IMPROVING EVALUATIONS FOR LEGAL COMPETENCIES: HOW FAR HAVE WE COME?

In the first edition of EC, we reviewed a large body of literature prior to the mid-1980s that documented extreme discontent with the practices of mental health professionals in their assessments in legal cases (e.g., Bazelon, 1982; Bonnie & Slobogin, 1980; Brakel & Rock, 1971; Ennis & Litwack, 1974; Gutheil & Appelbaum, 1982; Halleck, 1980; Halpern, 1975; Meehl, 1971; Melton, Petrila, Poythress, & Slobogin, 1987; Melton, Weithorn, & Slobogin, 1995; Monahan, 1981; Morse, 1978a, b, 1982, 1983; Roesch & Golding, 1980; Shah, 1981; Stone, 1975, 1984).

in these works were summarized in three categories:

• ignorance and irrelevance in courtroom testimony;

• psychiatric or psychological intrusion into essentially legal matters; and

• insufficiency and incredibility of information provided to the courts.

Subsequent reviews have frequently referred to EC's characterization of these criticisms, which came to be known as the five "I's." We will return to those criticisms in a moment to assess their current relevance, but first it is worthwhile to set a context for their reconsideration.

When the first edition of EC was published in 1986, forensic psychol­ogists and psychiatrists had only recently begun to build a theoretical and empirical foundation for their evaluations related to legal competencies. For example, the first substantial research study on evaluations for com­petence to stand trial was published only about 10 years earlier by foren­sic psychiatrist A. Louis McGarry (Laboratory of Community Psychiatry, 1973), and only 5 years had passed since the publication of the first book entirely devoted to the matter of competence to stand trial (Roesch & Golding, 1980). Nevertheless, during the 1970s and 1980s, mental health professionals were providing competence evaluations of various kinds with increasing frequency.

It is not surprising, therefore, that courts were increasingly registering their ambivalence, disenchantment, or outright frustration with clinicians' contributions in competence cases. Mental health professionals, it was said, often were not able to deliver what was expected, or they insisted on delivering much that the law did not desire. As a consequence, the future of mental health professionals in the courtroom was at stake. According to Alan Stone (1984), mental health professionals had not yet lost their place in the courtroom, but the battle to maintain the necessary credibility to continue in their role had left them "wounded and bloody" (p. 57).

The subsequent 15 years since the first edition of EC has witnessed a concerted effort by the field to improve the quality of forensic psycholog­ical assessments for the courts, including evaluations for legal competen­cies. These efforts emerged in the mid-1980s and early 1990s, represented by the publication of Psychological Evaluationsfor the Courts (Melton et al., 1987), the first edition of EC (Grisso, 1986), and the publication of the American Psychology-Law Society's Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines in Forensic Psychology, 1991). Up to that time there were almost no textbooks on forensic clinical assessment. Now there are enough of them to fill several shelves in a forensic examiner's office, and many provide conceptual and empirical foundations for forensic assessments that did not formerly exist. For example, only about 30 research articles on competence to stand trial eval­uations had appeared in the literature prior to 1985. Rather suddenly, 51 empirical research articles in this area appeared during 1986-1990 (Grisso, 1992), with 69 articles added in 1991-1995 (Cooper & Grisso, 1997) and about 80 more in 1996-2000 (Mumley, Tillbrook, & Grisso, in press).

Recent years have also seen rapid growth of efforts to improve foren­sic assessment practices through educational opportunities for forensic specialization. The American Psychological Association took affirmative steps to promote the development of undergraduate, graduate, and post­doctoral education in Psychology and Law and forensic psychological prac­tice (Bersoff et al., 1997). The American Academy of Forensic Psychology developed a substantial continuing education program that has been attended by thousands of forensic-specialty psychologists in the1990s, augmenting the equally ambitious educational efforts of the American Academy of Psychiatry and the Law.

Thus there has been ample opportunity for the field to achieve a higher level of quality in evaluations for legal competencies. But has the field actually attained that goal? Let us return to the criticisms of the 1980s, repeating them for those who are unfamiliar with that era, then examine the degree to which we have addressed them.

Ignorance and Irrelevance

One of the most pressing problems in the history of the courts' use of mental health experts was examiners' failure to provide testimony that was relevant for the law's concerns in legal competence cases. Complaints pointed to the fact that many examiners seemed to be ignorant of the nature of the legal inquiry.

"Diagnostic testimony" was the most frequently cited example of this failing. This occurs when the examiner provides a psychiatric diagnosis—for example, schizophrenia—and describes its symptoms, then testifies on that basis alone that the individual lacks the requisite capacities for competence to stand trial, to have been responsible for criminal actions, to manage the custody of a child, or whatever the legal competence in question. In contrast, the law does not presume that any psychiatric diagnostic condition is syn­onymous with any legal incompetence. Some individuals with psychoses or developmental disabilities are able nonetheless to function in a trial or to manage a child's custody, whereas others may not have those capacities.

Something more is needed, therefore, than a mere diagnosis of mental disorder, a reference to an individual's inadequate contact with reality, or a statement about general mental retardation. For clinical information to be relevant in addressing legal questions of competence, examiners must present the logic that links these observations to the specific abilities and capaci­ties with which the law is concerned.

This first requires a clear recognition of the need to observe and describe specific abilities—not just diagnostic clinical conditions—associ­ated with the legal competence in question (Grisso, 1986; Heilbrun, 2001; Melton et al., 1987, 1997). If the examiner believes that the person is defi­cient in these abilities associated with legal competence, and if a mental disorder exists, then the examiner must explain specifically how the symptoms of that disorder are relevant for that opinion (for example, how the mental disorder accounts for the deficits in relevant abilities). Failure to provide this information reduces the relevance of observations for the legal fact finder.

Some judges identified clinicians' failures to do this several decades ago and began admonishing them to correct their practice (e.g., see Bazelon, 1974, 1982). What progress have we made toward increasing clinicians' awareness of the need to explain how a person's mental ill­ness addresses the questions before the courts in legal competence cases, rather than merely diagnosing mental disorder and declaring incompetence?

Much effort has been directed toward that end in the past 15 years. The mid-1980s saw the publication of the first comprehensive handbooks on forensic psychology and forensic psychiatry, all of which attempted to improve clinicians' awareness of the importance of translating clinical information so that it is legally relevant (e.g., Curran, McGarry, & Shah, 1986; Grisso, 1986; Gutheil & Appelbaum, 1982; Melton et al., 1987; Rogers, 1984; Weiner & Hess, 1987).

Has practice improved in this regard? Currently there are no data to answer this question for evaluations of legal competencies in general. But several studies have examined forensic examiners' practices specifically in evaluations for competence to stand trial, and the following evidence indicates that, at least in that area of competence to stand trial, our evalu­ations have become more legally relevant.

Borum and Grisso (1995, 1996) surveyed diplomates in forensic psychology and forensic psychiatry regarding their perceptions of recom­mended practice for competence to stand trial evaluations and reports. They found an almost unanimous consensus that examiners should assess and describe examinees' specific functional abilities associated with the legal competence. Moreover, recent studies that have examined actual reports on competence to stand trial by forensic clinicians have found that they typically do observe and describe many of the abilities that are relevant for the specific legal competence in question (Robbins, Waters, & Herbert, 1997; Skeem, Golding, Cohn, & Berge, 1998). In addition, rarely does one encounter evaluations in recent years in which the examiner seems ignorant of the difference between competence to stand trial and criminal responsibility (Nicholson & Norwood, 2000).

These results are encouraging when compared to earlier studies from the 1970s showing that clinicians almost never included a description of defendants' legally-relevant abilities in their reports (e.g., Roesch & Golding, 1980).

Having observed deficits in the person's abilities associated with the legal competence, clinicians must offer an explanation concerning how mental illness or disability is responsible for those deficits, thus linking the diagnostic condition to the legal question of competence. In their sur­vey of forensic diplomates, Borum and Grisso (1996) found that 90% of the respondents agreed that this function of forensic reports on compe- tence—the relation between the defendant's mental illness (if it existed) and the abilities with which the courts are concerned—was either essen­tial or recommended. In contrast, in a study of actual competence to stand trial reports in two states, only 27% of the reports in which mental illness was present contained explanations of how defendants' symptoms influ­enced defendants' abilities related to legal competence to stand trial (Robbins, Waters, & Herbert, 1997). In another study in one state, only 10% of reports explained how a defendant's psychopathology compro­mised competence to stand trial abilities (Skeem et al., 1998).

In summary, recent research suggests some progress in everyday practice in improving the relevance of data in forensic evaluations for competence to stand trial. But the progress is only incremental, not complete, and we have no data on current evaluation practices for most other areas of legal competence.

Intrusion

The history of mental health evaluations for the courts reveals that they have been criticized on another count, that of the intrusion Ofpsychiatry and psychology into the domain and authority of the legal factfinder. When mental health professionals are asked to provide clinical information in a case related to legal competence, it is not uncommon for them to begin or end their testimony by offering their opinion concerning whether the individual in question is "competent" or "incompetent."

In the mid-1980s, authors writing about the development of stan­dards for forensic evaluations were admonishing clinicians that this type of testimony—offering opinions about the "ultimate legal question"— was inappropriate, if not unethical (e.g., Grisso, 1986; Melton et al., 1987; Morse, 1978). Their viewpoint rested on the conviction that the final answer is not clinical in nature. A finding about legal competence is a statement about how the state should balance an individual's claim to legal rights of self-determination against the individual's or society's need for protection. It rests on a judgment that the defendant's incapacities are of sufficient magnitude to relieve the defendant of the autonomy to make important decisions that are otherwise protected by law.

This question—how much of a deficit in abilities is enough to justify the restriction of individual liberties—requires a moral and social judgment, not a scientific or clinical one. It cannot be answered without applying per­sonal values or one's sense of what is just and right. When mental health professionals testify in court as experts, the area of expertise for which they are qualified is scientific and clinical, not as an arbiter of moral and social values. Therefore, these earlier texts argued, a clinician's offer of an opinion about an examinee's competence or incompetence is an inappro­priate intrusion into the role of the legal fact finder.

What has happened to this issue in the ensuing 15 years? Although the second edition of Psychological Evaluationsfor the Courts (Melton et al., 1997) continues to take the above position, that view has been challenged from a consequentialist perspective (e.g., Rogers & Ewing, 1989; Slobogin, 1989), raising several arguments in support of ultimate opinion testimony. For example, stating an opinion about competence or incompetence might allow judges to better follow clinicians' testimony about individu­als' deficits, having been provided a notion of the direction that the expla­nation will take. Moreover, judges are always free to reject clinicians' opinions about the ultimate legal question. And efforts to avoid stating an opinion about it are often artificial, inasmuch as a conclusory opinion is usually discernable anyway from one's clinical testimony about the defendant's specific capacities and deficits.

Evidence suggests that this issue has not been resolved. Borum and Grisso's (1996) survey of forensic psychiatry and forensic psychology diplomates found that about one-quarter of mental health professionals with specialization in forensic assessment believed that they should avoid offering opinions on ultimate legal questions of competence to stand trial. The remaining three-quarters of the respondents were equally divided between those who believe it is important to offer such opinions and those who were neutral about stating ultimate opinions, believing that they should be neither condemned nor required. Skeem et al. (1998) found that three-quarters of competence to stand trial reports reviewed in their study did include an ultimate opinion about defendants' competence, and only 4 out of the 66 reports examined by Robbins et al. (1997) did not offer ulti­mate opinions on competence.

Currently, therefore, it appears that authorities are divided on the question of the propriety of clinicians' statements of opinion on the ulti­mate legal question of competence. Moreover, at least for competence to stand trial, most experts in forensic psychiatry and psychology do not support the argument that such statements must be avoided, and most clinicians who perform evaluations in this area apparently do offer opin­ions on the ultimate legal question in their reports in everyday practice. Such testimony continues to be discouraged but allowed in formulations of ethical standards of forensic psychiatrists or psychologists, and typi­cally it has been allowed by law (for an exception, see Chapter 6 on expert testimony in federal insanity cases).

One could concede that ultimate opinion testimony might do little harm when clinicians are careful not only to offer their opinion but also to explain their logic. Courts are capable of weighing the value of clinicians' opinions if clinicians clearly point out to the court the specific ways in which the defendant's mental condition influences the defendant's abili­ties to a degree that warrants the clinician's conclusion. Yet the results of studies cited earlier (see "Ignorance and Irrelevance" above) suggest that most clinicians today do not offer such explanations in their competence to stand trial reports. Without them, the court is given a clinician's observations and conclusion, but it is not provided the examiner's logic for arriving at the ultimate opinion. These are precisely the conditions that encourage judges simply to rely on the clinician's unexamined judgment, in effect placing the competence decision—a moral rather than a clinical matter— in the hands of the clinician rather than the law.

Until clinicians accept the responsibility to fully explain their logic for their competence opinions, there is no reason to alter the recommendation about "ultimate legal question" testimony expressed in the first edition of EC. Offering an opinion as to whether the examinee is "competent" or "incompetent," in the absence of an adequate explanation of the logic for one's opinion, should be considered unacceptable practice, even if the law does not object.

Insufficiency and Incredibility

Mental health professionals have been criticized for testimony based on assessments with insufficient evidence to support their conclusions, resulting in opinions that lack credibility. This complaint is based not only on the empirical and scientific standards of examiners' disciplines, but also on the demands of legal evidence. Developments in the law during the 1990s regarding the admissibility of expert testimony (e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993) have increased the demands on mental health professionals to be able to support the reliability and validity of the evalu­ation methods on which their testimony is based.

One focus of this criticism is on the quality of the examiner's empiri­cal foundation. Examiners sometimes may not obtain sufficient informa­tion about the examinee, in terms of quantity, type, or reliability of the observations, in order to reach certain conclusions credibly. In other instances, adequate data regarding the examinee may be available, but the interpretive meanings of the data in relation to the information needs of the court cannot be supported credibly by past research in psychiatry and psychology. The relevant research with which to interpret the data some­times simply is not available. When research is available, its nomothetic and probabilistic findings often do not allow the definitive statements about individual cases that attorneys would prefer (Loftus & Monahan, 1980; Melton et al., 1998).

Concerning the first of these complaints, the use of specialized data collection methods developed for evaluations of various legal competencies holds the promise of improving the quality of information in competence evaluations. A major purpose of the first edition of EC was to review those specialized data-collection methods—"forensic assessment instruments"— that were available by the mid-1980s. As seen in later chapters, considerable progress has been made in the past 15 years in developing and refining cli­nicians' options for collecting more reliable data related specifically to legal competencies. Some companies that publish psychological tests now devote several pages to "forensic tests," whereas they listed virtually none 15 years ago. An increase in specialized assessment tools, however, does not necessarily mean improved quality; later chapters will review whether we have made progress not only in available options for systematic data collec­tion, but also in the quality of the data that our instruments provide.

It is difficult to determine the degree to which clinicians have come to employ these specialized data collection methods in their evaluations for various legal competencies. Evidence offered in later chapters suggests that they have not become the norm with regard to practice in any area of legal competence, although they have been used more widely in some areas (e.g., parents' capacities in child custody evaluations) than in others (e.g., competence to stand trial).

A second form of criticism regarding credibility focuses on examin­ers' use of theory or "informed speculation" in courtroom testimony. Theories about human nature are an indispensable part of professional practice in the laboratory or clinic. A good theory uses existing informa­tion about a person to provide tentative explanations for the person's behavior or to guide speculation about future behavior. The value of these speculations, however, is not known until more data are collected in order to test the theoretical proposition. These tests would follow in the normal course of scientific endeavor (e.g., a new research study), clinical assess­ment (e.g., selecting an additional method for obtaining information needed to test the speculation), or therapeutic practice (e.g., beginning a treatment intervention on a speculative, trial basis).

Theoretical speculations in the courtroom, however, often have been spoken or heard as though they were facts, even when they might have had little or no empirical support. Further, testimony based on informed speculation frequently has not acknowledged equally plausible but alter­native speculations based on different theories of human behavior. Critics, then, claim that examiners' conclusions too often are based on theory rather than empirically-verified logic, and that the tentative nature of theory-based speculation often is not acknowledged by either the expert or the court when dealing with expert opinions related to legal competencies.

One remedy for this state of affairs is to promote research that will provide the empirical base for interpreting the meaning of clinicians' data for the legal competence in question, and to promote clinicians' use of those research results in their own case-by-case interpretations. For exam­ple, what are the actual relations between various mental disorders and deficits in defendants' abilities associated with competence to stand trial? And how do defendants with those deficits actually perform when they are observed as participants in their trials? What deficits in parenting abil­ities actually make a negative difference in the upbringing of children? And when those deficits are measured in forensic evaluations, do they correspond to parents' performance in everyday life when they are acting as caretakers of their children?

When EC was first published, these were questions for which there were few empirical answers, thus requiring clinicians to rely almost entirely on theory in explaining the meaning of their data for the forensic questions that they were asked to address. Chapters in this book on each of the legal competencies will show that considerable research progress has been made toward providing empirical guidance for interpreting the data that clinicians collect in their evaluations for most of the competen­cies. Literature reporting research to improve interpretations in compe­tence to stand trial evaluations, for example, has followed an ascending trajectory (as noted earlier in this chapter), increasing by about 25% in each of the past five-year periods (Grisso, 1992; Cooper & Grisso, 1997; Mumley, Tillbrook, & Grisso, in press). This increase in the availability of empirical information related to legal competencies is encouraging. Currently we have no evidence regarding clinicians' use of this informa­tion. But its availability, as well as work in progress, suggests that the field has developed far more resources than in earlier years to establish an empirical foundation for its evaluations related to legal competencies.

In summary, it is clear that the field has made significant strides to mitigate the problems in forensic competence evaluations associated with the "5 I's" of discontent regarding forensic practice. Yet evidence also indicates that this progress has been uneven and incomplete. The lessons of EC's first edition, therefore, are still needed.