THE COMPETENCE QUESTION

The concept of competence to stand trial in criminal courts recognizes that a defendant's mental or emotional disabilities might interfere with the right to a fair trial. When it appears that these disabilities might render the defendant incapable of conducting an adequate defense, the law requires that the court must determine the defendant's competence to stand trial before proceeding further with the trial process.

There are no national statistics on the number of defendants who are evaluated for competence in a given year. An estimate in the 1980s (Steadman et al., 1982) placed this figure at about 25,000 defendants nationally per year. There is no reason to believe that the number has decreased in recent years. Attorneys have concerns about their clients' competence in about 10% to 15% of their criminal cases, but they raise the question in fewer than one-half of those cases (Hoge et al., 1992; Poythress et al., 1994). Estimates of the proportion of cases found incompetent among those for which the question is raised have ranged from 10% (Melton et al., 1997) to 30% (Roesch & Golding, 1980). Psychosis is the most common diag­nosis for persons found incompetent to stand trial (Nicholson & Kugler, 1991), and previous psychiatric hospitalization is common (Steadman et al., 1982). Several studies have reported that incompetence to stand trial is found more often among defendants with nonviolent or misdemeanor charges than for defendants with violent or more serious charges (Roesch & Golding, 1980; Bittman & Convit, 1993; Warren et al., 1991).

A series of articles since the publication of the first edition of Evaluating Competencies provides five-year updates of all psychological and psychiatric journal articles pertaining to evaluations for competence to stand trial, for the periods 1986-1990 (Grisso, 1992), 1991-1995 (Cooper & Grisso, 1997), and 1996-2000 (Mumley, Tillbrook, & Grisso, in press).

Careful scrutiny of competence evaluation procedures and related foren­sic evaluations is important because of the potentially serious consequences of competence proceedings for defendants and society. Fundamental fairness requires that defendants who truly are disabled in their ability to mount a defense should not be placed in jeopardy. On the other hand, both defen­dants and society have an interest in avoiding unnecessary delays in trial procedures, as well as any unnecessary hospitalization of defendants for evaluations or treatment as a result of an incompetence finding. These con­sequences justify considerable attention to the legal procedure, as well as the quality of evaluations, for competence to stand trial.

Law and Current Practice

Legal Standard

The standard for raising the question of competence to stand trial is very liberal. Cases (and many states' statutes) direct courts and attorneys to raise the question when there is a "bona fide doubt" about defendant's com­petence (Drope v. Missouri, 1975; Pate v. Robinson, 1966; People v. Pennington, 1967). This is typically interpreted to mean any possible doubt based on the behavior or history of the defendant, such as a record of mental disorder or a defendant's behavior while interacting with counsel suggesting any rele­vant mental disability that might interfere with trial competence.

DUSKY V. U.S. The prevailing standard for determining competence to stand trial was stated in Dusky v. United States (1960): whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and whether the defendant has a "rational as well as factual understanding of proceedings against him" (p.

Legal doctrine clearly distinguishes the standard for competence to stand trial from standards by which criminal responsibility ("insanity") is decided (e.g., Lyles v. United States, 1975). Questions of criminal responsi­bility (see Chapter 6) refer to mental state at the time of the offense, whereas competence to stand trial refers to a defendant's current mental state and functional capacities as they relate to a pending trial process. A defendant may be competent to stand trial yet have good grounds for an insanity defense. Incompetence and insanity questions are often raised within the same case, but they are distinctly separate questions controlled by different legal standards.

Some states' statutes manifest a set of legal guidelines for com­petence to stand trial determinations that specify factors to be weighed in competence assessments and judicial determinations. Florida (FL. R. Crim. Pro. § 3.211 (a)), for example, identifies six factors, referring to the defendant's capacity to:

• Appreciate the charges or allegations against him

• Appreciate the range and nature of possible penalties, if applicable, which maybe imposed in the proceedings against him

• Understand the adversary nature of the legal process

• Disclose to his attorney facts pertinent to the proceedings at issue

• Manifest appropriate courtroom behavior

• Testify relevantly

Factors such as these typically have been derived from analysis of relevant functional abilities such as those recommended by McGarry and associates (Laboratory of Community Psychiatry, 1973) in a major research study to be reviewed later in this chapter. Legal instructions about factors to be weighed require only that the various elements must be considered. The law specifies no particular level of deficiency within any of these areas of functioning as dispositive of the legal competence question.

Some states have added the requirement that the defendant's deficiencies (as noted previously) must be attributable to "mental disease or defect." Case law, however, clearly indicates that the mere presence of a mental disorder or developmental disability, whatever its severity, is not a sufficient basis by itself for a finding of incompetence to stand trial (e.g., Feuger v. United States, 1962; Swisher v. United States, 1965; United States v. Adams, 1969; Wieter v. Settle, 1961). Mental disorder and mental retardation are related to the question of pretrial competence only insofar as they affect the defendant's understanding of the nature and process of the trial and the ability to assist counsel in a defense. Some defendants with psychotic or other serious diagnoses may pass this legal test, whereas others with similar diagnoses will not. (As described later, a few states also have made statutory provisions for "developmental immaturity" as a predicate condition for findings of incompetence to stand trial.)

In addition to a defendant's actual capacities and psychiatric or psy­chological conditions, certain trial circumstances must sometimes be con­sidered when deciding how to apply the Dusky standard. For example, the court in United States v. Wilson (1968) affirmed that amnesia may or may not be a basis for an incompetence finding, depending (among other things) on the degree to which the defendant's recollection of the circum­stances surrounding the alleged offense is necessary in order to assure a fair trial. Thus the anticipated nature of the trial, not merely the defendant's capacities, may play a role in deciding the question of pretrial competence.

Godinez V. moran. The specific meaning of the legal standard for competence to stand trial underwent intense scrutiny in the courts and in scholarly treatises in the 1990s. Cases during earlier years had sug­gested disagreement in appellate courts regarding the meaning of the Dusky standard.

Similarly, in Sieling v. Eyman (1973), a federal circuit court of appeals identified a "higher" standard for competence in order to make a "reasoned choice" about plea bargains, entering a plea of guilty, or waiving other important rights.

Identifying this issue, Bonnie (1992, 1993) proposed a reconceptual­ization of the standard for competence to stand trial, which he called "adjudicative competence," creating a two-part standard: general "com­petence to proceed" and specific "decisional competence." The first per­tained to understanding and appreciating one's situation and the trial process sufficiently to assist counsel, allowing for a case to proceed. The second, "decisional competence," referred to the defendant's capacity to make important decisions about the waiver of constitutional rights in the trial process. Thus some defendants who might be capable of proceeding to trial competently might nevertheless be considered incompetent for certain purposes as the trial proceeded (e.g., if they decided to waive representation by counsel), if those purposes became relevant. But it would allow many defendants to proceed to trial without having to meet a more demanding standard regarding decisional abilities that might never arise in their cases.

This view seemed to have been rejected subsequently by the U.S. Supreme Court's decision in Godinez v. Moran (1993). The Court in Godinez found that there was only one standard for competence to stand trial—as defined by the Dusky standard—related to all aspects of a defendant's participation in the trial.

By this analysis, the Godinez court included decision making abilities within the Dusky standard. In so doing, it may have "elevated" the stan­dard for competence to stand trial by requiring that all defendants, to be considered competent, must be capable not only of basic understanding of the trial process, but also of making far-reaching decisions (which many of them will never have to make—for example, regarding dismiss­ing counsel and representing oneself). Whether or not this interpretation resulted in changes in the proportion of defendants found incompetent (which is unknown), it drew new attention to the need to consider defen­dants' decision making abilities when applying Dusky to cases in which the question of competence to stand trial has been raised.

LEGAL standard in juvenile court. Competence to stand trial did not apply to delinquency cases in the first half of the twentieth century because of the civil nature of delinquency cases in juvenile court. The concept arose in juvenile court only after In re Gault (1967), which extended to youths in delinquency hearings many of the rights and proce­dures that pertained to defendants in criminal court. By the late 1980s, about one-third of the states recognized by statute or case law the right of youths to be competent to stand trial in juvenile court (Grisso, Miller, & Sales, 1987). The issue was almost never raised, however, until reforms in juvenile law in the 1990s increased punitive sanctions for youthful offenders. As a consequence, more than two-thirds of the states recog­nized the concept of competence to stand trial in juvenile court by the late 1990s (Bonnie & Grisso, 2000), and the definition of the concept when applied in delinquency proceedings received increased attention (Grisso & Schwartz, 2000).

Almost all appellate courts that have addressed the issue have con­cluded that competence to stand trial applies in delinquency proceedings in juvenile court (Bonnie & Grisso, 2000). Their logic typically has referred to rights provided in Gault (e.g., the right to representation by legal coun­sel), concluding that those rights are meaningless without a competent juvenile defendant to assist counsel (see, e.g., a Georgia appellate court decision in In re the Interest of S.H., a Child, 1996).

Most states have also decided that the definition to be applied is the same as for criminal court proceedings (that is, the state's definition that parallels the Dusky standard). How this standard should be applied, how­ever, is still evolving in the juvenile courts. For example, it is unclear in most states whether juvenile court adjudication requires the same level or degree of abilities to which Dusky refers as would be necessary for crimi­nal court adjudication. Moreover, the historical development of the legal concept of competence to stand trial focused on mental illness and mental retardation as predicate conditions for incompetence, in some states explicitly requiring that deficits in relevant abilities must be due to these conditions. Some juveniles, however, may possess similar deficits not because of these clinical conditions, but merely as a consequence of cogni­tive or emotional immaturity (Grisso, 1997, 2000; generally, Grisso & Schwartz, 2000). While a few states now recognize this explicitly, the potential relevance of immaturity as a predicate legal condition for incompetence is still evolving or has not yet been raised in the majority of states.

Legal Process

There are five main stages in the procedure for determining and dis­posing of competence cases:

• Requesting a competence determination (often called "raising the question");

• The competence evaluation stage;

• The judicial determination of competence or incompetence; and in some cases;

• Disposition and provision of treatment; and

• Rehearings on competence.

REQUESTING A COMPETENCE DETERMINATION. In most jurisdictions, the question of a defendant's competence to stand trial may be raised by the defense, the prosecution, or the judge at any stage in the criminal court proceeding. Judges are allowed considerable discretion in determining whether there is a "bona fide doubt" of competence.

Forensic examiners should be aware that courts and attorneys some­times have raised the question of pretrial competence for purposes other than those for which the competence doctrine exists. These inappropriate referrals for competence evaluation have been said to occur for several reasons. Some courts or defense attorneys apparently have sought compe­tence evaluations primarily in order to obtain immediate treatment of a defendant's behavioral disorder, especially when other methods for obtaining treatment are either more difficult or unavailable (Bonovitz & Bonovitz, 1981; Gudeman, 1981; Warren et al., 1991). In addition, Roesch and Golding (1980) observed that the competence question is raised in some cases merely as a legal maneuver. Prosecutors might seek extra time to prepare the state's case, and defense attorneys sometimes call for com­petence evaluations in order to obtain information not about competence, but about the potential for a later insanity plea.

THE COMPETENCE EVALUATION STAGE. The present section focuses only on where, when, and by whom competence evaluations are per­formed; the actual substance of competence evaluations will be reviewed later.

Some states have developed a system for providing competence screening evaluations (Grisso, Steadman, Cocozza, Fisher, & Greer, 1994). Screening typically involves a brief evaluation, often at the time of arraignment, designed simply to determine if there is reason to believe that further evaluation is necessary. In this way a large number of the "easy" cases for which the competence question is raised (persons who are very clearly competent or very obviously incompetent) can be returned to court without requiring relatively lengthy, full competence evaluations.

Courts obtain their full competence evaluations in various ways across the 50 states (Grisso et al., 1994; Melton et al., 1997; Poythress, Otto, & Heilbrun, 1991). During the past two decades, courts have greatly reduced their reliance on inpatient evaluations for competence to stand trial, most states having moved to much greater use of evaluations per­formed while defendants are outpatients (that is, are awaiting trial in jail or in the community). Often these evaluations are performed by forensic examiners in community mental health clinics or by special arrangements between the courts and examiners in private practice in the community. Grisso et al. (1994) found that state systems for providing competence evaluations tend more often to employ clinical psychologists than psychi­atrists, although the latter are still substantially involved.

Many statutes limit the length of evaluation commitments and the time within which an evaluation report must be made. Often they specify 30 days with possible extensions to 60 days. The CJMH standards (Standard 7-4.4, ABA, 1984) recommended 7 days when a defendant is in custody, 14 days when the defendant is at liberty (e.g., has been placed on pretrial release), and possible extension to 30 days for "good cause." These time limits underscore the fact that pretrial competence evaluation commitments are not intended to be a means for obtaining prolonged treatment of disordered defendants. The trend in recent years in state statutes controlling competence evaluations has been to shorten consider­ably the evaluation time allowed, requiring clinicians to become more efficient if they are to continue to provide evaluations of quality to the courts in competence cases.

The legal purpose of an assessment for competence to stand trial often requires attention to procedures that are not typical for other clinical assessments. For example, laws in many states, as well as general ethical guidelines for forensic evaluations (Committee on Ethical Guidelines for Forensic Psychologists, 1991; Heilbrun, 2001), require that defendants be informed about (a) the purpose of the evaluation, (b) potential uses of disclosures made during evaluation, (c) conditions under which the prosecutor will have access to information from the evaluation, and (d) consequences of defendant's refusal to cooperate in the evaluation. Defense counsel usually has the option to observe the evaluation. Audiotaped or videotaped recording of the evaluation is not legally required but is often recommended (e.g., Committee on Ethical Guidelines for Forensic Psychologists, 1991) in order to produce an evidentiary record.

judicial determination OF the competence question. Judicial practice does not always require a formal hearing on the question of a defendant's pretrial competence after the evaluation. In fact, the CJMH standards (Standard 7-4.7, ABA, 1984) recommended that a court hearing on the issue may not be necessary if all parties have stipulated that they are in agreement on the defendant's competence or incompetence, and if the court concurs after considering the forensic evaluation results. Otherwise, a formal hearing generally will be required, offering opportunity for examinations of the forensic assessment results and challenges by either party during the hearing.

disposition and provision of treatment. Trial proceedings resume if the defendant is found competent to stand trial. If the defendant is found incompetent, however, the competence hearing turns to inquiry concern­ing the likelihood that treatment can render the defendant competent to stand trial.

This stage of the proceeding has been greatly influenced by the U.S. Supreme Court ruling in Jackson v. Indiana (1972). Prior to Jackson, many incompetent defendants who were involuntarily hospitalized for treat­ment did not improve, resulting in indefinite hospitalization. Their lack of improvement with treatment sometimes was a consequence of disabilities that were not likely ever to respond to treatment (e.g., severe mental retar­dation or brain damage). Thus they might spend years in involuntary confinement (often longer than if they had been tried, convicted, and served the usual sentence for their crime), with little likelihood of ever being brought to trial. Prior to the Jackson decision, researchers at one hospital (McGarry, Curran, & Kenefick, 1968) reported that the number of patients being treated for pretrial incompetence who were discharged as restored and returned to court was exceeded by the number whose hospitalization was terminated due to their natural death!

The court in Jackson ruled that incompetent defendants could not be held for treatment longer than the nature of their disorders warranted. Therefore, courts must determine whether the potential treatment of an incompetent defendant's disorder offers a reasonable prospect for bring­ing the defendant to competence. When the disorder cannot be treated, the incompetent defendant can neither be committed nor tried on the criminal charges. The state must either drop the charges and release the defendant or initiate commitment proceedings under the state's civil commitment criteria. Therefore, a forensic examiner's testimony about the defendant's mental disability and potential for treatment plays an important role in this stage of the legal inquiry.

If it appears that the defendant's incompetence can be treated, com­mitment to a state mental hospital or forensic treatment facility for that purpose is the most common disposition. Some statutes require that the defendant must be treated in the least restrictive setting that provides a reasonable opportunity for gaining pretrial competence. In general, courts have ruled that defendants have no right to refuse treatment (e.g., psychoactive medication) to restore their competence (Melton et al., 1997). The U.S. Supreme Court in Riggins v. Nevada (1992) required that courts consider whether medication, even if it reduced patients' symptoms, might also interfere with their ability to perform certain functions such as interaction with counsel or the provision of testimony at their trials.

rehearings on competence. The need for forensic evaluations of competence to stand trial will occur periodically in the course of a defen­dant's treatment. Most states require reevaluation and court review of incompetent defendants at least once every six months during their treat­ment. At the review, typically a court must: (a) make a ruling on the ques­tion of competence if the forensic examiner and treating professional believe that competence has been restored; or (b) extend the commitment (e.g., another six months) if it appears that competence can be restored "in the foreseeable future"; or (c) terminate commitment if at any point pretrial competence appears not to be attainable (see also CJMH Standard 7-4.11, ABA, 1984). The cumulative results of several reports suggest that most defendants found incompetent to stand trial and provided treatment are found competent within 4 to 6 months (for reviews of these studies, see Cooper & Grisso, 1997; Grisso, 1992; Melton et aH, 1997).

Competence Assessment: Current Practice

Assessments in competence to stand trial cases have received consid­erable scrutiny regarding the settings and methods that are employed, as well as the content of reports and testimony.

evaluation systems and methods. For many years competence to stand trial evaluations were performed in inpatient psychiatric hospitals, within either general units or specialized forensic units (Keilitz, 1982; Melton, Weithorn, & Slobogin, 1985; Roesch & Golding, 1980). This almost exclusive use of inpatient services for competence evaluations was even­tually seen as unnecessarily costly and had important implications for the principle of least restrictive alternative in mental health services (e.g., Shah, 1981). By the 1980s there were several calls for the development of alter­native systemic models for performing pretrial competence assessments (Fitzgerald, Peszke, & Goodwin, 1978; Holmstrup, Fitch, & Keilitz, 1981; Melton et al., 1985; Mental Disability Law Reporter, 1978; Schreiber, 1978: Schutte, Malouff, Lucore, & Shern, 1988).

By the 1990s, many states had reformed their systems for obtaining pretrial competence evaluations (Grisso et al., 1994; Poythress, Otto, & Heilbrun, 1991). The majority of states had developed outpatient mecha­nisms, typically private practitioners or forensically-specialized clinicians at community mental health centers, who evaluated defendants while in jail awaiting trial. Most of these states retained an inpatient option for cases requiring immediate psychiatric attention or more complex evaluations.

The time required for performing evaluations typically has been shorter in outpatient arrangements, while receiving generally favorable ratings from judges (Melton et al., 1985; Warren & Fitch, 1988). About one- fifth of the states, however, still rely primarily on inpatient evaluations for competence to stand trial, especially in western states with low popula­tion density and less comprehensive community mental health services (Grisso et al., 1994). Outpatient arrangements typically require greater quality control efforts on the part of state agencies than do inpatient arrangements, because the former involve a greater number of clinicians only some of whom will have extensive forensic evaluation experience. One study found similar scores on a competence assessment measure (the MacArthur Competence Assessment Tool—Criminal Adjudication) when com­paring an outpatient to an inpatient evaluation system (Edens, Poythress, Nicholson, & Otto, 1999). Warren, Rosenfeld, Fitch and Hawk (1997), however, found that incompetence was found more often as a result of outpatient than inpatient evaluations, possibly because defendants are afforded more opportunity to regain competence while in inpatient settings where they receive psychiatric care during the period of the evaluation itself.

Another approach to reducing the number of inpatient pretrial com­petence evaluations has been the development of screening procedures (e.g., Fein et al., 1991). As many as 80% of defendants referred for pretrial competence evaluations in some jurisdictions are found competent after assessment (Melton et al., 1997; Roesch & Golding, 1980). Brief screening systems seek to reduce this proportion by diverting some defendants from the more costly forms of competence assessment. Screening evalua­tions may consist of a brief interview by a psychiatrist or a psychologist, and/or administration of a pretrial competence assessment instrument (e.g., see examples reviewed later in this chapter), often in the same set­ting in which the defendant is being detained for trial. Defendants for whom pretrial competence is still questionable or doubtful after screening are then referred for more extensive inpatient or outpatient assessment, whereas defendants who are judged as clearly competent by screening professionals are likely to proceed to trial.

Little is known empirically about the methods that clinicians actually use in collecting data for competence to stand trial evaluations. Textbooks generally emphasize the importance of obtaining hospital and offense records, information from third parties (e.g., attorneys' perceptions of their clients' deficits in assisting counsel), interviews to obtain clinical information as well as a direct assessment of defendants' functional abilities that are associated with the legal definition of pretrial compe­tence, and psychological testing when it is necessary to identify important psychological deficits (Grisso, 1988; Heilbrun, 2001; Melton et al., 1997).

As documented in the first edition of Evaluating Competencies, the 1970s and 1980s saw the emergence of assessment instruments designed specifically to evaluate abilities related to pretrial competence. McGarry and coworkers (Laboratory of Community Psychiatry, 1973) analyzed the Dusky standard and its application by courts, and thereby arrived at a conceptualization of defendant capacities and specific abilities related to the legal standard. These concepts became the structure for a number of assessment tools designed to assist forensic examiners in maintaining a proper focus on essential criteria for competence to stand trial. By the mid-1980s, some of these forensic assessment instruments were being rec­ommended for clinical use (Grisso, 1986, 1988; Gutheil & Appelbaum, 1982; Melton et al., 1987; Shah, 1981).

The development of instruments for pretrial competence evaluations proliferated through the 1990s, as evidenced in the reviews later in this chapter. There are little reliable data, however, on the extent of their use in current practice. Some evidence (Terhune, 1990) suggests that judges have more favorable perceptions of reports that include data from specialized pretrial competence assessment instruments. A recent survey (Borum & Grisso, 1995) suggested that the use of such instruments has become more frequent in subsequent years, at least among experienced (board- certified) forensic clinicians. Yet only about 40% of those respondents said that they used competence assessment instruments "frequently," while approximately 40% said that they never used them. This suggests that use of structured forensic assessment instruments for competence to stand trial evaluations has not yet become standard practice.

content issues. The first edition of Evaluating Competencies summa­rized a litany of complaints found in the literature regarding evaluations and reports for competence to stand trial. For example, examiners were accused of failing to address the legal standard for pretrial competence, neglecting to describe relevant functional abilities, and failing to provide reasoning to support their judgments about defendants' competence. This led to significant efforts, especially in the 1990s, to establish standards for forensic eval-uations in general (including competence to stand trial eval­uations) (e.g., Committee on Ethical Guidelines for Forensic Psychologists, 1991; Heilbrun, 2001) and to promote these standards through increased training activities (Otto, Heilbrun, & Grisso, 1990). Perhaps stimulated by these developments, several researchers recently provided our first reliable view of the state of practice regarding pretrial competence evaluations (for a more comprehensive review, see Nicholson & Norwood, 2000).

There is some evidence that forensic clinicians' pretrial competence evaluations have improved in their appropriate focus on functional abilities associated with the legal question. For example, Robbins, Waters, and Herbert (1997) examined a sample of competence to stand trial reports in New Jersey and Nebraska. They developed a structured method to determine the degree to which reports provided information related to Grisso's (1986) six elements of legal competencies. In general, reporting of relevant functional abilities was relatively adequate (although far from complete).

However, LaFortune and Nicholson (1995) reported that while func­tional abilities were described in most reports in a sample in Oklahoma, some important abilities were only rarely included. Similarly, in an analysis of another state's pretrial competence reports, Skeem, Golding, Cohn, and Berge (1998; see also Skeem & Golding, 1998) concluded that attention to functional abilities associated with understanding of information related to trials was relatively good, but that little attention was paid to defendants' capacities to make decisions in the trial process. For example, only 12% of the reports addressed defendants' comprehension of the implications of a guilty plea, despite the fact that most defendants must decide how to plead (and frequently do plead guilty in the context of plea agreements).

Borum and Grisso (1996) surveyed experienced forensic psycholo­gists and psychiatrists nationally (most of them forensic board-certified) regarding their opinions about the degree of importance for including each of 57 types of content in pretrial competence (and criminal responsi­bility) reports. They found substantial consensus among forensic clinicians (and across disciplines) regarding the degree of importance of the majority of items. Yet the respondents did not express a consensus that it was essential for reports to explain clinicians' reasons for their opinions.

Similarly, Skeem et al. (1998) found that in reports indicating deficits in competence-relevant abilities, only 10% provided reasoning that spelled out the relation between psychopathology and the compromised abilities. This has been perhaps the most frequently documented defi­ciency of competence evaluation reports in recent years (Otto et al., 1996; Nicholson et al., 1995; Robbins et al., 1997). These findings are in contrast to practice guidelines that urge clinicians in the strongest terms to provide such explanations for relevant functional deficits (Committee on Ethical Guidelines for Forensic Psychologists, 1991; Grisso, 1988; Heilbrun, 2001; Melton et al., 1997).

As a consequence of these findings, the long-running debate about testifying to the ultimate legal question (stating an opinion as to whether the defendant is or is not competent to stand trial) continues to be a relevant point of concern. Texts have long argued that a conclusion about legal competence or incompetence is not a matter of clinical expertise and therefore is inappropriate in expert testimony (Grisso, 1986, 1988; Melton et al., 1987, 1997). Arguments have been made to the contrary, however (e.g., Rogers & Ewing, 1989; Slobogin, 1989), and a majority of experienced forensic clinicians claim that reports of pretrial compe­tence evaluations should answer the ultimate legal question, or that to do so is of no great consequence (Borum & Grisso, 1996). One of the strongest arguments for this position is that judges are free to accept or reject the clinician's opinion, after clinicians have explained the logic and reasons for arriving at the decision. Yet most of the foregoing studies of examiners' pretrial competence reports have found that most clinicians do not explain, for example, how symptoms of disorder are related to defendants' functional deficits. If they do not, they fail to provide an important part of the evidence that judges must have in order to weigh the value of clinicians' opinions on the ultimate legal question.

Almost all texts describing pretrial competence evaluations have agreed that examiners need structure and a clear conceptualization of their objectives, as well as appropriate methods, in order to perform eval­uations that will have clinical quality, legal relevance, and practical utility to the courts. The remainder of the chapter addresses this need.

From Legal Standard to Forensic Assessment

This section reviews the legal construct of competence to stand trial, using the five components of legal competencies described in Chapter 2. The discussion of each component provides guidelines for conceptualizing and performing assessments in this area.

Functional Component

statutes, case law, and comments by legal analysts make it clear that competence to stand trial determinations require a consideration of the defendant's functional abilities (e.g., Grisso, 1988; Heilbrun, 2001; Melton et al., 1997; Laboratory for Community Psychiatry, 1973; Roesch & Golding, 1980. For legal citations see Legal Standard earlier in this chapter.) The central question is whether the defendant knows, understands, believes or can do certain things generally required by a particular context: the role of defendants in trials.

The standard in Dusky v. United States (1960) describes at the most general level the parameters for the domain of functional abilities with which the law is concerned: "sufficient present ability to consult with [one's] lawyer with a reasonable degree of rational under­standing" and "rational as well as factual understanding of pro­ceedings against [the defendant]" (p. 402). What are the more specific functional ability concepts that might be relevant for this functional domain?

The court in Wieter v. Settle (1961) listed eight "elements" of knowl­edge and ability related to the Dusky standard. These elements, however, were so minimal in their demands (e.g., an appreciation that "there is a judge on the Bench") that they did not describe adequately the type or range of abilities about which the law is concerned in pretrial competence cases.

Legal analysts and researchers have produced a number of lists of functional ability concepts related to the Dusky standard, the earliest being those of Robey (1965), Bukatman, Foy, and DeGrazia (1971), McGarry and associates (Laboratory of Community Psychiatry, 1973), the Group for the Advancement of Psychiatry (1974), and Ausness (1978). (See Grisso, 1988, for these lists of abilities.) There is much consensus among these lists, and they served a valuable purpose in orienting clinicians to pay attention to functional abilities rather than simply to infer competence or incompetence on the basis of psychiatric symptoms alone.

These lists of abilities relevant for pretrial competence, however, were developed more than 20 years ago, and they do not reflect modern changes in the conceptualization of pretrial competence. For example, they focus especially on defendants' performance during formal trials, despite the fact that competence to stand trial applies to pretrial participa­tion as well. Moreover, at least 90% of criminal defendants' cases are resolved without a formal trial on the facts, typically as a consequence of guilty pleas that require the ability to understand, consider, and decide regarding "plea bargains." This has been increasingly recognized in recent years in scholarly analyses (e.g., Bonnie, 1992) and legal cases (e.g., Godinez v. Moran, 1993; Cooper v. Oklahoma, 1996).

Table 1 offers a list of functional abilities formed as a composite of these past lists, but supplemented by abilities associated with Bonnie's "decisional competence." They include a number of abilities associated with assisting counsel in a defense, understanding the basic purpose and process of criminal trials (factual understanding), and applying information to one's own trial circumstances (rational understanding in the decision making process).

Table 1. Functional Ability Concepts Associated with Competence to Stand Trial

Consulting and Assisting Counsel

• Understanding that counsel works for defendant

• Understanding counsel's inquiries

• Capable of responding to counsel's inquiries in a manner that provides relevant information for defense

• Can provide consistent account of events relevant to charges and a defense

• Can manage the demands of trial process (stress, maintaining demeanor)

• Capable of testifying if necessary

Factual Understanding

• That the defendant is accused of a crime

• That the court will decide on guilt or innocence

• That he trial could result in punishment

• Of the various ways that defendants may plead

• That certain sentences are possible (their nature and seriousness)

• Of the roles of various participants in the trial process

• Of the general process of trials

Rational Understanding (Decisional Abilities)

• Beliefs about one's own trial process are not distorted by delusional beliefs

• Appropriately motivated to further one's defense

• Reasoning ability sufficient to process relevant information during decision making

The distinction between factual understanding (basic knowledge) and rational understanding (the ability to apply knowledge to one's own situa­tion) bears comment. Some defendants manifest a discrepancy between what they know about trials and what they believe will happen in their own situation. For example, a defendant might know that judges are sup­posed to uphold the law, and in this sense may have a factual under­standing of the role of the judge in a trial. The same defendant, however, might nevertheless harbor a delusional belief that the judge in the court in which the defendant will appear is part of global conspiracy to do the defendant harm. Other defendants may have difficulty applying informa­tion to their own situation because of lack of motivation (e.g., depression so severe that they have no desire to defend themselves) or because of cognitive limitations that do not allow them to process and use various pieces of information to meaningfully engage in decision making. In cases like these, "factual understanding" does not tell the whole story, because deficits in "rational understanding" may preclude defendants' capacities to apply the information rationally to their own situations.

In Figure 1 of Chapter 3, these ability concepts would appear in "C: Psychological Definitions of Legally Relevant Functional Abilities." Methods for assessing these functional abilities relevant to the role of defendant (C) are reviewed later in this chapter.

Causal Component

The legal construct of competence to stand trial suggests that courts should be informed not only about deficits in a defendant's functional abilities to perform the defendant role, but also: (a) the nature of a defen­dant's psychological disorder, if any; and (b) the relation of the disorder to deficits in the legally relevant functional abilities (see Legal Standard earlier in this chapter). This information assists the court in formulating causal explanations for the observed functional deficits.

There are several reasons why courts are concerned with explana­tions for functional deficits related to a defendant's trial participation. One reason is to assure that the functional deficits are beyond the control of the defendant. For example, functional deficits in understanding of trial processes or attorney-client relations will not suggest a finding of incompetence if the defendant appears to be malingering. Attention to the possibility of malingering and other "response biases" in pretrial compe­tence examinations has been discussed and strongly recommended by commentators on forensic examinations (e.g., Gothard, Rogers, & Sewell, 1995; Grisso, 1988; Heilbrun, 2001; Heilbrun, Bennett, White, & Kelly, 1990; Miller & Germain, 1987).

A second reason is to assure that observed deficits in trial-related functioning are not merely a consequence of conditions that could be remediated easily without the need for psychiatric treatment. For example, mere ignorance of the nature of trial procedures (without evidence of underlying disorder) is not consistent with a finding of incompetence, because the defendant might easily be prepared for trial (assuming ade­quate intellectual capacities) by simply engaging in efforts to educate the defendant concerning the nature of trials. Similarly, if a defendant's ability deficits may be related merely to fatigue or other transient, non- pathological conditions at the time of examination for functional abilities, these conditions might be easily remedied without the need to declare incompetence and to pursue treatment.

A third reason arises in decisions about treatment to restore compe­tence in defendants who are found incompetent. The nature of the psy­chological disorder, and its relation to legally relevant functional deficits, will have implications for deciding the type of treatment necessary. In some cases the condition apparently responsible for the deficits might be essentially untreatable, requiring a declaration of incompetence and dismissal of charges (with or without involuntary civil commitment proceedings).

When addressing any of these questions, the identification of a men­tal disorder is not the only task in a causal analysis. The mere coexistence of a mental disorder and a functional deficit does not provide sufficient information with which to form an explanation for the deficit. For exam­ple, when a defendant diagnosed with mental retardation manifests important deficits in understanding of trial procedures and charges, these deficits might be related to the defendant's limited intellectual capacities. On the other hand, some individuals with mental retardation may never­theless be able to understand the general nature and purpose of a trial. Further, such an individual's trial-related deficits might be for reasons other than mental retardation. For example, some patients with diagnoses of mental retardation also have psychotic conditions, and diagnosis of any disorder does not automatically rule out malingering or other response biases.

Establishing possible relations between mental disabilities and func­tional deficits generally will require observation and description of symp­toms or psychological characteristics that are more specific than broad diagnostic classifications. For example, establishing the relation between a defendant's schizophrenia and functional deficits in relating to an attor­ney might require detailed examination of the content or focus of the defendant's paranoid delusion, as well as how that delusion plays a spe­cific role in the defendant's perception of defense counsel.

Other disorders might require assessment of psychological functions such as memory, motivational states, or cognitive complexity in order to establish the relation between mental disorder and functional deficiency. Psychological characteristics that may be relevant for developing such causal connections include general intelligence, memory, contact with reality, motivation, reasoning or problem solving, and emotional control. Cases involving adolescent defendants may also require assessment of cognitive, emotional and social immaturity as a potential factor account­ing for deficits in functional abilities for the defendant role (Barnum, 2000; Grisso, 1998a, 2000).

Forensic examiners have a wide range of methods for assessing diag­nostic conditions and psychological characteristics that might address causal questions about deficits in functional abilities. Among these are mental-status exams, instruments for the assessment of intellectual and memory abilities, and tests that assist in determining personality traits, psychopathological conditions, and behavioral predispositions. Only a few studies, however, have focused on establishing relations between these indexes of psychological constructs and the functional abilities of primary concern in competence to stand trial cases. (See Nicholson & Kugler, 1991, for a review of relations between incompetence and charac­teristics of psychopathology and personality; see also research results with instruments reviewed later in this chapter.)

Interactive Component

No particular degree of deficits in trial-related capacities signifies competence or incompetence to stand trial. Instead, legal determinations of incompetence require a consideration of the degree of incongruency between a defendant's functional abilities and the anticipated demands of the defendant's trial. This interactive characteristic of the legal construct suggests that forensic assessments should be conducted with a considera­tion of the attorney-client circumstances and probable trial demands in the instant case.

The best example of courts' interactive reasoning in pretrial compe­tence cases is provided by court opinions involving defendants' claims of amnesia for events surrounding the alleged offense (e.g., Hansford v. United States, 1966; United States v. Sermon, 1964; Wilson v. United States, 1968). Defendants in these circumstances have argued that their inability to provide their attorneys with an account of facts surrounding the alleged offense precludes their ability to adequately assist in their defense. In turn, courts generally have reasoned that amnesia per se is not adequate to establish incompetence to stand trial. Amnesia suggests incompetence only if circumstances in that particular case disallow acqui­sition of evidence by defense counsel in any way other than by the defen­dant's report, and if the evidence is important to an adequate defense (see Wilson v. United States, 1968, for more specific enumeration of guidelines). In other words, one amnesiac defendant might be found competent to stand trial and another might be found incompetent, because of different evidentiary needs of the two defendants' trial circumstances.

The assessment of trial demands in relation to a defendant's functional deficits will require some sense of the dimensions with which trial circum­stances can be described, as related to questions of pretrial competence. A perusal of references cited throughout the foregoing discussions of com­petence to stand trial suggests that the following variables might be relevant:

• Complexity and multiplicity of charges

• Particular events associated with the alleged offense

• Range of possible penalties for this alleged offense, and probabilities of their occurrence

• Range and types of evidence available to counsel without defen­dant's report

• Simplicity or complexity of the legal defenses available

• Necessity for defendant's own testimony at trial

• Probable length of trial

• Probable complexity of trial (e.g., types and numbers of witnesses)

• Potential of trial to arouse emotion (e.g., due to the nature of offense, relation of parties in the trial process)

• Sources of social support for defendant during trial process.

This list is neither exhaustive nor the product of definitive research. It represents merely a compendium of variables mentioned by commenta­tors in past literature. Currently no researchers have reported systemati­cally studying or assessing trial demands for purposes of comparing them to trial-related functional abilities of defendants. We have no systematic methods for assessing and describing future trials and no methods designed to compare defendants' abilities to trial demands.

Nevertheless, it is possible for forensic examiners to employ this component in their evaluations and reports (e.g., "My conclusions about the defendant's potential for decompensation under stress may be impor­tant in light of counsel's statement that defendant's testimony may be needed"). In doing so, however, forensic examiners who attempt to describe incongruencies between defendant abilities and trial demands must rely on logic and speculation, rather than standardized method and empirical support for interpretations. Sources of data that might be rele­vant for addressing this interactive aspect of pretrial competence would include police reports of the alleged offense and subsequent events; infor­mation about defense counsel's past behavior and relations to clients; and the opinions of legal professionals concerning such variables as the prob­able demands of the upcoming trial or the nature of available defenses.

Judgmental and Dispositional Components

No particular degree of incongruency between defendant ability and trial demand is determinative of the pretrial competence question. Whether the extent of incongruency in a case reaches criteria for incompe­tence will require an interpretation of society's sense of justice. The basic concern underlying the legal construct of competence to stand trial is the fairness of the future trial. This concern requires that one balance protec­tions for defendants against society's interests in criminal cases, taking into account the dispositional consequences of a competence or incompe­tence finding. Would proceeding to trial be a just or fair outcome for this defendant, and does the consequence of probable involuntary hospitaliza­tion for treatment represent a fair outcome for the defendant and society?

Clearly these are moral questions that go beyond the limits of expert­ise claimed by mental health professionals. Forensic assessment might provide a comparative description of a defendant's abilities and probable trial demands. Yet one makes a moral judgment when one concludes that the degree of incongruency between these two sets of observations is too great to warrant a finding of competence.

Therefore, an opinion on the ultimate legal question ought not to be an objective of forensic assessments related to competence to stand trial. If examiners offer such opinions, they should explain why they believe that the individual's deficits do or do not meet a legal standard for com­petence to stand trial, so that the court can weigh the logic of their opinions.