FIVE COMPONENTS OF LEGAL COMPETENCIES

Functional Component

Definition

Legal competence constructs focus on an individual's functional abili­ties, behaviors, or capacities. As used here, the term functional abilities refers to that which an individual can do or accomplish, as well as to the knowledge, understanding, or beliefs that may be necessary for the accomplishment.

Functioning is related to, but distinct from, psychiatric diagnoses or conclusions about general intellectual abilities and personality traits. Psychiatric and psychological conditions (e.g., psychosis, abstract reason­ing ability, introversion) are hypothetical constructs that are presumed to influence functioning. The functional component of legal competence constructs, however, refers to functioning itself and to specific knowledge or understanding for relevant functioning, not only to the hypothetical traits or psychodiagnostic conditions that might influence it.

The specific functional abilities that are relevant will vary depending on the legal competence construct in question. Each legal competence construct refers to a general environmental context that establishes the parameters for defining the relevance of particular functional abilities for the legal competence construct. The relevant environmental context is some class of external situations to which a person must respond. Various legal competencies examined in this book specify widely differing con­texts: for example, criminal proceedings (trials), police interrogations, home life, and treatment services. Each context is presumed to require certain types of functional abilities in order to manage one's role within that context.

Different general contexts and roles are presumed to require some­what different functional abilities. For example, a person's ability to disci­pline a misbehaving child may be quite relevant for the context and role with which legal definitions of parent competence are concerned, when applied in questions of child custody. Yet this functional ability would not be relevant for the legal construct of competence to stand trial, which refers specifically to the context of trials and defendants' roles in these proceedings. Conversely, a person's ability to understand the gravity of potential consequences of a criminal conviction may be relevant for competence to stand trial, but not for competence to care for a child. Clearly, there is no single construct of legal competence. There are several legal competencies distinguished by their different contexts, which in turn refer to different functional abilities.

The law, however, usually does not identify in great detail specifically which abilities are demanded of people in these general contexts. For example, guardianship cases generally apply the legal construct "ability to care for oneself and one's property," and competence to stand trial refers to "a defendant's ability to assist a lawyer in his defense." These guide­lines and subsequent case law, however, do not provide a finite listing of functional abilities that are necessary in order to perform the role of man­ager of oneself or one's property, or the role of client/defendant in trial preparations with a lawyer. Both contexts merely define the parameters of a hypothetical domain of functional abilities. Identification of specific functional abilities that may be relevant for a legal competence requires some form of exploration and interpretation of this domain.

Assessment Implications

The most fundamental objective of a related assessment is to obtain information about a person's functional abilities—what the person under­stands, knows, believes, or can do that is directly related to the competence construct.

This objective contrasts with most clinical assessments designed to determine psychiatric diagnoses, to provide trait-based descriptions of examinees, and to recommend interventions. As explained in Chapter 1, mental health professionals often have assumed that a diagnosis of some major mental disorder is sufficient basis for determining legal incompe­tence. The functional characteristic of legal competencies, however, requires a good deal more, because neither the law nor theories of psychopathology assume that any mental disorder always renders indi­viduals incapable of all intellectual, behavioral, and social functions. The assessment should be designed so that the examiner will not be caught unprepared when the judge asks: "We understand that the defen­dant is schizophrenic and has severe delusions, Doctor. But that is not entirely the point. What can he do and what is he not able to do that is relevant for the question before this court?"

In the past, mental health professionals often attempted to respond to questions of this type by inferring from a diagnostic or trait-based description the specific functional abilities with which the law is con­cerned. For example, an examiner might infer that an individual with a diagnosis of Major Depressive Episode will be unable to manage financial matters, such as buying necessities, paying bills, and keeping accounts. The logic is based on the symptomatic behaviors that the examiner observed in forming the diagnosis: the patient's prominent and persistent dysphoric mood, loss of energy, poor appetite, insomnia, decrease in sex­ual drive, slowed thinking, and perhaps even recurrent thoughts of death. Given these observations, the expert infers that the patient will be inca­pable of, or disinterested in, managing the tasks associated with daily financial transactions or maintenance of property.

In another case, an examiner may infer that a juvenile could not have understood the words and phrases that police used when they informed him of his Miranda rights, prior to his waiver of the rights and making a confession.

The examiner's status as expert clearly allows opinions and inferences of this type in expert testimony (Federal Rules of Evidence, Article 7). Morse (1978a,b), though, produced the classic and still convincing argu­ment that inferences of this type frequently are not "expert" at all. The mental health professional may be especially qualified to observe, summarize, and describe the behaviors that constitute the depressive disorder or the juvenile's intellectual development. Yet the expert's infer­ences about functional abilities specific to the legal competencies (paying bills, understanding police warnings), when based on these more general observations, are often no more than speculation. The expert has not demon­strated special knowledge of the relation between the observed symptoms and the actual behaviors that are related to the law's concerns.

Based on this argument, Morse concluded that mental health profes­sionals should be limited to symptom descriptions, because their subse­quent inferences about specific functional abilities are not based on any special knowledge about the relation of the symptoms or diagnoses to the functional abilities in question. This limitation is not necessary, however, if mental health professionals acquire special knowledge of the functional abilities and behaviors that are relevant for the legal competence question. In that case, neither the expert nor other participants in the legal process would need to rely on speculative inference about those abilities. Whenever possible, therefore, forensic examiners should observe directly the functional abil­ities associated with a legal competence.

The assessment of functional behaviors and abilities has a long tradi­tion in psychology outside the specific area of forensic assessment. In the realm of clinical assessment, the measurement of competencies, aptitudes and abilities that are important for real-life functions has long been seen as having the potential to serve many of psychology's descriptive and predictive needs better than the measurement of intelligence (e.g., McClelland, 1973).

The present model places the measurement of functional abilities at the core of an assessment for legal competence. Significant portions of later chapters in this book are devoted to methods for assessing legally relevant functional abilities. A Iaterdiscussion in this chapter, however, will show that we should not discard the more traditional, trait-based assess­ment methods of psychiatry and clinical psychology, because they have an important supplemental function in legal competence assessments.

Having decided that functional abilities must be assessed, the next step in fulfilling that objective is to identify which functional abilities are especially relevant for a given legal competence. What criterion should we use to decide that a particular functional ability is or is not relevant for a particular legal competence construct?

One criterion, of course, is theory. We may decide, for example, that one's ability to display affection for a child is an important functional abil­ity to assess in relation to legal questions of parental competence and child custody, because psychological theories of child development or parenting emphasize the importance of affection for a child's develop­ment. Alternatively, we may arrive at the same conclusion empirically, having observed in controlled research that children who have not received displays of affection have not thrived as well as children who have received affectionate caretaking. Finally, we may decide to assess the ability to display affection because it has been defined legally as a relevant variable for evaluating parental competence in child custody cases, or at least has received considerable attention in judicial deliberations in these cases.

The examiner's decision about which abilities to assess is relatively easy when there is basic agreement between theory, empirical observa­tion, and legal requirements.

Given such conflicting criteria, which criterion should an examiner employ when deciding what functional abilities to assess in relation to the context of a legal competence? One could argue that legal criteria must take precedent: that the competence is defined by law, and that other cri­teria, therefore, do not have authority to define the nature of the legal competence. On the other hand, one could argue that psychological theory and empirical research should take precedent in deciding which functional abilities are relevant for legal competencies. After all, if the law is concerned with functioning in specific social contexts, one might assume that legal decision makers would not wish to assign weight to abilities that have no empirical relation to performance in those contexts.

The present conceptual model suggests that assessments for legal competencies should be guided by all three legal criteria, because each provides a somewhat different perspective on the abilities of greatest relevance to legal questions within the defined context. Were we to require a mental health professional to assess only the abilities recognized in law and judicial perspectives, this might have several undesirable consequences.

First, unquestioning adherence to legal preferences assumes the infal­libility of legislative and judicial assumptions concerning which abilities are related to performance in the relevant contexts. This infallibility is not presumed even by the law itself (Gordley, 1984). Subsequent chapters will show that the law usually does not define the specific abilities related to a competence context, and judicial opinions often manifest uncertainty, openness, or lack of consensus concerning which abilities to consider.

Second, if assessments are confined only to the abilities defined as relevant by law or judicial opinion, we are not stimulated to develop information and assessment methods that might inform lawmakers con­cerning the practical importance of other abilities outside the law's cur­rent perspective. Through our own empirical research or development of theory, we may discover the importance (or relative unimportance) of var­ious abilities for performance in various contexts. These abilities might be among those already endorsed by lawmakers, or they might not have been apparent to them intuitively. By confining ourselves only to the law's perspective, however, we are less likely to discover these kinds of abili­ties. Further, we would be relinquishing our opportunity to contribute to the growth of law, and to rationality in judicial decisions, through our empirical perspective. In the last analysis, of course, the law and judicial opinion will determine whether one's selection of abilities yields proba­tive or admissible evidence.

In Chapters 4 through 9, we will examine all three criteria for deter­mining the relevance of functional abilities in contexts specified by legal competencies. Judicial interpretations will be summarized, psychological theories will be examined as guides for selecting which abilities to assess, and empirical guidance will be sought wherever research has provided it.

Causal Component

Definition

Legal competence constructs require causal inferences to explain an individual's functional abilities or deficits related to a legal competence. That is, when a person's deficient abilities related to the legal competence are known, the legal competence construct requires ascription of the likely reasons for those deficits.

Later chapters will show that statutory phrases defining competence constructs frequently contain references to causes of functional inabilities. For example, legal definitions applied in guardianship proceedings often require that "inability to care for oneself or one's property" must be "because of" or "as a result of" mental, developmental or physical disabil­ity, in order to meet the standard for legal incompetence and assignment of a guardian.

Why is the law concerned about the "cause" of one's functional deficits? If the individual does or does not manifest the ability to know, understand, believe or do those things that are relevant for a legal compe­tence construct, why does the cause matter? There are two major reasons, both derived from the consequences of a finding of incompetence.

First, for some legal competencies, a legal finding of incompetence can lead to a positive consequence that offers an incentive for feigning diminished functional abilities. For competence to stand trial, for exam­ple, one of the consequences of a finding of incompetence is a delay of trial while defendants are provided some intervention that is intended to remediate their functional deficits that stand in the way of their participa­tion in their trial. Some defendants may manifest poor functional abilities for reasons that are directly related to their mental disorder, and the delay of trial is intended to provide time for interventions that will reduce their symptoms and improve their functioning. Other defendants, however, will manifest similar deficits in their performance of functional tasks because they wish to appear incompetent, thereby gaining a delay of their trial. Courts obviously have an interest in avoiding this misuse of the legal process.

Second, findings of legal incompetence typically result in a tempo­rary or permanent deprivation of rights that the individual otherwise would enjoy. This is done in order to protect the individual (or others) from the potential damages that might otherwise accrue (e.g., loss of finances as a consequence of poor judgment) as a consequence of the indi­vidual's functional deficits. Although the purpose is beneficent, our soci­ety and legal system do not take lightly the deprivation of individual liberties and personal self-determination, but require a sound reason for doing so.

In this context, it is important to recognize that some individuals may manifest deficits in functional abilities at a particular time for reasons other than mental illness or mental disability (even in cases in which the individual in question does have a mental illness or disability). For exam­ple, imagine that at the time the person's functional deficit was observed, the person had had no sleep the previous night. In another case, a defen­dant might demonstrate little knowledge of the importance of a judge in a trial, but otherwise seems capable of learning new information. In cases like these, the possible causes of the apparent functional deficits may seem easily remediable, thus changing their meaning and significance in deliberations about a person's legal competence.

In summary, the causal component of legal competence constructs focuses on explanations for an individual's apparent deficits in relevant functional abilities, in order to assure that the consequences of a finding of incompetence are not misapplied.

Assessment Implications

Assessments for legal competencies should provide information that will assist courts in judging the probable reasons for deficits in the func­tional abilities that have been assessed, as well as the potential for their stability, change, or remediation. Observation and measurement of the functional abilities alone, of course, usually will not provide sufficient information for this objective.

Psychiatry and psychology possess many resources for explaining functional behaviors and for estimating their future course. Various func­tional deficits may be seen as consequences of neurological or biochemical conditions, intellectual and cognitive capacities, motivations, emotions, learning histories, and social relations. When the law refers to "mental disorder" as a cause, the mental health professional turns to these biolog­ical and psychological constructs as potential sources for explanations of disorder in mental and behavioral activities. Existing tools and guides for working with these constructs are numerous.

First, mental health professionals have a wide range of methods and instruments for collecting reliable data on the variables just noted. Many of these tools, including biological and psychological tests and interview methods, can be used to describe examinees reliably in terms of their emotional or motivational characteristics, their intellectual or cognitive conditions, neurological abnormalities, social histories, and everyday behaviors.

Second, mental health professionals possess empirical research results that describe relations between the above types of information and other past, present, or future behaviors and outcomes. For example, research results frequently establish empirical links between individuals' past histories and current behavioral and psychological characteristics. They also may establish relations between two or more current condi­tions, as when a particular behavior is shown almost always to occur con­currently with a particular event or a certain emotional state. Other research demonstrates potentials for anticipating a future behavior or event based on current characteristics of an individual. Therefore, when assessment methods and instruments can identify certain biological or psychological characteristics of a given examinee, existing research on these characteristics sometimes can guide the examiner's inference to suggest or reject various causal explanations and predictions concerning a specific case.

Third, the disciplines of mental health professionals have theories of normal and abnormal behavior. A psychological theory is a system of interrelated constructs and assumptions about human behavior and its causes. A theory by itself is a convenient fiction that is useful for generat­ing hypotheses about how various events, behaviors, and human charac­teristics interrelate. When these hypotheses have been tested in empirical research, the theory serves as a logical system for organizing and describ­ing what is known empirically. In this role, it provides causal explanations for what is known. Such causes are never proven true or false by either research or the elegance of a theory. Theoretical causal explanations merely seem more or less plausible or useful, given the strength or weak­ness of the empirical research results that the theory has generated.

Each of these three tools has an important role in collecting and com­municating information that will assist courts in addressing causal ques­tions in legal competence constructs. Given that one has assessed an examinee's legally relevant functional abilities and deficits (in accordance with the Functional component noted earlier), theory and existing research results can be used to develop one or more hypotheses concern­ing causes of the functional deficits. The hypotheses then dictate one's selection of certain assessment methods or instruments that employ the theoretical constructs (e.g., intelligence tests, measures of personality or psychopathology, structured interview methods), and these methods would be used to test the hypotheses. The actual assessment process might not always follow this precise sequence, but testimony generally would unfold the assessment results in this logical manner. Thus the value of any theoretical explanations in testimony would be tested in court by the quality of the examiner's empirical evidence for the hypothe­ses, not merely by the elegance or intuitive plausibility of the theory that generated the causal hypotheses.

This view of the assessment process finds a role for theory in assess­ments, but considerable controversy has surrounded the use of psychia­try's and psychology's theoretical explanations for behavior in expert testimony. Morse (1978a, b; 1982, 1983), for example, contended that the results of forensic assessments should be reported only as descriptions of behavior or, when available, as relationships and predictions based on sound empirical research. He believes that theoretical explanations should not be offered, because: (a) too often they have little or no empiri­cal support, and therefore are mere speculation; (b) theories of psychiatry and psychology nevertheless may seem "scientific" and thus may have an undo influence on the fact finder; and (c) legal fact finders—for example, judges and juries—probably are capable of drawing their own causal con­clusions, given whatever descriptive and empirical research information the expert witness can provide. Other commentators (e.g., Bonnie & Slobogin, 1980; Melton et al., 1997) have not taken this position, but instead have pointed out potential values of testimony that informs the fact finder of theoretical explanations underlying the examiner's assess­ment results. The court can then take these theories into account in weigh­ing the relevance of the person's deficits for the legal question.

In summary, to satisfy the causal requirements of a legal competence construct, the assessment should be designed to obtain data and to use empirical research results in a manner that will provide the court a theo­retical explanation concerning any deficits in functional abilities that are relevant to the legal competence.

Interactive Component

Definition

Legal competence constructs focus on person-context interactions. A legal competence question does not merely ask the degree of functional ability or deficit that a person manifests. It asks further, "Does this per­son's level of ability meet the demands of the specific situation with which the person will be (was) faced?" Defined more formally, a decision about legal competence is in part a statement about congruency or incon­gruency between (a) the extent of a person's functional ability and (b) the degree ⁰f performance demand that is made by the specific instance of the context in that case. Thus an interaction between individual ability and situational demand, not an absolute level of ability, is of special significance for legal competence decisions.

The law provides ample evidence with which to identify the interac­tive component of legal competence constructs. This evidence is reviewed in later chapters, but a few examples will facilitate the following discussion:

• The court in U.S. V. Wilson (1966) ruled on the procedure for deter­mining whether an amnesiac defendant is incompetent to stand trial. The court decided that this depends in part on the degree to which there is enough evidence without the defendant's recall to allow the defense to reconstruct the critical events associated with the alleged crime. The more deficient the case in sources of infor­mation critical to a defense, the greater the importance of the defendant's ability to recall the events.

• Repeatedly in cases from In re Gault (1967) to Fare v. Michael C. (1979), appellate courts have concluded that the competence of a juvenile's waiver of Miranda rights at the time of arrest depends not only on the capacities of the juvenile, but also on the manner and circumstances in which the police obtained the juvenile's waiver.

• Legal analysts (e.g., Anderer, 1990; Sales, Powell, Van Duizend, & Associates, 1982) have noted that abilities related to competence to care for one's property (as the concept applies to guardianship for the elderly or developmentally disabled) will depend in part on the size, type, and complexity of the individual's property and resources.

These examples clearly indicate that no absolute level of functional ability or inability signifies competence or incompetence. The individual's level of ability will be important to consider, yet the fact finder can assess its significance only when it is weighed against the demands of the indi­vidual's specific situation.

For example, two defendants may manifest equal deficiencies in their ability to manage the role of defendant in trials. Yet one of them, facing a trial that is expected to be relatively brief or simple, may be deemed com­petent, while the other, facing a more complex and lengthy trial, may be considered incompetent. The law labels the person incompetent, yet it is more accurate to say that the law arrives at a conclusion about a condition of incompetence posed by person-context incongruency or mismatch.

The term context has now been employed in two ways in this model, and it is worthwhile to make the distinction between its two uses. In describing the Functional component, we noted that the functional abilities that are relevant for a particular legal competence depend on the context of the legal competence—e.g., for competence to stand trial, the abilities that are important for defendants to exercise in the role of defen­dant. Thus the context of the legal competence defines the types of abilities that are relevant. In contrast, context is used in the Interactive component to determine the level or degree of those abilities that are needed in the specific case in question.

In some cases, the specific instance of the context may even reduce to negligible levels the relevance of some ability that generally would be within the domain of a competence's context. An example outside of the law might be helpful. When evaluating the "competence" of automobiles, we would consider their ability to ascend hills as within the domain of rel­evant abilities to consider. Yet for the driver whose route includes no hills (the specific instance of the context), the automobile's "functional ability to ascend" may be of little importance in evaluating its competence for the journey at hand. By the same token, a knowledge of the automobile's abil­ity to ascend will not be sufficient information with which to determine its competence to manage a hilly route. The driver will have to know also the probable degree of incline of the hills. Similarly, a consideration of the specific instance of the context is inextricable from the definition of a legal competence construct.

Specific instances of contexts for legal competencies almost always exist in the future or the past. The law wishes to know about a person's abilities in relation to situations that have already happened, such as the circumstances surrounding a crime or an arrest, or concerning situations that are anticipated, such as a trial. Therefore, consideration of the degree of person-context congruency necessarily directs one to address the prob­able demands of the past or future situation together with an estimate of the person's past or future functioning.

Assessment Implications

Psychology offers mental health professionals a number of theoreti­cal models and concepts related to the interactive perspective of the law on competencies. Consistent with many of these contributions, behavior often is best understood as an interaction between personal consistencies in behavioral or cognitive functioning (e.g., traits, cognitive styles) and characteristics of the settings in which a person functions, (e.g., Bem & Allen, 1974; Magnusson & Endler, 1977; Mischel, 1983, 1984).

The interactive nature of legal competencies suggests that forensic examiners should consider collecting information about the specific environmental or social context in which the examinee will be expected to function. Doing this for various legal competencies might require discov­ering the demands of an upcoming trial (for competence, to stand trial), the special needs and characteristics of a specific child (for parental com­petence related to child custody), or the degree of certain skills and knowledge that will be required by the financial and residential cir­cumstances of a specific elderly person (for competence to care for self/property as related to guardianship).

Assessment of the performance demands of the specific context has several objectives and benefits. One objective, of course, is to describe the degree to which the examinee's abilities (as described in the sections on the Functional component) exceed or fall short of these demands. Second, this approach clarifies for both the examiner and the court that legal com­petence is not a matter of the examinee's absolute level of ability alone, but rather the congruency between ability and demand. Third, consider­ing the situation's demands in relation to the examinee's abilities has cer­tain conceptual implications for reducing the incongruency between the two. That is, congruency (an approximation toward legal competence) may be increased not only by remediation of a person's deficits, but also by changing the performance demands of the relevant situation. For example, if an elderly person's abilities are incongruent with the demands of an anticipated living arrangement or financial situation, the interactive perspective offers three hypothetical responses to the incongru­ency: (a) declare the person incompetent and assign a guardian, (b) augment the elderly person's skills, or (c) find a living arrangement and financial situ­ation with fewer demands, therefore producing greater congruency between the person's current abilities and the person's life situation.

Certain challenges are presented by the objective to assess dimen­sions of specific environmental or social contexts in a manner that will meet the objectives outlined above. Direct comparison of personal abili­ties and situational demands might be greatly facilitated if the dimensions for assessing situations were to parallel the dimensions used for describ­ing personal abilities. Common examples of this approach may be found in educational and industrial psychology, in which performance levels among people in a particular work setting are measured and then used as the criterion measure for selecting future employees for that work setting. Psychology also has long had models for describing individuals and envi­ronments on parallel dimensions, an approach pioneered by Murray (1938) in his constructs of human "needs" and environmental "press."

Later chapters will note that very few assessment methods for addressing legal competencies have been developed with this conceptual perspective. The creative examiner, however, could find ways to employ this strategy in some cases. For example, an examinee in a child custody assessment might be evaluated for the ability to provide structure and consistency in child rearing, and the child might be evaluated concerning the degree of structure and consistency in parenting that the child requires. The use of the same dimension for both assessments facilitates the process of judging the person-situation congruency or incongruency on which competence decisions are based. Later chapters will consider further the value of this notion of parallel, person-context dimensions in assessments for various legal competencies.

Judgmental and Dispositional Components

Definition

Legal competence constructs require a judgment that person-context incongruency is of a sufficient magnitude to warrant a finding of legal incompetence. Part of that judgment is based on the fact that when the judgment is made, law prescribes certain dispositional consequences. The competence decision sets a disposition in motion, and in that sense, the disposition is part of the legal competence construct.

The interactive component, as described above, addresses questions of the degree to which a functional ability exists, how much is demanded by the situation, and how much of a discrepancy exists between the two. The judgmental component then addresses the ultimate question: How much incongruency is enough to warrant a finding of incompetence?

Legal competence statutes are replete with phrases referring to this component of competence constructs. They use words such as "suffi­cient," "grave," "significant," "requisite," "unlikely to be able," and "rea­sonable degree" to refer to the extent of deficit or incongruency that will satisfy the legal standard. These terms have no static or absolute meaning. in theory, no particular degree of person-context incongruency is disposi­tive of the legal competence decision. The words and phrases noted above are interpreted with great discretion.

Legal competence constructs, nevertheless, are defined by law, no matter how vaguely. Therefore, the legal fact finder who employs discre­tion to answer the judgmental question of legal competencies must make a judgment based on the law. This requires a consideration of legal prece­dent and an interpretation of the standards of justice set forth by society, which formulates the law. When a legal fact finder states that a degree of functional deficit or person-context incongruency in a particular case is "enough" to warrant a finding of legal incompetence, that person inter­prets the meaning of justice in that instance.

Justice is required because a finding of competence or incompetence often designates a legal status and a related legal disposition for the person to whom it is applied. An individual's legal status of incompetence gives the state the authority to act in some way toward the individual. In some instances, the state's dispositional act may be automatic—that is, without further decision—once the person's legal incompetence status has been assigned. In these cases, the incompetence finding is at one and the same time a conclusion about person-context incongruency and a decision to apply the state's authority for subsequent action. In most instances, this action includes deprivation of fundamental rights, many of which are of grave natural consequence for the individual and for other persons in the community who may be affected by the decision.

Therefore, the judgmental and dispositional components identify the question, "how much incongruency is enough," as an interpretation of justice, in light of the instant circumstances and the dispositional conse­quences that will accrue for both the individual and society. This interpre­tation invariably constitutes a legal, moral, or social judgment, no matter how it is made. In the last analysis, interpretations of the sufficient condi­tions for depriving individuals of constitutional freedoms, even for their own good, are moral judgments requiring legal authority.

Assessment Implications

It follows logically from this description of the judgmental and dis­positional components that forensic assessments for legal competencies should address but not answer the question of a person's legal competence or incompetence. Legal interpretations of justice are beyond the special expertise of mental health professionals, in that nothing in their training, experience, and education sets them apart from other laymen with regard to the ability to judge what is morally right or wrong. Many commenta­tors, therefore, have recommended that mental health professionals should not offer an opinion on ultimate legal questions of competence ("Is the person legally competent or incompetent?") (Appelbaum & Gutheil, 1992; Grisso, 1986, 1988; Group for the Advancement of Psychiatry, 1974; Halleck, 1980; Heilbrun, 2001; Melton et al., 1997; Morse, 1983; Stone, 1975), urgings to the contrary notwithstanding (Federal Rules of Evidence, Article 7, Rule 704).

This general principle has several implications for assessments related to legal competencies. First, when assessing an examinee's degree of functional abilities relevant for the context of a legal competence, the examiner can be relatively unconcerned about translating the level of ability into some notion of legal sufficiency for a finding of competence or incompetence. The examiner's task is to describe as clearly and accu­rately as possible that which the defendant knows, understands, believes, or can do. If this is described on a measurement continuum, one need not try to establish a cutoff score representing legal acceptability or unaccept­ability of performance. Indeed, the mental health professional has no legal authority to do so. Further, the law itself recognizes no absolute level of any ability as dispositive of the legal question. The use of so-called "cut­off" scores on psychological tests, forensic or otherwise, to represent legal competence or incompetence is wholly illogical.

Second, when assessing incongruency between an examinee's abili­ties and the demands of a particular context (the Interactive component), the examiner should not attempt to establish criteria that define a particu­lar amount of incongruency as suggestive of legal incompetence. The extent of the discrepancy itself should simply be described. Further, the examiner might be able to provide descriptive and empirical evidence concerning the probable consequences of the interaction (for example, that an elderly examinee with a particular degree of understanding of basic medical/nutritional needs, placed in a particular independent liv­ing situations, is not likely to maintain a medication schedule or an ade­quate diet unassisted). These results and predictions do not answer the ultimate legal question (Is the person legally competent or incompetent?). They are not judgments that an examinee should or should not be declared legally incompetent. In fact, the elderly person in the example above might not be found legally incompetent, if the fact finder deter­mines that there is a realistic way to meet the person's needs without the appointment of a guardian.

Examiners may sometimes feel that the difference between answer­ing the ultimate legal question and stating the degree of incongruency between ability and context demand is almost indistinguishable. For example, after assessing a defendant who cannot understand the English language, who appears to distort reality severely, and who behaves fear­fully in any conversations with professionals, many examiners would feel quite justified in believing that the defendant "cannot communicate effec­tively with a lawyer in his own defense."

To state this conclusion in a forensic report, however, is to answer the ultimate legal question of competence to stand trial. In instances like this, it may be well to remember that it is literally not true that the defendant "cannot communicate," and whether or not he can "communicate effec­tively" (sufficient to render a just trial) is a moral or social judgment. If the examiner means that the lawyer will not learn from the defendant certain information that is needed in trials of the type anticipated, or that the lawyer will have extreme difficulty understanding the defendant, or that the consequences of this particular trial are too complex for the lawyer to convey in a manner the defendant can grasp, then the examiner should describe these incongruencies in this way. Whether or not these interac­tive conditions amount to client-lawyer communications that are so inef­fective as to preclude a just trial ("cannot communicate effectively with one's attorney") can be left for the court to decide.