic experts have developed a varietyof instruments that range from screening tools andchecklists to elaborate guides for conducting entireevaluations. Descriptions of several of these instru-ments, all amenable to use by examiners, appear inthe following sections.

The Competency to Stand Trial Screening Test(CST) is a 22-item, sentence-completion test devel-oped as part of a research project conducted by theNational Institute of Mental Health.220,221 Eachitem of the CST is scored from 0 to 2, with higherscores indicating higher levels of legal comprehen-sion. The CST has standardized administration(completion takes about 25 minutes) and standard-ized scoring. Examples of test items include, “WhenI go to court, my lawyer will . . .” and “When theysay a man is innocent until proven guilty, I . . .” TheCST is a screening test; if the total CST score is lessthan 20, further evaluation with the CompetencyAssessment Instrument (described in the next sec-tion) is recommended. Strengths of the CST includeease of administration and a high true-negative rate.Weaknesses include low validity due to a high rate offalse positives, difficulty assessing defendants whohave a high degree of cynicism about the system,222

and limited and unproven reliability of the test. Also,the test provides a numerical result rather than adetailed description of a defendant’s abilities. A sub-

sequent version of this measure, the Competency toStand Trial Assessment Instrument, appeared in1980.

The Competency to Stand Trial Assessment Instru-ment (CAI) is a semistructured comprehensive inter-view developed by McGarry and colleagues223 thatyields five-point Likert scale scores (1, total incapac-ity, to 5, no incapacity) on 13 areas of competence-related functioning (e.g., capacity to testify rele-vantly, appraisal of available legal defense). The CAIcame from the same National Institute of MentalHealth study as the CST. When most scores are 3 orlower, inpatient hospitalization for restoration or ob-servation is potentially helpful. The strengths of theinstrument include its usefulness in structuring aninterview224 and its provision of sample interviewquestions and case examples. Its weaknesses includenonstandardized administration, nonstandardizedscoring, limited empirical validation, and no norms.

The Georgia Court Competency Test (GCCT) is apopular screening instrument originally developedfor rapid identification of defendants who are obvi-ously competent. The GCCT evaluates a defendant’sfactual knowledge about general criminal court pro-cedure and factual knowledge related to the defen-dant’s specific case.225,226 The original version of theGCCT had 17 questions grouped as follows:

7 questions about an illustration of the layout ofa courtroom (e.g., “Where does the judge sit?”);

5 questions about functions of courtroom per-sonnel (e.g., “What does a witness do?”);

2 questions about the defendant’s currentcharges;

1 question about helping the defense attorney;

1 question about the alleged crime; and

1 question about the consequences about beingfound guilty of the alleged crime.

The test’s instructions allow the examining clinicianto assign scores to the defendant’s responses which,added together, yield a sum between 0 and 50. Thesum is then doubled to obtain a final score between 0and 100.

A 1992 modification of the GCCT by the Missis-sippi State Hospital (GCCT-MSH) has 21 ques-tions. The GCCT-MSH includes questions aboutability to assist counsel (“What is your attorney’sname?”), and expectations of appropriate courtroom



behavior in addition to questions contained in theoriginal GCCT. A score of 70 or higher on theGCCT (or GCCT-MSH) suggests that a defendanthas adequate factual knowledge of courtroom pro-ceedings, but does not necessarily imply that the de-fendant is competent to stand trial.

Strengths of the GCCT include its ease of admin-istration, which takes about 10 minutes, and abilityto make a rapid assessment of the defendant’s factualknowledge about how courtroom personnel functionand why he was charged. The GCCT’s weaknessesinclude questionable content validity (a full one-third of the questions are about the drawing of thecourtroom) and lack of meaningful assessment of adefendant’s ability to assist in his defense. Users ofthe GCCT-MSH should also recognize that it is fo-cused on factual understanding and offers limitedinsight into a defendant’s rationality or appreciationof his legal situation.

Although the GCCT was never officially pub-lished, it has become one of the more commonlyused screening tools for competence to stand trial.227

Many currently circulated versions of the GCCT-MSH include the Atypical Presentation Scale (APS)by Gothard and colleagues,130 an eight-item screen-ing tool for detection of feigned psychosis. Althoughintended only as a screening instrument for malin-gering, the APS has acceptable sensitivity and speci-ficity (more than 80% when a score of 6 is used as thecutoff).

The Interdisciplinary Fitness Interview (IFI) and theIFR-Revised (IFI-R) are semistructured interviews de-signed for joint administration by an attorney and amental health professional,228,229 although they may beadministered by a mental health professional alone.230

The IFI contains questions that specifically address ca-pacity to assist in one’s defense and one’s factual andrational understanding of the proceedings. It examinescurrent psychopathology related to six types of symp-toms (rated as present or absent) and psycholegal abili-ties in the following areas:

ability to appreciate charges;

ability to disclose relevant information; court-room demeanor;

ability to understand the adversarial nature ofproceedings;

quality of the relationship between defendantand attorney;

appreciation of legal options and consequences;and

ability to make reasoned choices concerning legaloptions and consequences.

Examiners score aspects of these psycholegal abilitieson a scale of 0 (no or minimal incapacity) to 2 (sub-stantial incapacity). The Influence of Decision Scaleis used to record a rating (also 0, 1, or 2) of theimportance that the psychiatrist accorded each di-mension in forming the opinion. The rationale forthe Influence of Decision Scale is that the signifi-cance of a given factor should vary depending on thefacts specific to the defendant’s case. Thus, for exam-ple, a defendant’s courtroom demeanor is viewed asmore important in cases in which testimony is nec-essary for a proper defense than in cases in which thedefendant is unlikely to testify. The IFI-R scoringmanual229 is available online.

Limited research on the IFI suggests that its resultscorrelate strongly with experts’ and judges’ ultimateconclusions about adjudicative competence.231,232

Additional strengths of the IFI include its interdisci-plinary nature and relatively short administrationtime (45 minutes). Its weaknesses include the prac-tical difficulty of having an attorney present at eachevaluation and the limited amount of research on itsvalidity and reliability.

The Computer-Assisted Determination of Competencyto Stand Trial (CADCOMP) is a 272-item objectivetest that assesses social history, psychological func-tioning, and legal knowledge.233 The test takes about90 minutes to complete and produces a computer-generated narrative report. The report is not meant tobe conclusory but to form the basis for subsequent clin-ical interviews. Weaknesses of the CADCOMP includeadministration time (complete testing includes assess-ment of reading level with the Wide Range Achieve-ment Test, orientation to the computer, and the clinicalinterview after the test), reliance on the defendant’s self-report, and unfeasibility of administration in certainsettings (e.g., a jail).

The Competence Assessment for Standing Trial forDefendants With Mental Retardation (CAST*MR)was developed specifically for evaluating adjudicativecompetence in defendants with intellectual disabil-ity.234,235 The developers of the CAST*MR believedthat the open-ended questions used in other instru-ments (e.g., the CAI) may not properly assess personswith intellectual disability disorder who have limited



ability to express themselves. The developers alsothought that the vocabulary of other tests might betoo advanced for defendants with intellectual disabil-ity disorder and that the emphasis on psychiatricsymptoms may not be appropriate for suchdefendants.

The CAST*MR has 50 items divided into threesections and takes 30 to 45 minutes to administer.Most questions are multiple choice. The first twosections require a fourth-grade reading level. Thefirst section includes 25 questions assessing basic le-gal knowledge (“What does the judge do?”) and thesecond section uses the same format to assess thedefendant’s ability to assist in his or her defense.The last section has 10 items designed to assess thedefendant’s account of events surrounding thecharges (e.g., “What were you doing that caused youto get arrested?”). A weakness of the CAST*MR isthat it does not assess the defendant’s understandingof legal proceedings in depth. Also, the recognitionformat of the test may result in overestimation of adefendant’s abilities.

In 1989, the MacArthur Research Network onMental Health and the Law began the MacArthurAdjudicative Competence Project, the purpose ofwhich was to measure psychological abilities relevantto competence to proceed to adjudication (ratherthan just competence to stand trial).236 The projectemphasized appreciation and rationality as impor-tant features of adjudicative competence and favoredassessment of the defendant’s abstract as well as case-specific knowledge base.

The ultimate product of the MacArthur Adjudi-cative Competence Project was the MacArthur Com-petence Assessment Tool-Criminal Adjudication(MacCAT-CA), a 22-item test that takes 30 to 45minutes to administer. It has three sections:

Items 1 through 8 assess the defendant’s under-standing (e.g., role of the defense attorney, ele-ments of the offense, pleading guilty). Theseitems include educational components that al-low evaluation of a defendant’s ability to graspbasic, orally presented information about legalproceedings.

Items 9 through 16 assess the defendant’s reason-ing (e.g., concepts such as self-defense, possibleprovocation, and ability to seek information thatinforms a choice).

Items 17 through 22 address the defendant’s ap-preciation of his specific circumstances (e.g., hisbeliefs about the likelihood of being treated fairlyand his rationale for these beliefs).

In administering the MacCAT-CA, the psychia-trist has the evaluee listen to and answer questionsabout a hypothetical criminal case in which two menget into an argument at a bar, one man hits the otherwith a pool cue, and an aggravated assault chargeresults. The MacCAT-CA uses the bar fight vignettefor the first 16 test items (i.e., those items dealingwith understanding and reasoning); the third sec-tion, appreciation, concerns the defendant’s beliefsabout his case, rather than the vignette.

Each MacCAT-CA item is scored 0, 1, or 2, usinginstructions and examples of responses from thetest’s Professional Manual. The total scores for items1 through 8, 9 through 16, and 17 through 22 pro-vide indices of a defendant’s understanding, reason-ing, and appreciation, respectively. Tables in theMacCAT-CA Professional Manual and the test ad-ministration booklet help the psychiatrist to see howan evaluee’s performance on these indices compareswith large groups of competent and incompetent de-fendants who underwent evaluation during the de-sign of the MacCAT-CA. Scores from the under-standing, appreciation, and reasoning scales are notcombined for a total score, however.

Results of research using the MacCAT-CA suggestthat it compares favorably with other measures ofcompetence to stand trial with regard to validity,reliability, and ease of administration.237 Thestrengths of the MacCAT-CA include its derivationfrom a psycholegal theory of competence, assessmentof multiple psycholegal abilities, assessment of thecapacity to assimilate new information, standardizedadministration, objective criterion-referenced scor-ing, and availability of normed data for the purposeof comparison. Also, an emerging body of literatureon MacCAT-CA performance by adolescents maypermit meaningful assessment of minors’ compe-tence to proceed with adjudication in juvenilecourt.238,239

Weaknesses of the MacCAT-CA include its lim-ited focus on the complexity of the defendant’s case,the defendant’s memory of events, and legal de-mands such as appropriate behavior in court. Al-though the MacCAT-CA was designed for and eval-uated in individuals with low-average intelligence, its



verbal demands may exceed the expressive capabili-ties of defendants with intellectual disability whononetheless understand their charges and can con-verse satisfactorily with counsel. Evaluees with severethought disorders, memory impairment, or prob-lems with concentration may not be able to completeassessments with the instrument. The MacCAT-CAalso does not formally address dubious claims of am-nesia or malingering. Pinals and colleagues202 pro-vide a valuable discussion of the practical advantagesof using the MacCAT-CA, along with the problemsthat examiners may encounter if they try to admin-ister the instrument to all competence evaluees.

As with all other instruments for evaluation ofadjudicative competence, the MacCAT-CA is notsupposed to function as a stand-alone assessment ofcompetence to stand trial. Rather the test’s creatorsintend that the MacCAT-CA be regarded as an as-sessment tool that “should enhance the thoroughnessand quality of clinical investigations of adjudicativecompetence” (Ref. 236, p 143).

There has been increased attention to and researchon malingering of competence to stand trial. In par-ticular, the The Evaluation of Competency to StandTrial–Revised (ECST-R), Inventory of Legal Knowl-edge, and the Test of Malingered Incompetence(TOMI) assist in alerting evaluators to potential ma-lingering of incompetence to stand trial. Severalstudies on feigning incompetence assess not only theutility of these three instruments, but also the use ofgeneral feigning tools for identifying suspectedmalingering.210

The ECST-R is a competence-assessment instru-ment that became available for purchase in 2005.Eighteen items and three scales of the ECST-R ad-dress the defendant’s factual and rational under-standing of legal proceedings and ability to consultwith counsel, which are the criteria for adjudicativecompetence propounded in Dusky.14 Another 28 testitems address various “atypical” styles of symptompresentation, including feigning of psychosis, non-psychotic disorders, and cognitive impairment.

The ECST-R is intended for use with adults facingcharges in criminal court, including individuals withIQs in the 60 to 69 range. The designers of theECST-R believe that their instrument is superior toother structured assessment tools because they struc-tured the ECST-R to track the three elements ofadjudicative competence described in Dusky, ratherthan a theoretical, nonjudicial conceptualization of

adjudicative competence. Unlike other assessmentinstruments, the ECST-R includes scales that screenfor feigned or exaggerated mental problems. TheECST-R designers believe that their studies of theECST-R provide error rates relevant to test admissi-bility under evidentiary rules laid out in the U.S.Supreme Court’s decision in Daubert v. Merrell Dow,509 U.S. 579 (1993).240 Data supporting the design,use, and accuracy of the ECST-R appear in the test’sinstruction manual.

Whether to use structured assessment instrumentsfor adjudicative competence remains a matter of per-sonal choice for examiners. When examiners usethese instruments, however, they should be aware oftheir responsibility to maintain the security of thetext’s contents. The value of many psychological testsand assessment instruments rests in part on the pub-lic’s ignorance of their specific contents. If, for exam-ple, test items from intelligence scales were publiclyavailable, evaluees could obtain and study the ques-tions, and those scales would no longer be indicatorsof individuals’ native intelligence. For this reason,psychologists’ ethics guidelines prescribe that test us-ers safeguard “the integrity and security of test mate-rials” (Ref. 241, No. 9.11), by, for example, prevent-ing persons who are not authorized to administertests from obtaining the content of specific test itemsand instruction manuals. Also, psychologists oftenare urged not to release raw test data, an individualevaluee’s responses, if doing so would create a riskthat the data would be misused or misrepresented(Ref. 241, No. 9.04). It is permissible, however, torelease raw data in response to a court order. Psychi-atrists’ official ethics guidelines do not discuss thisquestion. If psychiatrists choose to use competence-assessment instruments, they should take appropri-ate precautions to preserve the instruments’ valueand integrity.158

The Inventory of Legal Knowledge consists of 61true-or-false items about the legal process, designedto detect feigned deficits by assessing a defendant’sresponse style. It does not assess adjudicative compe-tence abilities; it measures only response style whenanswering questions about the legal system.242

The TOMI was designed to assess cognitive ma-lingering in competence evaluations. The TOMI hastwo 25-item scales, General Knowledge (TOMI-G)and Legal Knowledge (TOMI-L), developed to par-allel competence statutes. Like the Inventory of LegalKnowledge, it is not designed to assess adjudicative



competence abilities. Strengths of the TOMI includeease of administration and scoring, construct valid-ity, and utility with individuals who are highly mo-tivated to feign incompetence.243

Clinical (noncompetence) assessment instrumentsalso can be helpful on a case-by-case basis in compe-tence assessments. Assessment of problems such asreported amnesia, neurocognitive impairment, andintellectual disability may require additional testing.Assessment may occur with the use of a single instru-ment, such as the Montreal Cognitive Assessment(MoCA),244 or the use of a full battery of neuropsy-chological testing to assess cognitive capacity. Insome cases, using additional instruments may help informulating diagnostic hypotheses or in assessingmatters pertaining to malingering or personalitystructure. Similar to considering whether to use com-petence assessment instruments, the examiner mustuse professional judgment to determine whethertheir use is appropriate. The examiner also must useprofessional judgment to determine whether he isqualified to administer, score, and interpret an assess-ment alone, or whether consultation is indicated.

Ideally, regular use of sound assessment instru-ments would enhance competence evaluations bygiving examiners reliable, valid data. However, this isnot always the case because both competence ssess-ment instruments and clinical assessment intrumentshave advantages and disadvantages. Advantages in-clude standardization, comparison with norms, andproof that the examiner has used an established prac-tice (relevant to Daubert). Disadvantages includelimitations of existing instruments and their poten-tial for being attacked as inadequate in Daubert-typehearings, (see, e.g., State v. Griffin, 869 A.2d (Conn.2005),245 cultural concerns (in some cases), and thefact that a substantial fraction of examinees are tooimpaired to undergo systematic assessment. Al-though Melton states that administering a compe-tence assessment instrument should “be included inany assessment,” we disagree because of the disadvan-tages noted above.

Research on evaluating competence to stand trialstresses that no valuable information, be it clinicalassessment or standardized testing, should be ig-nored. The integration of competence clinical inter-view data with other sources of data best assists inevidence-based competence determinations.246

When writing up the results of an evaluation whereone has used an instrument, including the content of

the evaluee’s answer (e.g., what he says about thejudge’s role) in one’s report is more important thanthe score on the instrument.

IX. Formulating the Forensic Opinion

In formulating an opinion about adjudicativecompetence, the psychiatrist usually considers threequestions:

What symptoms does the defendant have, andwhat is the defendant’s psychiatric diagnosis?

What is the relationship, if any, between thesymptoms or diagnosis and the mental capabili-ties required under the jurisdiction’s standard forcompetence to stand trial?

If the defendant appears incompetent to proceedwith adjudication, how likely is it that appropri-ate restoration services would restore his compe-tence, and what is the appropriate, least restric-tive setting for such services?

A. Psychiatric Symptoms or Diagnosis

1. General Considerations

As explained in Section I, the substantive consti-tutional standard for adjudicative competence (as ar-ticulated in Dusky14) does not make having a mentaldisorder a requirement for finding a defendant in-competent. With minor variations in language orterminology, every U.S. jurisdiction uses the Duskystandard. Though several jurisdictions do not requirea predicate mental illness, federal courts and moststates require the establishment of a formal diagnosis.

Therefore, examiners working in jurisdictionswith statutes that require a predicate diagnosisshould indicate such a diagnosis in individuals whomthey believe are not competent.

Most adult defendants found incompetent tostand trial meet criteria for a mental disorder as de-fined in the recent editions of the American Psychi-atric Association’s Diagnostic and Statistical Manual(DSM). Psychotic disorders are the most commondiagnoses among criminal defendants referred forcompetence evaluations and subsequently found in-competent to stand trial. Studies have shown thatamong defendants who undergo evaluations of adju-dicative competence, 45 to 65 percent of those withschizophrenia or other psychotic illnesses,231,247–250

23 to 41 percent of those with affective or organicdisorders,247,250 and 12.5 to 36 percent of individu-



als with intellectual disability247,248,251 are foundincompetent.

In a study by the MacArthur Foundation ResearchNetwork on Mental Health and the Law, 65 percentof defendants hospitalized for restoration to compe-tence were found to have a diagnosis of schizophre-nia, and 28 percent had an affective disorder.198

In many jurisdictions, insanity statutes require thepresence of a severe mental disorder and exclude di-agnoses of substance abuse or personality disorders aspotential bases for insanity defenses.153 In contrast,mental disorders that are not severe are still permis-sible bases for findings of incompetence to standtrial. While the U.S. Supreme Court does not regardthe insanity plea as a constitutional right that statesmust make available to defendants,252 a criminal de-fendant has a constitutional right to be tried onlywhile competent.20,253 It thus makes sense not tohave an absolute lower limit on “seriousness” of dis-orders that could constitute the basis of a finding thata defendant is incompetent to stand trial.

In theory, therefore, any diagnosis or symptomcluster could be the cause of a defendant’s incompe-tence. In practice, however, few defendants who havediagnoses of major mental disorders or diagnoses ofintellectual disability are incompetent. Though somepersonality disorders may affect a defendant’s com-petence abilities (e.g., magical thinking in an individ-ual with schizotypal personality disorder), anypsychiatrist who believes that a defendant is notcompetent should carefully consider whether a spe-cific diagnosable mental disorder is present. In allcases, examiners should record observations aboutsymptoms and render opinions about diagnoses witha view toward how those symptoms affect the defen-dant’s functioning. The diagnoses or symptoms thataffect the defendant’s trial-related abilities should re-ceive further explanation in the opinion section ofthe psychiatrist’s report. It may not be possible tomake a definitive diagnosis if there is not a clearhistory or there are new ambiguous symptoms.

2. Special Diagnostic Consideration

When a defendant claims amnesia for an allegedcrime, questions about competence to stand trial arelikely to arise. From a practical and theoretical stand-point, true inability to remember circumstances sur-rounding an alleged offense certainly impairs the de-fendant’s ability to assist in his defense. For example,a defendant may be the only person who has knowl-

edge of an alibi that could form the basis of an ac-quittal. In Section II.F., Wilson v. United States78 andother case law surrounding the criminal courts’ han-dling of amnesic defendants was reviewed. Courtsgenerally have held that a defendant’s amnesia is nota bar, per se, to understanding criminal proceedingsor standing trial.

In evaluating claims of amnesia, the psychiatristshould consider the purported genesis of the memorydeficit and collateral information (e.g., hospital re-cords or reliable witness statements from the timesurrounding the alleged offense) in attempting todetermine the plausibility and genuineness of theamnesia. Medical records may also provide the psy-chiatrist with data that help determine whether thedefendant’s presenting symptoms are compatiblewith his medical history. Findings from psychologi-cal testing (including assessments of malingering)may also help the psychiatrist to evaluate a defen-dant’s assertions about amnesia.

Intellectual disability is a diagnosis commonly as-sociated with a finding of incompetence to standtrial.247,248,251 Before making that diagnosis, thepsychiatrist should be familiar with relevant defini-tions of. For example, the DSM-5254 indicates thatintellectual disability disorder be confirmed by bothclinical assessment and individualized, standardizedintelligence testing. However, a specific IQ score isno longer required to make the diagnosis and deficitsin adaptive functioning must be assessed.

Regarding CST evaluations, the IQ itself may lenddata to support the opinion that a defendant lackscapacities associated with Competence to StandTrial. This may be true even if in DSM-5 the diag-nosis of Intellectual Disability is not based solely onIQ findings.

Evaluation of juvenile defendants with respect tocompetence to stand trial presents several compli-cated problems, as described in Section XI.

The diagnostic rules of DSM-5 allow entry of adiagnosis of malingering as a condition that may be afocus of clinical attention. A substantial fraction ofdefendants malinger incompetence to avoid prosecu-tion. For example, Gothard and colleagues255 reporta 12.7 percent rate of feigned mental disorder amongtheir competence referrals.

Malingering has very negative connotations, andan opinion that a defendant is feigning or exaggerat-ing can adversely affect the defendant’s treatment inensuing criminal proceedings. Because of this, one



should not offer a diagnosis of malingering lightly.Examiners should base diagnoses of malingering onsolid evidence rather than mere clinical suspicion.Potential sources of confirmatory evidence include:

psychological testing or specialized instrumentsfor detecting malingering;

medical, psychological, and custodial records;

interviews with family, friends, police, custodialofficers, and others who have had contact withthe defendant; and

a previous history with the criminal justice sys-tem without any evidence or suspicion ofincompetence.

If the psychiatrist suspects that a defendant is ma-lingering but cannot confirm it with a high level ofconfidence, the psychiatrist may conclude (and statein the forensic report) that the defendant may moreeasily and best be evaluated on an inpatient unit,where around-the-clock clinical professional obser-vation may help clarify whether reported symptomsare genuine or feigned. Currently, however, forensicsystems may have pressures that limit access to inpa-tient beds for these purposes.256

B. Relationship Between Psychiatric Impairmentand Trial-Related Abilities

Once the presence of indicia of mental disorder isestablished, the psychiatrist focuses on any relation-ship between signs or symptoms of any mental con-dition and the defendant’s trial-related abilities.Knowing a defendant’s psychiatric history may helpto substantiate noted symptoms or to clarify theirdiagnostic significance, but a history of impairmentdoes not imply that a defendant currently is incom-petent to stand trial. The psychiatrist must decidewhether any current mental symptoms are causingimpairment in the defendant’s trial-related abilities.

Because U.S. jurisdictions use competence stan-dards that closely follow the Dusky decision,14 foren-sic clinicians can use Dusky’s three prongs, includingfactual understanding of the proceedings, rationalunderstanding of the proceedings, and ability to con-sult with counsel, as a guide for thinking about howa defendant’s psychiatric impairments affect adjudi-cative competence.

1. Factual Understanding

To evaluate factual understanding of the legal pro-ceedings, the psychiatrist assesses a defendant’s

knowledge about the charges, the roles of variouscourtroom participants, possible penalties, the con-cept of plea bargaining, the adversarial nature of thelegal process, and legal rights during the trial process.Defendants who lack some factual knowledge re-garding aspects of the trial process may still be com-petent if the psychiatrist can show that the defendantcould learn the necessary information and that anynoted deficits are not due to psychiatric impairment.

As an illustration, consider a defendant who doesnot know the maximum number of years attached toa possible sentence. Once provided the information,however, the defendant accurately states the poten-tial length of imprisonment that might follow con-viction. In this situation, the defendant’s initial def-icits only indicate a lack of information rather thanany impairment stemming from a mental disorder.Conditions that can result in a defendant’s having acompetence-impairing lack of factual understandinginclude cognitive deficits from intellectual disability,head trauma, medical illnesses, severe depression,and thought disorders, such as those experienced bypersons with schizophrenia.

Examiners should also recognize those situationsin which defendants appear to have a factual under-standing of the trial process but actually do not. Forexample, some individuals with intellectual disabilitywho have undergone competence training may pro-vide memorized answers to questions about trial factswithout developing an understanding of the issues. Adefendant’s ability to answer questions about hypo-thetical courtroom scenarios that differ from his casemay tell the psychiatrist whether the defendant hasan actual factual understanding of the legal process oris simply parroting words learned by rote.

2. Rational Understanding

Some defendants may have an adequate factualgrasp of trial-related matters yet have irrational be-liefs about the legal process that render them incom-petent to stand trial. Consider, for example, a defen-dant who has grandiose religious delusions and whotherefore believes that no earthly court can punishhim. This defendant may have an accurate factualunderstanding of the legal process as it applies to“ordinary” humans but cannot recognize that hefaces potential imprisonment if found guilty. In thissituation, the psychiatrist should describe how thedelusions affect the defendant’s ability to participaterationally in the legal process.



By contrast, a defendant may display indicia ofmental illness (including signs or symptoms of a psy-chosis) that do not impair rational understanding ofthe trial process. For example, a defendant’s persis-tent delusional belief that his ex-wife had an affair 10years ago may cause no impairment in his ability tounderstand and proceed with adjudication on a bur-glary charge.

3. Ability to Assist Counsel

In many evaluations of adjudicative competence,the psychiatrist should contact the defendant’s attor-ney to assess the defendant’s ability to assist counsel.Potentially useful information provided by defensecounsel may include the defendant’s behavior withthe attorney, the defendant’s ability to follow in-structions provided by the attorney, the defendant’sbehavior during any prior courtroom proceedings,and other effects of psychiatric symptoms on the de-fendant’s interactions with counsel. A defendantwho refuses to speak with his attorney because hedelusionally believes his attorney is an undercoverFBI agent working for the prosecution provides anexample of how a psychiatric symptom can impedecollaboration with defense counsel. The psychiatristmay have to determine whether a defendant’s refusalto assist counsel is a result of voluntary noncoopera-tion or an impaired ability to cooperate caused by amental disorder.

The psychiatrist should also assess the defendant’scapacity to make legal decisions in collaboration withdefense counsel and to participate in other activitiesthat counsel may require. Examples of such activitiesinclude the defendant’s ability to plea bargain, towaive a jury trial, and to testify. The psychiatristshould focus on how well the defendant can appre-ciate the situation, manipulate information related tothe trial process, and work with counsel in makingrational decisions.

In conducting this three-prong analysis, examin-ers should be familiar with and should keep in mindthe exact statutory language in their jurisdictions. Ingeneral, a finding of competence to stand trial re-quires only that the defendant have sufficient presentability rather than perfect ability to satisfy the re-quirement of Dusky. The psychiatrist can best aid thecourt by synthesizing specific information about andproviding clear examples of the nature and severity ofa defendant’s deficits and by showing how these def-icits relate to the prongs of the Dusky test.

C. Potential for Restoration: Least RestrictiveAlternative

Although not required by the Dusky standard,most statutes (following Jackson v. Indiana23; see Sec-tion I) explicitly require that the psychiatrist formu-late an opinion about whether restoration of compe-tence is likely within some statutorily designatedtime frame (usually linked to the severity of the po-tential penalty for the alleged crime) and whetherrestoration services should take place in an inpatientor outpatient setting. A national survey of State Men-tal Health Program Forensic Directors indicated thatcourt orders for restoration services vary across juris-dictions from very few to more than 1,540 per year(Florida).1 In that same survey, 20 states reportedthat over 90 percent of incompetent-to-stand-trialdefendants are referred to inpatient programs for res-toration services. Most restoration programs occur instate hospitals. However, for a variety of systemicreasons, many states have adopted provisions andtechniques for outpatient restoration,257 and severalstates have opted to begin jail restoration ser-vices.258,259 A description of restoration programs isdetailed below. Regardless of setting, on the restora-tion side, it is imperative that treatment providersmake efforts to maximize treatment approaches.

In addressing the probability of restoration in aspecific case, the psychiatrist should consider severalfactors, including:

whether the defendant’s incompetence resultsfrom a “treatable” deficit such as lack of priorexposure to information about the trial processor psychiatric symptoms caused by an illness thattypically responds to medication, as opposed to astatic and relatively irremediable condition suchas intellectual disability;

the defendant’s previous psychiatric treatmentand responses to treatment; and

the character of presenting symptoms and cur-rent scientific knowledge about how well thosesymptoms respond to treatment.

When assessing restorability, examiners shouldbear in mind that research on competence restora-tion shows that most individuals referred for treat-ment after being found incompetent do in fact be-come competent to stand trial.260–264 Summarizingprevious research findings in the mid-1990s, Nich-olson and colleagues concluded that “the ability of



clinicians to predict competency restoration is poor,at least when compared with the base rate of failedrestoration” (Ref. 233, p 373). Studies of defendantsfrom Los Angeles,260 Michigan,261 Ohio,262,263 andOklahoma264 have shown that most defendants hos-pitalized for competence restoration regain theircompetence. Because of the high base rate of success-ful restoration, it is difficult to determine which de-fendants have very low likelihoods of achieving com-petence if provided with treatment.265–267 Wallet al., however, describe that with defendants withcognitive limitations, the time frame for restora-tion may need to be longer to see positive changein competence-related matters.

An Illinois study found that clinicians were wrongin predicting the treatment outcomes of 85 percentof the defendants who ultimately were not restoredto competence,266 and Florida researchers concludedthat a discriminant function they developed had “lit-tle or no better than chance utility in predicting”restorability (Ref. 267, p 73). A retrospective Okla-homa study233 found that having a previous criminalrecord and alcohol use at the time of the offensemodestly increased the likelihood of competence res-toration, impairment in psycholegal ability, havingpsychotic symptoms, and aggression toward othersafter arrest correlated with failure to attain compe-tence. Nonetheless, the study’s authors concludedthat their results were “consistent with prior researchin suggesting that psychiatrists should exercise cau-tion in providing feedback to courts concerning [thelikely success of] competency restoration” (Ref. 233,p 377). An Alabama study250 found few differencesbetween defendants who the psychiatrist predictedwere restorable or nonrestorable. Those differencesthat did exist reflected mainly nonpsychiatric vari-ables such as criminal record, current criminalcharge, and understanding of the legal process. AnOhio268 study showed that two types of incompetentevaluees had probabilities of being restored that werewell below average: chronically psychotic defendantswith histories of lengthy inpatient hospitalizationsand defendants whose incompetence stems from ir-remediable cognitive disorders (such as intellectualdisability).

A study using the Repeatable Battery for the As-sessment of Neuropsychological Status (RBANS) tohelp predict length of stay for incompetent defen-dants showed that defendants who were older or had

lower RBANS scores took longer to be deemed com-petent to stand trial.207

In the studies that have assessed characteristics ofdefendants predicted to be either restorable or non-restorable, two factors are most commonly associatedwith nonrestorability: impairment in psycholegalability and the presence of severe psychotic symp-toms.269 A study of 2,260 defendants recommendedas incompetent to stand trial found that psychiatricdiagnosis was the most powerful variable in classify-ing opinions concerning restorability.270 Defendantswith a mood or psychotic disorder were more likelyto be assessed as restorable compared with those withautism spectrum, cognitive, personality, or substanceuse disorders.271 A Connecticut study272 reviewedthe records of 71 defendants, and the results indi-cated that nonrestorable defendants had more priorhospitalizations, incarcerations, and episodes of in-competence; had lower level charges; were diagnosedwith a psychotic and cognitive disorder; were pre-scribed more medications; and had lower global as-sessment functioning. Nonrestorable defendantswere hospitalized almost twice as long as those ulti-mately deemed competent.

The recent literature notes the need to study whatconstitutes a reasonable length of time to determinerestorability, as most states appear to be out of com-pliance with the ruling in Jackson v. Indiana23 thatcommitment be based on the likelihood of restorabil-ity.273,274 A study of this topic, from Indiana,275 fo-cused on long-term competence restoration. A ma-jority (64.2%) of its cohort of 81 defendantsundergoing competence restoration after six monthswere eventually deemed restored to competence.Older defendants were less likely to be restored andsuccessfully adjudicated, whereas defendants withmore severe charges and greater factual legal under-standing were more likely to be restored and adjudi-cated. Regardless of the time frame for competenceefforts, psychiatrists should recognize, however, thatcourts may regard a “low” but greater-than-zeroprobability of success to be “substantial” enough towarrant a trial of restoration. In a recent study byJohnson and Candilis,257 a review of restored defen-dants showed that defendants were restored to com-petence, on average, within a 45-day period.Whether this outpatient restoration program wasgeared for less clinically complex individuals isunclear.



If successful restoration appears likely, examinersin some jurisdictions must also render an opinionabout the range of services that will be necessary torestore the defendant to competence. Restorationusually involves two simultaneous processes: educa-tion about the court process and treatment (usually,with psychotropic medication276) of psychiatricsymptoms that are interfering with the defendant’scompetence-related abilities. The potential sites forrestoration treatment services may vary dependingon local customs, state law, court (juvenile versusadult), and jurisdiction (e.g., federal versus state) andmay be available in inpatient facilities, outpatient set-tings, or jails. In states that allow both inpatient andoutpatient restoration services, the psychiatrist mayhave to form an opinion about which treatment set-ting represents the least-restrictive alternative; that is,which setting is necessary to maximize the chances ofrestoration while preserving the defendant’s libertyrights to the greatest extent possible. In most juris-dictions, the psychiatrist may recommend inpatienttreatment, even for defendants who do not meet stat-utory criteria for inpatient commitment. For exam-ple, in the case of a psychotic defendant who has ahistory of a good response to treatment in the hospi-tal followed by repeated episodes of substance abuseand noncompliance with medication while living inthe community, a recommendation for inpatient res-toration services may be appropriate.

Defendants whose competence cannot be restoredpresent conundrums for case processing, especiallywhen charges are serious. Some states permit that acharge may be dismissed altogether or dismissedwithout prejudice at some point after the restora-tion period. Often, however, states are caught in acomplex interplay of forces that raise questionsabout the original Jackson v. Indiana tenets regard-ing the dangers of finding a person indefinitelyincompetent and keeping him institutionalized forthat reason.273,274,277

For these reasons, forensic examiners may also becalled upon to help develop a disposition plan fornonrestorable defendants who may no longer needhospital-level care.

X. Preparing the Written Report

A. General Considerations

Because competence evaluations often do not re-sult in courtroom testimony, a written report usually

is the chief product of the psychiatrist’s evaluativeefforts. The report provides the referring party with thepsychiatrist’s opinions relevant to adjudicative compe-tence and the basis for those opinions. The report mustprovide a meaningful response to the competence in-quiry and direct the response to the problems that ledto the evaluation. Because the report’s principal usersare attorneys, the psychiatrist should describe dataand express opinions in jargon-free language that alayperson can understand.215 When the report mustinclude clinical or technical terms that a well-informed nonclinician might not understand, the re-port writer should provide parenthetical or otherforms of explanatory language (e.g., “haloperidol, anantipsychotic medication”).

The psychiatrist’s report should serve an organiz-ing function that helps readers grasp the significanceof information gathered from the clinical interviewand collateral sources. Whatever format the writerchooses, the written presentation should convey allrelevant information concisely, allowing the readerto apprehend the facts and reasoning the expert usedin formulating the opinion. The report should be astand-alone document, that is, a document that pro-vides or reproduces the data needed to support theopinions that the psychiatrist expresses. The reportshould also state clearly any limitations or qualifica-tions of which the psychiatrist is aware. For example,if a defendant’s poor cooperation leaves the psy-chiatrist with some doubt about the defendant’sdiagnosis, if the psychiatrist had limited access toimportant collateral information, or if the psychi-atrist requested but did not receive records thatmight alter the opinion, the report should describethese limitations.

B. Report Formats

There is no single correct style or format for the re-port. Available examples include the Group for theAdvancement of Psychiatry report format278 and theoutline suggested by Melton and colleagues.6 Manystate forensic mental health systems have manuals de-scribing a preferred style for reporting the results of acompetence evaluation. Jurisdictions vary in whetherthe psychiatrist’s report should provide an explicit opin-ion on the ultimate legal issue (i.e., whether the defen-dant is competent to stand trial). A suggested reportoutline appears at the end of this section.



C. Introductory Material

Besides providing the defendant’s name and thelegal identification of the case, the report shouldidentify the referring or requesting party, and statethe purpose of the evaluation. The report may refer-ence the jurisdiction’s legal standard for adjudicativecompetence. It should provide the date, location,and length of any interview(s) conducted. (For ex-ample: “I examined the defendant at the GevaltCounty Jail on June 30, 2006, for three hours.”) Theintroduction should include descriptions of how thedefendant received information about the interview’spurpose and lack of confidentiality and how well thedefendant understood that information. The reportalso should list all data sources used for the evalua-tion, including records and other materials that thepsychiatrist has read, the names of collateral infor-mants (besides the principal examinee), the psycho-logical tests or assessments administered, and anyother sources of information.

D. Background Material

The background sections typically need not be asdetailed or extensive as the background section ofreports on criminal responsibility or nonforensicevaluations completed for treatment purposes. In-stead, background sections should include just thosefacts that are pertinent to adjudicative competenceand (in the case of incompetent defendants) restora-tion. In the background section and subsequent por-tions of the report, the psychiatrist should not revealincriminating information gleaned from what thedefendant said about the alleged offense, becauseprosecuting attorneys often receive a copy of the re-port. Even if the law prohibits the use of the compe-tence report at trial or sentencing, courts may permitits entrance if the defendant later testifies and hisprior statements are inconsistent with his testimony.

Findings from a physical examination, imagingstudies, or laboratory tests should be included whenthey play a role in guiding the psychiatrist’s opinion.If the psychiatrist has used psychological testing orassessment instruments, the report should includedates of administration of the initial and repeatedtests, along with comments about nonstandard in-structions or administration.

E. Description of Mental Status

The report should contain clinical data regardingthe nature of the defendant’s mental and emotional

condition that are specifically relevant to the compe-tence analysis.279 All findings relevant to adjudica-tive competence should appear in the report, irre-spective of the weight or priority that the clinicianaccords to any specific finding. The psychiatristshould also comment on any contradictions or in-consistencies. A mental status examination is an im-portant component of a competence report, but itdoes not by itself provide a description of those func-tional abilities and limitations that are relevant toadjudicative competence. A defendant who is psy-chotic or has amnesia for events is not necessarilyincompetent to stand trial.198

F. Description of Functioning Related toAdjudicative Competence

Competence reports should go beyond describingsigns and symptoms of mental impairment andshould discuss how those signs and symptoms affectfunctional abilities relevant to the legal construct ofcompetence. The heart of a competence report is adescription of the defendant’s abilities and deficitsconcerning the tasks that the defendant must per-form during a criminal defense.200 Using compe-tence-assessment instruments during the interviewcan facilitate enumeration and description of thesekey abilities and deficits,236 because those instru-ments help focus the psychiatrist’s attention on whatthe defendant knows and can do related to workingwith counsel in preparation for or participation incriminal proceedings. Examiners should not basetheir opinions on the results of these instrumentsalone, however. Information obtained from the useof competence-assessment instruments may not beautomatically admissible in court202 and may affectadmissibility of other information. Often, the bestuse of information from assessment instruments is toprovide specific examples that illustrate the defen-dant’s strengths or weaknesses with respect to reason-ing and understanding, along with other types ofdata that allow the psychiatrist to convey key infor-mation about the defendant.

G. Diagnosis

A few writers (e.g., Ref. 280) argue that psychiatricdiagnoses generally should not appear in forensic re-ports. In the context of adjudicative competence,they argue that the legal issue is not whether an indi-vidual has a recognized mental disorder. Rather, thequestion is whether a mental condition (which need



not be an officially recognized disorder) prevents theindividual from functioning properly as a defendant.

This guideline disagrees with the position of thosewho are against including psychiatric diagnoses inforensic reports. Although we acknowledge thatthe position has some merit in that it encouragesappropriate circumspection, psychiatric diagnosesserve valuable purposes in reports on adjudicativecompetence.

First, the federal standard and standards in manyjurisdictions require that the psychiatrist statewhether the defendant has a mental disorder (some-times using the phrase “mental disease or defect”).Providing a diagnosis assures that the psychiatristsatisfies the statutory guidelines for competence eval-uations. Specifying the diagnosis identifies a defen-dant’s symptom pattern as matching the profession’srecognized definition of a mental disorder, thoughthe psychiatrist may have to explain this to the court.

Second, including diagnoses helps the psychiatristtell nonclinicians what kinds of problems a defen-dant has and why those problems affect the defen-dant’s competence-related function. If, for example,a defendant does not cooperate with his attorneybecause he irrationally perceives the attorney as plot-ting against him, informing the reader that the de-fendant has paranoid schizophrenia helps the readerunderstand that the defendant’s fears stem from awell-known form of mental illness and not fromquirkiness or unwillingness to cooperate.

Third, for defendants who appear incompetent,the specification of a diagnosis and communicating itin the forensic report helps to support a psychiatrist’sopinion about whether the defendant is restorable.To return to the example in the previous paragraph,knowledge that a defendant’s fears about his attorneyare signs of paranoid schizophrenia, coupled withknowledge of that disorder’s typical response topharmacotherapy, would support the psychiatrist’sopinion that the defendant is likely to become com-petent if provided with a course of treatment.

Psychiatrists take different approaches in relatingclinical diagnoses to competence to stand trial. Someexperts believe that a formally recognized diagnosis isnot necessary when a description of a defendant’smental condition reflects symptom clusters or syn-dromes that meet the relevant jurisdictional require-ments for the presence of a mental disorder. ThisResource recommends, however, that when possible,examiners should offer officially recognized diagno-

ses in one of the formats described in the currentedition of the DSM. A report should include thefindings that support the psychiatrist’s diagnosis,perhaps referring to criteria in the DSM. If the psy-chiatrist uses a diagnosis that does not appear in thecurrent DSM or International Classification of Dis-eases, the psychiatrist should support the diagnosiswith citations to relevant publications. After render-ing a less-specific diagnosis (e.g., “unspecified psy-chotic disorder “) examiners may want to include adifferential diagnosis of more specific disorders, ex-plaining the reasons why each disorder is a possibil-ity. If the diagnosis turns on a fact in dispute (forexample, whether the defendant’s symptoms wereinduced by intoxication), the psychiatrist shouldprovide an explanation of how the disputed fact af-fects the differential diagnosis.

In jurisdictions where a diagnosis is not required, adescription of symptoms that affect the defendant’scompetence to stand trial may suffice. Acceptablepractices include, at a minimum, providing a narra-tive description of a scientifically based disorder,symptom cluster, or syndrome. Examiners shouldalways keep in mind that “official” DSM diagnosesare often more than a decade old and do not includenewly recognized syndromes or illnesses. Yet refer-ence to specific, recognized diagnoses helps the ex-pert organize patterns of symptoms and explain theconclusions drawn. (For further discussion of themethodological value of psychiatric diagnoses in tes-timony, see the APA’s Task Force Report on the Use ofPsychiatric Diagnoses in the Legal Process.281)

A report concerning adjudicative competence isoften delivered to nonclinicians, typically a judge,defense attorney, and prosecutor. Although defen-dants are told at the outset of the examination thatthe interview is not confidential, it is still importantto respect a possibly incompetent defendant’s privacyrights. A competence report should contain only in-formation necessary and relevant to the legal point inquestion. Therefore, it may not be necessary or ap-propriate to provide a diagnosis in the opinion sec-tion. If a diagnosis is included, the report shoulddefine and explain the diagnosis to the extent that itis relevant to the defendant’s presentation and affectsthe defendant’s trial-related capacities.

H. The Opinion

After presenting the relevant history, examinationfindings, and diagnostic assessment, the psychiatrist



must offer an opinion and carefully explain the rea-soning process used to formulate the opinion.282

Some authors have recommended that mentalhealth professionals confine their reports or testi-mony on adjudicative competence to a description ofthe evaluee’s functional capacities and refrain fromgiving an explicit opinion on the ultimate issue ofwhether a defendant is competent to stand trial.They argue that the ultimate question of a defen-dant’s legal competence calls for a court’s interpreta-tion of a legal matter and is therefore beyond thespecial expertise of the forensic clinician.6,283,284 Be-cause one cannot give a clinical or operational defi-nition of what is fair or unfair in a particular case, theexaminer has no clear guidance in making the judg-ment.143 Moreover, they say that it is the responsi-bility of courts, not mental health professionals, todecide whether the degree of disability manifested bya defendant is severe enough that it would be unfairto subject the defendant to criminal proceedings.

In some jurisdictions, examiners are barred fromexpressing ultimate-issue opinions, or they are di-rected to offer only opinions about the defendants’competence-specific capacities in language from thejurisdiction’s competence statute. For example, stat-utes in Ohio285 and South Carolina286 instruct ex-aminers to state whether a defendant understands thenature and objective of the proceedings against himor her and can assist counsel in preparing a defense,but do not ask examiners to provide their opinion onthe ultimate issue of whether the defendant is com-petent to stand trial. In other jurisdictions (e.g.,Rhode Island,287 South Dakota,288 and Texas289),however, statutes or case law allow or direct examin-ers to address the ultimate issue explicitly. Irrespec-tive of statutory requirements, some courts and at-torneys prefer ultimate-issue testimony.290,291

Given the preceding considerations, many exam-iners refrain from expressing their opinions on theultimate 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 dis-cussion with the judges in the jurisdiction where theexaminer works who may otherwise question whypsychiatrists have stopped addressing the ultimateissue in their reports.) However, the forensic reportshould describe how diagnostic conclusions arisefrom clinical findings and how the clinical findingsarise from the defendant’s mental disorder (if any),thereby delineating the factual basis for the conclu-

sions relevant to adjudicative competence.292 Exam-iners also should explain how their findings affect thedefendant’s competence-related abilities by linkingthose findings to elements of the jurisdiction’s compe-tence standard. Whatever form the psychiatrist’s opin-ion takes, the written report should explain the psychi-atrist’s reasoning and the connections between clinicalfindings and the behavioral components of adjudicativecompetence. In some cases in which a defendant facesmore than one charge, the psychiatrist may have to de-termine competence for each alleged offense.

Examiners should generally state their opinionswith a “reasonable degree of medical certainty” or a“reasonable degree of medical probability,” depend-ing on the language used in the jurisdiction. Some-times, the psychiatrist may not be able to render anopinion with a reasonable degree of medical certaintyor probability. When no opinion is reached, the re-port should clearly communicate this result alongwith any suggestions for additional data that couldallow the psychiatrist or the court to reach an opin-ion. On some occasions, the psychiatrist may want topoint out that more information would increase thelevel of confidence in the opinion. When this is thecase, the report should specify the types or sources ofinformation that would help.

When the opinion suggests lack of adjudicativecompetence, the report should provide an opinionconcerning restorability and the appropriate settingfor such restoration. It should also identify any addi-tional requirements for reports in the jurisdiction wherethe evaluation is conducted. For example, in some ju-risdictions (e.g., Massachusetts293), a psychiatrist is re-quired to discuss the defendant’s eligibility for civilcommitment proceedings, along with the basis for theopinions concerning these matters. Even when theopinion does not suggest incompetence, the report mayinclude a discussion of restorability and commitmentstatus if the psychiatrist believes the court might con-clude that the defendant is incompetent.

I. Other Considerations

Reports should be free of gratuitous commentsabout defendants’ behavior, need for incapacitation,dangerousness, or lack of remorse. In general, reportson adjudicative competence should not take up otherlegal matters (such as future dangerousness or con-siderations that may make up a presentencing evalu-ation) unless that jurisdiction’s case law or statutesrequire comments about these matters. In cases in



which the court has requested an opinion about an-other psycholegal matter (e.g., criminal responsibil-ity) and where it is appropriate to provide such anopinion (e.g., the psychiatrist believes the evaluee iscompetent and can validly consent to an evaluationof criminal responsibility), a separate report aboutthat other matter should be submitted.

J. Signature

All the professionals involved in preparing the re-port should sign the document. Such individualsmay include supervisors and reviewers, as well as theprincipal psychiatrist. Under the psychiatrist’s signa-ture, the report may summarize special qualificationsthat characterize the psychiatrist’s professional status(e.g., academic degrees, board and society member-ships, and academic degrees in related subspecialties)(Table 1).

XI. The Adjudicative Competenceof Minors

Juvenile adjudicative competence (JAC) refers to ajuvenile defendant’s competence to proceed withand effectively participate in the adjudicative process.In most jurisdictions, this process can occur either injuvenile court or adult criminal court. No fewer thanthree fundamental competencies are included in ad-judicative competence: competence to waive coun-sel, competence to enter a guilty plea (and therebyforego a variety of trial-related rights), and compe-tence to stand trial (CST).

In addition to establishing these competencies, de-fendants also must demonstrate what some scholarshave called “preadjudicative competence” (e.g., compe-tence to confess or to waive one’s Miranda rights),though this is typically a retrospective determination formental health professionals. Juveniles, particularlyyounger juveniles, are much more likely than adults todemonstrate deficits in both adjudicative and preadju-dicative competence. Although this section of the Re-source focuses primarily on juvenile competence tostand trial (JCST), a brief discussion of youths’ pread-judicative competence is informative.

A. Preadjudicative Competence1. Minors Facing Delinquency Proceedings

To understand fully JCST as it relates to delin-quency proceedings, it is important to know the his-torical background related to the evolution of thisconcept and right.294

The first juvenile court in the United States wasestablished over 100 years ago in Chicago (1899) bythe Illinois legislature, which had been influencedsignificantly by progressive reformers. These reform-ers saw youths as having diminished (or even com-pletely absent) culpability for delinquent or criminalacts and saw their youthful character as more mallea-ble and “unformed” than that of adult offenders.Therefore, juvenile courts initially focused primarilyon rehabilitation rather than other penal objectives,such as incapacitation, deterrence, and retribution.Parens patriae (literally parent of the state) ratherthan police power was the controlling doctrine of thejuvenile court and juvenile justice system. Juvenilecourt proceedings typically were (and to some extentstill are) less adversarial and more informal than thosein adult criminal court. They also tended to focus on thenature of the offender, rather than the offense itself.Judicial officers, prosecutors, defense attorneys, and

Table 1 Competence to Stand Trial Report: Sample Format

1. Identifying information2. Source of referral, reason for referral, and statement of

the charges3. Relevant legal standards and criteria4. Informed consent/statement of nonconfidentiality5. Dates and durations of examinations6. Sources of information: third-party information including records

reviewed, collaterals sources interviewed7. Relevant background information

(a) Family history(b) Personal history(c) Education history(d) Employment history(e) Religious history(f) Military history(g) Sexual, marital, and relationship history(h) Medical history(i) Drug and alcohol history(j) Legal history (juvenile and adult crimes and civil matters)(k) Psychiatric history

8. Relevant physical examination, imaging studies, and laboratorytests

9. Psychological testing and assessment instruments administered;dates completed as well as any repeated testing, includingnotation regarding any nonstandard instruction or administration

10. Current mental status examination (during the evaluation)11. Competence examination data12. Clinical conclusions and diagnoses that are relevant to

competency13. Medicolegal conclusions including expert opinion on

competence if formulated14. Opinion on restorability and commitability, if formulated15. Formulation and basis for the expert opinion(s)



families often worked collaboratively to serve the bestinterests of the youths. These courts generally consid-ered themselves strictly rehabilitative in nature, andproceedings were considered civil rather than criminalin nature. Therefore, due process protections were notconsidered particularly important.

During their first six or seven decades of existencein the United States, juvenile courts, for the mostpart, were not subject to the constitutional mandatesthat applied to adult criminal court proceedings. Ju-dicial officers had significant discretion regarding al-most all aspects of delinquency court proceedings,including the ultimate disposition of youth adjudi-cated delinquent. Unfortunately, some courtsabused this power. In the 1960s, the lack of dueprocess protections in juvenile court proceedings waschallenged in several court cases, at least in part be-cause of some of these abuses. In 1967, the U.S Su-preme Court’s ruling in In re Gault295 extended mostdue process protections (excluding the right to a jurytrial) to youths involved in delinquency proceedings.

During the1980s and 1990s, there was a funda-mental shift in the way in which youthful defendantswere viewed by and interacted with the juvenile courtsystem. In the late 1980s, a significant increase in therate of crimes committed by juveniles, particularlyhomicide, led to a change in the public’s perceptionof minors involved in the juvenile justice system.Many of these individuals began to be viewed as“young, budding psychopaths” in need of adult pun-ishment, rather than troubled youths in need oftreatment and rehabilitation. Catchy slogans arose,such as “old enough to do the crime, old enough todo the time” and were widely repeated.296

Beginning in the early 1990s, a great deal of pres-sure was exerted by the public on legislators (bothstate and federal) to use delinquency courts (andadult criminal courts) as mechanisms for protectingthe public rather than for rehabilitation of youthfuloffenders. Juveniles began to be transferred (alsoknown as waived) to or have their charges directlyfiled in adult criminal court at much higher rates. Inadult criminal court, they faced potential sanctions asharsh as life without parole or, for those aged 16 yearsor older, death (until the 2005 U.S. Supreme Courtdecision in Roper v. Simmons).297

Those youths who remained under juvenile courtjurisdiction still faced much stiffer sanctions therethan they had in the past. Essentially, juveniles wererequired to navigate either an increasingly unforgiv-

ing juvenile justice system or an adult criminal justicesystem that was neither designed for nor prepared todeal with them. Perhaps most important, the latterhad very limited experience with the unique chal-lenges that psychosocial immaturity and unformedcharacter presented in maintaining the integrity andfairness of the adjudicative process.298,299

However, there was a silver lining to society’s shift toa more punitive, less rehabilitative position toward ju-venile offenders: renewed attention was focused on ju-veniles’ developmental immaturity and its likely effecton their abilities to both understand and participatemeaningfully in the entire adjudicative process. Con-cerns related to JAC certainly existed previously, partic-ularly in the post-1967 United States (i.e., after theGault decision). However, because of the less adversarialnature of the delinquency court process and the reducedlegal jeopardy juveniles had faced in the past, the nega-tive impact of juveniles’ developmental immaturity onthe process of adjudication were not appreciated andquantified until more recently.

Research conducted over the past 15 years hasraised serious doubts about many juvenile defen-dants’ abilities to understand pretrial and trial pro-ceedings and to participate meaningfully in their de-fense, particularly those who are young and havelower IQs.238 The courts and legislatures have takennotice. In J.D.B v. North Carolina,300 the UnitedStates Supreme Court ruled that lower courts mustconsider youths’ age with respect to Miranda waiv-ers. The Court noted that younger age negativelyaffects both youths’ perceptions and decision-making regarding legal processes. In this case, thejustices noted that because of adolescents’ immatu-rity, they are less capable of understanding and ap-preciating their rights as defendants.301 State legisla-tures also have recognized the increasing importanceboth of acknowledging JCST as a fundamental rightand codifying JCST standards, particularly for de-fendants who remain in juvenile court (juvenileswaived to adult criminal court generally are evaluatedby the adult CST standard). To that end, 21 stateshave passed juvenile-specific CST laws.302

At present, almost all states have either statutes orappellate decisions on competence to stand trial injuvenile court.302 In the state forensic program direc-tors’ survey by Fitch,1 18 states reported that thepublic mental health system was responsible forsome proportion of JCST evaluations in theirstate. Even in states without statutes or clear case



law requiring competence to proceed in juvenilecourt, some juvenile court judges have begun or-dering CST assessments.

The order to conduct the competence examina-tion limits confidentiality, so notifying a legally au-thorized adult (such as a parent or guardian) is notrequired to conduct the evaluation. Whether a legallyauthorized adult has access to the competence reportand legal file may depend on the jurisdiction. Aguardian cannot waive the youth’s privilege.

Most jurisdictions apply a variant of the Dusky14

standard to the assessment of juveniles’ competence,but there is considerable variation in other details.Some states require that the incompetence stem frommental illness (MI) or intellectual disability (ID)alone, and not from simple developmental imma-turity (DI). Other states envisage modifications ofjuvenile court procedures to aid impaired defen-dants. State legislatures writing new statutes re-grading juvenile competence face many questionsand choices.303 These include:

Should courts recognize or allow different levelsof competence for different types of cases? Arethere categories of cases for which competenceshould not be required?304

Should evaluators of juvenile competence havespecial qualifications in evaluating youth that arenot required of evaluators of adult competence?

Should competence assessments factor in theavailability and use of surrogate decision-makers(such as parents) who could assist the minor inpreparing a defense?

What time limits should apply in cases requiringattainment or remediation (the current preferredterm) of competence for immature defendants?

What should the juvenile court do if a youth isincompetent because of developmental immatu-rity? May the juvenile court detain or commit theyouth and wait for years until he matures? If so, howdoes this square with Jackson v. Indiana23 and howmight the passage of time impact the youth’s abilityto recollect events and effectively assist counsel?

2. Minors Facing Prosecution in Adult Criminal Court

In almost every state, juvenile defendants may faceproceedings in adult criminal court. In these states,statutorily defined procedures, including variouslycalled waiver, bindover, certification, or transfer, per-

mit prosecution of minors in adult criminal courtunder certain circumstances. A minor facing prose-cution as an adult receives all due process protectionsenjoyed by adult criminal defendants and therefore isevaluated under the same competence standard usedfor adults in that jurisdiction. Many states have man-datory waiver statutes that require that all minorscharged with certain offenses (e.g., homicides) un-dergo prosecution in adult criminal court if they areolder than a specified minimum age. Youths trans-ferred pursuant to such statutes may well be candi-dates for competence assessment. For youths whoundergo evaluation before a waiver hearing, a findingof incompetence will probably forestall transfer toadult court.

3. Factors Influencing JAC

Cognitively and emotionally, adolescents are notsimply smaller, younger versions of adults. Factorsthat may affect a minor’s competence to stand trialinclude the following.

a. AgeOne of the most robust research findings has been

that age less than 14 years is strongly correlated withincompetence.238,305–309 A large percentage of delin-quents under that age (up to about half, dependingon the definition of impairment) are either clinicallyincompetent or have impairments in functioningthat are likely to have a serious effect on competence.A somewhat smaller fraction of 14- and 15-year-oldsis impaired, and 16- and 17-year-olds tend to per-form comparably to adults. For example, the 2003MacArthur study238 found that age and IQ were thevariables most closely tied to scores on a standardizedcompetence assessment instrument (the MacArthurCompetence Assessment Tool-Criminal Adjudica-tion (MacCAT-CA)). Approximately 30 percent of11- to 13-year-olds and 19 percent of 14- to 15-year-olds scored below the “clinically significant impair-ment” threshold on the MacCAT-CA and likelywould have been found incompetent to stand trial.

b. IntelligenceIn minors younger than 16 years, low IQ is

a second robust risk factor for incompe-tence.238,306,307,309 Below-average intelligence am-plifies the effect of young age, which is particularlysignificant because delinquents on average scorelower on IQ tests than do their nondelinquent peers.



For a variety of reasons, the mean IQ of youthsinvolved in the legal system is at least a standarddeviation (i.e., 15 points) below that of youths in thegeneral population. Most studies have found themean IQ of juvenile justice populations to be 80 to85. In a study of juvenile adjudicative competence,Ficke et al.239 found that their 9- to16-year-old de-tained study participants had an average IQ of 73.According to Otto et al.,310 the rates of intellectualdisability (i.e., an IQ �70 (plus deficits in adaptivefunctioning; now called intellectual developmentaldisorder in DSM-5254) are approximately three toeight times higher than the rates in the general pop-ulation. Obviously, subaverage intelligence can havea significant impact on the adjudicative process.

In addition, overall IQ scores do not necessarilyreveal more subtle deficits, such as receptive verbalskills, that can significantly affect the adjudicativeprocess. Receptive verbal skills represent the abilityto understand the meaning of a spoken word or con-cept without having to describe it. In a study byLansing et al.,311 detained youth had the greatestdeficit in receptive verbal skills (two standard devia-tions (SD) below normal) compared with other cog-nitive skills, with nearly 25 percent of the samplehaving “major impairment” in this area. Youths’ def-icits in receptive verbal skills are likely to impair theirability to understand and engage meaningfully in le-gal proceedings. Consequently, the court systemmust provide legal information (court proceedings,plea bargaining, and parole hearings) that is compre-hensible to these youths.

c. Developmental ImmaturityJAC can be influenced by factors in both “cogni-

tive” and “psychosocial” domains related to develop-mental maturity. Clearly, these domains are tiedsomewhat to age and intelligence, though there is asignificant amount of variability among youths withsimilar ages and IQs.

The cognitive domain generally includes capabil-ities that impact a defendant’s capacity to under-stand, reason about, and appreciate the adjudicativeprocess. Does the defendant know what he should doin a given legal situation? In addition, in youngerjuveniles, many, or even all of these “cognitive” ca-pabilities are either impaired or recently acquired inyounger juveniles.

The psychosocial domain encompasses develop-mental factors or traits that affect the dependability

and uniformity with which youths employ theircognitive abilities. Put more simply, what does thedefendant do and why?312 Obviously, psychoso-cial factors and traits change significantly duringadolescence and early adulthood.

d. Cognitive DomainPreviously, research on JAC primarily focused on

cognitive trait differences between juveniles andadults that might impair juveniles’ adjudicative com-petence. Individuals younger than 14–15 years ofage were more likely than adults to show deficits incapacities in the cognitive domain (e.g., they showedpoorer rational and factual understanding of the trialprocess and participants). Studies that comparedadults with juveniles 15 years of age or older by ques-tioning them about hypothetical, nonlegal circum-stances did not find significant differences betweenthe groups. However, most of these studies did notsample detained or delinquent youth, a populationwith significantly higher rates of mental disordersand lower intelligence levels (as measured by IQtests) than the age-matched general population. Inaddition, these studies’ findings may not be relevantto real-world settings that are stressful and emotion-ally charged (i.e., high “emotional valence”) and arewhere youth make these complex legal decisions.Therefore, JAC should be considered in a broaderdevelopmental framework.

B. Psychosocial Domain

For many centuries, society has recognized thatadolescents are generally more susceptible to suc-cumbing to peer pressure, more prone to seek imme-diate gratification, more impulsive, and much morelikely to engage in risky behavior than adults. There-fore, youths are not permitted to participate in cer-tain activities until they have reached certain chrono-logical ages (e.g., driving, entering into contracts,serving in the military, and consuming alcohol). Be-cause universally accepted and reliable metrics mea-suring a juvenile’s overall degree of developmentalmaturity do not currently exist, researchers havestarted to attempt to define more precisely particulardomains of “impairment,” quantify the degree ofthese impairments by age, and examine how theseimpairments may affect the adjudicative process.When compared with adults, most adolescents man-ifest deficits in the following areas294:



Risk appraisal: adolescents tend to discount andundervalue risk.294

Reward sensitivity: adolescents tend to be moresensitive than adults to rewards (particularly, im-mediate rewards), which likely contributes to theincreased sensation-seeking behavior noted dur-ing adolescence.238

Time perspective: adolescents tend to care moreabout short-term rewards than long-term conse-quences and are less future oriented thanadults.294

Peer influence: adolescents are much more likelythan adults to be subject to and succumb topeer influence. In contrast to most adult of-fending, adolescent offending generally occursin groups.313

Abstract thinking: children’s and adolescents’perceptions and decisions may be based on overlyconcrete ideas. They may view rights as discre-tionary or conditional, as opposed to automaticand inalienable.294

Perceived autonomy: children’s and adolescents’lack of perceived autonomy can manifest as pas-sivity, inattention, or compliance with authority.

Self-regulation: children and adolescents tend tobe less able to control impulsive behavior andchoices compared with adults.301

Case examples illustrate this psychosocial imma-turity in adolescents:

A 9-year-old agrees to plead “guilty” to a chargedespite limited evidence against him because hewants to be released to his parents quickly andpleading “not guilty” would require him to re-main in custody. Here, the minor does not ap-propriately weigh the longer-term consequencesof pleading guilty (time perspective).

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

A 10-year-old arrested for and charged with aserious crime may believe, “The judge alwaysfinds the truth, so I don’t have anything to worryabout” (abstract thinking).

C. Mental Disorders and Illness

Youths in juvenile detention facilities are muchmore likely to have mental disorders than are youthsin the general population. Approximately 69 percentof juvenile pretrial detainees or delinquents meetDSM criteria for a mental disorder (including sub-stance abuse and dependence or conduct disorder, asdefined by DSM-IV-TR).314 However, research ismixed with regard to the strength of psychopathol-ogy as a risk factor for incompetence.238,309,315 Gen-erally, conventional wisdom has held that mental dis-orders have less impact on JAC than developmentalimmaturity (DI), perhaps because psychotic disor-ders are relatively rare in minors (with a mean age atonset in the late teens or early 20s), whereas cognitiveand psychosocial DI is a characteristic of almost alljuveniles.

In adult offenders, psychotic disorders (e.g.,schizophrenia, bipolar type I (manic phase with psy-chosis)) and intellectual developmental disorder(IDD) are those mental disorders that typically calladjudicative competence into question. Disorderssuch as major depressive disorder or attention-deficit/hyperactivity disorder (ADHD) typically arenot considered serious enough to impair adjudicativecompetence in a significant fashion. In contrast, sub-threshold disorders can have significantly more neg-ative repercussions on JAC, mostly because of therelatively immature cognitive processes of those indi-viduals younger than 15 years. This factor is especiallyrelevant because many juvenile detainees who requiremental health services for potentially competence-im-pairing mental disorders do not receive treatment be-fore adjudication of their cases. For example, Teplin etal.316 found that only 16 percent of youths with poten-tially competence-impairing mental disorders receivetreatment before adjudication or within six months ofintake at a juvenile detention facility.

Despite these factors, most youths with mentaldisorders meet the minimum threshold for adjudica-tive competence. However, these disorders oftennegatively affect the effectiveness of these youths’participation in the trial process, particularly whencombined with their baseline cognitive and psycho-social immaturity.

D. Other Factors

Although one might suppose that a youth wouldhave learned about legal processes from previous con-tacts with the juvenile court, research suggests that



adolescents are not necessarily well informed aboutthe process.238,308

Of course, many never-arrested juveniles have lit-tle or no experience with police, lawyers, or juvenilecourts. Most never-arrested adults gain some knowl-edge of how the legal system works from movies andtelevision programs, but many preadolescent or earlyadolescent children have not seen these types of me-dia depictions, or if they have seen them, they havenot understood them well. Thus, many juveniles willnot have adult-like capacities or the types of vicariousexperiences that would allow them to understandplea bargaining and possible defense strategies or torecognize the significance of certain types of evidenceor testimony.

A final factor is the competence standard pertinentto a case and whether the court may modify its pro-cedures to take into account the juvenile defendant’slimitations.

E. Competence Assessment Instruments

Although the cornerstone of assessing competenceis a thorough forensic psychiatric and psychologicalexamination by a skilled examiner, competence as-sessment instruments can serve as adjunctive toolsthat can help guide and assist the examiner. Use ofthese instruments constitutes a newly evolving field,and there are no generally accepted instruments. For-malized assessments may be part of a jurisdictionalpractice.

Much like their utility in adults, structured toolsassist with the evaluation of juveniles’ adjudicativecompetence. Sometimes, these tools have beenadapted from an existing adult tool, with adaptationsdesigned to investigate in a developmentally appro-priate fashion a youth’s adjudicative competence.Unfortunately, no tool currently in use has been val-idated or normed for a juvenile population. In addi-tion, there is currently no psychological tool or testavailable to assess for malingering in an evaluation ofa youth’s adjudicative competence. Although thelack of a tool to detect malingering is likely a lessfrequent problem in juveniles than in adults, it is alimitation of the instruments. Several of the com-monly used juvenile competence assessent instru-ments are discussed briefly below.1. Georgia Court Competency Test: Juvenile Revision

The GCCT is described above in Section VIII.The GCCT-Juvenile Revision (GCCT-JR) is an ad-ditional variation that was developed in 1997.

2. MacArthur Competence Assessment Tool-CriminalAdjudication (MacCAT-CA)

The MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) is describedin Section VIII above. An advantage of its use injuveniles is that it was used in the 2003 study byGrisso et al.238 that compared juveniles’ and youngadults’ adjudicative competence, and therefore thereare some data on its use in this population. Anotheradvantage, as mentioned above is that it generates ascore, which can be compared with adult scores. Twodisadvantages of the MacCAT-CA are that the in-strument has not been validated sufficiently in juve-niles, and the tool was developed for adults and issomewhat rigid in its vignette nomenclature (whichis more appropriate for an adult criminal proceeding)and vocabulary (which may not be understood easilyby younger juvenile defendants).

3. Juvenile Assessment of Competence Instrument

In 2005, Grisso et al.317 developed the JuvenileAssessment of Competence Instrument (JACI). Thisstructured interview was designed to guide cliniciansin assessing youths’ reasoning, understanding, andappreciation of the adjudicative process, and consistsof questions grouped into 12 domains. Unlike othercompetence assessent instruments, the JACI is spe-cifically designed to allow examiners to obtain infor-mation about errors or distortions that arise becauseof adolescents’ developmental characteristics and toassess youths’ decision-making abilities as they relateto juvenile court proceedings. Through its provisionfor retesting of defendants to evaluate retention ofmaterial, examiners may be able to determine moreaccurately whether defendants are educable.

Although the JACI may be slowly becoming the“standard of care and practice” for juvenile compe-tence assessent instruments, research and experiencewith its use is still somewhat limited. Also, like theMacCAT-CA, it has been criticized for using termi-nology that may be more appropriate for an adultcriminal court proceeding.317 It is currently in thediscretion of the evaluator as to whether to use thisinstrument.

4. Other Limitations of Competence Assessent InstrumentsUsed in Juveniles

Available competence assessent instruments haveother limitations, some of which are particularly ev-ident when attempting to use them in juveniles. Ex-cept for the JACI, the instruments were all developed



for use in adults. Many of them are weighted moretoward understanding than the other assessed do-mains. If global scores are used, specific deficits thatmay prevent defendants from being competent (e.g.,delusions) potentially can be masked by proficiencyin other areas. In addition, only cognitive (ratherthan both cognitive and psychosocial) factors are typ-ically assessed.

Regarding routine, or even mandatory use of com-petence assessent instruments in juveniles, differentjurisdictions have come to different conclusions. Forexample, in Los Angeles County, court-appointedevaluators are required to use the JACI. Our recom-mendation is that the decision whether to use a com-petence assessent instrument should be left to theindividual examiner, based on the circumstances ofthe case and evaluation.

F. Examiner Qualifications

The availability of child-and-adolescent–trainedexaminers varies throughout the United States.Whenever possible, it is ideal to have an examinerwho is specifically trained in child and adolescentpsychiatry or psychology conduct juvenile compe-tence evaluations. Jurisdictions vary in whether theyallow examiners of other disciplines to conduct as-sessments of juvenile competence.318 Examinerstrained in adult psychiatry or psychology must deter-mine whether they have the qualifications and expe-rience to conduct such evaluations. Pressures foradult-trained psychiatrists and psychologists to con-duct juvenile competence assessments may be greaterin rural areas. The Accreditation Council for Grad-uate Medical Education requires that forensic psy-chiatry fellows examining a juvenile under the age of14 be supervised by a child-trained psychiatrist.319;this age cutoff may serve as a guide to assessing one’squalifications.

G. Remediation of Juveniles’ Incompetence toStand Trial

In adult criminal court, the term restoration isused to describe the process an incompetent defen-dant undergoes to regain competence, except forthose incompetent defendants with intellectual dis-abilities where the terms remediation or rehabilita-tion may be used. The term restoration implies thatthe defendant was competent before the onset of hismental illness or symptoms, his incompetence wasthe result of a mental illness, and his competencecould be restored if the mental illness or symptoms

were treated sufficiently and, in most cases, if theindividual were educated about the trial process.

Although the term restoration may be applicableto some juveniles (i.e., those whose primary cause ofincompetence is mental illness), many, if not mostjuveniles who are incompetent to stand trial are sobecause of intellectual disability (ID; also known asdevelopmental disability (DD)) or simply as devel-opmental immaturity (DI). These individuals maynever have been competent. Therefore, the term res-toration may be misleading, and the term remedia-tion is generally preferred. Also, and probably moreimportant, remediation services will vary, dependingon the cause of the youth’s incompetence.

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

1. Setting

For youths, the settings in which remediation canbe (and are) provided are more varied than for adultsand should be based on the clinical treatment needsof the youth. For example, youths who are IST be-cause of a significant mental disorder or symptomsmay have to be housed in an inpatient psychiatricfacility, both to ensure their safety and to provideappropriate treatment to ameliorate the symptomsthat are contributing to or causing the youth’sincompetence.

On the other hand, youths whose incompetence isrelated to ID or DI generally should be housed incommunity-based settings, the restrictiveness ofwhich should balance the individual’s liberty inter-ests with community safety concerns. Based on thisdetermination, youths’ placements during this pro-cess could range from juvenile detention facilities, toresidential treatment programs, to group homes, toprivate home (with parents, legal guardians, or othercaretakers). Placement of nonremediable defendantsin juvenile detention facilities has raised some of thesame concerns as placing nonrestorable defendantsin adult institutions, because it presents a system co-nundrum. For example, one state mandated frequentcompetence assessments of a youth in an ongoingeffort to find an alternative disposition for that hisserious charges and avoid his being detained for aprolonged period as incompetent to stand trial.320

Some experts have advocated for longer potential re-mediation periods (before dismissing charges foryouths deemed nonremediable) for youths in com-munity settings (versus juvenile detention facilities),



presumably based on their having fewer concernsabout the youths’ liberty interests and potential neg-ative developmental impacts in nondetention set-tings. Juveniles needing competence remediationmay face delays in their proceedings as a strategy toprolong juvenile placement until transition to theadult system is achieved or as a means of deferringprosecution.

I. Dispositions and Continued Services inNonrestored and Nonremediated Cases

In certain juvenile (or adult) defendants, remedia-tion of competence may not be possible. A judicialofficer may make this determination at any point inthe adjudicative process (e.g., at a preliminary hear-ing, after one or more restoration or remediationattempts, or after the legally allowable period for res-toration or remediation has expired). At this point,the court must dismiss the charges (which can, insome cases, be refiled at a later date) and determinethe most appropriate placement for the defendant.Frequently, these determinations are based in signif-icant part on the seriousness of the offense(s) withwhich the individual is charged.

Adults deemed IST and nonrestorable typicallyhave serious mental disorders and often meet theirstate’s criteria for continued civil commitment, un-less they are incompetent because of dementia, intel-lectual or developmental disability, or brain injury.On the other hand, youths found to be IST becauseof ID or DI are unlikely to meet criteria for civilcommitment. Therefore, other dispositions andplacements may have to be identified for them, par-ticularly if they are charged with a serious crimes.Because of this, some experts have recommendedthat states provide judicial officers the authority totransfer or refer incompetent,303 nonremediableyouths for services under that state’s child welfare orprotection provisions. Such a provision or statutewould allow the court to (1) continue to have over-sight over the youths, such that it can ensure thatthey are receiving (and benefitting from) appropriateservices; (2) enlist input from mental health andchild welfare professionals about the youths progress;and (3) proactively reduce recidivism risk, therebyprotecting the public’s safety interests.

J. Remediation Services

The remediation services provided to youths de-termined to be IST should vary, depending on theetiology of the incompetence.303 For youths who are

IST primarily (or at least in part) because of mentalillness, some sort of psychiatric services should beprovided. Obviously, the goal of such services is toreduce psychiatric symptoms, thereby remediatingand correcting the youths’ incompetence. This typeof remediation service can be provided in either aninpatient or community setting, typically by a childand adolescent psychiatrist.

For youths whose incompetence is at least partiallyrelated to ID or DI, competence education servicesshould be used to help improve youths’ competence-related abilities. To provide such services, individualsshould have specialized training in and knowledgeabout the intellectual capacities of children and ado-lescents based on their chronological age and devel-opment level and techniques or standardized pro-grams for teaching youths information likely toremediate their incompetence, as defined by thatjurisdiction.

Unfortunately, there is still a dearth of empiricalevidence in general available on competence reme-diation for youths who are IST. Similarly, at presentthere is not sufficient support in the scientific litera-ture for any specific remediation program, such thatit could be considered an evidence-based practice.However, a few states, such as Florida and Virginia,have developed and operated juvenile competenceremediation programs for several years, and thesestates (or local jurisdictions) are in the process ofcollecting and collating outcome data. Other juris-dictions (e.g., Los Angeles County) are in the processof implementing remediation programs and collect-ing initial data. Los Angeles County’s program issomewhat shorter in duration and intensity thanother programs (i.e., one to two hours/week for sevento eight weeks).

Generally speaking, successful juvenile compe-tence remediation programs:

attempt to help juveniles attain adjudicativecompetence if at all possible;

provide services in the least restrictive setting al-lowed by the court;

travel to where the youth is located to provideservices;

use counselors with a background in (special)education, social work, or psychology and specialexpertise in child mental health and forensicmatters;



are tailored to the individual needs of youths(generally via flexible implementation of a cur-riculum, although some jurisdictions have optednot to use a standardized program).

Regarding the limited remediation outcomes thatare available, data from the Virginia program, whichincludes 563 juveniles from age 8 to 17 (at the time oftheir alleged offense), indicate that 73 percent ofyouths who underwent an outpatient competenceremediation program eventually were found compe-tent by the court.321 The average length of remedia-tion was 61 to 90 days. Perhaps not surprisingly, thehighest rates of restoration (91%) were found foryouths without mental illness (MI) or ID (presum-ably they were incompetent because of DI), youthswith MI only (84%), youths with ID (56%), andthose with both MI and ID (54%).

Data from the Florida program demonstrated thatyouths in the outpatient remediation program withIQs �50 eventually were deemed competent by theirevaluators 60 percent of the time. The data are con-sistent with those in a prior study of Florida youthswho were IST.322 Among youths in the inpatientprogram, who underwent 155 to 185 days of reme-diation, 85 percent were said to be competent. Thosewith MI as the primary etiology of incompetencewere restored (the nomenclature used in Florida) 86percent of the time, whereas those with ID were re-stored 70 percent of the time.303

XII. Restoration of Competence toStand Trial

A. Number and Description of CompetenceRestorees

As noted in the introduction, although actual dataare lacking for the number of evaluations conducted,if recent estimates concerning frequency of compe-tence evaluations (60,000 a year) are correct and ifaround one-fifth of evaluees are deemed incompe-tent,6,247,323,324 approximately 12,000 U.S. defen-dants are found incompetent to stand trial each year.

Psychoses and intellectual disability are the most fre-quent causes of adjudicative incompetence.226,275,323 Asmaller number of defendants are rendered incompe-tent by mood disorders. Courts send most criminal de-fendants found incompetent to psychiatric hospitals forrestoration, that is, for psychiatric treatment and edu-cation aimed at enabling the defendants to proceed with

adjudication. At any point, roughly 4,000 U.S. defen-dants are hospitalized for this purpose.146,168

A brief explanation may be necessary regarding theuse of the word restoration in this context. Courtstypically apply this term to the potential treatment ofany defendant who is not competent, and to simplifyexposition, the Resource follows this practice. How-ever, some incompetent defendants (e.g., some per-sons with intellectual deficits or limited education)have never been competent and are therefore nothaving any previous condition restored. In theircases, competence-creating services might better betermed education, habilitation, or attainment.

B. Timely and Effective Restoration

Jackson v. Indiana23 places on forensic hospitalssome responsibility for developing efficient and ef-fective treatment programs to comply with the lim-ited periods allowed for restoration.

Studies examining the variables that lead to suc-cessful restoration have yielded mixed findings.Some have suggested that factors associated with fail-ure of efforts at competence restoration and greaterlengths of hospital stay include severe impairment inpsycholegal ability, aggression toward others after ar-rest, and more severe psychopathology. A history ofcriminality and substance abuse at the time of theoffense are associated with successful restora-tion.233,266,326 Other research suggests that the use ofpsychotropic medications to treat psychotic symp-toms is the only reliable correlate of competencerestoration.267

C. Setting

In most jurisdictions, competence restorationtakes place in inpatient settings. In 2003, Miller163

reported that, in 18 states, judges were required tohospitalize defendants adjudicated as incompetent tostand trial, and an additional 21 states permitted hos-pitalization of incompetent defendants. Only fivestates required that incompetent defendants meetcivil commitment criteria to be hospitalized for com-petence restoration. Despite the availability of someoutpatient restoration programs, few states regularlyused outpatient restoration. Wisconsin has an outpa-tient restoration program, consistent with the leastrestrictive alternative for placement.326 Jail-basedcompetence restoration is nascent. A jail-based com-petence restoration program at West Valley Deten-tion Center in Rancho Cucamonga, California, pro-



vided jail-based competence restoration for 192defendants. It restored 55 percent of defendants tocompetence, substantially cutting cost and averagedays toward restoration compared with state hospitalforensic bed restoration.259 Kapoor, on the otherhand raised practical and ethical questions about itsuse.258 More recently, states have been faced withpressures to admit defendants to public state hospi-tals for restoration services who otherwise would bewaiting in jails. Fuller et al.327 found that 18 states ofthose surveyed had waitlists for the IST populationto enter the hospital, and several were facing litiga-tion as a result, often related to waits in jail.

D. Methods of Restoration

Zapf328 developed guidelines for restoration pro-grams and timeframes expected for restoration. Inher review, typical restoration times for the most re-storable defendants range from 90 to 180 days, ex-cept for defendants with ID or DD, who generallyrequire more time. Many states have put tremendousresources into restoration services. Restoration ofcompetence to stand trial involves two simultaneousprocesses. First, clinicians address treatable underly-ing mental disorders. This process does not differfrom the treatment of mental disorders in nonforen-sic patients. It involves accurate assessment, appro-priate medication when indicated, and psychosocialrehabilitation. Second, incompetent defendants areusually provided instruction in the legal concepts anddetails of the trial process. Although state budgetsgenerally cover resources for restoration program-ming, recently the National Judicial College has in-dicated that the benefit of adding psychoeducationprograms to restore competence to stand trial (e.g.,education about trial participants and legal pro-cesses) for defendants with mental illness who couldotherwise improve by treatment as usual has not beenfirmly established, nor has it been established that,when provided, the defendants are restored fasterthan they would have been if they had just receivedmedication and rehabilitation for their underlyingillness. Programs for individuals with intellectual dis-abilities, however, may require more intense pro-gramming and resources, and psychoeducational ef-forts may be the only method available to help themachieve sufficient competence to proceed to trial.329

Often, defendants’ cognitive problems limit their ca-pacities to benefit from instruction. For example,many intellectually disabled defendants have diffi-

culty learning and retaining new information. Per-sons with schizophrenia may have cognitive impair-ments along with their psychotic symptoms thatinterfere with their ability to benefit from educa-tional efforts.

Despite the findings of the National Judicial Col-lege, it is routine for incompetent defendants to re-ceive psychoeducational programming to help re-store their competence. Treatment planning onrestoration units generally reflect the reasons for theincompetence and assignment to groups to help ad-dress the specific deficits involved. A few articles haveprovided descriptions of nonpharmacologic aspectsof successful competence-restoration programs. (De-fendants in most of these programs were also exhib-iting symptoms of major mental illness and wereprobably receiving psychotropic medication in addi-tion 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 the205 criminal defendants admitted in 1978. Uponarrival, defendants underwent evaluation with theCompetency to Stand Trial Assessment Instru-ment223 (discussed in Section VIII). This instrumentidentified specific deficits in each defendant’s com-petence, and clinicians developed an individualizedtreatment plan to address each deficit. Defendantsattended a competence education class and took awritten competence test for which the passing scorewas 70 percent. Defendants then underwent mocktrial proceedings with real judges and attorneys. Aftera passing the written competence test and success-fully completing the mock trial exercise, defendantsunderwent formal clinical competence assessmentsby mental health professionals.

In 1985, Davis331 described the competence-res-toration program at a maximum-security forensichospital in Columbus, Ohio. The hospital usedproblem-oriented individualized treatment plans forincompetent patients that followed the format usedfor most other psychiatric problems. Restoration ofcompetence to stand trial was the main goal of thedefendant–patient’s treatment and took priority overother psychosocial problems such as poor job skills,lack of education or housing, or residual psychosis.Accordingly, each patient’s treatments plan listed thefollowing items that became a focus of treatment:



knowledge of the charge;

knowledge of the possible consequences of thecharge;

ability to communicate rationally with defensecounsel; and

knowledge of courtroom procedures; and capac-ity to integrate and efficiently use the knowledgeand abilities outlined herein in either a trial or aplea bargain.

The incompetent defendant-patients becamemembers of one of five groups, with specific treat-ment programs designed for each group. For exam-ple, patients placed in the “psychotic confused”group were those whose thought disturbances inter-fered with their grasp of the legal process or theirability to communicate. Their treatment program-ming focused on reality-testing skills and other stan-dard treatment approaches of psychosis. Treatmentteams monitored defendants’ progress in thesegroups, and a mock trial took place at the end of theprogramming.

Brown332 described competence restoration at theAlton (Illinois) Mental Health and DevelopmentalCenter. This program consisted of psychologist-leddidactic groups that met daily for 30 to 45 minutesper session. The programming included discrete ed-ucational modules that lasted several days each andthat addressed topics such as the elements of criminalcharges, potential sentences, roles of courtroom par-ticipants, sequence of trial events, and consequencesof pleas. Each module used handouts, videotapes,and a mock trial, and participants took written testsat the end of each module.

Noffsinger263 described educational modules usedin the competence-restoration curriculum at North-coast Behavioral Health care in Cleveland, Ohio.

Table 2 describes the program’s use of learning for-mats for various subject areas.

Wall and colleagues333 at the Rhode Island De-partment of Mental Health designed a program forrestoring adjudicative competence of individualswith intellectual disability. The program includedthe following five modules presented in sequentialorder over a variable period: charges, pleas, and po-tential consequences; the role of courtroom person-nel; courtroom proceedings, trial, and plea bargain-ing; communicating with one’s attorney, givingtestimony, and assisting in one’s defense; and toler-ating the stress of court proceedings. A retrospectivestudy of 30 defendants found that significantly morepersons who received the program (61.1%) attainedcompetence than did persons who received tradi-tional treatment alone (16.7%).334

Trainers met with defendants one to five daysper week in sessions lasting for a few minutes to anhour and reviewed each module a minimum ofthree times. In the first phase of the program, de-fendants received basic information about the le-gal system for them to learn by rote. In the secondphase, trainers again presented each module in se-quential order, but asked defendants understand-ing-based questions in addition to knowledge-based questions.

The program was not intended to guarantee thatevery defendant with intellectual disability would be-come competent. Instead, the goal was to provideconsistent education toward competence restoration,to communicate that effort to the courts, and tomake accurate competence assessments. An indepen-dent psychiatrist assessed each defendant’s progresstoward competence, applying the same evaluationcriteria as were used to evaluate persons with normalintelligence.

Table 2 Learning Formats in a Competence Restoration Curriculum

Education Basic knowledge of the trial process, including the roles of the courtroom personnel, pleas, plea bargaining,charges, sentencing, and how to assist one’s attorney

Anxiety reduction Two one-hour sessions per week with a psychologist to teach defendants anxiety management techniquessuitable for use in court

Guest lectures Weekly meetings with court personnel (judges, defense attorneys, prosecutors, and probation officers) whospeak to the defendants and answer questions

Mock trials Role-playing by defendants of various courtroom personnel in a scripted mock trial, with discussions led byclinical staff

Video module Videotapes of actual courtroom proceedings watched by defendants, with discussions led by clinical staffPostrestoration module Discussion of court experiences between incompetent defendants and defendants who have been to courtCurrent legal events Review and discussion of news stories involving criminal trials



E. Proposed Elements of a Model CompetenceRestoration Program

1. Systematic Competence Assessment

Various factors can lead to trial incompetence, suchas psychosis, mood symptoms, intellectual disability, orlack of information. Not all defendants are incompe-tent for the same reason. Therefore, upon admission toa competence-restoration program, defendants shouldundergo evaluation to identify the specific deficits orproblems that result in incompetence.

2. Individualized Treatment Program

Defendants should have treatment regimens tai-lored to their specific problems. Deficits identified inthe admission competence assessment should appearin a defendant’s individual treatment plan andshould be addressed by specific treatment interven-tions. Defendants should be told (or advised) whenclinical data may be used to assess competencerestoration.

3. Multimodal, Experiential Competence RestorationEducational Experiences

Defendants are best able to learn when teacherspresent the material in multiple learning formats. Forthis reason, learning experiences should involve lec-tures, discussions, readings, and videos. Participationin activities such as mock trials and role playing alsoenhances learning.

4. Education

For most defendant-patients, competence restora-tion should include education regarding: the chargesand their severity, sentencing; pleas and plea bargain-ing; the roles of courtroom personnel; the adversarialnature of the trial process; and understanding andevaluating evidence.

5. Anxiety Reduction

Learning anxiety-reduction techniques can helpdefendants deal with pretrial anxiety and the anxietythat they may experience while in court.

6. Additional Education Components for DefendantsWith Low Intelligence

Defendants whose incompetence stems from lowintelligence can often become competent, but mayrequire additional exposure to the educational mate-rial. Their knowledge deficits can be remedied byadditional learning experiences, including repeatedexposure to information and individual instructionrelated in simplified terminology.

7. Periodic Reassessment of Competence

Clinicians should periodically reassess defendants’progress toward restoration to competence. Periodicassessment helps treatment teams know whethertheir interventions are working and whether addi-tional treatment elements should be added to pa-tients’ treatment plans.

8. Medication

Because psychotic and mood disorders are fre-quent causes of incompetence, patients with thesedisorders should receive conscientious treatmentwith appropriate biological therapy. For many in-competent defendants, attempting restoration with-out providing proper antipsychotic or mood-stabiliz-ing medication is an exercise in futility. Jail-basedrestoration programs should attend to conditions ofconfinement and provide nonemergency, involun-tary medication to aid in competence restorationwhen clinically indicated, to maintain competenceonce achieved and link to inpatient psychiatrichospitalization when needed. Jail-based restora-tion programs should also maximize linkage withoutpatient services consistent with the least restric-tive alternative.

9. Capacity Assessments and Involuntary Treatment

Defendants adjudicated incompetent to standtrial may also lack the capacity to give informed con-sent for medication and other treatments. Becausepharmacotherapy often is a necessary component oftreatment to restore competence, clinicians must as-sess possible incompetence to make treatment deci-sions in accordance with the policies of their localhospitals and jurisdictions. Defendants who refusemedication should undergo evaluation of their com-petence to make treatment decisions. Procedures foroverriding patients’ refusals vary from state to state,and clinicians must be knowledgeable or have appro-priate legal advice on procedures to proceed. Theseprocedures may rest on state case law or statute or relyupon the provisions of Sell v. United States.25 Defen-dants who assent to taking medication but appearincompetent to make such decisions should also un-dergo evaluation for competence to make treatmentdecisions. Treatment override may follow the samepathway in these cases, and examiners should be fa-miliar with local legal limitations and restrictions re-lated to involuntary medication of the defendantwho is incompetent to make treatment decisions.



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clud

ing

atle

ast

one

psyc

hiat

rist

Subs

tant

ial

prob

abili

tyde

fend

ant

will

rega

inco

mpe

tenc

ew

ithin

21m

onth

sof

orig

inal

findi

ngof

inco

mpe

tenc

e

Def

enda

ntis

inco

mpe

tent

tore

fuse

trea

tmen

tan

dsh

ould

besu

bjec

tto

invo

lunt

ary

trea

tmen

t

Prog

ram

desi

gnat

edby

coun

tybo

ard

ofsu

perv

isor

s;A

rizo

naSt

ate

Hos

pita

l;ja

il;ou

tpat

ient

prog

ram

;an

yco

urt-

appr

oved

faci

lity

The

less

erof

21m

onth

sor

the

max

imum

sent

ence

for

the

offe

nse

Ark

ansa

sA

rk.

Cod

eA

nn.

§5-

2-30

1to

311

Can

not

unde

rsta

ndpr

ocee

ding

sor

assi

stef

fect

ivel

yin

own

defe

nse

Qua

lifie

dps

ychi

atri

stor

psyc

holo

gist

Not

spec

ified

Not

spec

ified

Cus

tody

ofD

irec

tor

ofD

ept.

ofH

uman

Serv

ices

One

year

Cal

iforn

iaC

a.Pe

nal

Cod

e§

1367

to13

76C

anno

tun

ders

tand

the

natu

reof

crim

inal

proc

eedi

ngs

orra

tiona

llyas

sist

coun

sel

inco

nduc

ting

defe

nse

Psyc

hiat

rist

,lic

ense

dps

ycho

logi

st,

oran

yex

pert

the

cour

tde

ems

appr

opri

ate

Subs

tant

ial

likel

ihoo

dth

atde

fend

ant

will

rega

inm

enta

lco

mpe

tenc

ein

the

fore

seea

ble

futu

re

Def

enda

ntla

cks

capa

city

and

need

str

eatm

ent;

with

out

med

icat

ion,

seri

ous

harm

will

resu

lt

Stat

eho

spita

l;pu

blic

orpr

ivat

efa

cilit

y;ou

tpat

ient

prog

ram

Felo

ny:

less

erof

3ye

ars

orth

em

axim

umse

nten

cefo

rth

em

ost

seri

ous

offe

nse

Mis

dem

eano

r:le

sser

of1

year

orth

em

axim

umse

nten

cefo

rth

em

ost

seri

ous

offe

nse

Col

orad

oC

olo.

Rev

.St

at.

§16

-8-1

10to

115

Can

not

unde

rsta

ndth

ena

ture

and

cour

seof

proc

eedi

ngs;

orpa

rtic

ipat

eor

assi

stin

defe

nse;

orco

oper

ate

with

defe

nse

coun

sel

Not

spec

ified

Subs

tant

ial

prob

abili

tyth

atde

fend

ant

will

bere

stor

edto

com

pete

ncy

with

inth

efo

rese

eabl

efu

ture

Not

spec

ified

Cus

tody

ofD

ept.

ofH

uman

Serv

ices

;ou

tpat

ient

trea

tmen

tat

orun

der

the

supe

rvis

ion

ofa

faci

lity

Max

imum

term

ofco

nfin

emen

tfo

rof

fens

esch

arge

d

Con

nect

icut

Con

n.G

enSt

at.

§54

-54

to56

dC

anno

tun

ders

tand

proc

eedi

ngs

oras

sist

inde

fens

e

Psyc

hiat

rist

orcl

inic

alte

am(p

sych

iatr

ist,

psyc

holo

gist

,an

dei

ther

soci

alw

orke

ror

nurs

e)

Subs

tant

ial

prob

abili

tyth

atth

ede

fend

ant,

ifpr

ovid

edw

ithtr

eatm

ent,

will

rega

inco

mpe

tenc

ew

ithin

max

imum

peri

odof

any

plac

emen

tor

der

perm

itted

Invo

lunt

ary

med

icat

ion

will

rend

erde

fend

ant

com

pete

nt;

nole

ssin

trus

ive

mea

nsto

achi

eve

adju

dica

tion;

prop

osed

trea

tmen

tis

narr

owly

tailo

red

tom

inim

ize

intr

usio

non

liber

tyan

dpr

ivac

yin

tere

sts

and

will

not

caus

eun

nece

ssar

yri

skto

defe

ndan

t’she

alth

;se

riou

snes

sof

alle

ged

crim

eis

such

that

stat

ein

tere

stin

achi

evin

gad

judi

catio

nov

erri

des

defe

ndan

t’sin

tere

stin

self-

dete

rmin

atio

n

Cus

tody

ofth

eC

omm

issi

oner

ofM

enta

lH

ealth

and

Add

ictio

nSe

rvic

es,

Com

mis

sion

erof

Chi

ldre

nan

dFa

mili

esor

Com

mis

sion

erof

Men

tal

Ret

arda

tion,

oran

yap

prop

riat

em

enta

lhe

alth

faci

lity

ortr

eatm

ent

prog

ram

Max

imum

sent

ence

that

defe

ndan

tco

uld

rece

ive

ifco

nvic

ted,

or18

mon

ths,

whi

chev

eris

less



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Del

awar

eD

el.

Cod

e.A

nn.

tit.

11,

§40

4C

anno

tun

ders

tand

the

natu

reof

proc

eedi

ngs,

give

evid

ence

,or

inst

ruct

coun

sel

Not

spec

ified

Not

spec

ified

Not

spec

ified

Del

awar

ePs

ychi

atri

cC

ente

rN

otsp

ecifi

ed

Flor

ida

Fla.

Stat

.A

nn.

§91

6.12

-145

;Fl

a.R

.C

rim

.P.

3.21

0to

215

Doe

sno

tm

eet

Dus

kycr

iteri

aA

tle

ast

two

men

tal

heal

thpr

ofes

sion

als,

unle

sson

eop

ines

that

the

defe

ndan

tis

inco

mpe

tent

and

findi

ngs

are

stip

ulat

edto

Subs

tant

ial

prob

abili

tyth

atde

fend

ant’s

illne

ssw

illre

spon

dto

trea

tmen

tan

dde

fend

ant

will

rega

inco

mpe

tenc

ein

reas

onab

lyfo

rese

eabl

efu

ture

Not

spec

ified

Def

enda

nts

are

com

mitt

edfo

rre

stor

atio

non

lyif

inco

mpe

tent

and

civi

llyco

mm

ittab

le.

Oth

erw

ise,

rest

orat

ion

occu

rsin

com

mun

ity,

corr

ectio

nal

faci

lity,

oran

othe

rfa

cilit

y

Felo

ny:

5ye

ars;

mis

dem

eano

r:1

year

Geo

rgia

Ga.

Cod

eA

nn.

§17

-7-1

30;

Echo

lsv.

Stat

e,25

5S.

E.2d

.92

(Ga.

Ct.

App

.19

79)

Can

not

part

icip

ate

inte

llige

ntly

inde

fend

ant’s

Tria

l

Not

spec

ified

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

eto

stan

dtr

ial

info

rese

eabl

efu

ture

Not

spec

ified

Dep

t.of

Hum

anR

esou

rces

One

year

Haw

aii

Haw

.R

ev.

Stat

.§

700-

403

to40

6;St

ate

v.K

otis

,98

4P.

2d78

(Haw

.19

99)

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

assi

stin

defe

nse

Thre

equ

alifi

edps

ychi

atri

sts

infe

lony

case

san

d1

qual

ified

psyc

hiat

rist

inno

nfel

ony

case

s

Subs

tant

ial

likel

ihoo

dof

beco

min

gfit

topr

ocee

din

the

futu

re

“Det

entio

n,ca

re,

and

trea

tmen

t”m

ayin

clud

ea

cour

tor

der

auth

oriz

ing

invo

lunt

ary

adm

inis

trat

ion

ofan

tipsy

chot

icdr

ugs

Cus

tody

ofth

eD

irec

tor

ofH

ealth

Not

spec

ified

Idah

oId

aho

Cod

eA

nn.

§18

-21

0to

212

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

toas

sist

with

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

defe

ndan

tw

illbe

fitto

proc

eed

with

info

rese

eabl

efu

ture

Def

enda

ntla

cks

capa

city

togi

vein

form

edco

nsen

t

Stat

eho

spita

l,in

stitu

tion,

men

tal

heal

thce

nter

orD

ept.

ofC

orre

ctio

ns

Two

hund

red

seve

nty

days

Illin

ois

725

Ill.

Com

p.St

at.

5/10

4-11

to10

4-23

Can

not

unde

rsta

ndna

ture

and

purp

ose

ofpr

ocee

ding

sor

assi

stin

defe

nse

One

orm

ore

licen

sed

phys

icia

ns,

clin

ical

psyc

holo

gist

s,or

psyc

hiat

rist

s

Like

lihoo

dof

atta

inin

gfit

ness

with

in1

year

ifpr

ovid

edw

ithtr

eatm

ent

Not

spec

ified

Dep

t.of

Hum

anSe

rvic

es,

orot

her

appr

opri

ate

publ

icor

priv

ate

faci

lity

ortr

eatm

ent

prog

ram

One

year

Indi

ana

Ind.

Cod

e§

35-3

6-3

to4

Can

not

unde

rsta

ndpr

ocee

ding

san

das

sist

inpr

epar

atio

nof

defe

nse

Two

or3

disi

nter

este

dps

ychi

atri

sts

orps

ycho

logi

sts;

atle

ast

1m

ust

beps

ycho

logi

st

Subs

tant

ial

prob

abili

tyof

atta

inin

gco

mpe

tenc

ein

fore

seea

ble

futu

re

Not

spec

ified

Div

isio

nof

Men

tal

Hea

lthan

dA

ddic

tion

Six

mon

ths

Iow

aIo

wa

Cod

e§

812.

3to

812.

9C

anno

tap

prec

iate

char

ge,

unde

rsta

ndpr

ocee

ding

s,or

assi

stef

fect

ivel

yin

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

accu

sed

will

rega

inca

paci

tyw

ithin

are

ason

able

time

Som

atic

trea

tmen

tis

nece

ssar

yan

dap

prop

riat

eto

rest

ore

defe

ndan

tan

dde

fend

ant

will

not

cons

ent;

dire

ctor

offa

cilit

ym

ayre

ques

tor

der

auth

oriz

ing

trea

tmen

t

Dan

gero

usde

fend

ants

:D

ept.

ofH

uman

Serv

ices

orD

ept.

ofC

orre

ctio

nsfo

rpl

acem

ent

atIo

wa

Med

ical

and

Cla

ssifi

catio

nC

ente

r.O

ther

s:ou

tpat

ient

trea

tmen

t

Less

erof

max

imum

term

ofco

nfin

emen

tfo

ral

lege

dcr

imin

alof

fens

e,or

18m

onth

s

Kan

sas

Kan

.C

rim

.Pr

oc.

Cod

eA

nn.

§22

-330

1to

3306

Can

not

unde

rsta

ndna

ture

and

purp

ose

ofpr

ocee

ding

s,or

cann

otm

ake

oras

sist

inm

akin

ga

defe

nse

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

ofat

tain

ing

com

pete

nce

info

rese

eabl

efu

ture

Not

spec

ified

Stat

ese

curi

tyho

spita

l;an

yap

prop

riat

eco

unty

orpr

ivat

ein

stitu

tion

Six

mon

ths

Ken

tuck

yK

y.R

ev.

Stat

.A

nn.

§50

4.06

0,50

4.09

0to

110

Can

not

appr

ecia

tena

ture

and

cons

eque

nces

ofpr

ocee

ding

sor

part

icip

ate

ratio

nally

inde

fens

e

Psyc

hiat

rist

orps

ycho

logi

stSu

bsta

ntia

lpr

obab

ility

ofat

tain

ing

com

pete

ncy

in36

0da

ys

Not

spec

ified

Trea

tmen

tfa

cilit

y;fo

rens

icps

ychi

atri

cfa

cilit

y;C

abin

etfo

rH

ealth

and

Fam

ilySe

rvic

esfa

cilit

y

Mis

dem

eano

r:60

days

;fe

lony

:no

tsp

ecifi

ed

Loui

sian

aLa

.C

ode

Cri

m.

Proc

.A

nn.

art.

641-

649

Lack

sca

paci

tyto

unde

rsta

ndpr

ocee

ding

sor

toas

sist

inde

fens

e

Sani

tyco

mm

issi

onM

enta

lca

paci

tyis

likel

yto

bere

stor

edw

ithin

90da

ysas

are

sult

oftr

eatm

ent

Not

spec

ified

Jail;

Felic

iana

Fore

nsic

Faci

lity

Max

imum

sent

ence

defe

ndan

tco

uld

rece

ive

ifco

nvic

ted



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

rR

esto

rabi

lity

Stat

utor

yPr

ovis

ion

for

Invo

lunt

ary

Trea

tmen

tfo

rC

ompe

tenc

eR

esto

ratio

nW

here

Res

tora

tion

May

Occ

urM

axim

umTi

me

for

Res

tora

tion

Mai

neM

e.R

ev.

Stat

.A

nn.

tit.

15,

§10

1-B

;St

ate

v.Le

wis

,58

4A

.2d

622

(Me.

1990

)

Can

not

unde

rsta

ndna

ture

and

obje

ctof

char

ges,

com

preh

end

cond

ition

inre

fere

nce

ther

eto,

orco

oper

ate

with

coun

sel

toco

nduc

ta

ratio

nal,

reas

onab

lede

fens

e

Stat

eFo

rens

icSe

rvic

e;in

depe

nden

tps

ychi

atri

stor

psyc

holo

gist

Subs

tant

ial

prob

abili

tyde

fend

ant

will

beco

mpe

tent

info

rese

eabl

efu

ture

Not

spec

ified

Cus

tody

ofD

ept.

ofH

ealth

and

Hum

anSe

rvic

esO

neye

ar

Mar

ylan

dM

d.C

ode

Ann

.,C

rim

.pr

oc.

§3-

101

to3-

108;

Sang

ster

v.St

ate,

541

A.2

d63

7(M

d.C

t.A

pp.

1988

)

Can

not

unde

rsta

ndth

ena

ture

ofpr

ocee

ding

san

das

sist

inde

fens

e

Hea

lthD

ept.

orco

mm

unity

fore

nsic

scre

enin

gpr

ogra

m

Not

spec

ified

Not

spec

ified

Faci

lity

that

Hea

lthD

epar

tmen

tde

sign

ates

Ten

year

sfo

rca

pita

lca

se,

5ye

ars

for

felo

ny

Mas

sach

uset

tsM

ass.

Gen

.La

ws

ch.

123,

§15

-17;

Com

mon

wea

lthv.

Vai

les,

275

N.E

.2d

893

(Mas

s.19

71)

Doe

sno

tm

eet

Dus

kycr

iteri

aO

neor

mor

equ

alifi

edph

ysic

ians

psyc

holo

gist

sfo

rin

itial

eval

uatio

n

Not

spec

ified

Not

spec

ified

Ifci

villy

com

mita

ble,

hosp

italiz

atio

nfo

rtr

eatm

ent

Max

imum

time

ofim

pris

onm

ent

that

pers

onw

ould

serv

ebe

fore

beco

min

gel

igib

lefo

rpa

role

for

mos

tse

riou

sch

arge

Mic

higa

nM

ich.

Com

p.La

ws

§33

0.20

20to

330.

2044

Can

not

unde

rsta

ndna

ture

and

obje

ctof

proc

eedi

ngs

oras

sist

ratio

nally

inde

fens

e

Cen

ter

for

Fore

nsic

Psyc

hiat

ry;

faci

lity

cert

ified

byD

ept.

ofM

enta

lH

ealth

Like

lihoo

dof

Def

enda

nt’s

atta

inin

gco

mpe

tenc

e,if

trea

tmen

tfo

rst

atut

ory

time

fram

e

Tom

aint

ain

the

com

pete

nce

ofth

ede

fend

ant

tost

and

tria

l,pe

ndin

gan

ddu

ring

tria

l

Dep

t.of

Men

tal

Hea

lthor

any

inpa

tient

men

tal

heal

thfa

cilit

yif

com

mitm

ent

isne

cess

ary

for

effe

ctiv

etr

eatm

ent

Less

erof

15m

onth

sor

one-

thir

dof

max

imum

sent

ence

Min

neso

taM

inn.

R.

Cri

m.

P.R

ule

20.0

1C

anno

tco

nsul

tw

ithde

fens

eco

unse

lw

ithre

ason

able

degr

eeof

ratio

nal

unde

rsta

ndin

gor

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part

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Lice

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Not

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ace

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Thre

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mag

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Can

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ult

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with

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lack

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Psyc

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o.R

ev.

Stat

.§

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das

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Mon

tana

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t.C

ode

Ann

.§

46-1

4-10

3,20

2,20

6,22

1,an

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2

Can

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das

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At

leas

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App

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Ifco

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apse

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ould

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s,th

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urt

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dism

iss

the

char

geN

ebra

ska

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.R

ev.

Stat

.§

29-1

823

Can

not

unde

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ndna

ture

and

obje

ctof

the

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preh

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own

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ition

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fere

nce

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dm

ake

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e

Phys

icia

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ychi

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bsta

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re

Not

spec

ified

Stat

eho

spita

lfo

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em

enta

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her

appr

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stat

e-ow

ned

or-o

pera

ted

faci

lity

Six

mon

ths

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al,

max

imum

leng

thno

tsp

ecifi

ed



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

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esto

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lity

Stat

utor

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ovis

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for

Invo

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ary

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tmen

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ratio

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here

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tora

tion

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umTi

me

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tora

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Nev

ada

Nev

Rev

.St

at.

§17

8.39

9to

178.

460

Doe

sno

tm

eet

Dus

kycr

iteri

aTw

ops

ychi

atri

sts,

2ps

ycho

logi

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psyc

hiat

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and

1ps

ycho

logi

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cert

ified

byD

ivis

ion

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enta

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ealth

and

Dev

elop

men

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Serv

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epar

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tof

HH

S

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ial

prob

abili

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attr

eatm

ent

can

rest

ore

com

pete

nce

and

that

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tw

illat

tain

com

pete

nce

orre

ceiv

epr

onou

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ent

ofju

dgm

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info

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able

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re

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lunt

ary

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inis

trat

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atio

nif

appr

opri

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for

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mitt

edto

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inis

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orof

Div

isio

nof

Men

tal

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lthan

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Less

erof

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riod

ofin

carc

erat

ion

prov

ided

for

alle

ged

crim

e

New H

amps

hire

N.H

.R

ev.

Stat

.A

nn.

§13

5:17

Doe

sno

tm

eet

Dus

kycr

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aPs

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atri

ston

staf

fof

any

publ

icin

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tion,

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ivat

eps

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atri

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Rea

sona

ble

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ihoo

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ant

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edto

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ugh

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tw

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s

Not

spec

ified

Stat

em

enta

lhe

alth

syst

em;

secu

reps

ychi

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cun

it;or

outp

atie

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ent

Twel

vem

onth

s

New

Jers

eyN

.J.St

at.

Ann

.§

2C:4

-5,

4-6

Can

not

unde

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ndpr

ocee

ding

san

das

sist

with

defe

nse

At

leas

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qual

ified

psyc

hiat

rist

orlic

ense

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ycho

logi

st

Subs

tant

ially

prob

able

that

defe

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inco

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Serv

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Initi

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mon

ths,

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imum

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tin

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New

Mex

ico

N.M

.St

at.

§31

-9-1

to31

-9-1

.5D

oes

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mee

tD

usky

crite

ria

Psyc

holo

gist

,ps

ychi

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her

prof

essi

onal

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gniz

edby

dist

rict

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pert

Prob

abili

tyof

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tain

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in9

mon

ths

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igin

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com

pete

nce

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spec

ified

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lthin

ase

cure

,lo

cked

faci

lity

Max

imum

sent

ence

defe

ndan

tw

ould

have

rece

ived

ifco

nvic

ted

New

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kN

.Y.

Cri

m.

Proc

.La

w§

730.

10to

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70C

anno

tun

ders

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proc

eedi

ngs

and

assi

stw

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fens

e

Two

qual

ified

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rist

s(p

sych

iatr

ist

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ycho

logi

st);

if2

psyc

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sagr

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appo

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Not

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gned

byC

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max

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thC

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Stat

.§

15A

1001

-100

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anno

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natu

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ject

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tuat

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fere

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epr

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with

defe

nse

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ratio

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ason

able

man

ner

Impa

rtia

lm

edic

alex

pert

s,in

clud

ing

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nsic

psyc

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sap

prov

edun

der

rule

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Com

mis

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Men

tal

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abili

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Serv

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Like

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ified

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Nor

thD

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aN

.D.

Cen

t.C

ode

§12

.1-0

4-04

to04

-09

Can

not

unde

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ndpr

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ding

san

das

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with

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nse

Psyc

hiat

rist

orlic

ense

dps

ycho

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heth

erde

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ant

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ness

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ant

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sent

ence

d

Ohi

oO

hio

Rev

.C

ode

Ann

§29

45.3

7-39

Can

not

unde

rsta

ndna

ture

and

obje

ctiv

eof

proc

eedi

ngs

and

assi

stw

ithde

fens

e

Psyc

hiat

rist

,or

licen

sed

clin

ical

psyc

holo

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fies

the

satu

tory

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orks

for

ace

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nter

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lihoo

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stor

edto

com

pete

nce

with

in1

year

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Med

icat

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isne

cess

ary

tore

stor

eco

mpe

tenc

e;de

fend

ant

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sca

paci

tyto

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info

rmed

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ent

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atio

n

Stat

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tal

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lity;

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Okl

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aO

kla.

Stat

.tit

.22

,§

1175

.1to

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anno

tun

ders

tand

natu

reof

char

ges

and

proc

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ngs,

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effe

ctiv

ely

and

ratio

nally

assi

stw

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e

Psyc

hiat

rist

,ps

ycho

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st,

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ense

dm

enta

lhe

alth

prof

essi

onal

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fore

nsic

trai

ning

Whe

ther

pers

onca

nat

tain

com

pete

nce

with

inre

ason

able

peri

odof

time

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ven

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tmen

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trai

ning

Cou

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Men

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s



Tabl

e3

Con

tinue

d.

Juri

sdic

tion

Sour

ceof

Law

Def

initi

onof

Inco

mpe

tenc

eW

hoM

ayEv

alua

teTe

stfo

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esto

rabi

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Stat

utor

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for

Invo

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tora

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Or.

Rev

.St

at.

§16

1.36

0to

161.

370

Can

not

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ture

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and

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info

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spec

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tpat

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nsiv

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unity

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lity

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Som

uch

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just

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sPe

nnsy

lvan

iaPa

.St

at.

Ann

.§

7402

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anno

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ders

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the

natu

reor

obje

ctof

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nse

At

leas

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psyc

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tant

ial

prob

abili

tyof

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the

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Cou

rtis

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nth

atin

volu

ntar

ytr

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ent

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rest

ore

com

pete

nce

Not

spec

ified

Less

erof

max

imum

sent

ence

impo

sed

for

the

crim

ech

arge

dor

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ars.

For

mur

der,

nolim

iton

rest

orat

ion

peri

odR

hode

Isla

ndR

.I.G

en.

Law

s§

40.1

-5.3

-3C

anno

tun

ders

tand

char

acte

ran

dco

nseq

uenc

esof

proc

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ngs,

orca

nnot

prop

erly

assi

stw

ithde

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e

Phys

icia

nW

heth

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ant

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max

imum

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odof

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emen

t

Not

spec

ified

Dan

gero

usde

fend

ants

:fa

cilit

yes

tabl

ishe

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ntto

§40

.1-

5.3-

1,or

toge

nera

lw

ards

ofth

eIn

stitu

teof

Men

tal

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outp

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Two-

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max

imum

sent

ence

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sof

fens

ech

arge

d

Sout

hC

arol

ina

S.C

.C

ode

Ann

.§

44-2

3-41

0to

460

Can

not

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ding

sor

assi

stde

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e

Two

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sign

ated

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ofD

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ilitie

san

dSp

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ial

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ture

Not

spec

ified

App

ropr

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Max

imum

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vebe

ense

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nvic

ted

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arge

dSo

uth

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ota

S.D

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odifi

edLa

ws

§23

A-

10A

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16C

anno

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Tabl

e3

Con

tinue

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Juri

sdic

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ceof

Law

Def

initi

onof

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l18

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.§

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ture

and

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das

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will

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.M.J.

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706,

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.S.C

.S.

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41

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sor

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ard

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ore

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each

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w



XIII. Summary

Competence to stand trial is a legal construct usedto identify those criminal defendants who have therequisite mental capacity to understand the natureand objective of the proceedings against them and toparticipate rationally in preparing their defense. ThisPractice Resource describes how examiners shouldevaluate individuals concerning their competence tostand trial and the acceptable forensic psychiatricpractice for such evaluations. Where possible, it spec-ifies standards of practice and principles of ethics andalso emphasizes the importance of analyzing an indi-vidual defendant’s case in the context of statutes andcase law applicable in the jurisdiction where the eval-uation takes place (Table 3).

The recommendations in the Resource both re-flect and are limited by evolving case law, statutoryrequirements, legal publications, and the currentstate of psychiatric knowledge. The authors havetaken note of nationally applicable case law, federalconstitutional standards, statutory language, andfederal and state interpretations of the rights or stat-utes, recognizing that jurisdictions may differ in theirspecific interpretation or application of statutes orgeneral constitutional standards. The review of casesconcerning specific psychiatric diagnoses illustratesgeneral U.S. trends, and examiners must remain cog-nizant of their jurisdictions’ interpretations of stat-utes or constitutional requirements. In the survey ofvariety of practices and approaches to data gatheringand case analysis contained in the Resouce, the au-thors believe that it will stimulate additional collegialdiscussion about what is necessary and sufficient foradequate evaluations of adjudicative competence.

The notion that examiners should apply expertiseto competence assessments stems from the principalthat, before allowing a defendant to face criminalprosecution and possible punishment, courts needreasonable assurance, based, if necessary, on a careful,individualized evaluation, that the defendant has ad-equate mental capacity to make a defense. At a min-imum, a psychiatrist’s opinion about adjudicativecompetence should reflect an understanding of thejurisdictional standard and of how the defendant’smental condition affects competence as defined withthe jurisdiction. The psychiatrist’s report shouldclearly describe the opinion and the reasoning thatleads to it. Examiners who provide mental healthexpertise concerning adjudicative competence give

trial courts information needed to assure that defen-dants can appropriately protect themselves and thatcriminal proceedings will be accurate, dignified, andjust.

References1. Fitch L: Forensic mental health services in the United States:

2014. National Association of State Mental Health ProgramDirectors (NASMHPD) Assessment 3. Alexandria, VA:NASMHPD; White Paper, September 2014, updated October2014. Available at: http://www.nasmhpd.org/sites/default/files/Assessment%203%20-%20Updated%20Forensic%20Mental%20Health%20Services.pdf/. Accessed October 5, 2015

2. Poythress NG, Nicholson R, Otto RK, et al: The MacArthurCompetence Assessment Tool—Criminal Adjudication: Profes-sional Manual. Odessa, FL: Psychological Assessment Resources,1999

3. Winick BJ, DeMeo TL: Competency to stand trial in Florida.Univ Miami L Rev 35:31, 1980

4. Blackstone W: Commentaries on the Laws of England. Oxford:Clarendon Press, 1765–1769

5. Slovenko R: Psychiatry and Law. New York: Little, Brown,19741

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10. Cooper v. Oklahoma, 517 U.S. 348 (1996)11. King v. Pritchard, 173 Eng. Rep. 135 (1836)12. Youtsey v. United States, 97 F. 937 (6th Cir. 1899)13. United States v. Boylen, 41 F. Supp. 724, 725 (D. Or. 1941)14. Dusky v. United States, 362 U.S. 402 (1960)15. Pub. L. No. 98-473, 98 Stat. 2057 (1984)16. 18 U.S.C. § 4241(d)(2007 Supp.)17. Drope v. Missouri, 420 U.S. 162 (1975)18. Godinez v. Moran, 509 U.S. 389 (1993)19. Burt MN, Philipsborn JT: Assessment of client competence: a

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tence to stand trial: Sell applied. J Am Acad Psychiatry Law37:262–4, 2009



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of competency to stand trial. J Am Acad Psychiatry Law 43:249–51, 2015

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55. United States v. Gold, 790 F.2d 235 (2d Cir. 1986)56. United States v. Williams, 998 F.2d 258 (5th Cir. 1993)57. United States v. Santos, 131 F.3d 16 (1st Cir. 1997)58. Blum GL: Adequacy of defense counsel’s representation of crim-

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mental disease or defect? Colum Hum Rts L Rev 44:927–69,2013

64. State v. Stock, 463 S.W.2d 889 (Mo. 1971)65. Hayden v. Commonwealth, 563 S.W.2d 720 (Ky. 1978)66. Thompson v. Commonwealth, 56 S.W.3d 406 (Ky. 2001)67. United States v. Wayt, 24 Fed. Appx. 880 (10th Cir. 2001)68. United States v. Veatch, 842 F. Supp. 480 (W.D. Okla. 1993)69. Terry v. State, 105 So.386 (Ala. Ct. App. 1925)70. State v. Barber, 617 So.2d 974 (La. Ct. App. 1993)71. People v. Doe, 602 N.Y.S.2d 507 (N.Y. Crim. Ct. 1993)72. State v. Schaim, 600 N.E.2d 661 (Ohio 1992)73. State v. Natividad, 526 P.2d 730 (Ariz. 1974)74. Holmes v. State, 494 So.2d 230 (Fla. Dist. Ct. App. 1986)75. Shook v. State, 552 So.2d 841 (Miss. 1989), writ of habeas

corpus denied, Shook v. Mississippi, 2000 U.S. Dist. LEXIS8851 (N.D. Miss. 2000)

76. State v. Burnett, 2005 Ohio 49 (Ohio Ct. App. 2005)77. United States v. Jones, 2006 U.S. Dist. LEXIS 9257 (E.D. Tenn.

2006)78. Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968)79. United States v. Rinchack, 820 F.2d 1557 (11th Cir. 1987)80. United States v. Borum, 464 F.2d 896 (10th Cir. 1972)81. United States v. Davis, 1999 U.S. App. LEXIS 1030 (10th Cir.

1999)82. State v. Ferguson, 547 P.2d 1085 (Ariz. Ct. App. 1976)83. State v. Gilbert, 640 A.2d 61 (Conn. 1994)84. State v. Martens, 521 N.W.2d 768 (Iowa Ct. App. 1994)

85. United States v. Swanson, 572 F.2d 523 (5th Cir. 1978)86. State v. Owens, 807 P.2d 101 (Kan. 1991)87. People v. Palmer, 31 P.3d 863 (Colo. 2001)88. United States v. Stubblefield, 325 F. Supp 485 (D.C. Tenn.

1971)89. People v. Stanhope, 254 N.E.2d 512 (Ill. 1969)90. Carter v. State, 21 So.2d 404 (Miss. 1945)91. Hansford v. United States, 365 F.2d 920 (D.C. Cir. 1966)92. State v. Madden, 33 P.3d 549 (Haw. Ct. App. 2001)93. Casey v. State, 924 S.W.2d 946 (Tex. Crim. App. 1996)94. Bradley v. Preston, 263 F. Supp. 283 (D. D.C. 1967), cert. den.

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stand trial. 46 ALR 3d 544 (1972)96. Morrow v. State, 423 A.2d 251 (Md. Ct. Spec. App. 1980)97. State v. Kleypas, 40 P.3d 139 (Kan. 2001)98. State v. McClendon, 437 P. 2d 421 (Ariz. 1968)99. Rector v. State, 638 S.W.2d 672 (Ark. 1982), later app. 659

S.W.2d 168 (Ark. 1983), cert. den. 466 U.S. 988 (1984)100. State v. Forsyth, 547 N.W.2d 833 (Iowa Ct. App. 1996)101. State v. Leming, 3 S.W.3d 7 (Tenn. Crim. App. 1998)102. Powell v. Alabama, 287 U.S. 45, 60 (1932)103. Faretta v. California, 422 U.S. 806 (1975)104. Gideon v. Wainwright, 372 U.S. 335 (1963)105. Barnes v. State, 528 S.W.2d 370 (Ark. 1975)106. Com. v. Martin, 683 N.E.2d 280 (Mass. 1997)107. State v. Vermillion, 51 P.3d 188 (Wash. Ct. App. 2002)108. Sherwood v. State, 717 N.E.2d 131 (Ind. 1999)109. Indiana v. Edwards110. Appelbaum PS: “A fool for a client?” Mental illness and the right

of self-representation. Psychiatr Serv 59:1096–8, 2008111. White MS, Gutheil TG: A proposed model for assessing defen-

dant competence to self-represent. J Am Acad Psychiatry Law44:425–36, 2016

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