The Trial Mental Health Law & Assessment

Assessment Pre-trial: Competence

Recurring During trial

Defendants: Insanity Plaintiffs: Psychological Damages Other Expert Testimony

Sentencing: Mental Disability/Competence Post-sentence:

Dangerousness Civil Commitment*

Types of Competency

To stand trial To confess, to plead guilty To waive rights:

To attorney Miranda rights

To refuse insanity defense To be sentenced & punished

Particularly to be executed

CST Johnson v. Zerbst, 1938

Understand charges & consequences Dusky v. U.S., 1960

Adds: Able to cooperate in own defense Jackson v. Indiana, 1972

Those found IST should not be held indefinitely Faretta v. California, 1975

Serving as one’s own attorney: Voluntary & understood State v. Johnson, 1986

Defense lawyer cannot hide client incompetence Medina v. California, 1992

Burden on Defense via preponderance of evidence

Competency to stand trial

Because of a mental defect, the person cannot: understand charges against them and penalties understand roles and procedures in court able to assist attorney with defense = Foundational Competence (vs. Decisional

Competence)

Competency is a current state vs. Insanity is a retrospective state

Assessing CST

Competence Screening Test When I go to court the lawyer will…. When they say a man is innocent until proven

guilty, it means… When I heard the charges against me, I thought…

22 items, scored 0, 1, 2 High inter-rater reliability with extensive

training Problems with interpretation False positives

Additional measures Competency Assessment Instrument

Structured Interview Relatively untested (current tests est. 90% accuracy) but high

face validity Interdisciplinary Fitness

Abilities in Legal Arena (5-items) & Psychopathology (11 items), 76% agreement

Georgia Court Competency Test 21 questions, less able to tap ability to assist in own defense

MacArthur Measures of Competence Most highly regarded, 82 items though = too long Open-ended first, then, in event of wrong answer, provided with

correct response and retested on T/F to assess learning

Results of CST evaluation Minimum 30,000 cases a year As many as 15% of clients suspected incompetent

More often pursued in felony cases Judges abide by psychologist recommendation 70-90% found competent Of those found IST: 40-50% restored to competency IST: Held for 6 months, then reassessed…then held for

longer…then reassessed…etc. Civil commitment procedures ensue, since 1983 – civil

commitment common

Consequences of Restoration

Trial appearance if pleading insanity State v. Hayes (1978) and Riggins v. Nevada

(1992) U.S. v. Sell (2003)

The psychologists ethical dilemma: Ford v. Wainright, 1986 Atkins v. Virginia, 2002 Restoring/determining competence to enable

execution: Is this right? Is this wrong?

Juveniles & Competency Adult crime = Adult time vs. Barely legal to

drive, can’t see R-rated movies, vote, smoke, drink or serve their country but can be executed? Serve life in prison without parole?

Moral development Inadequate pre-frontal lobe development

Impaired social reasoning Inadequate cognitive capabilities to foresee long term

consequences Higher susceptibility to peer pressures Roper v. Simmons, 2005

Assessments on Trial Criminal Responsibility Evaluation Psychological Impact Assessments Child Custody Evaluations And more…

Crime and punishment

In order to be found guilty, have to show that the defendant had actus rea (guilty act): the behaviors necessary

to commit the crime mens rea (guilty mind): the intent to commit

the crime

A question of Mens Rea

The M’Naghton Rule The Product Rule (Durham vs. US, 1954) & the

Brawner Rule (aka ALI rule) A person is NGRI if it can be shown that:

they have a mental illness because of which, they lack the capacity to appreciate

the nature, quality, or wrongfulness of their actions, Either because they did not know what they were doing or did

not know it was wrong

or is unable to conform their conduct to the requirements of law Irresistible impulse

Burden on the Defense (beyond a reasonable doubt)

NGRI – The Controversy

Legal definition vs. Psychological definition “He must have been crazy…” Controversial cases

California v. White

Designer Defenses

Aamodt et al., 2005 193 Cases of Designer Defenses

Examples: Urban Survival Syndrome, Homosexual Panic Disorder, Cultural Defense

“Crazier” examples: Twinkie Defense, Unhappy Gay Sailor Syndrome, Crocodile Dundee Syndrome

Largely homicide trial cases (75.9%)

Did they work?

49.4% No 24.4% - Reduced Sentence 11.3% - Not Guilty 8.1% - NGRI 5.6% - Guilty but no punishment 1.3% - Hung jury

But was it really the defense? Biggest predictors were victim vs. defendant

likeability Defendant Likable

Victim Likable NO YES

NO 0.0% 60.0%

YES 15.2% 37.5%

Thus designer defense “worked” when the jury wanted a reason to go easy on a defendant

NGRI – The Controversy

Legal definition vs. Psychological definition “He must have been crazy…” Controversial cases

California v. White U.S. v. Hinckley Texas v. Yates California v. Bianchi

NGRI vs. GBMI Should we do away with the Not Guilty by Reason of

Insanity Plea?

Suspect malingering if…

Claimant has something to gain Rational, nonpsychotic motive for crime Suspicious delusions or hallucinations Current crime fits a pattern of past behavior Absence of past or present signs of psychosis Sudden irresistible impulse Presence of accomplices

Malingering disorders

Detecting feigning Peterson & Vigilione (1992) had professionals

and students fake: psychosis, depression or anxiety disorder on MMPI Validity questions only successfully distinguished

psychosis fakers.

Psychosis feigning often easier to detect Structured Interview of Reported Symptoms

SIRS SIRS sub-scale

Faking Schizophrenia

Faking Mood Disorder

Faking PTSD Actual Inpatients

Rare symptoms

10.40 6.20 5.47 1.60

Absurd symptoms

6.93 3.40 3.43 0.67

Symptom combinations

8.33 5.80 6.00 1.27

Overly specific 3.93 3.00 2.07 0.67 Severity 14.73 12.27 14.13 1.87 Inconsistency 8.47 7.00 5.67 2.80 Discrepancy b/t Reports & Observation

8.47 6.20 4.93 1.27

Notice a pattern?

Detecting malingering Using means and standard deviations Gross over-playing or under-estimations Using informational plants – real and false Develop criteria to separate feigners from the

real thing Test for pathological lying Collateral reports Use multiple measures (and of different types) &

multiple independent assessors Use lie detection techniques

NGRI – The Controversy

Legal definition vs. Psychological definition “He must have been crazy…” Controversial cases

California v. White U.S. v. Hinckley Texas v. Yates California v. Bianchi

NGRI vs. GBMI Should we do away with the Not Guilty by Reason of

Insanity Plea?

Case # 1 24-year old man

two counts of first-degree murder five counts of armed assault resulting from attack on abortion clinics

Witnesses testify he stated “This is what you get! You should pray the rosary!” before shooting one victim

No history of psychiatric treatment Interviews with defense psychiatrist suggested he was

obsessed with the idea that there was a world-wide conspiracy against Catholics Believed that Catholics needed to create their own government

and money Sat on stand and refused to answer attorney’s questions

about alleged crime

OUTCOME?

Case #2

30-year old man charged with second-degree murder pushed a woman under a subway train told police a “spirit” entered him before the

attack

Long history of psychiatric treatment since 1989 but living on his own since 1996

Case #2 History Psychiatric History:

Reports mention: not compliant with prescribed medications (Haldol and Cogentin) He had told psychiatrists that he was:

turning purple had shrunk six to eight inches had lost his neck had developed an oversized penis due to contaminated food a homosexual man named Larry was stealing his excrement from the

toilet through “interpolation” and was eating it with a knife and fork requested psychiatrists provide him with eyeglasses so he could find the

people who were talking to him. history of assaultiveness when psychotic

had assaulted 13 people in the last two years In the six weeks before the alleged offense, he attempted to

hospitalize himself several times, but was refused was on several very long waiting lists for community treatment

programs

Types of Expert Testimony Clinical Assessments Qualitative assessments of a mental state: severity,

causes, symptoms, etc, as well as of “unfit” status. Contract Research Quantitative surveys commissioned to examine the

specific facts under dispute in the suit (e.g. negligence, liability, life worth, malpractice, presence of discrimination).

Framework Analysis General conclusions drawn from a body of tested,

reliable, peer-reviewed social science studies – not made specific to particular plaintiff/defendant.

Daubert, Kumho & Clinical Assessments

Four requirements for the admission of expert testimony, state that admitted expert scientific testimony should be;

Testable and tested; Published and subject to peer review; Generally accepted within appropriate

scientific community; Proffered with a known error rate and

reported probability that the use of the scientific evidence will result in error.

Kumho extended standards to “expert opinion” testimony.

Anticipated impact of Daubert Daubert will open the floodgates to any and every form

of expert testimony and “junk science” (Plevan, in press) in the area of employment discrimination and perhaps in other areas as well.

It has yet to be determined what the precise result of Daubert will be on the admission of expert testimony. It may be used more leniently or it may severely limit the testimony admitted (Krauss & Sales, in press).

The effect of the Daubert decision upon the use of expert testimony in sexual harassment cases may depend on the type of testimony being offered (Fiske & Borgida, in press).

Opening the floodgates or closing them?

Drop due to significant drop in Clinical Assessments being admitted. Framework testimony was unaffected.

To be admitted Generally accepted quantitative methods with

known error rates employed To diagnose AND assess malingering

Discussion of probabilities & typicality of set of responses/characteristics preferred to allow jury to be fact-finder Avoid ultimate issue testimony

Credentials inconsistent predictor of inclusion Need to establish sufficient experience/ability to

administer and interpret assessments More influential re: contracted research But remains grounds for impeachment