CURRENT STATUS OF THE FIELD

The first part of this section reviews collectively the methods and approaches that have been used to develop the competence to stand trial FAIs described in this chapter. These discussions lead to specific sugges­tions for further research and development of FAIs in this area.

Research Directions

Functional Component

In the first edition of Evaluating Competencies, four suggestions were made for improving the process of selecting and defining the specific abil­ities that should be assessed by future FAIs related to competence to stand trial. Four of the six instruments reviewed in the present chapter have been developed since the first edition, and there is some evidence that their development was consistent with some of the suggestions offered 15 years ago, while in some cases it was not.

empirical analysis of the ability domain. The 22 items of the MacCAT-CA, the 13 CAI functions, and the items of the other instruments reviewed here represent these instruments' operational definitions of a domain of abilities—things that a defendant must know, understand, appreciate or be able to do—to which the components of the legal compe­tence standard are presumed to refer. How did the test developers dis­cover and define these specific abilities within the domain?

Collectively, they used three methods: review of statutes and appel­late case opinions; the researchers' own experiences with courtrooms, defendants, and trial lawyers; and consensual agreement among the researchers themselves, often working as an interdisciplinary team. While these methods are appropriate, they have not made significant use of a different strategy: systematically sampling the types and range of abilities that are manifested when one enacts the role of defendant.

Therefore, we need empirical information on the typical roles and functions of defendants in trial and pretrial activities. This information would provide an empirical basis for defining the specific abilities that may be important for participation in a trial. This, in turn, would assist us in deciding which functional abilities to include in construction of instruments related to pretrial competence.

There are two views concerning the propriety of this approach to the development of FAIs for competence to stand trial. One view would con­sider this approach inappropriate, arguing that it is law, not empirical research, that defines abilities relevant for legal competence. Thus it is the responsibility of developers of FAIs in this area to do just what they have done—review and analyze the law, and arrive at a domain of abili­ties that is consistent with centuries of judicial interpretation of legal requirements.

The second view approaches the task with a more dynamic perspec­tive, arguing that legal definitions are evolving concepts that can be informed and changed by empirical research findings about human behavior. If empirical analyses of defendants' tasks were to find functions that are not now included in legal constructions of competence, these findings might eventually improve the law's ability to construct defini­tions of competence that more closely represent the real demands of the defendant's role. Instruments based on such empirical findings need not ignore the law's current definitions. New abilities discovered empirically could be represented in adjunct sections of instruments that assess the traditional abilities associated with legal competence to stand trial.

legal consensus for test content. To the extent that FAIs should be guided by legal definitions, it is encouraging to see that at least some instruments reviewed here (e.g., CAST-MR) have included an assessment of judicial and/or attorney opinion among their methods for deciding on their relevant content. After test developers have determined the specific abilities that they believe may be important for test contents, they should submit these ability concepts to samples of judges or lawyers in order to obtain opinion consensus regarding the legal relevance of each of the abil­ities for pretrial competence determinations. This is encouraged for all future development of instruments in this area.

Stimulusand response format. Tests of functional abilities generally should attempt to use stimulus and response modes that are as similar as possible to those that are required in the criterion context: in this instance, in trials or in client-attorney consultations.

With the exception of the CST's sentence completion format, instru­ments for pretrial competence assessment have used interview questions requiring examinees' oral responses. Some of these questions are consis­tent with the aforementioned principle. For example, asking examinees to recount their version of the alleged offense approximates a request that might be made in client-attorney consultations or in courtroom testimony. On the other hand, asking examinees how they might interact with an attorney ("Would you feel free to confide in him?") does not approximate the behaviors about which the examiner is concerned. Observing a defen­dant in interaction with an attorney might provide a more ecologically valid indicator of that which the examiner wishes to know.

Newer FAIs in this area have tended simply to follow the lead of earlier instruments' focus on verbal response. Other stimulus approaches would be possible. For example, only one instrument currently uses a visual stimulus (a drawing).

validation of the instruments. After 20 years of development of FAIs for assessing abilities related to competence to stand trial, no study has described an attempt to validate the instruments' scores against observations of the abilities they are said to measure. Instead, validation continues to focus on the correspondence of instrument scores or instru­ment-based conclusions to decisions reached by other instruments, tradi­tional forensic examinations, or judicial hearings.

The use of judicial decisions or expert clinical judgments as a "gold standard" to which to compare instruments in this area will probably con­tinue. But the limitations of this approach to validation must be kept in mind. Instruments for assessing abilities related to competence to stand trial cannot—and should not be expected to—define competence judg­ments. Judicial competence decisions (see Chapter 2, on the judgmental aspect of legal competence) are based on considerations that go beyond questions of defendant ability alone. In addition, we have no evidence regarding the reliability or validity of competence conclusions reached by forensic examiners or judges who form the criterion.

Causal Component

In the forensic assessment process, a defendant's poor performance on the instruments reviewed in this chapter will raise the question of reasons for the performance. Courts will wish to know whether the poor perform­ance is in part a consequence of interference by psychopathological symp­toms, mental retardation, or developmental disability, or whether it may be related to alternative explanations such as poor motivation during the examination or simulation of incompetence.

simulation detection. None of the newer instruments reviewed here have chosen to include an index of potential feigning of symptoms, despite the legal relevance of this information for explaining deficits in the behaviors that the instruments claim to measure. An instrument cur­rently under development called the Evaluation of Competency to Stand Trial-Revised (ECST-R) (Rogers, Tillbrook, & Sewell, undated) will offer this feature. Researchers wishing to follow this lead in developing future instruments may wish to review other examples of this strategy. For example, Nussbaum, Mamak, Tremblay, Wright, and Callaghan (1998) recently developed a prototype CST instrument called the METFoRS Fitness Questionnaire (MFQ). Several of the items are 6-option multiple­choice questions, with only one choice correct, three incorrect but not unreasonably so, and the remaining two "absurd." Probability tables were used to identify the possibility of malingering when a defendant endorses a greater than chance number of "absurd" choices. Frederick, Carter, and Powell (1995) modified the Symptom Validity Test in order to assess feigned short-term memory deficits, and they published illustrations of its use in the detection of possible malingering in CST assessment cases.

ability to benefit by instruction. The introduction to this chapter explained that a legal determination of incompetence to stand trial is not justified in cases where the defendant is merely ignorant of the nature of a trial. If the defendant has the capacity, with relatively brief effort, to learn the necessary aspects of trials and attorney consultations, education rather than treatment would be appropriate.

Although this notion of capacity to learn has long been recognized in clinical practice, the MacCAT-CA is the first CST instrument to employ a method to assist in identifying it.

DEVELOPMENTAL CAUSES OF DEFICITS IN ABILITIES. As noted in the intro­duction to this chapter, youths' capacities as trial defendants has become an important focus of attention in recent years due to changes in laws that give new relevance the concept of pretrial competence in juvenile cases. Mental illness and developmental disability (mental retardation) have been the pri­mary focus of incompetence to stand trial throughout the legal history of the concept. Empirically, it would seem likely that some youths will manifest relatively intractable deficits in the abilities measured in pretrial compe­tence instruments (Grisso, 1997, 2000; see generally, Grisso & Schwartz, 2000), not for these reasons, but simply due to developmental immaturity. This is especially likely with regard to reasoning and decision making capacities. Yet currently there are few studies of the performance of youths on these measures (Cooper's [1997] use of the GCCT-MSH with adolescents is an exception). Research could profitably be directed toward the examina­tion of youths' performance on instruments reviewed in this chapter, as well as methods to determine possible relations between their deficits and their cognitive or emotional immaturity.

Interactive Component

By definition (see Chapter 2), the interactive nature of legal compe­tence constructs requires knowledge not only of the person's capacities but also the demands of the specific, legally relevant situation that the person faces. Further, decision makers must weigh the congruency or incongruency of these two realities.

None of the FAIs for pretrial competence have attempted to devise methods that would systematically provide comparisons of defendants' degrees of ability to the actual demands of their own trial circumstances. Such efforts would require the development of methods to assess and characterize trial environments, providing descriptions of individual trial contexts on certain standardized dimensions.

Research would need to proceed first to determine the relevant dimensions of trials that describe demands placed on defendants. Either of two approaches to this step might be used. One approach would involve systematic observation of a sample of trials to arrive at empirical dimen­sions. A second approach would develop dimensions conceptually, creating environmental counterparts of ability dimensions employed in existing pre­trial competence instruments. For example, many of the CAI's 13 functional concepts suggest complementary environmental dimensions:

• Function 2 (Unmanageable Behavior): Anticipated length and arousal potential of trial

• Function 3 (Quality of Relating to Attorney): Quality of the attor­ney's relations with clients

• Function 7 (Appreciation of Charges): Nature and seriousness of charges as perceived by the public

• Function 8 (Appreciation of Range and Nature of Possible Penalties): Empirical range and nature of possible penalties, based on similar cases in the past.

The next research step, of course, would be to arrive at operational definitions for the dimension concepts, then to collect data on each dimension for a number of trials in order to arrive at normative descrip­tions to which individual trials could be compared. Finally, one would need standard methods for collecting information on each dimension for a given trial in conjunction with a defendant's assessment. With the resulting instrument, an examiner could summarize for the court the degree of anticipated demands of the trial on each dimension, as well as the examinee's degree of functional ability (according to existing compe­tence instruments) on dimensions complementary to those used to char­acterize the trial environment. Whether assessment schemata of this type would be feasible, or would be acceptable to courts as data for pretrial competence examinations, is beyond the scope of this discussion. The potential is offered here merely as a conceptualization that is at least logi­cally consistent with the model of legal competence constructs.

Judgmental and Dispositional Components

Chapter 2 described reasons why judgments about legal competence are beyond the expertise of mental health professionals. Nevertheless, all of the current pretrial competence instruments except the MacCAT-CA encourage a clinical recommendation of competence or incompetence in courtroom testimony. The FIT-R, for example, directs examiners to make a final competence judgment. This feature of the instruments encourages the mental health professional to answer the ultimate legal question (even though the test authors may not endorse that position).

Many courts allow and/or require the mental health professional to offer a conclusive opinion on the ultimate legal question. From this perspective, the competence instruments are designed to assist examiners to do what they must do. The instruments' provisions for conclusory statements about legal competence, however, are not consistent with the view that these judgments require weighing not only descriptive and the­oretical evidence about defendants' capacities, but also social and moral concerns regarding the consequences of a finding of competence or incompetence. Concluding that a defendant is incompetent is not the same as concluding that a defendant is sorely deficient in capacities to participate in a trial. Yet the competence instruments, designed to assess the latter question, might inadvertently lead the examiner to state conclu­sions about the former question.

Future developers of pretrial competence instruments should decide whether they wish to encourage ultimate competence and incompetence recommendations by mental health professionals, or whether they wish to restrict the product of the assessment instrument to a description of functional abilities, causal information, and person-situation congruency. The latter approach, of course, would be consistent with the legal analysis of the competence construct offered in Chapter 2.

Clinical Application

Description

One of the purposes of pretrial competence assessments is to collect data with which to provide a legally relevant description of the defen­dant. Data collection and description in this assessment area were entirely unstandardized prior to development of the FAis. Two examiners of the same defendant, therefore, might collect different types of information, thereby confounding later attempts to compare their opinions. Further, the information with which they described defendants often bore little relation to the law's concern for certain functional abilities of the defen­dant related to the specific context of trial participation. In contrast, all of the instruments reviewed here standardize the collection of information across defendants and across examiners. They provide some assurance that the data obtained will have legal relevance to the court in making a competence decision.

Further, there is evidence that trained interviewers/raters can quan­tify their data reliably with these interview methods. In contrast, the legal relevance or empirical grounding for unstandardized (traditional) forensic interview methods is essentially unknown. The advantages of standardization, therefore, strongly recommend the use of one of the instruments within the context of any assessment related to the question of competence to stand trial.

Historically, the content of FAIs in this area focused heavily on cogni­tive understanding of basic features of trials. In contrast, events of the 1990s (Bonnie, 1992; Godinez v. Moran, 1993) have placed increasing atten­tion on defendants' decision making capacities associated with the waiver of important constitutional rights in the trial process. The MacCAT-CA and the FIT-R come closer than earlier instruments to providing information that goes beyond "factual understanding" to begin to address questions of defendants' decision making capacities. This is an important advance, and instruments that do not provide such information are not in step with the evolution of the legal construct of competence in recent years.

Explanation

Examiners are expected to provide possible explanations for the deficits in functioning that they describe for a defendant. Currently it must be assumed that poor scores or responses on the pretrial competence instruments may be obtained for any of a number of reasons. Among var­ious possible conditions are psychopathological states and developmental disabilities. Other explanations that generally would not be consistent with a judicial finding of legal incompetence are malingering, adverse motivational conditions, or easily remediable lack of knowledge on the part of the defendant.

Potential explanations for functional deficits in trial abilities will require data beyond the item and summary scores of the instruments. Among these data may be content analyses of responses on the instrument; comprehensive mental status interview results; data from psychological tests of general intelligence, personality, and psychopathology; and reports and observations of the examinee's past and present behaviors in settings other than the examination session. Thus FAIs related to competence to stand trial must be used in the context of a broader assessment strategy and data collection plan. Currently, however, there are few empirical guidelines for relating FAI results to these other constructs or clinical measures.

Prediction or Classification

Published hit rates of the pretrial competence instruments are appli­cable to one's own setting only if the proportion of incompetent defen­dants (based on judicial criteria, for example) in the local population of examinees is similar to the proportions in past research samples. Further, pretrial competence instruments are likely to be of no value as predictors of judicial conclusions, or traditional forensic assessment conclusions, in jurisdictions in which the base rate of incompetence to stand trial is less than 15% of the defendants referred for competence evaluations.

The previous review identified variability in the degree to which the instruments reviewed here correspond to judicial competence decisions or more extensive forensic examinations. It can be argued, however, that the question of their correspondence is moot. For example, there is no assurance that judicial competence decisions are valid indicators of trial participation abilities. Further, these instruments need not mimic judicial decisions in order to be of considerable value in conveying legally rele­vant information to the decision makers.

Correspondence with judicial decisions is, perhaps, more relevant when evaluating the effectiveness of screening instruments like the CST and GCCT-MSH. They need not agree with judicial decisions, but they should at least not screen out too many cases that are eventually judged by courts to be incompetent. In this regard, the data in the previous reviews raise some doubts as to their utility. This is especially true given that they do not provide any information on defendants' decision making capacities. Thus some defendants might receive "passing" scores based on their ability to manage the "factual understanding" criteria that consti­tute the primary focus of the instruments. This would normally result in a recommendation for "no further evaluation," which would allow those defendants with distorted views of the application of information to their own situation, or deficits in decision making capacities, to proceed to trial with their deficits undetected.

The pretrial competence assessment instruments do not attempt to address three important questions that examiners generally must con­sider in pretrial competence assessments: the likelihood that the defen­dant, even if currently found competent to stand trial, might decompensate during a trial; the likelihood that a defendant, if currently found incompetent, can benefit by treatment or remediation directed toward augmenting the functions associated with competent participa­tion in trials; and, if incompetence is remediable, the proper place and length of time required for the remediation or treatment.

Conclusions and Opinions

Thus the instruments alone currently do not provide empirical grounds for an examiner's conclusion that "the defendant cannot meet the demands of his future trial." FAIs in this area may contribute to this type of conclusion in some cases, as standardized and reliable methods for describing defendants' legally relevant abilities. But the conclusion itself would require other sources of data, especially about the nature of the pending trial, that would allow one to compare the defendant's degree of ability or disability to the anticipated trial demands and to comment on the implications of the incongruencies in this comparison.

Even when conclusions about incongruencies can be reached, nothing about FAIs justifies an examiner's testimony that the discrepancy between the defendant's abilities and the anticipated trial demands renders the defendant competent or incompetent to stand trial. As explained earlier in the chapter, that is a moral and legal judgment. The instruments provide no basis for going any further than the descriptive, explanatory, and comparative testimony previously described.