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Law/Psych 2650 Psych and Law Final Wrightman’s Psychology & the Legal System, 8 t h Edition. Professors Hans and Rachlinski

Chapter 10: Forensic Assessment in Juvenile and Criminal Cases The scope of forensic psychology  Forensic psychologists use knowledge and techniques from psychology and other behavioral sciences to answer questions about individuals involved in legal proceedings  Forensic psychology is recognized by the APA  Field growth due to o Mental health experts having expertise in a variety of areas relevant to litigation o Law permits and encourages the use of expert testimony o Expert testimony is lucrative o Use by one side is reciprocated by the other → cyclic process  Expert can testify if testimony is relevant to an issue in dispute and if the usefulness outweighs any prejudicial impact the information may have  Andrea Yates → women drowned her children and had a history of mental illness; an expert was used to argue in favor of the insanity defense by implying that an episode of law and order influenced her actions o Shows how experts are used heavily in insanity defenses Competence  Competence – the clinical-legal issue most frequently assessed in the criminal justice system.  Competence to stand trial – a defendant’s capacity to function meaningfully and knowingly in a legal proceeding. Competence is sufficient present ability to understand the legal proceeding in which one is involved and to consult with one’s attorney with a reasonable degree of rational understanding. Underscores a defendants attention, concentration and behavioral control  Defendants may be determined incompetent is they are seriously deficient in one or more abilities  Adjudicated - determined by a judge  Concerns about competence are tied to one principle: Criminal proceedings should not continue against someone who cannot understand their nature and purpose and thus cannot assist in defending against prosecution on these charges  Why must defendants be competent? o Defendants must be able to understand the charges against them so they can participate in the criminal justice system in a meaningful way. Making it more likely that legal proceedings will arrive at accurate and just results o Punishment of convicted defendants is morally acceptable only if they understand the reasons why that are being punished o The perceived fairness and integrity of our adversary system of justice requires participation by defendants who have the capacity to defend themselves  National standard for competence: a sufficient present ability to consult with one’s attorney with a reasonable degree of rational understanding and a rational, as well as factual, understanding of the proceedings against one (Dusky Standard)

Aka need the capacity for factual and rational understanding of proceedings and to consult with one’s attorney o Refers to present abilities Evaluators may consider a number of abilities in establishing competence o Understanding – key roles and elements o Appreciation – likelihood of guilt and options o Reasoning- information o Assisting in One’s Defense – consulting lawyer o Decision making abilities relevant to decisions likely to arise during the proceedings By pleading guilty, defendants waive the right to: o A jury trial o Confront their accusers o Call favorable witnesses o Remain silent Waiving these rights must be done so knowingly, intelligently and voluntarily → aka must be competent enough to understand the implications of pleading guilty Competence to plead guilty – requires that defendants understand the alternatives they face and have the ability to make a reasoned choice among them. Underscores importance of a defendants cognitive awareness and reasoning Adjudicative competence – clearer description of the various capacities that criminal defendants need in legal contexts. The legal capacities necessary for a defendant to stand trial or otherwise resolve criminal charges Issue of competence can be raised at any point during a trial, by any side Judge will order an evaluation of the defendant if a bona fide doubt exists that the defendant is competent Tactical uses of competence evaluations: o To obtain information about a possible insanity defense o To guarantee the temporary incarceration of a potentially dangerous person without going through the procedures of involuntary commitment o To deny bail o To delay trial to give one side time to prep an advantage Defense attorneys are twice as likely to order an evaluation in felony cases Recent transition to conducting evaluations via outpatient facilities because it is less costly and time consuming Physicians, psychiatrists, psychologists, and social workers are authorized to conduct them Presence of mental illness does not guarantee incompetence o Question is if the disorder impairs a defendants ability to participate knowingly and meaningfully in the proceedings and to work with attorneys o May be competent in a straightforward case, but not in a complex case Evaluations focus on the defendants present ability to function adequately in the legal process → assessment aided via structured tests Types of Tests o Interdisciplinary Fitness Interview – (IFI and IFI-R) versions of a semi-structured interview that evaluates a defendant’s abilities in 5 legal areas and 11 categories of psychopathological symptoms. Attach weights to conditions (given discretion via impact of weights). 76% concordance rate with competence made at a state hospital o

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Fitness Interview Test -Revised – a structured interview for assessing a person’s competence to stand trial. Various areas are considered but not scored and there is not a total score considered. Includes 16 items and 3 broad areas o The MacArthur Measures of Competence – 82 items that rely on a hypothetical vignette about which the defendant is asked questions that tap foundational and decisional abilities. Questions are asked in a sequence: open-ended, then additional based on newly disclosed info open-ended, true-false concludes each area of assessment. Offers a more standardized evaluation and analyzes preexisting abilities and ability to apply and learn new information. Takes too long to complete→ 22 item clinical version was developed → asses general understanding of the legal system and their situation o The Evaluation of Competence to Stand-Trial Revised – a semi-structured interview that was developed using the Ducky criteria. 3 factors and focuses on individual specific information. Also addresses potential problem of people faking it o Competence Assessment for Standing Trial for Defendants with Mental Retardation – developed specifically for assessing defendants with moderate mental retardation. Extremely poor performers make raters suspicious that the person is faking it (often are b/c they exaggerate symptoms too much) o Screening tools have been developed to address faking Criminals shoulder the burden of proving that they are incompetent- need a preponderance of evidence 70% of defendants are referred for evaluation → with rigorous examinations, 90% are found competent Stipulate – agree without further examination Judges rarely disagree with clinicians decisions and opposing attorney often stipulate to the findings as well “marginal” men are most likely to be found incompetent→ undereducated, deficient in job skills, long histories of legal and mental system involvement, often substance abuse is present o can also have higher percentages of psychosis, lower intelligence and more memory problems o usually charged with more serious crimes Nicholson and Kugler characteristics of incompetent o History of psychosis for which previous treatment had been received o Exhibit symptoms of current serious mental disorder o Be single, unemployed and poorly educated o Perform poorly on specific competence assessment instruments When found IST (incompetent): o non serious charges may be dropped in exchange for treatment o hospitalized to be treated for restoration of competence; if successful, proceedings resume o outpatient treatment (infrequently used) practice of providing long periods of hospitalization for incompetence was limited in 1972 by Jackson v Indiana o cannot hold for more than a reasonable period of time necessary to determine whether there is a probability that they will regain capacity in the foreseeable future hospitalized defendants that participated in special competence restoration groups showed significant increases in their assessment scores compared to control groups providing general legal info could have been just as effective o

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when competence cannot be restored it gets tricky o once you are held for the full legal time allowed you can be found unrestorably incompetent and then can be committed to a hospital through involuntary civil commitment proceedings → narrow standards for this → state must show that they are imminently dangerous to themselves or others or unable to care for themselves  Alternatives: o Abolish IST concept and allow defendants to seek trial continuances without going through an elaboration o Allow defendants to waive their right to be competent and then hold a provisional trial where guilt is determined  If found not guilty they can be acquitted and confined only through civil commitment  If guilty they would be subject to a special form of commitment  Psychoactive medication is often a treatment of choice for IST defendants → court held you can involuntarily medicate someone to restore competence  Competence for any legal function involves (1) determining what functional abilities are necessary, (2) assessing the contest where these abilities must be demonstrated, (3) evaluating the implication of any deficiencies in the required abilities, and (4) deciding whether the deficiencies warrant a conclusion that the defendant is incompetent  Waiving of Miranda rights is necessary for a defendant to make a confession while in police custody→ must be done in a knowing, intelligent, and voluntary fashion  Same standard applied to the right to waive counsel prior to confessing and at trial o Waiving counsel at trial must be done so competently  Can competently waive the right to plead insanity if they wish as long as they are competent in doing so (they understand the consequences)  Convicted defendants are not sentenced unless they are competent → competence to be sentenced in more straightforward because it only address is the accused can interact effectively with counsel and can appreciate alternative courses of action  Must be competent in order to be executed (decided in Ford v Wainwright)  Competence to proceed – comprehension of the purpose and nature of the trial process, ability to provide relevant information to counsel and to process information and ability to apply information to oneself without distortion or irrationality (addressed in juvenile competence)  Decisional competence – ability to make important decisions about waiver of constitutional rights and maturity of judgement (addressed in juvenile competence)  15 and younger are significantly impaired, compromising their abilities to function as competent (adult) defendants o 1/3 of 11-13yr olds were impaired o 1/5 of 14-15yr olds were impaired o Also associated with below average intelligence (many juveniles in the justice system are dumb, thus increasing the risk of incompetence)  Expectations for competence in juvenile court are different and thus they are more likely to be adjudicated when necessary The Insanity Defense  Difficult to assess insanity pleas  Less tests to use that judge it o Mental Status Examination at the Time of the Offense – questionable reliability and validity 

Rogers Criminal Responsibility Scale – 25 scales that organize decisions -some proven reliability and validity Truth is elusive b/c conflict between law and behavioral sciences are at odds o Insanity is a legal concept, not a scientific one o Experts are called in to provide information regarding a decision that is ultimately outside their professional/scientific framework Insanity – refers to the defendant’s mental state at the time the offense was committed. The principle legal doctrine permitting consideration of mental abnormality in assessing criminal liability. Those acquitted of criminal charges because they are found not guilty by reason of insanity are typically required to spend an indeterminate period of treatment in a secure mental health facility until they are no longer dangerous to self or others Insanity plea reflects the fundamental belief that a civilized society should not punish people who do not know what they are doing or are incapable of controlling their actions Defendants have the duty to present evidence that would disprove the presumption of criminal responsibility in their case. Also examines mens rea Mens rea- the mental state of knowing the nature and quality of a forbidden act To be a criminal offense, an act not only must be illegal but also must be accompanied by the necessary mens rea Insanity Defense Rules o The M’Naghten Rule: an early attempt to define insanity  1843- ruling of not guilty for an insane man → infuriated public and led to stricter test  M’Naghten Rule – excuses criminal conduct if the defendant, as a result of a “disease of the mind,” (1) did not know what he was doing, or (2) did not know that what he was doing was wrong  Criticism: “knowing wrongfulness” is too limiting and does not allow for consideration of motivational and other influences affected the control of behavior o The Brawner Rule, Stemming from the Model Penal Code  Brawner Rule- a defendant is not responsible for criminal conduct is they, “at the time of such conduct as a result of mental disease or defect, lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”  Allows judges and juries to consider whether mentally ill defendants have the capacity to understand the nature of their acts or to behave in a lawful way  Incorporates the emotional as well cognitive determinates of criminal actions  Does not require the offenders exhibit a total lack of appreciation for the nature of their conduct, but only a “substantial capacity”  Includes both a cognitive and volitional element → makes defendants’ inability to control their actions a sufficient criterion o The insanity defense reform act  Law modified the existing insanity defense → elimination volitional idea, and prohibited experts from giving ultimate opinions about insanity (whether they actually were insane at the time) and placed burden of proof on the defendant  Did not actually result in different judgements o

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No real difference between number of insanity acquittals and test used Jurors do not comprehend the crucial components of the various tests Jurors influenced by their preexisting ideas about the insanity defense→ colors how they interpret facts of the case Jurors conceptualize an insane defendant as either: o 1.Severely mentally disordered, characterized by extreme, chronic, uncontrollable mental illness and retardation that impairs the defendant’s ability to function in society o 2.Morally insane, typified by symptoms of psychosis and psychopathy o 3.Mental-state-centered, aka the defendant clearly had an impaired mental state at the time of the offense Prototypes 1 & 2 were very likely to believe insanity pleas; 3 was very unlikely to believe it Insanity defense is used most often in cases in violent felonies Majority of those acquitted were diagnosed as psychotic suggesting severe and chronic illness 1 in 4/5 defendants being assessed acts in ways concurrent with moderate mental illness Assessments have been developed to catch those that are faking it → usually good at catching it Decision to acquit by reason of insanity is most influenced by clinical factors Not Guilty By Reason Of Insanity (NGRI) commonalities: o Previous arrest record is not worse than other felons o From lower socioeconomic backgrounds o Prior history of psychiatric hospitalizations and have been diagnosed with serious forms of mental illness o Previously found incompetent to stand trial o Female defendants have similar socioeconomic, psychiatric, and criminal backgrounds to their male counterparts Public Perceptions of the Insanity Defense o American public dislikes insanity plea → viewed as a loophole o Public believes:  (1) a large number of criminals used it,  (2) those found NGRI are released back into society shortly after acquittals,  (3)persons found insane are extremely dangerous o Reality:  Used much less often than assumed (public thinks its 37% of the time, actually used .9%)  Do not go free, spend time in hospitals (underestimate average time of 28. 7 months)  Some states use conditional release – persons found NGRI are released to the community following a period of hospitalization and are monitored by mental health personnel; counterpart to parole  Unclear how dangerous they are (receive treatment right away)  No evidence of difference in recidivism by BGRI and regular felons Criticisms of the Insanity Defense o It sends criminals and troublemakers to hospitals and then frees them  Not sure how often that happens  Mainly perceived because of a few high profile acquittals o It is a defense only for the rich  Spend a lot on expert testimony  Data fails to find socioeconomic or racial bias to data

 Poor defendants who plead this are entitled to state help It relies too much on psychiatric experts  Want to reserve final decision to the judge/jury  Limit experts from giving ultimate opinion testimony → they can describe a defendants mental condition and the effects it could have on their thinking and behavioral control but cannot state conclusions about whether they were sane or insane  Juries not actually prejudiced by this ( come to the same conclusion when given diagnostic testimony [presence of mental illness] penultimate opinions[effect of mental illness] and ultimate opinions [insanity judgement])  Disagreeing opinions jeopardizes public trust in mental health professionals so there is an interest in limiting it  Revisions and Reforms of the Insanity Defense o The guilty but mentally ill (GBMI) Verdict  Allow juries to reach a verdict of guilty but mentally ill  Judge sentences a GBMI as another defendant → start term in hospital and then move to a prison  Has not decreased NGRI verdicts → juries can’t distinguish them o The defense of diminished capacity  Diminished capacity – a legal doctrine that applies to defendants who lack the ability to commit a crime purposefully and knowingly  Involves evidence of a mental disorder but focuses on the intent of the defendant (whether they thought about the consequences) not knowing wrongfulness  Judges mens rea  Usually still leads to a prison sentence o Elimination of the Insanity Plea  Laws already judge mens rea so insanity plea is redundant  Capital Sentencing o Courts must consider any mitigating evidence that argues against a death sentence Juvenile Transfer  Transferred – adolescents can be certified or waived into adult criminal court  Increased in the 80s and 90s under the idea that juvenile crime increased  Criteria for transferring o Treatment Needs and Amenability – rehabilitative needs and the likelihood of favorable response to interventions designed to reduce the risk of future criminal offending. o Sophistication – Maturity – extent to which a juvenile is mature – cognitively and psychologically – and the degree to which they are adult like in their criminal thinking and behavior  Risk/Need/Responsivity Model- prompts the evaluator to consider the risk of reoffending and risk relevant deficits  Evaluating youth is a forensic evaluation  Obtain family and school information and peers and substance abuse  Justifications for transferring an adolescent o A charge of homicide o A charge of other sp...