CONTINUING THE IMPROVEMENT OF FORENSIC ASSESSMENTS

Chapter 1 described apparent improvements in the quality of foren­sic assessments for legal competencies during the 15 years between first and second editions of this book. It also described ways in which average practice in forensic assessment still falls short of objectives offered in various professional guidelines.

The Conceptual Model

Let us first summarize some of the advantages of the five-component model as they were described in the conclusion of the first edition:

• The analysis described in this book demonstrates the feasibility of a single model to structure our conceptualization of the nature of diverse legal competencies. This is heuristically desirable for reasons of parsimony and efficiency.

• The concepts that formed the model were not novel, but were bor­rowed and synthesized from legal and psychological perspectives throughout competence law, judicial opinion, and scholarly analy­sis. Thus the model requires no radical restructuring of the law itself, but rather conforms to it, amplifies it, and encourages its growth.

• The model forces us to take seriously certain assumptions in the law of competencies that have not been carried through to their logical conclusions, especially the interactive quality of legal competencies.

• The model provides a systematic structure for translation from law to clinical practice. It makes the law's definition of legal compe­tence accessible from the psychological and psychiatric perspective of the clinician who provides information for decision making by the courts.

The five-part model of legal competencies has obtained general acceptance in the literature of forensic assessment.

The Future of FAIs

More questionable is the future of forensic assessment instruments. The first edition of EC described the promise:

The development of forensic assessment instruments (FAIs) was proposed as a strategy for increasing the empirical integrity of assessments that use the con­ceptual model. The review chapters have demonstrated FAIs' potentials for providing standardized, quantitative data to meet the needs of courts for reliable and valid information... In summary, we have a clear option to commit ourselves to this empirical technology as one important means for improving forensic assessments. (Grisso, 1986, p. 362)

During the past 15 years since this challenge was issued, clearly we have witnessed substantial advances in the development of FAIs to assess functional abilities related to legal competencies. The first edition pro­vided only a few examples of instruments that were developed specifi­cally as FAIs, supplemented by many that could serve that purpose although they had not been developed with that intention.

In contrast, evidence provided in Chapter 1 and in the "Current Practice" sections of the review chapters suggests that the use of these instruments has not yet become standard practice for forensic clinical experts. They are used by many forensic clinicians but not the majority, and those that use them do not do so routinely. This can no longer be explained by the novelty of FAIs or lack of clinicians' knowledge of their existence. They have been in the mainstream of our journals for some time. Within the past few years, test publishers' catalogues have featured special sections to describe and advertise their collection of "forensic tests."

Why have forensic clinicians not wholly embraced FAIs as standard practice? The most likely reason is the costs associated with their use. There are three types of costs that warrant consideration.

First, it is easier and financially less expensive to perform legal competence evaluations without administering FAIs (or any other empirical measures of the examinee's characteristics). The addition of FAIs to one's current eval­uation procedures does not produce a case-by-case financial benefit, and it requires time that must be subtracted from one's already busy assess­ment schedule in public forensic evaluation services. The additional costs can be absorbed when clinicians' evaluation services are paid by the hour. But the addition of a FAI is difficult for clinicians who receive state or county funds to provide assessments for a fixed per-case cost (the amount often already being inadequate to compensate for the time required).

Second, cases differ with regard to the need for finer-tuned assessments. Some percentage of competence cases involve individuals who are "clearly competent," while others involve persons with mental illnesses that grossly effect their cognitive abilities, rendering opinions about "incompetence" fairly easy to justify with minimal data on functional abilities. Clinicians typically are urged to use psychological testing selec­tively, employing it in cases that fall between these two extremes. Thus one must anticipate that clinicians will use FAIs only in those minority of cases that warrant the additional effort and cost of a standardized, empir­ical tool for assessing legally-relevant functional abilities.

Finally, clinicians who base their opinions for courts on data derived from new FAIs open themselves to greater scrutiny and challenge by attorneys during their expert testimony. Traditional requirements for admissibility of expert evidence (Frye v. U.S., 1923) have been supplemented by important, more recent standards (Daubert v. Merrell Dow Pharmaceuticals, 1993; Kumho Tire Company, Ltd. v. Carmichael, 1999) that have increased attorneys' chal­lenges of the instruments used by clinicians to provide data for their opin­ions. Criteria for admissibility associated with these cases include scrutiny of the demonstrated reliability and validity of the instruments, their error rates, their logic, and demonstration of professional peer acceptance of new methods. Such scrutiny can have a beneficial effect on the quality of information provided to the courts. But most FAIs, regard­less of their ability to meet these challenges, are relatively new and there­fore have not built a history of acceptance in the courts. Therefore, clinicians who adopt new FAIs open themselves to the potential for more intense challenges by attorneys. Ironically, forensic clinicians' opinions are accepted by most courts as a routine matter (on the basis of their ade­quate training and expertise) if their opinions rely on nonstandardized interviews and clinical inferences for which no evidence of reliability or validity can be offered.

Thus, after 15 years, the closing paragraph of the first edition of this book continues to be a fitting conclusion to the second edition:

We must decide [the] cost-benefit issues on the basis of our own professional standards. This book has argued that the integrity and credibility of our foren­sic assessments require an investment in a more standardized, empirical approach than we have employed in the past. Whether we will make the investment depends on our perceptions of the weight of that argument, [plac­ing] our professional standards in the balance against the effort that the com­mitment would require. The law eventually may answer that question for us, although it would be better for forensic examiners themselves to address it now. This is an ultimate question that mental health professionals are indeed qualified to answer. (Grisso, 1986, p. 363).