INTRODUCTION

Legal competencies are constructs, in the same sense that this term is used in psychology and psychiatry. Constructs are hypothetical conditions or states that cannot be observed directly; only their behavioral signs can be observed.

Legal competencies have these same qualities (Roesch & Golding, 1980; Melton et al., 1997). Each competence (e.g., competence to stand trial, competence to care for self or property) is defined by broad statutory phrases and by case law interpretations of the statutory definition. For example, most states define an individual's competence to stand trial as a "sufficient present ability to consult with his lawyer" and a "rational as well as factual understanding of proceedings against him" (Dusky v. United States, 1960, p. 402). These conditions are said to be absent or present in individual cases on the basis of the court's consideration of relevant facts and circumstances in each case. Yet no particular set of facts ever defines the condition for all cases. The legal competence construct is an abstrac­tion, unable to be defined by verbal precision or specific observations.

Gordley's (1984) essay on legal reasoning aptly describes why the law does not reduce its decision criteria to a set of specific facts or circum­stances that would promote mechanical interpretations (or what behav­ioral scientists would call "operational definitions").

This quality of legal competencies as constructs tells us that we should not expect any clinical assessment to define operationally a legal competence. The results of an assessment may be more or less useful in providing information that assists courts to make legal competence deci­sions. Yet the decision will not depend on any particular set of assessment observations across cases.

Despite the elusive quality of legal competence constructs, one can discern a common structure in legal competencies as diverse as compe­tence to stand trial, competence as caretaker of a child, and competence to manage one's property. The analysis in this chapter describes this struc­ture, offering five components that define all legal competencies. As will be shown in the following discussion, this structure provides a model to guide assessments toward objectives that are consistent with the legal cri­teria and process in competence cases. The discussion at this point will not attempt to demonstrate how each of the five components applies to each legal competence. That evidence appears in subsequent chapters (4 through 9), wherein the utility of the five-component model is tested by its ability to structure and organize our thinking about legal competencies and related assessments.

The conceptual model offered here is essentially the same as the one that was first described in the 1986 edition of this book, but with one significant structural change. The original model consisted of six compo­nents that the legal competencies have in common. Experience has sug­gested, however, that the important aspects of one of these components (the contextual component) could be folded into one of the others (the functional component) without loss of meaning and with gains associ­ated with simplification. In addition, the present version uses the term "components" of legal competencies rather than the term "characteris­tics" used in the original version. According to this model, the primary components of all legal competencies are: (1) Functional, (2) Causal, (3) Interactive, (4) Judgmental, and (5) Dispositional.