USING FORENSIC ASSESSMENT INSTRUMENTS

The five-component model in Chapter 2 outlined the objectives of an integrated assessment process that can increase the legal relevance of assessments related to legal competencies.

This section offers comments on using this structure in the process and reporting of forensic assessments for legal competencies. The discussion does not describe all of the steps or requirements for performing such assessments. It comments only on the relevance of the components in the model as a structuring devise, as well as the role of FAIs in the assessment process. Descriptions of the full requirements for forensic clinical evalua­tions in legal competence cases can be found in other sources (e.g., Grisso, 1988; Heilbrun, 2001; Melton et al, 1997).

Forming the Question

The five-component model can be used to organize one's view of the purposes of an assessment related to a question of legal competence:

• to describe relevant functional abilities (Functional component)

• to provide explanations for any deficits in abilities manifested in the assessment data (Causal component)

• where possible, to relate these results to the specific future or past situational circumstances in the case, including their relevance for prediction or postdiction of the examinee's behavior when possible (Interactive component), and

• to provide summary or concluding opinions regarding the referral question (the clinical equivalent of the Judgmental component, although as noted later, a conclusion that the examinee is or is not competent is not necessarily offered)

• to describe the prospects for remediation of the examinee's deficits in relevant functional abilities (Dispositional component)

The referral question actually posed to the examiner will almost never be structured in this format.

Selecting Assessment Methods

Assessment methods should be selected on the basis of their prospect for meeting the assessment's five objectives (as outlined above, parallel to the five components of legal competencies).

Evaluations for legal competencies typically should employ a variety of sources of data. Depending on the type of legal competence, these might include archival information (e.g., hospital reports, court records), interviews with the examinee, and interviews with relevant third parties who may be able to provide additional information about the examinee, and standardized tests or structured interview procedures. When they are included in evaluations, FAIs typically represent only one source of data within a broader data-gathering process (Heilbrun, 2001).

FAIs are recommended in order to provide a standardized index of functional abilities relevant for the legal competence in question. Those functional abilities often are assessed also through interviews with the examinee, which sometimes provide information about functional abili­ties unique to the individual that are not possible to obtain with available FAIs. On the other hand, FAIs provide the benefits of standardization, including minimization of examiner bias and the ability to directly com­pare the performance of the examinee to norms based on the same instru­ment. Together, interviews and FAIs provide a crosscheck on inferences about functional abilities, as well as a safeguard against the different limi­tations of both methods.

Typically, examiners who use psychological tests also will employ tests of general intellectual abilities, personality characteristics, or psy­chopathology of the examinee.

Finally, efforts to meet the objective related to the Interactive compo­nent of a legal competence will require that the examiner employ some means for assessing the degree of functional demands placed on the examinee in his or her own specific situation. As noted in the reviews of FAIs, currently there are very few systematic methods for assessing such demands and comparing them to the examinee's level of ability. Typically examiners must obtain such information through unstandardized obser­vations and interviews with the examinee and relevant third parties who know the examinee's circumstances.

Describing Functional Abilities

FAIs are especially useful when examiners provide written reports or oral testimony in legal competence cases. They allow the examiner to con­vey to the court, abstractly (in constructs and dimensions) and in concrete terms (item responses and scores), specifically what the examinee can and cannot do, does or does not know, and believes or does not believe with relevance to the definition of the specific legal competence in question. In addition, for FAIs that are fully developed, scores on these instruments often allow the examiner to provide the court:

• a description of the degree of confidence that can be placed on the reliability of the score

• comparative statements that express the examinee's performance in relation to reference groups (e.g., "His score on the MacCAT-CA indicated that his understanding of the trial process was in the bottom 10% of persons his age, and was in the middle of the range of scores made by persons who have been found incompetent to stand trial")

• evidence regarding the validity of the method from which the scores were derived

Note that clinicians who rely only on unstructured interviews may be able to describe the same abilities, but they have no means to offer courts information about the reliability, validity, or comparative meaning of the information.

Explaining Functional Deficits

The six review chapters have described a number of possible expla­nations for functional deficits as manifested on FAIs and in other contexts. One purpose of an assessment related to a legal competence is to provide information that will assist the legal fact finder in weighing the plausibility of these explanations.

This will require that the examiner form a number of causal hypotheses. The hypotheses might include any mental conditions to which the statu­tory definition of the legal competence refers (e.g., conditions that the law has accepted as relevant for addressing "mental disease or defect" as a statutory requirement). in addition, however, the examiner may form hypotheses based on psychiatric and psychological explanations that are not specifically noted in statutory definitions of the law, but that are not excluded in case precedent regarding the legal competence. Other poten­tial hypotheses are offered by situational factors related to the examina­tion session itself (e.g., distractions), as well as possible malingering or dissimulation.

The examiner must collect and synthesize information that will test these hypotheses. Rarely can this be done with the precision of a con­trolled research study. The quality of the process will depend primarily on the standardization, reliability, and validity of the data collection methods used, as well as the logical and theoretical rationale employed in the interpretation. Sometimes FAis have a nonquantitative role to play in this process, as when the content of an examinee's specific response to a question on a FAI reveals a delusional idea that impairs the examinee's response to the question.

Making Predictions or Postdictions

The six review chapters have pointed out that it is rarely possible to support specific predictions or postdictions about the performance of an examinee in a time and place removed from the examination, and FAIs themselves do not provide these types of results.

When this comparison manifests substantial logical incongruency between the individual's abilities and situational demands, the examiner may find it possible to express an opinion about the individual's function­ing in the future or past situation that forms the environmental context for the legal competence question. This will assist the legal fact finder to consider legal competence from an interactive perspective, as described in Chapter 2.

Stating Conclusions

Nothing about FAIs contradicts the general position taken in previous chapters concerning conclusory testimony by mental health professionals in legal competence cases. An expert opinion that answers the ultimate legal question is not an "expert" opinion, but a personal value judgment. No amount or type of empirical and scientific information alone can answer the question of legal competence, because the degree of ability required for legal competence is not definitive, absolute, or consistent across cases.

On the other hand, an examiner's data might often be sufficient to state other conclusions falling short of the ultimate legal question. Examples include statements about the degree of an examinee's deficits in relation to validation samples of persons who have been found incompetent, and an expert's opinion that the examinee would or would not be able to perform particular functions that are relevant for the legal competence in question.

A Note on Potential Misuse of FAIs

Risks of misuse arise in the development of any new technology, and the use of FAIs in clinical forensic practice is no exception. Misuse of FAIs can occur in their interpretation not only by clinicians, but also by attor­neys who translate and "package" evidence for presentation to the court. sometimes this will happen because of lack of understanding of the nature of FAIs. At other times misuse or misinterpretation of FAIs is the product of advocacy, an essential feature of the legal process that inevitably influences even the "impartial" clinician's participation in it (Otto, 1989).

Some forms of misuse of FAIs are the same as those sometimes found in the use of other psychological tests. For example, examiners may administer the instrument in ways that are inconsistent with the instru­ment's standardized procedure. Or they may use test norms for making interpretations about examinees belonging to classes (e.g., race, gender) that were not included in the development of the instrument's norms.

other misuses of FAIs, however, are more specific to their intended use in legal settings. For example:

• It is misuse for competence evaluations to rely on FAIs as the sole source of data. No FAI measures the full range of abilities that might be rel­evant for a question of competence.

• Scores on FAIs (especially an instrument's so-called "cut-off scores") should not be interpreted as defining legal competence or incompetence. FAIs measure certain functional abilities relevant for that decision. But a person's functional abilities are only part of the data that must be considered in reaching conclusions about legal compe­tence (e.g., along with data related to the Causal component). Moreover, no level of disability is automatically associated with incompetence, because its relevance for competence must always be considered in light the demands of the person's situation (the Interactive component).

• The significance of scores on FAIs is misinterpreted when they are said to "predict" functioning in future situations relevant for the question of legal competence. Many FAIs have established validity based on the relation of their scores to past functioning of examinees, concurrent functioning in other contexts, or the relation of scores to various criteria of theoretical relevance (e.g., demographic characteristics, diagnoses, or independent competence judgments). Thus far, how­ever, no FAI has been examined for its ability to truly predict behavior subsequent to the examinee's evaluation.

Most of these misuses of FAIs may be classified as misrepresentation. They offer the results of FAIs to the consumer (the legal decision maker in the form of judge or jury) as more than they are intended to be. The con­sequences of misuse of FAIs are both case-specific and general. In a spe­cific case, misinterpretation risks misunderstanding by the fact finder and the potential for a miscarriage of justice for the individual whose rights and welfare are at stake. The cumulative effect of such misuses across time creates misunderstanding and erodes the confidence of legal deci­sion makers in FAIs as a type of evidence on which expert opinions may be based.