Evaluation of CST

EVALUATION OF
COMPETENCE TO
STAND TRIAL
BEST PRACTICES IN FORENSIC MENTAL HEALTH ASSESSMENT
Series Editors
Thomas Grisso, Alan M. Goldstein, and Kirk Heilbrun
Series Advisory Board

Paul Appelbaum, Richard Bonnie, and John Monahan
Titles in the Series

Foundations of Forensic Mental Health Assessment, Kirk Heilbrun,
Thomas Grisso, and Alan M. Goldstein
Criminal Titles
Evaluation of Competence to Stand Trial, Patricia A. Zapf and Ronald Roesch
Evaluation of Criminal Responsibility, Ira K. Packer
Evaluation of Capacity to Confess, Alan M. Goldstein and Naomi Goldstein
Evaluation of Sexually Violent Predators, Philip H. Witt and Mary Alice Conroy
Evaluation for Risk of Violence in Adults, Kirk Heilbrun
Jury Selection, Margaret Bull Kovera and Brian L. Cutler
Evaluation for Capital Sentencing, Mark D. Cunningham
Eyewitness Identification, Brian L. Cutler and Margaret Bull Kovera
Civil Titles
Evaluation of Capacity to Consent to Treatment, Scott Y.H. Kim
Evaluation for Substituted Judgment, Eric Y. Drogin and Curtis L. Barrett
Evaluation for Civil Commitment, Debra Pinals and Douglas Mossman
Evaluation for Harassment and Discrimination Claims, William Foote and Jane
Goodman-Delahunty
Evaluation of Workplace Disability, Lisa D. Piechowski
Juvenile and Family Titles

Evaluation for Child Custody, Geri S.W. Fuhrmann
Evaluation of Juveniles’ Competence to Stand Trial, Ivan Kruh and Thomas Grisso
Evaluation for Risk of Violence in Juveniles, Robert Hoge and D.A. Andrews
Evaluation for Child Protection, Kathryn Kuehnle, Mary Connell, Karen S.
Budd, and Jennifer Clark
Evaluation for Disposition and Transfer of Juvenile Offenders, Randall T. Salekin
EVALUATION OF
COMPETENCE TO
STAND TRIAL
PATRICIA A. ZAPF
RONALD ROESCH
1
2009
1
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Library of Congress Cataloging-in-Publication Data
Zapf, Patricia A., 1971–

Evaluation of competence to stand trial / Patricia A. Zapf, Ronald Roesch.
p. ; cm. — (Best practices in forensic mental health assessment)
Includes bibliographical references and index.
ISBN 978-0-19-532305-4
1. Forensic psychiatry. 2. Competency to stand trial. I. Roesch, Ronald,
1947– II. Title. III. Series.
[DNLM: 1. Forensic Psychiatry—methods—Canada.
2. Forensic Psychiatry—methods—United States. 3. Mental Competency—
Canada. 4. Mental Competency—United States. W 740 Z35e 2008]
RA1151.Z37 2008
614’.1—dc22
2008026688
987654321
Printed in the United States of America

on acid-free paper
About Best Practices in Forensic Mental
Health Assessment
The recent growth of the fields of forensic psychology and forensic
psychiatry has created a need for this book series describing best
practices in forensic mental health assessment (FMHA). Currently,
forensic evaluations currently are conducted by mental health
professionals for a variety of criminal, civil, and juvenile legal
questions. The research foundation supporting these assessments
has become broader and deeper in recent decades. Consensus has
become clearer on the recognition of essential requirements for
ethical and professional conduct. In the larger context of the current
emphasis on “empirically supported” assessment and intervention in
psychiatry and psychology, the specialization of FMHA has advanced
sufficiently to justify a series devoted to best practices. Although this
series focuses mainly on evaluations conducted by psychologists and
psychiatrists, the fundamentals and principles offered would also
apply to evaluations conducted by clinical social workers, psychiatric
nurses, and other mental health professionals.
This series describes “best practice” as empirically supported
(when the relevant research is available), legally relevant, and consistent
with applicable ethical and professional standards. Authors of the
books in this series identify the approaches that seem best, while
incorporating what is practical and acknowledging that best practice
represents a goal to which the forensic clinician should aspire rather
than a standard that can always be met. The American Academy of
Forensic Psychology assisted the editors in enlisting the consultation of
board-certified forensic psychologists specialized in each topic area.
Board-certified forensic psychiatrists were also consultants on many of
the volumes. Their comments on the manuscripts helped to ensure that
the methods described in these volumes represent a generally
accepted view of best practice.
The series’ authors were selected for their specific expertise in
a particular area. At the broadest level, however, certain general
principles apply to all types of forensic evaluations. Rather than
repeat those fundamental principles in every volume, the series
offers them in the first volume, Foundations of Forensic Mental
Health Assessment. Reading the first book followed by a specific
topical book will provide the reader both the general principles that
the specific topic shares with all forensic evaluations and those that
are particular to the specific assessment question.
The specific topics of the 19 books were selected by the series
editors as the most important and oft-considered areas of forensic
assessment conducted by mental health professionals and behavioral
scientists. Each of the 19 topical books is organized according to a
common template. The authors address the applicable legal context,
v
vi About Best Practices in Forensic Mental Health Assessment
forensic mental health concepts, and empirical foundations and limits

in the “Foundation” part of the book. They then describe preparation
for the evaluation, data collection, data interpretation, and report
writing and testimony in the “Application” part of the book. This
creates a fairly uniform approach to considering these areas across
different topics. All authors in this series have attempted to be as
concise as possible in addressing best practice in their area. In
addition, topical volumes feature elements to make them user-friendly
in actual practice. These elements include boxes that highlight
especially important information, relevant case law, best-practice
guidelines, and cautions against common pitfalls. A glossary of key
terms is also provided in each volume.
We hope the series will be useful for different groups of
individuals. Practicing forensic clinicians will find succinct, current
information relevant to their practice. Those who are in training to
specialize in forensic mental health assessment (whether in formal
training or in the process of respecialization) should find helpful the
combination of broadly applicable considerations presented in the
first volume together with the more specific aspects of other
volumes in the series. Those who teach and supervise trainees can
offer these volumes as a guide for practices to which the trainee can
aspire. Researchers and scholars interested in FMHA best practice
may find researchable ideas, particularly on topics that have received
insufficient research attention to date. Judges and attorneys with
questions about FMHA best practice will find these books relevant
and concise. Clinical and forensic administrators who run agencies,
court clinics, and hospitals in which litigants are assessed may also
use some of the books in this series to establish expectancies for
evaluations performed by professionals in their agencies.
We also anticipate that the 19 specific books in this series will serve
as reference works that help courts and attorneys evaluate the quality of
forensic mental health professionals’ evaluations. A word of caution is in
order, however. These volumes focus on best practice, not what is
minimally acceptable legally or ethically. Courts involved in malpractice
litigation, or ethics committees or licensure boards considering
complaints, should not expect that materials describing best practice
easily or necessarily translate into the minimally acceptable professional
conduct that is typically at issue in such proceedings.
This volume addresses best-practice standards in conducting
competence to stand trial evaluations. Referrals to assess a
defendant’s fitness for trial is the most frequently requested type of
forensic evaluation. The significance of the forensic mental health
professional’s opinion cannot be overstated, in terms of both the
implications for the integrity of the criminal legal process that is to
follow, and for the outcome of the trial and the impact of the verdict
on the defendant’s life. Zapf and Roesch recognize the importance
About Best Practices in Forensic Mental Health Assessment vii
of these evaluations. This book will serve as a guide for forensic

mental health professionals to conduct assessments that are legally
relevant, consistent with professional ethics, and use empirically
grounded methodology, and to present their findings in an objective,
thorough, data-based fashion.
Alan M. Goldstein
Kirk Heilbrun
Thomas Grisso
This page intentionally left blank
Acknowledgments
We would like to thank the series editors, Alan M. Goldstein, Kirk
Heilbrun, and Thomas Grisso for providing us the opportunity to
write this book and for their helpful suggestions and guidance along
the way. In addition, we are appreciative of the comments and
suggestions of the external reviewers, Richard Frederick and Charles
Patrick Ewing. Finally, as always, we owe a debt of gratitude for the
support of our significant others, Rob and Kim. Thank you!
ix
Contents
FOUNDATION
Chapter 1 The Legal Context 3
Chapter 2 Forensic Mental Health Concepts 27
Chapter 3 Empirical Foundations and Limits 47
APPLICATION
Chapter 4 Preparation for the Evaluation 81
Chapter 5 Data Collection 111
Chapter 6 Interpretation 137
Chapter 7 Report Writing and Testimony 149
Appendix A Attorney CST Questionnaire 173
Appendix B Collateral and Third-Party Information

Sources 177
Appendix C Sample Notification Form 179
Appendix D List of Relevant Competence-Related

Domains and Areas of Inquiry 181
References 185
Tests and Specialized Tools 195
Cases and Statutes 199
Key Terms 201
Index 205
About the Authors 211
xi
FOUNDATION
The Legal Context
1
O ne of the primary foundations of criminal law is that all

defendants have a right to a fair trial. In addition, criminal
defendants must be capable of actively participating in their
defense. However, for some defendants, mental health prob-
lems or cognitive deficits hinder their ability to participate in
the proceedings. To preserve the dignity and integrity of judi-
cial proceedings, and to protect defendants’ due process rights,
the notion of trial competency has evolved. The evaluation of
trial competency is arguably the most common type of involve-
ment of forensic mental health professionals in the criminal jus-
tice system. As Golding (1992) noted, “more defendants are
evaluated for competency and more resources expended for
their evaluation, adjudication, and treatment than for any other
class of forensic activities” (p. 77). Indeed, it is estimated that
between 2% and 8% of all felony defendants are referred for
competency evaluations (Bonnie, 1992b; Golding, 1993;
Hoge, Bonnie, Poythress, & Monahan, 1992), accounting for
nearly 60,000 or more competency evaluations annually in the
United States (Bonnie & Grisso, 2000).
This chapter provides a review of the legal context for com-
petency evaluations. In subsequent chapters, we will review
forensic mental health concepts (Chapter 2), the research on
those being evaluated for trial fitness and the assessment proce-
dures used to evaluate competency (Chapter 3), and the evalua-
tion process (Chapters 4–7), including preparing for and
conducting the evaluation, interpreting the results, writing
reports, and providing expert testimony.
3
4 Foundation
Historical Overview
Adoption of the Doctrine From English
Common Law
The legal context for competence to stand trial (CST) in the United
States can be traced back to English common law dating from at least
the 17th century. In the 18th century, Sir William Blackstone wrote:
If a man in his sound memory commits a capital offence, and

before arraignment for it, he becomes mad, he ought not to be
arraigned for it: because he is not able to plead to it with that advice
and caution that he ought. And if, after he has pleaded, the pris-
oner becomes mad, he shall not be tried: for how can he make his
defence? If, after he be tried and found guilty, he loses his senses
before judgment, judgment shall not be pronounced; and if, after
judgment, he becomes of nonsane memory, execution shall be
stayed: for peradventure, says the humanity of the English law, had
the prisoner been of sound memory, he might have alleged some-
thing in stay of judgment or execution. (Blackstone, 1769, p. 24)
Blackstone’s Commentaries on the Laws of England (1765–1769)

was influential in shaping law and legal procedures in both England
and the United States. Perhaps the first American defendant found
Incompetent to Stand Trial (IST) was Richard Lawrence, who
attempted to assassinate President Andrew Jackson in 1835 (United
States v. Lawrence, 1835). After being deemed incompetent,
Lawrence spent the rest of his life in jails and mental hospitals. Late
in the 19th century, the case of Youtsey v. United States (1899)
extended and helped shape the notion that certain defendants should
be barred from trial. Youtsey was epileptic, which had delayed his trial
for several months. The trial court denied his motion that his epilepsy
impaired his memory and affected his ability to communicate facts to
his lawyer. He was convicted, but the Court of Appeals reversed his
conviction, holding that it was “doubtful whether the accused was
capable of appreciating his situation, and of intelligently advising his
counsel as to his defense” (p. 947), noting that “it is not ‘due process
of law’ to subject an insane person to trial upon an indictment involv-
ing liberty or life” (p. 941).
The Legal Context 5
“Presence” at Trial, Fairness, and Accuracy

The competency doctrine evolved at a time when defendants were
not provided with the right to assistance of counsel and, in many
cases, were expected to present their defense alone and unaided. It is
believed by some that the competency doctrine arose in response to
the problem of defendants who stood mute rather than entering a 1
chapter
required plea. In these instances, the court would be required to

determine whether the defendant was “mute of malice” or “mute by
visitation of God” (Robertson, 1925). Those who were found to be
maliciously mute were subjected to torture, whereas those mute “by
visitation of God” (which included both those who were deaf and
unable to speak as well as those who were considered “lunatic”) were
spared. Thus, even early on there was recognition that more than
mere physical presence was required for a defendant to confront his
accusers and present a defense.
Various legal commentators have delineated several principles
underlying the rationale for the competency doctrine. The Group
for the Advancement of Psychiatry (1974) summarized four
underlying principles, including
1. to safeguard the accuracy of any criminal adjudication;

2. to guarantee a fair trial;
3. to preserve the dignity and integrity of the legal
process; and
4. to be certain that the defendant, if found guilty,
knows why he is being punished (p. 889).
Bonnie (1992b) explained that allowing only those who are

competent to proceed protects the dignity, reliability, and auton-
omy of the proceedings. The underlying rationale, then, concerns
both the protection of the defendant as well as the protection of
the state’s interest in fair and reliable proceedings.
Competence to Stand Trial and Its Relation

to Adjudicative Competence
Although the term competence to stand trial (CST) has been used
for centuries, there has begun a recent shift in terminology to
reflect the fact that the vast majority of cases are plead out before
6 Foundation
getting to trial and that the issue of “trial” competency can be

raised at any stage of the proceedings—from arrest to verdict to
sentencing. Bonnie (1992b), Poythress and colleagues (1999,
2002), and others have suggested the use of terms such as
adjudicative competence or competence to proceed to better reflect
the reality of this doctrine. Throughout this book, we will use the
terms competence to stand trial, adjudicative competence, and
competence to proceed interchangeably.
Legal Standards
Dusky and Drope
The legal standards for adjudicative competence clearly define com-
petency as an issue of a defendant’s present mental status and func-
tional abilities as they relate to participation in the trial process. This
distinguishes competency from criminal responsibility, which refers to
a defendant’s mental state at the time of the offense. In an extremely
brief decision, the U.S. Supreme Court established the modern day
standard for CST in Dusky v. United States (1960). Citing a recom-
mendation of the Solicitor General, the Court held that,
It is not enough for the district judge to find “the defendant [is]
oriented to time and place and [has] some recollection of events,”
but that the “test must be whether he has sufficient present abil-
ity to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.” (p. 402)
The Dusky decision provides little detail or elaboration on

these criteria. How should we define, and of course assess, a suffi-
cient ability to consult with a lawyer? What constitutes a reasonable
degree of rational understanding? How does a rational understand-
ing differ from a factual understanding? Of course, the answers to
these questions cannot be found simply in the wording of the legal
criterion. Rather, they must come from examining how the law is
actually applied and interpreted (both by legal scholars as well as
by the courts). The components of the legal standards for compe-
tency will be further elaborated here and in Chapter 2.
The Legal Context 7
Kruh and Grisso (2009) provide a closer analysis of some of

the terms used in the Dusky test to help clarify its meaning:
• Sufficient ability and reasonable understanding specify that

CST does not require complete and fully unimpaired func-
tioning. Reasonable also implies relativity in relation to the 1
chapter
context. That is, abilities must be better developed for com-
plex cases than for simple cases.
• Present ability specifies that CST is explicitly a “current
mental state question.” Therefore, by definition, CST is
independent of retrospective forensic mental health ques-
tions, such as mental state at the time of the offense.
However, present is generally accepted to include the imme-
diate future, as the trial process will typically proceed for
some brief period after a determination of competency.
• Ability connotes that the test seeks to identify individuals
who are unable to function adequately, not those who are
unfamiliar with appropriate functioning or those who
choose not to participate adequately.
• The distinction between factual and
rational understanding communicates
CASE LAW
that more than a concrete, rote under-
Dusky v. United
standing is required to possess CST.
States (1960)
• The and linking the two prongs indicates
● Established the
that both components are necessary.
modern day standard
(p. 14, italics in original)
for competence to
Fifteen years after Dusky, the U.S. Supreme stand trial
Court in Drope v. Missouri (1975) appeared ● Defendant must have

to elaborate slightly on the competency stan- sufficient present
dard by including the notion that the defen- ability to consult with a
dant must be able to “assist in preparing his lawyer with a
defense” (p. 171). Legal scholars, such as reasonable degree of
Bonnie (1993), as well as the American Bar rational understanding,
Association Criminal Justice Mental Health as well as factual
Standards (1989), indicated that Drope understanding of the
added another prong to Dusky by requiring proceedings
8 Foundation
CASE LAW
Drope v. Missouri (1975)
● Required that the defendant be able to assist in preparing his defense

and added another prong—“otherwise assist”—to the Dusky standard
● Held that the court should be aware of any changes in the defendant’s
condition that might raise questions about his competency at any point
during the trial proceedings
that defendant be able to “otherwise assist with his defense” (ABA,

1989, p. 170). Similarly, the addition of this “otherwise assist”
prong to the Dusky standard has been affirmed in cases such as
United States v. Duhon (2000).
State Statutes
Every state has adopted the Dusky standard for competency, either
verbatim or with minor revision. A review of state competency
statutes indicated that at least five states (Alaska, Florida, Illinois,
New Jersey, Utah) have also expanded or articulated the Dusky
standard to include specific functional abilities (Zapf, 2002). Since
the definition of competency varies by state, the evaluator must be
sure to consult the relevant competency statutes and definitions
before proceeding with the evaluation of a defendant’s competency.
Apart from the definition or standard for competency, most state
statutes provide little information about the nature of the evaluation
and the report to the court; however, some states, such as Florida and
Utah, provide considerable direction. Utah is perhaps the most spe-
cific about its expectations for the information that should be con-
tained in the report. These include the criteria that follow from Dusky,
as well as details about such issues as the ability to manifest appropri-
ate courtroom behavior, to testify rel-
evantly if applicable, and whether
BEST
medication is necessary and, if so,
PRACTICE
what impact it might have on the Consult the relevant statutes,
defendant’s demeanor, affect, and as definitions of competency
and directions for the
ability to participate in the proceed- evaluation and report vary by
ings (Utah Code Annotated, 2002). state.
The Legal Context 9
The Utah statute also directs evaluators to specify treatment for defen-
dants thought to be incompetent, as well as assess their ability to pro-
vide informed consent to treatment. In Canada, a defendant is
considered unfit (incompetent) to stand trial if he is
unable on account of mental disorder to conduct a defence at any

1
chapter
stage of the proceedings before a verdict is rendered or to instruct
counsel to do so, and, in particular, unable on account of mental
disorder to (a) understand the nature or object of the proceedings
(b) understand the possible consequences of the proceedings, or (c)
communicate with counsel. (Criminal Code of Canada, S.2, 1992)
Unlike the situation in the United States, wherein each state has
its own competency statute and standard, this standard applies to all
of Canada. One final note: The Canadian standard is nearly identical
to the standard for competency used in Federal courts in the United
States (see United States Code Annotated, Title 18, Part III, chapter
13, section 4241).
Case Law
In addition to state statutes, such as Utah’s more detailed guide-
lines for evaluating competency, case law offers some elaboration
and interpretation of Dusky.
In Wieter v. Settle (1961), the U.S. District Court for the
Western District of Missouri determined that it was improper to fur-
ther detain a defendant who had been charged with a misdemeanor
offense and held for 18 months for competence restoration since pros-
ecution was no longer probable. In delivering the court’s opinion,
Chief Judge Ridge delineated a series of eight functional abilities
related to Dusky that a defendant must possess to be competent:
1. that he has mental capacity to appreciate his presence in
relation to time, place, and things;
2. that his elementary mental processes be such that he appre-
hends (i.e., seizes and grasps with what mind he has) that he
is in a Court of Justice charged with a criminal offense;
3. that there is a Judge on the Bench;
4. a Prosecutor present who will try to convict him of a crimi-
nal charge;
10 Foundation
5. that he has a lawyer (self-employed or

CASE LAW
Court-appointed) who will undertake to
Wieter v. Settle
defend him against that charge;
(1961)
6. that he will be expected to tell his lawyer
● Delineated a series of
the circumstances, to the best of his men-
eight functional
tal ability, (whether colored or not by
abilities related to
mental aberration) the facts surrounding
Dusky that a defendant
him at the time and place where the law
must possess to be
violation is alleged to have been
competent
committed;
7. that there is, or will be, a jury present to
pass upon evidence adduced as to his guilt
or innocence of such charge; and
8. he has memory sufficient to relate those
things in his own personal manner. (p. 320)
The U.S. Court of Appeals considered the relevance of amne-
sia to adequate participation in legal proceedings in Wilson v.
United States (1968). The court, in Wilson, delineated six factors
that must be considered:
1. the extent to which the amnesia affected the defendant’s
ability to consult with and assist his lawyer.
2. the extent to which the amnesia affected the defendant’s
ability to testify in his own behalf.
3. the extent to which the evidence in suit could be extrinsi-
cally reconstructed in view of the defendant’s amnesia. Such
evidence would include evidence relating to the crime itself,
as well as any reasonable possible alibi.
4. the extent to which the government assisted the defendant
and his counsel in that reconstruction.
5. the strength of the prosecution’s case. Most important here
will be whether the government’s case is such as to negate
all reasonable hypotheses of innocence. If there is any sub-
stantial possibility that the accused could, but for his amne-
sia, establish an alibi or other defense, it should be
presumed that he would have been able to do so.
The Legal Context 11
6. any other facts and circumstances

CASE LAW
which would indicate whether or
Wilson v. United
not the defendant had a fair trial.
States (1968)
(pp. 463–464)
● Delineated six factors
The Wilson factors clearly specify a
that need to be 1
chapter
considered for functional approach to evaluating com-
evaluating competency petency, in which the specific deficits of
a defendant would be related to the
● Related the specific
legal context. We will elaborate on this
deficits of the defendant
approach in Chapter 2.
to the legal context
Competence to Waive Counsel and Plead Guilty

All defendants are provided the constitutional right to assistance of
counsel; however, defendants may choose to waive this right and
represent themselves (to appear pro se). This raises the question of
whether competence to waive counsel should be evaluated sepa-
rately from CST. Cases such as Colin Ferguson’s cast considerable
doubt on court decisions to allow certain defendants to represent
themselves (Perlin, 1996). Colin Ferguson, a 37-year-old native of
Jamaica who was clearly paranoid and mentally disturbed, shot and
killed six people and wounded 19 others on a Long Island Rail Road
commuter train in December 1993. Ferguson fired his defense
attorney, who had intended to pursue an insanity defense, and
decided to represent himself, using the defense that a White perpe-
trator stole his gun and was responsible for the shootings, despite
numerous eyewitnesses to the contrary. On the basis of the Supreme
Court’s opinion in Godinez (discussed later), Ferguson was consid-
ered competent to waive his right to counsel (and proceed pro se).
His trial is said to have made a mockery of the court system and has
been characterized as a sham and a charade (Perlin, 1996).
Should there be a different, perhaps higher, standard for eval-
uating competency in cases in which the defendant waives counsel?
What about those cases, such as that of Theodore Kaczynski, in
which the defendant wishes to appear pro se in a capital case? It is
also the case that most defendants do not actually go to trial, since
plea bargaining accounts for the vast majority of dispositions of
12 Foundation
criminal cases. Again, should there be a different standard for eval-

uating competence to plead guilty? Many clinicians and researchers
have argued that these are different abilities and that a defendant
might be competent to stand trial but not competent to waive
counsel or enter a guilty plea (Whittemore, Ogloff, & Roesch,
1997; see Zapf & Roesch, 2005a for a detailed discussion of this
issue). Court decisions have been mixed on this issue with some
(e.g., Sieling v. Eyman, 1973) holding that the standards are not
the same and that there should be a higher standard for some
rights, such as pleading guilty. The U.S. Supreme Court consid-
ered the issue of whether a higher standard should apply for waiv-
ing counsel or pleading guilty in Godinez v. Moran (1993). The
defendant, Moran, after being found competent to stand trial, dis-
charged his lawyers, entered a plea of guilty to three counts of
murder, and was then sentenced to death. He appealed, arguing
that although he had been found competent to stand trial, he was
not competent to waive his right to counsel and represent himself.
The U.S. Supreme Court rejected this argument and held that the
standard for various types of competency (i.e., competence to
plead guilty, to waive counsel, and to stand trial) should be consid-
ered the same. Justice Thomas wrote for the majority:
A defendant who stands trial is likely to be presented with choices

that entail relinquishment of the same rights that are relinquished
by a defendant who pleads guilty. . . . all criminal defendants—not
merely those who plead guilty—may be required to make important
decisions once criminal proceedings have been initiated. And while
the decision to plead guilty is undeniably a profound one, it is no
more complicated than the sum total of decisions that a defendant
may be called upon to make during the course of a trial. . . . Nor do
we think that a defendant who waives his right to the assistance of
counsel must be more competent than a defendant who does not,
since there is no reason to believe that the decision to waive coun-
sel requires an appreciably higher level of mental functioning than
the decision to waive other constitutional rights. (p. 2686)
This decision appeared at odds with researchers and legal

scholars, who had argued that different evaluation criteria would
be appropriate for the various legal situations that a defendant

might face (Bonnie, 1992b, 1993; Roesch & Golding, 1980).
Justice Thomas also noted that,
Requiring that a criminal defendant be competent has a modest

aim: It seeks to ensure that he has the capacity to understand the
1
chapter
proceedings and to assist counsel. While psychiatrists and schol-
ars may find it useful to classify the various kinds and degrees of
competence, and while States are free to adopt competency stan-
dards that are more elaborate than the Dusky formulation, the
Due Process Clause does not impose these additional require-
ments. (p. 2687)
In his dissent, Justice Blackmun noted that the “majority’s

analysis is contrary to both common sense and long-standing case
law” (p. 2691). Noting that prior Supreme Court cases have
“required competency evaluations to be specifically tailored to the
context and purpose of a proceeding” (p. 2694), Justice Blackman
reasoned that competency cannot be considered apart from its spe-
cific legal context, that “A person who is ‘competent’ to play bas-
ketball is not thereby ‘competent’ to play the violin” (p. 2694), and
thus “competency for one purpose does not necessarily translate to
competency for another purpose.” He also commented that,
The standard for competence to stand trial is specifically designed

to measure a defendant’s ability to “consult with counsel” and to
“assist in preparing his defense.” A finding that a defendant is com-
petent to stand trial establishes only that he is capable of aiding his
attorney in making the critical decisions required at trial or in plea
negotiations. The reliability or even relevance of such a finding
vanishes when its basic premise—that counsel will be present—
ceases to exist. The question is no longer whether the defendant
can proceed with an attorney, but whether he can proceed alone
and uncounseled. (p. 2694)
The Godinez decision has been criticized by legal scholars

(e.g., Perlin, 1996). It remains unclear the extent to which this
decision actually affects either evaluations or determinations of
competency. Some have argued that the decision may elevate the
14 Foundation
standard for competency, since the initial evalu-

CASE LAW
ation must take into account all of the decision-
Godinez v.
making abilities required at all stages of the
Moran (1993)
proceedings, including waiving counsel, plead-
● U.S. Supreme Court
ing guilty, and representing oneself, and not
held that the standard
simply whether a defendant has a basic under-
for various types of
standing of the arrest and legal proceedings
competency
and is able to communicate with counsel (see
(competence to stand
Grisso, 2003; Melton, Petrila, Poythress, &
trial, competence to
Slobogin, 2007). What seems clear, however,
waive counsel,
is that the Dusky standard is the constitutional
competence to plead
minimum to be applied, regardless of the spe-
guilty) should be the
cific legal context, and that a defendant’s
same.
decision-making abilities appear to be encom-
● Other legal scholars passed within this standard.
have argued that As this book goes to press, a recent deci-
different evaluation sion by the U. S. Supreme Court in Indiana v.
criteria for competency Edwards (2008) appears to redefine the
is appropriate for Godinez decision and provide a framework for
different legal contexts. clinicians who are evaluating whether a defen-
dant has the capacity for self-representation.
Ahmad Edwards was charged with attempted murder, battery
with a deadly weapon, criminal recklessness, and theft after he
tried to steal a pair of shoes from a department store. When he
was discovered, he shot at a security officer and wounded a
bystander. He was found incompetent and committed for treat-
ment. Following seven months of treatment, he was found com-
petent but several months later he was again found incompetent
and was recommitted for treatment. Following eight months of
treatment, he was found competent. Edwards’ trial began nearly
one year after this determination of competency. Just prior to
trial, Edwards asked to represent himself, asking for a continu-
ance in order to proceed pro se. The court refused and Edwards
was convicted of criminal recklessness and theft but the jury
failed to reach a verdict on the charges of attempted murder and
battery. The State decided to retry Edwards on these two
charges, and again Edwards asked to represent himself. The court
denied his request and Edwards was represented by counsel at his

retrial, where he was convicted of both remaining counts.
Edwards appealed, arguing that the denial of his request to
represent himself deprived him of his constitutional right of self-
representation. The Indiana Supreme Court also considered the
case and affirmed the Appeals Court decision, noting that prece- 1
chapter
dent, particularly Faretta and Godinez, required the State to allow

Edwards to represent himself. The U.S. Supreme Court, at
Indiana’s request, agreed to consider whether the Constitution
requires the trial court to allow self-representation.
The Court acknowledged that Faretta affirms a constitutional
right to proceed without counsel when a criminal defendant volun-
tarily and intelligently elects to do so, but the Court added that the
right is not absolute, and the Edwards case requires a consideration
of whether mental illness limits this right. Of course, the Court had
considered the issue of competence and self-representation in
Godinez, where (as we have discussed at length in this chapter) it was
decided that there should not be a higher standard of competency for
a defendant to waive the right of self-representation or to enter a
guilty plea. On its face, the decision in Godinez would appear to sug-
gest that if Edwards were competent to proceed with counsel, he
would also be competent to represent himself. However, the Court
in Edwards rejected this interpretation, arguing that in Godinez the
issue was whether the defendant had the ability to proceed on his
own simply to enter a guilty plea, not whether the defendant had the
capacity to represent himself at trial.
The Edwards Court considered the issue of whether a State, in
the case of a criminal defendant who meets the Dusky standard of
competence to stand trial, can limit a criminal defendant’s right of
self-representation by requiring that the defendant be represented
by counsel at trial. The Court answered in the affirmative when a
defendant lacks the mental capacity to conduct a trial defense unless
represented. The Court cited an American Psychiatric Association
brief, submitted in this case, which argued that mental illness could
impair a defendant’s ability to engage in the expanded role required
for self-representation even in cases where the defendant could pro-
ceed to trial with representation. Thus, the Edwards decision makes
16 Foundation
clear that the standard for competence may indeed vary in certain
limited instances. At first glance, this appears to be inconsistent with
the precedence established in Godinez, but the Court expressly
addressed this by noting that,
Godinez provides no answer here because that defendant’s abil-

ity to conduct a defense at trial was expressly not an issue in that
case . . . and because the case’s constitutional holding that a
State may permit a gray-area defendant to represent himself does
not tell a State whether it may deny such a defendant the right to
represent himself at trial. (p. 2, italics in original)
The Edwards decision establishes that competence to proceed

pro se requires a higher level of competence than competence to
stand trial, but is unclear exactly how that would be determined.
It also places a high premium on preserving the dignity of the
courtroom and the fairness of the trial. The decision notes that a
right of self-representation would not affirm the dignity of a
defendant who lacks mental capacity to conduct a defense without
assistance of counsel, commenting that given a “defendant’s
uncertain mental state, the spectacle that could well result from
his self-representation at trial is at least as likely to prove humili-
ating as ennobling” (p. 11).
In his dissent, Justice Scalia calls this decision extraordinarily
vague. He notes that Edwards disagreed with his lawyers about
how to present his case at trial. Edwards wanted a self-defense
argument, while his lawyers wished to focus on lack of intent.
CASE LAW
Indiana v. Edwards (2008)
● U.S. Supreme Court held that the Constitution does not forbid States from
insisting upon representation by counsel for those competent enough to
stand trial but who suffer from mental illness to the point where they are
not competent to conduct trial proceedings by themselves.
● The decision leaves unclear the standard to be used for competence to

proceed pro se versus competence to stand trial.
While Scalia comments that he would have likely been convicted

anyway, the Court erred in holding that a defendant who is
competent to stand trial does not have the constitutional right to
self-representation. Justice Scalia is also critical of the Court’s
concern with the dignity of the proceedings. He writes “Once
the right of self-representation for the mentally ill is a sometime 1
chapter
thing, trial judges will have every incentive to make their lives
easier . . . by appointing knowledgeable and literate counsel”
(p. 11 of dissent).
Thus, in light of the Supreme Court’s decision in Edwards,
what are the implications for evaluations of competence to stand
trial wherein the defendant is requesting self-representation? At
present, it appears too early to tell how various courts will con-
sider this issue or the criteria that various states may adopt. We
may, however, be able to ascertain some clue as to how this issue
will be considered by examining the amicus briefs submitted in
Edwards.
A number of amici submitted briefs in Edwards. Two briefs,
in particular, are especially relevant when attempting to provide
guidance to evaluators asked to consider a defendant’s compe-
tence to stand trial without the assistance of counsel. The
American Bar Association (ABA) submitted a brief in support of
the petitioner (Indiana) wherein it was argued that the ABA’s
Criminal Justice Standards on Mental Health and the Special
Functions of the Trial Judge provide a useful template for deter-
mining competency in this context. In its brief, the ABA high-
lighted that Standard 6–3.6 of the ABA Standards for Criminal
Justice: Special Functions of the Trial Judge recommends that,
before allowing a defendant to proceed without the assistance of
counsel, trial judges determine that the defendant
(i) has been clearly advised of the right to the assis-

tance of counsel, including the right to the assign-
ment of counsel when the defendant is so entitled;
(ii) is capable of understanding the proceedings; and
(iii) has made an intelligent and voluntary waiver of the
right to counsel.
18 Foundation
The reader will note that this does not appear to deviate from the
decision of the Supreme Court in Godinez. The ABA brief, how-
ever, goes on to elaborate that,
if the court possesses ‘a good faith doubt of the mental compe-

tence of the defendant to waive counsel or to represent himself
or herself,’ ABA Standard for Mental Health 7–5.3 recommends
that the trial judge order a pretrial mental evaluation. Based on
the results of that evaluation, the judge should determine
whether the defendant has:
the present ability to knowingly, voluntarily, and intelli-
gently waive the constitutional right to counsel, to
appreciate the consequences of the decision to proceed
without representation by counsel, to comprehend the
nature of the charge and proceedings, the range of appli-
cable punishments, and any additional matters essential
to a general understanding of the case. (Standard
7–5.3(b))
If the defendant lacks these abilities, Standard 7–5.3(a) pro-
vides that the court should not permit the defendant to
proceed without the assistance of counsel. (Brief of the ABA
as amicus curiae supporting petitioner in Indiana v. Edwards,
pp. 8–9)
The American Psychiatric Association (APA) and the

American Academy of Psychiatry and the Law (AAPL) submitted
a joint brief in support of neither party wherein it was argued that
the underlying capabilities relevant for self-representation are
“generally extensions of assessments already embraced within the
inquiries typically made for assessing competency to stand trial”
(p. 27). The APA/AAPL brief also argued that since it has been
determined that evaluations of CST are essentially high in reliabil-
ity and validity, then these expanded evaluations of competency
for self-representation should be reliable and valid as well. In
essence, the APA/AAPL brief asserted a functional approach to
the assessment of competency wherein the defendant’s capabilities
must be considered in light of the competence-related abilities
required within the specific contextA. The APA/AAPL brief

noted that,
In short, inquiries into decision-making and cognitive/communica-

tion capabilities are already part of the reliable assessment of compe-
tency to stand trial. Such inquiries, however, must be specific to the 1
chapter
tasks involved, and those tasks are substantially expanded for a pro se
defendant. What is required in this context, therefore, is a significant
extension of inquiries already being made (albeit in a narrower focus)
for the threshold assessment of competency to stand trial. (p. 33)
Thus, in evaluating competence to stand trial, the evaluator

should be careful to consider whether the defendant is to proceed
with or without the assistance of counsel. In those cases where the
defendant is to proceed pro se, an evaluation of the expanded abil-
ities required for self-representation should occur and a description
of the degree of congruence/incongruence between the required
abilities and the defendant’s capabilities presented to the court.
Competency Procedures
Raising the Issue
Legal procedures are well-established to ensure that defendants are
competent to proceed. In Pate v. Robinson (1966), the U.S. Supreme
Court held that the competency issue must be raised by any officer of
the court (defense, prosecution, or judge) if there is a bona fide doubt
as to a defendant’s competence. The threshold for establishing a bona
fide doubt is low, and most courts will order an evaluation of compe-
tence once the issue has been raised. Commenting on its decision in
Pate, the U.S. Supreme Court in Drope v. Missouri (1975) noted that,
evidence of a defendant’s irrational behavior, his demeanor at

trial, and any prior medical opinion on competence to stand trial
are all relevant in determining whether further inquiry is
required, but that even one of these factors standing alone may,
in some circumstances, be sufficient. (p. 180)
A The reader is referred to pp. 20 – 26 of the Brief for the American Psychiatric Association
and American Academy of Psychiatry and the Law as amici curiae in support of neither party
for further elaboration on the expanded abilities required for self-representation.
20 Foundation
The Drope decision added that, even when a

CASE LAW defendant is competent at the outset of trial,
Pate v. Robinson the trial court should be aware of any changes
(1966) in a defendant’s condition that might raise
question about his competence to stand trial.
held that the
Thus, the issue of competency can be raised at
competency issue
any time prior to or during a trial.
must be raised by any
Evaluating Competency
officer of the court
EVALUATORS
(defense, prosecution,
It has long been established that medical profes-
or judge) if there is
sionals may offer an opinion on the issue of com-
a bona fide doubt
petency; however, the role of psychologists in
as to a defendant’s
evaluating competency was established in 1962,
competence.
in Jenkins v. United States. The trial judge in
Jenkins had instructed the jury to disregard the
testimony of three psychologists because they were not qualified to
diagnose mental disorder. Although Jenkins was a case involving an
insanity defense, the U.S. Supreme Court’s decision to reject the
trial judge’s opinion established the qualifications of psychologists to
provide expert opinion regarding mental disorders. It is important
to recognize, however, that this decision does not
automatically grant psychologists
CASE LAW
expert status. Rather, it explicitly
Jenkins v. United
stated that the determination of a
States (1962)
psychologist’s status must be based
on the psychologist’s nature and ● Established the
extent of knowledge. In the context inclusion of
of competency evaluations, we agree psychologists as
explicitly with this perspective and experts on a range of
note that a degree in psychology mental health issues in
does not necessarily establish expert- the courts
ise in the evaluation of CST. ● Determined that expert

Virtually all states now allow tes- status must be based
timony by psychologists in compe- on the professional’s
tency as well as criminal responsibility nature and extent of
issues (Farkas, DeLeon, & Newman, knowledge
1997). More recently, psychologists in Canada have gained credibil-

ity as experts in competency cases (see Viljoen, Roesch, Ogloff,
& Zapf, 2003, for a review).
SETTING
A competency evaluation can take place in a number of settings, 1
chapter
including jails, outpatient settings, or inpatient forensic facilities. The
common practice of inpatient evaluation has gradually changed over
the past few decades and, at present, an increasing number of evalua-
tions are conducted on an outpatient basis, such as at the jail or in a
noncustody setting (Grisso, Cocozza, Steadman, Fisher, & Greer,
1994). As we will discuss in Chapter 3, this shift is supported by cost-
effectiveness arguments as well as the fact that the majority of decisions
about competence can be made in a relatively brief period of time.
One reason that decisions about the competence of most defen-
dants can be made in a brief evaluation is that the threshold for
ordering a competency evaluation is low. Evaluators should be aware
of the possibility that competency evaluations may occasionally be
used for reasons other than concern about a defendant’s actual com-
petency. Alternative reasons include delaying a trial, obtaining infor-
mation that can be useful to the defense, obtaining information
about the feasibility of mounting an insanity defense, or other strate-
gic reasons (Cooper & Grisso, 1997; Roesch & Golding, 1980).
Changes in civil commitment practices that began with the deinsti-
tutionalization movement may also account for the increase in com-
petency referrals over the past several decades. Individuals who
previously might have been civilly committed, but who currently do
not meet the more stringent dangerousness criteria, may be arrested,
and competency referrals become a mechanism to get them into a
treatment facility (Melton et al., 2007; Roesch & Golding, 1985).
Often, assessments of competency, especially screening evalua-
tions at the jail or at the court, may take place in less-than-optimal
evaluation environments, with multiple distractions. As will be dis-
cussed further in Chapter 4, it is important that the evaluation take
place in a relatively private, distraction-free setting. When this is
not possible, the evaluator may need to request a different setting
for the evaluation.
22 Foundation
Determination of Competency
CASE LAW Once the evaluation has been completed and a
Cooper v. report submitted to the court, a hearing will be
Oklahoma (1996) scheduled to adjudicate the issue of competence
● Established that (these hearings usually take place in front of a
incompetency must be judge, but a few jurisdictions allow for a jury to
proved by a hear the issue of competency in certain circum-
preponderance of stances). Cooper v. Oklahoma (1996) established
evidence, and not the that incompetency must be proved by a prepon-
higher standard of derance of evidence, and not the higher standard
clear and convincing of clear and convincing evidence. The evaluator’s
evidence report is highly influential in the court’s decisions.
Often, the opinion of a clinician is not disputed,
and the court may simply accept the recommendations made in the
report. Indeed, research has shown that the courts agree with report
recommendations upward of 90% of the time (Hart & Hare, 1992;
Reich & Tookey, 1986; Roesch & Golding, 1980; Zapf, Hubbard,
Cooper, Wheeles, & Ronan, 2004). Thus, this appears to be the norm
in those jurisdictions in which the court orders only one evaluator to
assess competency. Hearings on the issue of competency appear to
occur more often, although still relatively infrequently, in those juris-
dictions where two experts are asked to evaluate competency.
Defendants determined to be competent may then proceed
with trial or with another disposition of their criminal case. The
trial of defendants found incompetent is postponed until compe-
tency has been restored or, in a small percentage of cases, until a
determination is made that the defendant is unlikely to regain
competency. In the next section, we will review legal cases regard-
ing the treatment of incompetent defendants.
Competence Restoration
DETENTION
Until the landmark case of Jackson v. Indiana (1972), most states
allowed the automatic and indefinite confinement of incompetent
defendants. This resulted in many defendants being held for lengthy
periods of time, often beyond the sentence that might have been
imposed had they been convicted. Roesch and Golding (1980)
found, for example, that incompetent

CASE LAW
defendants in North Carolina were held
Jackson v.
for an average of nearly three years, with
Indiana (1972)
a range up to more than 15 years. This
practice was challenged in Jackson. The
held that incompetent 1
U.S. Supreme Court in Jackson held that chapter
defendants could not
defendants committed solely on the basis
be confined for more
of incompetency “cannot be held more
than a reasonable
than the reasonable period of time
period of time needed
necessary to determine whether there is a
to determine if they
substantial probability that he will attain
were capable of
that capacity in the foreseeable future”
regaining capacity in
(p. 738). The Court did not specify lim-
the future.
its to the length of time a defendant
could reasonably be held, nor did it indi-
cate how progress toward the goal of regaining competency could be
assessed. Nevertheless, this decision resulted in changes to state laws
regarding confinement of incompetent defendants.
Many states now place limits on the maximum length of time
a defendant can be held and, if a defendant is determined to be
unlikely to ever regain competency, the commitment based on
incompetency must be terminated. However, in many states, the
actual impact of Jackson may be minimal (Morris, Haroun, &
Naimark, 2004). State laws regarding treatment of incompetent
defendants vary considerably, and Morris and colleagues found
that many states ignore or circumvent Jackson by imposing
lengthy commitment periods before a determination of unrestor-
ability can be made, or tie the length of confinement to the sen-
tence that could have been imposed had the individual been
convicted of the original charge(s). Even after a period of con-
finement and a determination that competency is unlikely to be
restored in the foreseeable future, it is possible that such defen-
dants could be civilly committed, but United States v. Duhon
(2000) makes clear that defendants who are not dangerous must
be released. Charges against defendants who are not restorable
are typically dismissed, although sometimes with the provision
that they can be reinstated if competency is regained.
24 Foundation
MEDICATION
As we will review in Chapter 3, medication is the most common
form of treatment for incompetent defendants and, in many cases,
for allowing defendants to proceed with trial. Defendants who
have been found incompetent but who respond to medication may
be returned to court, and a hearing may determine that they are
now trial competent. Clinicians should be clear in reports to the
court about the role that medication plays in maintaining compe-
tency. Since trial is often delayed for some period after a determi-
nation of competency is made, it is possible that some defendants
will discontinue medication before or even during a trial. If a
defendant’s behavior changes, it is possible that another compe-
tency hearing may be necessary. For example in Miles v. Stainer
(1997), an Appeals Court held that the trial court had erred when
it did not determine whether a defendant had been taking his med-
ication prior to accepting a plea. In this case, the treating physician
had been clear that the defendant’s competency depended on con-
tinuing to take antipsychotic medication, and jail records indicated
that the defendant had stopped taking his medication two weeks
prior to the plea.
Incompetent defendants may refuse to take medication. In
these cases, is it permissible to override their right to refuse treat-
ment and subject them to involuntary medication? Two major cases
have been decided by the U.S. Supreme Court, dealing with the
issue of the involuntary medication of defendants who had been
found IST. In Riggins v. Nevada (1992), David Riggins had been
prescribed thioridazine (Mellaril®) and found CST. He submitted
a motion requesting that he be allowed to discontinue the use of
this medication during trial, to show jurors his true mental state at
the time of the offense, since he was raising an insanity defense. His
motion was denied, and he was convicted of murder and sentenced
to death. The U.S. Supreme Court reversed his conviction, holding
that his rights were violated. Specifically, the Court found that the
trial court failed to establish the need for and medical appropriate-
ness of the medication. The Court commented that “Due process
certainly would have been satisfied had the State shown that the
treatment was medically appropriate and, considering less intrusive
alternatives, essential for Riggins’ own

CASE LAW safety or the safety of others” (p. 127).
Riggins v. The Court also addressed the issue of
Nevada (1992) whether the involuntary use of antipsy-
● Permitted the use of chotic medications may affect the trial’s
involuntary medication outcome: “Mellaril’s side effects may 1
chapter
if it is established that have impacted not only his outward

the treatment is appearance, but also his testimony’s
medically appropriate content, his ability to follow the pro-
and that any side ceedings, or the substance of his com-
effects will not munication with counsel” (p. 127).
undermine the fairness In the case of Sell v. United States
of a trial (2003), the U.S. Supreme Court further
specified the criteria to be followed to
determine if forced medication is permissible. Dr. Charles Sell, a
dentist who had a long history of mental illness, was charged with
fraud and attempted murder. Although initially found competent
and released on bail, his condition deteriorated and his bail was sub-
sequently revoked. He was reevaluated, found incompetent, and
committed for treatment at a Federal Medical Center. Dr. Sell
refused to consent to treatment, and the center ordered his involun-
tary medication. Sell appealed, but the appellate court authorized
forced administration of antipsychotic drugs. The appellate court
held that Sell was dangerous to himself or others and that medica-
tion was necessary to render him less dangerous, that the drug’s
benefits outweighed the risks, and that the drugs were substantially
likely to restore competence. The U.S. Supreme Court held that
antipsychotic drugs could be administered against the defendant’s
will for the purpose of restoring competency, but only in limited cir-
cumstances. Writing for the majority, Justice Breyer noted that
involuntary medication of incompetent defendants should be rare,
and identified several factors that a court must consider in determin-
ing whether a defendant can be forced to take medication:
First, a court must find that important governmental interests

are at stake. The Government’s interest in bringing to trial an
individual accused of a serious crime is important. However,
26 Foundation
courts must consider each case’s facts in evaluat-

CASE LAW
ing this interest because special circumstances
Sell v. United
may lessen its importance, e.g., a defendant’s
States (2003)
refusal to take drugs may mean lengthy confine-
ment in an institution, which would diminish
held that antipsychotic
the risks of freeing without punishment one
drugs could be
who has committed a serious crime. In addition
administered against
to its substantial interest in timely prosecution,
the defendant’s will for
the Government has a concomitant interest in
the purpose of
assuring a defendant a fair trial. . . .
restoring competency
Second, the court must conclude that forced
in limited
medication will significantly further those con-
circumstances.
comitant state interests. It must find that medica-
tion is substantially likely to render the defendant
competent to stand trial and substantially unlikely to have side
effects that will interfere significantly with the defendant’s ability
to assist counsel in conducting a defense. . . .
Third, the court must conclude that involuntary medication
is necessary to further those interests and find that alternative,
less intrusive treatments are unlikely to achieve substantially the
same results. . . .
Fourth, the court must conclude that administering the
drugs is medically appropriate. The specific kinds of drugs at
issue may matter here as elsewhere. Different kinds of antipsy-
chotic drugs may produce different side effects and enjoy differ-
ent levels of success. (p. 167, italics in original)
Although the U.S. Supreme Court affirmed that it is permis-

sible to administer antipsychotic drugs to a criminal defendant in
order to restore competency, it held that the lower court in Sell’s
case did not determine that all the above criteria had been met.
Consequently, the order to involuntary administer medication was
reversed. The Court noted that the government could pursue the
request for involuntary medication on the grounds discussed in its
decision in Sell.
Forensic Mental
Health Concepts 2
E valuation of a defendant’s psychological functioning is an essen-

tial component of the assessment of competency. Although not
clearly specified in the Dusky decision (see Chapter 1), most state laws
require that a finding of incompetence be based on the presence of a
mental disorder (Zapf, 2002). Once the presence of mental disease
or defect has been established, the following must ensue:
• evaluation of relevant functional abilities and deficits,
• determination of a causal connection between any
noted deficits and mental disorder, and
• specification of how these deficits may impact upon
functioning at trial.
In this chapter, we will provide an overview of mental health
concepts and present a framework for assessing competence based
on a functional, contextual perspective.
Mental Illness as a Prerequisite

for Incompetence
Forensic evaluators should recognize that determination of
a serious mental disorder or mental retardation is merely the
first step in finding a defendant Incompetent to Stand Trial
(IST). As Zapf, Skeem, and Golding (2005) noted, “the pres-
ence of cognitive disability or mental disorder is merely a thresh-
old issue that must be established to ‘get one’s foot in the
competency door’” (p. 433). Although evaluators a few decades
ago appeared to base competency decisions largely on a finding
of psychosis or mental retardation (see Roesch & Golding,
27
28 Foundation
1980, for a review), evaluators now

INFO
recognize that the presence of a diag-
The presence of a mental
nosis, even of a severe mental disor-
disorder in itself does not
der, is not by itself sufficient to find a
make a defendant
defendant incompetent. As detailed in
incompetent. Rather, a
Chapter 3, psychosis is significantly
connection must exist
correlated with a finding of incompe-
between the defendant’s
tence. That is, a majority of incompe-
specific symptoms and
tent defendants are diagnosed with
functioning during legal
some form of psychosis (mental retar-
proceedings.
dation and organic brain disorders
account for most of the remaining
diagnoses). However, only about one-half of evaluated defen-
dants with psychosis are found incompetent (Nicholson &
Kugler, 1991), a clear indication that evaluators do not equate
incompetence with psychosis. Rather, as discussed later in this
chapter, it is necessary to delineate a clear link (causal connec-
tion) between a defendant’s mental impairments and his ability
to participate in legal proceedings. This is referred to as a func-
tional assessment of competency.
Before turning to a discussion of functional assessment, it may
be helpful to provide a brief overview of mental disorders and
their possible relevance to an assessment of CST. A defendant may
have clearly demonstrable pathology, but the symptoms or
observable features may be irrelevant to the issue of competency.
Such features would include depersonalization, derealization, sui-
cidal ideation, and poor insight. Even a person who meets civil
commitment criteria may be considered CST, although there does
appear to be a strong relationship between incompetence and
commitability. For the most part, evaluators need to determine
that the level of mental disorder is severe enough to affect a defen-
dant’s ability to proceed with trial. A diagnosis is useful in this
regard, but evaluators will want to pay more attention to symp-
toms rather than to broad diagnostic categories. Many incompe-
tent defendants have a diagnosis of schizophrenia, for example,
but it is the specific symptoms that will be relevant to the compe-
tency evaluation.
Forensic Mental Health Concepts 29
Psychiatric Diagnoses and Symptoms

The Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision (DSM-IV-TR; American Psychiatric Associa-
tion, 2000) is the standard diagnostic reference used by mental health
professionals in North America. No particular diagnosis would rule
out a finding of incompetence, but psychotic disorders—along with
mental retardation and organic disorders—are those that are more fre-
quently associated with IST. Schizophrenia is a common diagnosis
among incompetent defendants largely because it includes psychotic
symptoms as the prominent aspect of the diagnosis (Hart & Hare,
1992; Warren, Fitch, Dietz, & Rosenfeld, 1991). As the DSM-IV-TR 2
chapter
notes, “the term psychotic refers to delusions, any prominent halluci-

nations, disorganized speech, or disorganized or catatonic behavior”
(p. 297). These symptoms have been found to be among the
strongest predictors of an incompetency determination (Nicholson &
Kugler, 1991). Rosenfeld and Wall (1998) found that thought disor-
der, delusions, paranoia, disorientation, and hallucinations were the
best predictors of incompetence among defendants with a diagnosis
of psychosis. One of their findings may be particularly instructive for
clinicians conducting competency evaluations. They noted that higher
levels of psychotic symptoms were associated with impaired ability to
assist in one’s defense, but disorientation and overall intellectual func-
tioning were associated with impaired ability to understand charges
and proceedings. Viljoen, Roesch, and Zapf (2002b) found that
defendants with primary psychotic disorders demonstrated more
impairment than did other defendants in their understanding of inter-
rogation rights, the nature and object of the proceedings, the possible
consequences of proceedings, and their ability to communicate with
counsel; however, psychosis was of limited value as a predictor, as high
rates of legal impairment were found even in defendants with no diag-
nosed major mental illness. These studies reinforce the need to focus
on the relationship of symptoms (and not broad diagnostic categories
or the presence or absence of psychosis) to
INFO
specific legal abilities.
Psychotic symptoms are
In Chapter 5, evaluation procedures
among the strongest
for assessing mental status are reviewed
predictors of incompetence.
in detail. Whatever clinical assessment
30 Foundation
process is used, the following sections

INFO
delineate crucial elements that need to
Evaluations should assess or
be assessed and/or ruled out (see
rule out all of the following:
Roesch, Zapf, & Eaves, 2006).
● formal thought disorder,
● concentration deficits, FORMAL THOUGHT DISORDER

Gross formal thought disorder or disor-
● rate of thinking,
ganized thinking is an important feature
● delusions or
of schizophrenia. It is indicated by disor-
hallucinations,
ganized speech (e.g., loose associations,
● memory deficits, and tangentiality, incoherence, or word salad)
● mental retardation and is often accompanied by other psy-
(intellectual and chotic features. Disorganized thinking
developmental can interfere with the ability to give
disabilities). coherent, relevant instructions to a
defense attorney, the capacity to provide
testimony at trial, or to understand what witnesses are saying. Motor
or sensory aphasia may also need to be considered because of their
impact on the ability to communicate.
CONCENTRATION DEFICITS
Concentration deficits may result from severe anxiety, hypomania,
mania, organic brain dysfunction, severe attention deficit disorder,
or other mental impairment. If severe, these deficits might inter-
fere with the defendant’s ability to follow the court process and to
instruct counsel as the case unfolds.
RATE OF THINKING
Abrupt and rapid changes in speech (e.g., flight of ideas) can indi-
cate manic behavior and disorganization that would affect a defen-
dant’s ability to focus attention on her case. Conversely, profound
slowing (retardation) of thinking associated with depression can
have the same effect.
DELUSIONS OR HALLUCINATIONS
Delusions and hallucinations are two primary symptoms of psychosis
and are particularly relevant to a defendant’s CST. As discussed in this
chapter, however, it is not simply the presence or absence of delusions
that is relevant, but rather the impact of the degree of intrusiveness of

abnormal ideation or perception on the defendant’s ability to proceed
with trial (see Goldstein & Burd, 1990). To be considered incompe-
tent, false ideas or hallucinatory experiences must interfere, at least to
some extent, with the ability to think clearly and logically in areas rel-
evant to CST. Gross delusions may not necessarily inhibit the ability
to instruct counsel if the subject of the delusions is irrelevant to the
defendant’s situation or if the delusions are not generally intrusive.
However, a delusion causing a defendant to be suspicious of counsel
or of the court process itself might impair her ability to give appropri-
ate instructions. For example, Goldstein and Burd cite the case of a 2
chapter
27-year-old man with religious delusions who believed that women

were inferior and, consequently, he could not be adequately repre-
sented by his female lawyer; however, he also believed that God knew
that the complainant was lying and would take her firstborn child,
adding that he did not care what happened to him as “only God
knows and judges” (p. 380). The concern about representation could
be addressed by assigning a male lawyer, but the delusions about God
being the sole judge of his guilt or innocence affected his ability to
participate in trial strategy. As such, he was found IST.
MEMORY DEFICITS
Memory for the circumstances surrounding the alleged offense
would appear to be a critical component of competent participation
in the legal process. To prepare a defense, lawyers need to know the
circumstances surrounding the arrest of their client, what was said to
arresting officers, or information about alibis. What happens in a case
in which a defendant cannot remember the arrest or the period
immediately preceding the arrest? Interestingly, the courts have not
been receptive to the notion that a defendant with amnesia is neces-
sarily incapable of standing trial. As discussed in Chapter 1, the case
of Wilson v. United States (1968) made clear that amnesia could be a
factor, but it must be shown that the amnesia affected the defendant’s
ability to consult with and assist his lawyer, or affected the defen-
dant’s ability to testify in his own behalf. We will return to a discus-
sion of the Wilson case later in this chapter when we consider aspects
of a functional assessment.
32 Foundation
MENTAL RETARDATION (INTELLECTUAL

CASE LAW
AND DEVELOPMENTAL DISABILITIES)
United States v.
Another diagnostic category that may be rele-
Duhon (2000)
vant in a competency evaluation is mental
● Held that a mentally
retardation, now commonly referred to as
retarded defendant’s
intellectual and developmental disability. Mild
memorization of basic
mental retardation may not impair a person’s
legal terms was not
ability to instruct counsel, but severe intellec-
sufficient to consider
tual deficits, whether inherited or acquired,
him competent
may have an adverse effect on the defendant’s
● Required that the ability to communicate with counsel or even to
defendant be able to understand the nature and purpose of the pro-
consult with and assist ceeding (see United States v. Duhon, 2000;
his attorney and have a also, Appelbaum, 1994). A defendant’s intel-
rational understanding lectual capacity may limit her ability to under-
of the proceedings stand the charges and/or the legal procedures,
and may also affect her ability to make impor-
tant case decisions, such as whether to agree to a plea bargain or
to testify. Thus, mental retardation is a possible basis for a find-
ing of IST.
Research that has examined the rates of incompetence of
individuals with mental retardation has found wide variation.
Roesch and Golding (1980) found that 18% of all incompetent
defendants in their North Carolina sample were diagnosed with
mental retardation, whereas 6% of the competent sample had this
diagnosis. Other studies have reported rates ranging from 12% to
36% (Cochrane, Grisso, & Frederick, 2001; Petrella, 1992).
Everington and Dunn (1995) found that 57% of mentally
retarded defendants evaluated in Ohio were considered IST.
Again, it is important for evalu-
ators to bear in mind that lower
INFO
intellectual functioning is not,
Intellectual impairment may
by itself, a basis for a finding of
or may not lead to a finding
incompetence; it must also be
of IST. The impairment must
shown how the impairment
be related to an inability to
affects the defendant’s capacity
function in the legal context.
to function in the legal context.
Defendants with intellectual impairments may often be over-

looked by defense attorneys and the courts as a group at risk for
being IST (Bonnie, 1992a). In their New York state sample of 188
cases, Rosenfeld and Wall (1998) found that only two defendants
with mental retardation were referred for a competency evaluation,
and both were found to be competent. These authors believed that
this does not reflect the actual numbers of cognitively impaired
defendants in New York, and they suggested that many such defen-
dants accept plea bargains or proceed to trial without an evaluation
of their competency to do so. Bonnie also believed this to be the
case, as many individuals with mental retardation are compliant 2
chapter
and cooperative with authority figures, such as judges or lawyers,

and may pretend to understand their lawyers when, in fact, they
may not. He added, however, that empirical data to document this
is not available.
Obviously, if intellectual capacity appears to be an issue, evalu-
ators will want to administer intelligence and other psychological
tests in addition to competency instruments (see Schlesinger, 2003,
for a review). As noted in Chapter 3, instruments designed specifi-
cally for assessing legal abilities in possibly intellectually challenged
defendants (such as the Competence Assessment for Standing Trial
for Defendants with Mental Retardation [CAST*MR; Everington
& Luckasson, 1992]) may prove particularly useful. As with any
forensic assessment, evaluators should be cognizant of the possibil-
ity that defendants may be feigning deficits. Everington, Notario-
Smull, and Horton (2007) found that defendants with mental
retardation could understand an instruction to feign their perform-
ance on the CAST*MR.
Psycholegal Abilities
A review of competency case law (including Dusky, Drope, Wieter,
Godinez, and other relevant cases), legal commentary (such as
Bonnie’s reconceptualization of the construct of competence, dis-
cussed next), and the available body of literature on competency
evaluation and research indicates a number of psycholegal abilities
relevant to the issue of competence.
34 Foundation
Conceptualization of the Dusky Standard

In 1960, the U.S. Supreme Court articulated the Dusky standard
in a single sentence. Since that time, research and commentary on
the conceptualization of competence have attempted to decon-
struct the Dusky standard into meaningful prongs with practical
operationalization for forensic evaluators. Rogers (2001) described
three different conceptualizations of the Dusky standard: the three-
prong discrete abilities model, the two-prong syntactical analysis
model, and the two-prong cognitive complexity model.
The three-prong discrete abilities model operationalizes each
component of Dusky: rational ability to consult, factual understand-
ing of the courtroom proceedings, and rational understanding of
the courtroom proceedings. The two-prong syntactical analysis
model breaks Dusky into two components on the basis of sentence
structure: rational ability to consult, and factual and rational under-
standing of the proceedings. The two-prong cognitive complexity
model breaks Dusky into two components on the basis of cognitive
abilities: factual understanding and rational abilities.
Bonnie’s Reconceptualization of Competence

Bonnie (1992b, 1993) provided a theoretical reformulation of the
construct of competence to stand trial, reframed as adjudicative
competence. Bonnie proposed that criminal competence (adjudica-
tive competence) be conceptualized in terms of two separate but
related constructs—a foundational construct (competence to assist
counsel) and a contextualized construct (decisional competence)—
and argued that the tests of decisional competence should vary
according to context.
According to Bonnie (1992b), the foundational construct of
competence to assist counsel refers to “the minimum conditions
required for participating in one’s own defense” (p. 297). He
indicated that most U.S. courts have agreed that this includes the
individual’s
(i) capacity to understand the charges, the purpose of the criminal

process and the adversary system, especially the role of the defense
counsel; (ii) capacity to appreciate one’s situation as a defendant in
the criminal prosecution; and

INFO
(iii) ability to recognize and
Bonnie’s conceptualization
relate pertinent information to
of adjudicative competence
counsel concerning the facts of
is a two-construct model:
the case. (p. 297)
● Foundational construct:
competence to assist If a defendant were to possess
counsel these abilities, Bonnie argued,
the dignity and reliability of the
● Contextualized
criminal process would be pre-
construct: decisional
served. This foundational con-
competence 2
chapter
struct of competence to assist
counsel does not encompass
the defendant’s ability to make decisions or the defendant’s
behavioral functioning at the trial. These abilities, Bonnie
asserted, are part of the construct of decisional competence.
Decisional competence, according to Bonnie, is conceptually
and clinically distinct from competence to assist counsel. He noted
that “although the relevant psychological capacities may overlap,
decision-making about defense strategy encompasses conceptual
abilities, cognitive skills, and capacities for rational thinking that are
not required for assisting counsel” (p. 305). The tests of decisional
competence, therefore, should be contextualized (i.e., tailored to
the specific situation and the decision that is required).
BONNIE’S TWO-STEP APPROACH

TO ADJUDICATIVE COMPETENCE
Bonnie formulated a two-construct model and, therefore, a two-
step approach to adjudicative competence. He argued that all
defendants must possess the abilities encompassed in the founda-
tional construct of competence to assist counsel. If a defendant
lacks any of these abilities, then she should not be allowed to pro-
ceed. He argued that this would satisfy the need for dignity and
reliability in the criminal process. Bonnie proposed that the bar
against adjudication is only absolutely necessary in those cases in
which the defendant is incompetent to assist counsel. A defendant’s
decisional competence, on the other hand, would be evaluated in a
36 Foundation
context-specific manner, and more flex-

INFO
ible responses should be available to
Using Bonnie’s two-step
deal with deficiencies in a defendant’s
approach, a defendant’s
decisional competence. Although
decisional incompetence
acknowledging that there are certain
need not necessarily hinder
decisions that counsel could not make
adjudicative proceedings.
(such as waiving certain constitutional
rights), Bonnie proposed that surrogate
decision making, wherein counsel
would make decisions on behalf of the defendant, be used in those
cases in which a defendant’s decisional competence is questionable.
Additionally, stricter tests of decisional competence should be
required when the consequences of the decision are great or when
the defendant is in disagreement with counsel (i.e., rejecting the
advice of counsel).
Bonnie concluded that the use of a two-construct approach to
adjudicative competence is compatible with the contemporary
understanding of legal incompetence as being contextually bound.
In addition, he argued that this two-step approach would remove
the necessity that currently exists for legal proceedings to be barred
for those found decisionally incompetent. Decisional incompe-
tence could be dealt with through more flexible means, thus allow-
ing some individuals with questionable decisional competence to
proceed.
Bonnie’s reformulation opened the possibility that defendants
could proceed with adjudication, even though, under a single con-
struct approach, they might be considered incompetent. This pos-
sibility is illustrated in two cases he presents:
Suppose a defendant’s auditory hallucinations and attentional

deficits make it impossible for him to sustain his attention in a
courtroom for more than a few minutes. Assume further, how-
ever, that his understanding of the charges and the criminal
process are unimpaired, he is able to provide pertinent informa-
tion to his attorney regarding the evidence in the case, and he is
able to understand the relevant considerations in deciding
whether to accept a proffered plea agreement. In this case, it
might be said that the defendant is competent to plead guilty

even though he might not be able to stand trial. In a contrasting
case, suppose a defendant is able to communicate rationally with
counsel, to pay attention in court, and to understand the nature
and purpose of a criminal prosecution and the roles of all the par-
ticipants. In this case, however, suppose that the defendant is
unable, due to mental retardation, to understand the differences
between greater- and lesser-included charges, and is unable to
understand the probability assessments that are relevant to decid-
ing whether to accept a plea agreement or, if the case is tried, to
have a bench trial instead of a jury trial. In this case, it might be 2
chapter
said that the defendant is competent to stand trial, but not com-
petent to plead guilty or waive a jury trial. (Bonnie, 1992b,
pp. 293–294)
Given the U.S. Supreme Court’s opinion in Godinez (dis-

cussed in Chapter 1), it appears that Bonnie’s conceptualization of
decisional abilities as being separate and distinct from foundational
abilities may be moot. That is, it appears that decisional abilities
may be considered part of the competency standard and should be
assessed as part of any competency evaluation.
Competence-Relevant Abilities
Bonnie’s reconceptualization of competency and the various con-
ceptualizations of Dusky and the compe-
tency standard reinforce that there are INFO
different ways to think about the con- Relevant psycholegal
struct of competence. However, these dif- abilities include
ferent conceptualizations hold in ● understanding,
common a number of competence-related ● appreciation,
abilities that should be considered in any
● reasoning,
competency evaluation.
● consulting with counsel,
UNDERSTANDING ● assisting in one’s
“Understanding” generally refers to a defense, and
defendant’s factual understanding and
● decision-making
encompasses generalized knowledge that
abilities.
does not involve memory of a specific
38 Foundation
event and the ability to recall overlearned material (semantic mem-

ory). Within the context of CST, factual understanding generally
encompasses the ability to comprehend general information about
the arrest process and courtroom proceedings including
• the roles of key participants within the legal process
(e.g., defense counsel, prosecutor, judge, jury, etc.),
• the current charges faced by the defendant,
• the elements of an offense,
• the consequences of conviction (in a general man-
ner), and
• the rights waived in making a guilty plea.
The defendant’s factual understanding of the legal process
includes a basic knowledge of legal strategies and options,
although not necessarily as applied to the defendant’s own par-
ticular case (case-specific understanding usually is encompassed
by appreciation [rational understanding]; see next section).
Thus, the competence-related ability to understand involves the
defendant’s ability to factually understand general, legally rele-
vant information.
APPRECIATION
“Appreciation” generally refers to a defendant’s rational under-
standing and encompasses specific knowledge regarding an
accurate perception of information relevant to the role of the
defendant in his own case (episodic memory). Within the con-
text of CST, appreciation encompasses the ability to compre-
hend and accurately perceive specific information regarding
how the arrest and courtroom processes have affected or will
affect the defendant, including
• the likelihood that she will be found guilty,
• the consequences for the defendant of being con-
victed (range and nature of possible penalties and
how they will affect the defendant),
• the defendant’s appraisal of the available legal
defenses and their likely outcomes,
• the defendant’s appraisal of whether or not to

testify, and
• the defendant’s ability to make rational decisions
regarding the specific case.
The defendant’s appraisal of the situation must be reality-
based, and any decisions that she makes about the case must be
made on the basis of reality-based information. Thus, the compe-
tence-related ability to appreciate involves the application of infor-
mation that the defendant factually understands to the specific case
in a rational (i.e., reality-based) manner.
2
chapter
REASONING
“Reasoning” generally refers to a defendant’s ability to consider
and weigh relevant pieces of information in a rational manner in
arriving at a decision or a conclusion. Within the context of CST,
reasoning encompasses the ability
• to distinguish more relevant from less relevant
information,
• to seek relevant information,
• to weigh and evaluate various legal options and their
consequences,
• to make comparisons, and
• to provide reality-based justification for making partic-
ular case-specific decisions or conclusions.
To demonstrate appropriate reasoning ability, the defendant must
be able to communicate in a coherent manner and make decisions in
a rational, reality-based manner undistorted by pathology. It is impor-
tant to distinguish between the outcome of a decision and the process
by which the decision is made. What is important is that the defen-
dant be able to use appropriate reasoning processes—weighing, com-
paring, and evaluating information—in a rational manner, not the
outcome of the decision. In the case of a defendant who is proceed-
ing with the assistance of an attorney, reasoning encompasses the abil-
ity of the defendant to consult with counsel and to make rational
decisions regarding various aspects of participation in his defense.
40 Foundation
ASSISTING COUNSEL
Although the Dusky standard indicates that the defendant must
be able to “consult with his lawyer,” the U.S. Supreme Court in
Drope v. Missouri (1974) used the terminology “assist in prepar-
ing his defense” and the Federal standard (U.S. Code Annotated,
Title 18, Part III, chapter 13, section 4241) indicates that the
defendant must be able to “assist properly in his defense.” Thus,
it appears that the defendant’s ability to consult with and assist
counsel must be considered as part of the competency assess-
ment. Within the context of CST, the ability to assist counsel
generally incorporates the defendant’s ability to
• consult with counsel,
• relate to the lawyer,
• plan legal strategy,
• engage in her defense,
• challenge witnesses,
• testify relevantly, and
• manage her courtroom behavior.
The defendant must be able to engage with counsel in a
rational manner; thus, effectively assisting counsel requires that the
defendant be able to communicate coherently and reason (see ear-
lier discussion under Reasoning).
DECISION MAKING
Closely tied to the abilities to appreciate, reason, and assist counsel
is the ability to make decisions. The U.S. Supreme Court decision
in Cooper v. Oklahoma (1996) appeared to equate a defendant’s
inability to communicate with counsel with incapacity to make fun-
damental decisions. In addition, the U.S. Supreme Court in
Godinez incorporated decision-making abilities about the case into
the standard for competence. Thus, it appears that a defendant’s
decision-making abilities with respect to specific, relevant aspects of
the case need be considered in the trial competency evaluation.
Although decision-making abilities are incorporated within the
competence-related abilities just discussed (appreciation, reasoning,
and assisting counsel), the importance of evaluating the defendant’s

context-specific decision-making abilities warrants highlighting.
Research examining the specific competence-related abilities
addressed by evaluators in their reports indicates cause for con-
cern with respect to decision making. LaFortune and Nicholson
(1995) examined competency evaluation reports and found that
of seven competence-related abilities, only the defendant’s under-
standing of the charge was described in the majority of reports.
Contextually relevant decisional abilities, such as appreciation of
the plea bargaining process, were rarely addressed. Skeem and
her colleagues examined competency evaluation reports and also 2
chapter
found that certain abilities important and relevant to CST, such as

decision-making abilities, were rarely addressed by evaluators in
their reports (Skeem, Golding, Cohn, & Berge, 1998). Thus, eval-
uators should be careful not only to evaluate a defendant’s
decisional abilities within the context of those decisions that she
might reasonably be expected to make during the course of the pro-
ceedings, but should also be careful to include this information in
their reports.
Functional and Contextual Nature

of the Evaluation
Grisso (2003) provided a framework for the assessment of any
legal competence. His model begins with a focus on an individual’s
functional abilities, behaviors, or capacities. He defines functional
abilities as “that which an individual can do or accomplish, as well
as . . . the knowledge, understanding, or beliefs that may be neces-
sary for the accomplishment” (pp. 23–24).
A functional assessment dictates that CST cannot simply be
assessed in the abstract, independent of contextual factors, partic-
ularly for those cases in which a finding of incompetence is possi-
ble. If a defendant does not have a mental disorder or intellectual
deficit, the demands of the defendant’s particular legal situation
may not be relevant. This is because defendants without a mental
disorder or intellectual incapacity will not be found incompetent,
so it is not necessary to evaluate case-specific issues. For defendants
42 Foundation
who do meet the mental status prerequisite, an evaluation of con-

textual factors should always take place. This is the essence of a
functional approach to assessing competence, which posits that the
abilities required by the defendant in her specific case should be
taken into account when assessing competence. The open-tex-
tured, context-dependent nature of the construct of CST was sum-
marized by Golding and Roesch (1988):
Mere presence of severe disturbance (a psychopathological crite-

rion) is only a threshold issue—it must be further demonstrated
that such severe disturbance in this defendant, facing these
charges, in light of existing evidence, anticipating the substantial
effort of a particular attorney with a relationship of known char-
acteristics, results in the defendant being unable to rationally
assist the attorney or to comprehend the nature of the proceed-
ings and their likely outcome. (p. 79, italics in original)
The importance of a person–context interaction has been

highlighted by Grisso (2003). He defined a functional assessment
in the following manner:
A decision about legal competence is in part a statement about

congruency or incongruency between (a) the extent of a person’s
functional ability and (b) the degree of performance demand that
is made by the specific instance of the context in that case. Thus an
interaction between individual ability and situational demand,
not an absolute level of ability, is of special significance for com-
petence decisions. (pp. 32–33, italics in original)
Skeem and Golding (1998) suggest a three-step procedure for

establishing a link between psychopathology and impairment of
legal abilities:
One might (a) carefully consider the nature and content of the
defendant’s primary symptoms, (b) consider how these symptoms
might relate conceptually to the defendant’s specific psycholegal
impairments, then (c) assess, as directly as possible, whether there
actually is a relationship between the symptom and the CST
impairment. (p. 364)
Obviously, a functional assessment requires evaluators to learn

about what may be required of a particular defendant. Some of this
information may be provided by the defendant, but other information
will need to come from court documents and from the defendant’s
attorney. Some cases are more complex than others and may, as a
result, require different types of psycholegal abilities. As Rogers and
Mitchell (1991) note, the requisite level of understanding for a com-
plex crime is higher than for a less complex one. Thus, it may be that
the same defendant is competent for one type of legal proceeding but
not for others. In cases in which a trial is likely, a defendant’s
demeanor in court and the ability to testify will certainly be of rele- 2
chapter
vance. A defendant who is likely to withdraw into a catatonic-like state

if required to testify, or one who may appear to jurors as not caring or
not paying attention to the trial because of medication side effects,
may not be capable of proceeding. But these same defendants may be
able to proceed if the attorney intends to plea bargain (the way in
which the vast majority of all criminal cases are handled).
The functional approach (see Figure 2.1) is supported by
research and scholarly arguments that conclude that competencies
in one area of functioning are not necessarily indicative of compe-
tencies in other areas (Bonnie, 1992b; Golding & Roesch, 1988;
Grisso, Appelbaum, Mulvey, & Fletcher, 1995). In addition, Wilson
v. United States (1968) is of direct relevance to our discussion of a
1) Learn about what is required of the defendant during the

legal proceedings.
2) Assess the defendant’s abilities in the context of specific

case demands.
3) Consider the relationship between the defendant’s symptoms

and functional deficits.
4) Specify how the required psycholegal abilities are impaired

by the functional deficits.
Figure 2.1 Functional Approach

44 Foundation
functional assessment. As discussed ear-

INFO
lier in this chapter, Wilson clearly calls
Utah’s (1994) statute
for evaluators to assess the relevance of
provides a model for a
clinical issues within the context of a
functional assessment. It
particular case. Wilson dealt with a case
specifies that evaluators
of amnesia, and the holding was such
must consider a
that amnesia per se does not constitute
comprehensive range of
incompetence, but we believe the impli-
psycholegal abilities
cations of this case are considerably
(including the iatrogenic
broader. Wilson requires an evaluation
effects of medication and
of many other questions in order to
decisional competencies)
determine whether a defendant’s possi-
and also requires judges to
ble deficit could be considered a basis
identify which psycholegal
for a finding of incompetence. Can the
abilities are impaired when
defense reconstruct the case without
a defendant is found
input from the defendant? Did the
incompetent.
defendant have an alibi (Wilson noted
that “If there is any substantial possibil-
ity that the accused could, but for his amnesia, establish an alibi or
other defense, it should be presumed that he would have been able
to do so”)? How strong is the prosecution’s case (Wilson, p. 464,
noted that “Most important here will be whether the
Government’s case is such as to negate all reasonable hypotheses of
innocence”)? These considerations make it evident that an evalua-
tion of competency, particularly one in which a finding of incompe-
tency is possible, requires evaluators to learn more about the details
of the case and to assess the defendant’s abilities accordingly.
Current Practice
Unfortunately, evaluators often fail to relate specific abilities and
deficits to the particular case (Heilbrun & Collins, 1995). Skeem
and colleagues (1998) examined the reports of competency eval-
uators in Utah and found that evaluators place heavy emphasis on
basic foundational competence issues (Bonnie’s competence to
assist counsel construct), but pay little attention in their reports
to decisional competence issues. For example, Skeem and col-
leagues found that only 12% of the reports examined addressed
the defendant’s understanding of a guilty plea. In addition,

although almost all defendants evaluated for CST were on med-
ication at the time of the assessment, only 18% of reports dis-
cussed the impact of medication on a defendant’s competency.
These researchers also noted that the reports rarely provided a
discussion of the link between symptomatology and legal abili-
ties. Skeem and colleagues concluded that the current training of
forensic evaluators might be insufficient, and they called for
both increased training and examination requirements for exam-
iner certification, as well as ongoing monitoring of competency
reports. 2
chapter
Summary
In summary, it seems clear that evaluators should adopt a func-
tional approach to the assessment of competency. In addition,
forensic mental health experts should ensure that the written
reports of their competency evaluations make clear the relation-
ship between symptoms and functional deficits, as well as delin-
eate the specific ways in which a defendant’s deficits may impact
upon his functioning during the course of the proceedings. More
information regarding the contents of written reports is provided
in Chapter 7.
Empirical Foundations
and Limits 3
P rior to 1980, research on CST was limited; however, the past

few decades have witnessed a surge in research on this issue.
In addition, structured and semi-structured instruments for
assessing CST have been developed. This chapter provides a com-
prehensive but concise overview of research on CST and compe-
tency assessment instruments.
Research on Examinee Populations

and Competency Issues
This section addresses the research on various aspects of the adju-
dicative competency process, including raising the issue of compe-
tency, the characteristics of competent and incompetent defendants,
reliability and validity of the evaluation process, and the disposition
of defendants found IST.
Raising the Issue of Competency

Adjudicative competence is perhaps the single most commonly
raised clinical forensic issue in the criminal justice system.
Poythress, Bonnie, Monahan, Otto, and Hoge (2002) estimate,
conservatively, that over 60,000 evaluations are conducted annu-
ally, making it a far more common referral question than other
issues, such as criminal responsibility.
As noted in Chapter 1, any officer of the court can raise the issue
of competency although, in practice, it is most often raised by defense
attorneys. This makes sense, of course, since defense lawyers typically
have the most invested in ensuring that their clients are capable of
assisting them in preparing a defense (as will be discussed later in this
47
48 Foundation
chapter; however, concerns about competency may not be the only

reason that a defense attorney might request a competency evalua-
tion). Poythress and colleagues (2002) reported a series of studies of
defense attorneys in several jurisdictions who responded to questions
about their perceptions of the competence of their clients. These
researchers found that lawyers had concerns about the competency of
their clients in 8–15% of cases; however, competency evaluations
were requested in less than half of these cases (in some of those cases
for which competency evaluations were not requested, the attorney
tried to resolve the concerns through informal means, such as includ-
ing a family member in the decision-making process). Poythress and
colleagues noted that the attorneys indicated that their concerns were
based on the functional abilities of the clients, such as communicat-
ing facts and decision-making capacity.
Despite these results from attorneys, it has been argued that
other reasons may prompt a request for a competency evaluation. In
their study of North Carolina lawyers, Roesch and Golding (1980)
found that attorneys used competency evaluations to determine
whether there might be a basis for an insanity defense or to get infor-
mation that might be useful in plea bargaining or sentencing. In
addition, some attorneys may use the competency evaluation as a
means of delaying trial. Melton, Petrila, Poythress, and Slobogin
(2007) consider this to be the most objectionable misuse of compe-
tency referrals, since it deprives defendants of pretrial release and is
used simply for strategic reasons, such as in cases in which commu-
nity outrage is paramount and the lawyer anticipates that, with the
passage of time, community resentment will subside.
It may also be the case that competency referrals may be used as
a mechanism to get defendants out of jail and into a mental health
facility. Beginning with the deinstitutionalization movement in the
1960s and 1970s, jails have seen an increasing number of inmates
with mental health problems (Roesch, 1995). Many jails do not
have the mental health services and trained personnel required to
address the needs of these inmates, so referral to a forensic hospital
may be viewed as a viable alternative. Essentially, this functions as a
back door into treatment for individuals who are not considered
dangerous or would not otherwise meet civil commitment criteria.
Empirical Foundations and Limits 49
Recent developments in jail mental health screening and services

may serve to reduce this misuse of competency referrals in the future
(Nicholls, Roesch, Olley, Ogloff, & Hemphill, 2005).
Judges may be aware of the possible misuse of competency
evaluations but nevertheless routinely grant motions requesting
evaluations, perhaps in large part because of a desire to avoid a
basis for postconviction appeal. Roesch and Golding (1980) found
that North Carolina judges suspected that defense attorneys either
misunderstood the competency laws or were attempting to delay
trial, but they nevertheless rarely denied such motions.
Reasons other than a concern about a defendant’s competency
may at least partially account for the consistent finding that only a
small percentage of defendants referred for competency evaluations
are found incompetent. Roesch and Golding (1980) reported on 10
studies conducted prior to 1980 and found an average incompetency
rate of 30%. They also noted a considerable range of rates, with some 3
chapter
jurisdictions finding almost no referred defendants to be incompe-

tent, whereas others reported rates as high as 77%. More recent stud-
ies have confirmed a low percentage of incompetent defendants,
with average estimates at about 20%
INFO
of referrals being found incompetent,
Possible misuses of
although again, with considerable varia-
competency evaluation
tion by jurisdiction (Cochrane, Grisso, &
referrals by defense
Frederick, 2001; Cooper & Zapf, 2003;
attorneys include
Nicholson & Kugler, 1991; Warren,
Rosenfeld, Fitch, & Hawk, 1997; Zapf & ● to determine whether
Roesch, 1998, 2005b). there might be a basis
The many and varied uses and mis- for an insanity defense,
uses of competency evaluation referrals ● to get information

reinforces the importance that clinicians that might be useful
seek information from attorneys regard- in plea bargaining or
ing the reasons for referral. Such discus- sentencing,
sions with the defense attorney would ● to delay trial, and
ensure that clinicians do not become
● to get defendants out
“unwitting participants in strategic
of jail and into a
ploys by one side or the other having
mental health facility.
noth-ing to do with competency—the
50 Foundation
ostensible reason for the referral, and the only issue with which
clinicians should be concerned” (Melton et al., 2007, p. 134).
The Characteristics of Referred

and Incompetent Defendants
REFERRED DEFENDANTS
Defendants referred for competency evaluations are often marginal-
ized individuals with extensive criminal and mental health histories.
Research has indicated that the majority of these defendants tends to
be male, single, unemployed, with prior criminal histories, prior con-
tact with mental health services, and past psychiatric hospitalizations
(Cooper & Zapf, 2003; Martell, Rosner, & Harmon, 1994; Reich
& Wells, 1985; Roesch, Ogloff, Hart, Dempster, Zapf, &
Whittemore, 1997; Steadman, 1979; Warren, Fitch, Deitz, &
Rosenfeld, 1991; Zapf & Roesch, 1998; Zapf, Roesch, & Viljoen,
2001). These results appear to be consistent across both the United
States and Canada. In addition, females are referred for competency
evaluations far less frequently than males; however, there do not
appear to be any gender differences in the rates of incompetency
determinations, performance on competency measures, or rates of
psychosis (Poythress et al., 2002; Riley, 1998).
Viljoen and Zapf (2002) compared 80 defendants referred for
competency evaluation with 80 defendants not referred and found
that referred defendants were significantly more likely to meet
diagnostic criteria for a current psychotic disorder, be charged with
a violent offense, and to demonstrate impaired legal abilities. In
addition, referred defendants were less likely to have had previous
criminal charges. Notably, approximately 25% of nonreferred
defendants demonstrated impairment on competence-related abil-
ities. In addition, approximately 20% of referred defendants either
did not meet criteria for a mental disorder or demonstrated no
impairment of competence-related abilities.
INCOMPETENT DEFENDANTS
Given that a finding of incompetency is based on both mental
disorder and deficits in functional abilities, it is expected that psy-
chosis or mental retardation (intellectual disability) would be
prevalent in samples of incompetent defendants. Roesch and

Golding (1980) found that psychosis, mental retardation, or
organic brain syndrome were diagnosed in nearly their entire
sample of 130 incompetent defendants. Conversely, competent
defendants were more likely to be diagnosed with substance
abuse disorders. Similar findings were reported by Warren, Fitch,
Dietz, and Rosenfeld (1991).
Cooper and Zapf (2003) examined the predictive efficiency of
various clinical, criminological, and sociodemographic variables
in a sample of 468 criminal defendants referred for competency
evaluation and found clinical diagnostic variables and employment
status to be the only significant predictors of competency status.
Incompetent defendants were significantly more likely to be unem-
ployed and to be diagnosed with either psychotic or nonpsychotic
major mental disorders and significantly less likely to be diagnosed
with substance abuse disorders or minor mental disorders, such as 3
chapter
adjustment disorders or personality disorders.

Viljoen, Roesch, and Zapf (2002b) examined the relationship
between diagnosis and competence-related abilities and found that
defendants with psychotic disorders were more impaired than other
defendants in terms of their abilities to understand the nature and
object of the proceedings, to appreciate the possible consequences
of the proceedings, and to communicate with counsel. However,
high rates of legal impairment were also found in defendants with-
out any diagnosed major mental illness, thus limiting the utility of
psychosis as a predictor of incompetence.
Nicholson and Kugler (1991) reviewed 30 studies and con-
cluded that defendants with psychotic disorders were more likely
to be incompetent. They found 51% of defendants with a diagno-
sis of psychosis to be incompetent, compared to only 10% with-
out this diagnosis. The Nicholson and Kugler meta-analysis also
serves to emphasize that, although psychosis is associated with a
finding of incompetence, an almost equal number of defendants
with a diagnosis of psychosis are considered to be competent.
While psychotic symptomatology may be relevant, the functional
approach that we have outlined in this book requires that psychi-
atric symptoms (mental illness or cognitive impairment) be the
52 Foundation
cause of any noted functional deficits related to the specific

demands of a defendant’s case.
Studies focusing on specific symptoms are useful as indicators
of the basis for a finding of incompetence. In a comparison of
North Carolina competency evaluation reports for competent
and incompetent defendants, Roesch and Golding (1980) found
that incompetent defendants were significantly more likely to
have delusions, hallucinations, confused and incoherent speech,
and uncooperative behavior, but unlikely to have a history of
alcohol and drug abuse. Rosenfeld and Wall (1998) found that
symptoms, rather than diagnoses, were better predictors of com-
petence. Specific symptoms that they found to be predictive of
incompetence included disorientation, hallucinations, delusions,
paranoia, and mania. Other research has found that impairment
in the ability to stand trial is highly correlated with psychotic
symptoms of conceptual disorganization and hallucinations,
whereas delusions appear to have a weaker and more isolated
influence (Goldstein & Burd, 1990; Hoge, Poythress, Bonnie,
Monahan, Eisenberg, & Feucht-Haviar, 1997; James, Duffield,
Blizard, & Hamilton, 2001).
Research examining the relationships between symptoms and
competence-related abilities shows significant relationships between
certain types of symptoms and specific legal abilities. For example,
Viljoen, Zapf, and Roesch (2003) found conceptual disorganization
and unusual thoughts to be strongly related to impairment in the
legal abilities measured by the Fitness Interview Test–Revised (FIT-
R; Roesch, Zapf, Eaves, & Webster, 1998; Roesch, Zapf, & Eaves,
2006) and depression and withdrawal to be related to impairment
on the understanding and reasoning subsections of the MacArthur
Competence Assessment Tool–Criminal Adjudication (MacCAT-
CA; Hoge, Bonnie, Poythress, & Monahan, 1999; Poythress et al.,
1999), respectively.
Reliability and Validity of the Evaluation Process

Since evaluators are assessing a defendant’s present ability to per-
form a series of relatively clearly defined tasks, it seems reasonable
to expect that competency evaluations would be highly reliable.
In fact, this is precisely what the numerous studies on reliability

have shown, with agreement about the ultimate opinion regarding
competency being reported in the 90% range (Cox & Zapf, 2004;
Golding, Roesch, & Schreiber, 1984; Poythress & Stock, 1980;
Rosenfeld & Ritchie, 1998). However, a reliable system of evalua-
tion is not necessarily a valid one. For example, at one time, it was
the case that evaluators equated psychosis with incompetency
(Roesch & Golding, 1980). Thus, if clinicians agreed that a defen-
dant was psychotic, they would also agree that the defendant was
incompetent. As noted in this chapter, although psychosis is highly
correlated with incompetency, it is also the case that a large per-
centage of competent defendants experience psychotic symptoms.
The view that psychosis and incompetency are not inextricably
entwined has changed as evaluators have become better trained
and more research is available to guide decisions.
The problem of evaluating validity is that no gold standard 3
chapter
exists for competence against which to compare evaluator deci-

sions/ opinions. Relying on court decisions is not particularly help-
ful, since agreement rates between evaluator recommendations and
court determinations have been shown to be well over 90% (Cox &
Zapf, 2004; Cruise & Rogers, 1998; Hart & Hare, 1992; Reich &
Tookey, 1986; Zapf, Hubbard, Cooper, Wheeles, & Ronan, 2004).
How, then, can the issue of construct validity be assessed? Golding
and colleagues (1984) suggested the use of a panel of experts,
referred to as a “blue-ribbon panel,” to serve as an independent cri-
terion. In their study, they asked two experts to make judgments
about competency, based on a review of records, reports from hos-
pital evaluators, and evaluations using the Interdisciplinary Fitness
Interview (IFI; Golding, Roesch, & Schreiber, 1984). Golding and
colleagues found that “for the 17 cases seen by the blue-ribbon
panelists, they agreed with the IFI panelists 88% of the time, with
the hospital staff 82% of the time, and with the courts 88% of the
time,” and they concluded that “on the basis of these data, it would
be hard to argue for one criterion definition over another” (p. 331).
Another possible means by which to study the issue of con-
struct validity might be to set up a “mock trial” situation at a facil-
ity where incompetent defendants are committed for restoration.
54 Foundation
BEWARE Defendants’ competence-related abilities and

No “gold
standard”
deficits could be directly observed “in action”
exists for competence, and and in conjunction with the assistance of a
thus there is no means for defense attorney. In addition, a judge could
establishing the validity of
evaluations. render a disposition regarding competency sta-
tus. Although this type of research paradigm
has yet to be conducted, this might be one way of coming close
to solving the construct validity problem.
The aforementioned study illustrates the methodological
problems inherent in studies of competency evaluations, particu-
larly in terms of the lack of a “correct” outcome against which to
compare different methods of decision making. We are left with
the reality that there can be no hard criterion against which to test
the validity of competency evaluations, because we do not have a
test of how incompetent defendants would perform in the actual
criterion situations. Since incompetent defendants are not allowed
to go to trial until competency is restored, there is no test of
whether a defendant found IST truly would have been unable to
proceed with a trial or other judicial proceedings. Short of the
provisional trial that will be discussed in the next section, the ulti-
mate test of validity will never be possible.
The Disposition of Defendants Found

Incompetent to Stand Trial
The Jackson v. Indiana (1972) decision (see Chapter 1) resulted
in substantial changes to the disposition of incompetent defen-
dants. Jackson held that incompetent defendants could not be
held more than a reasonable period of time necessary to deter-
mine whether a substantial probability exists that they will attain
the capacity in the foreseeable future. The decision in Jackson
resulted in changes to state laws, serving to restrict the length of
hospitalization. Statute changes varied considerably by state, with
some states specifying no time limit, some states imposing a
defined limit such as 18 months, and still other states tying the
length of hospitalization to the severity of charge. As Roesch and
Golding (1980) noted, this latter practice appears to be based
more on a rationale of punishment than treatment, despite the
fact that incompetent defendants have

INFO
not yet been convicted of any crime.
The vast majority of
Commitment of incompetent defen-
incompetent defendants
dants for restoration is automatic and, in
are restored to competency
most cases, is inpatient in nature; how-
and returned to court.
ever, some state statutes do allow for
outpatient commitment for competence
restoration. The American Bar Association has recommended that
defendants be treated in the least restrictive environment; how-
ever, inpatient competence restoration still appears to be the norm.
Empirical research on competence restoration indicates that
most defendants are restorable: Nicholson and McNulty (1992)
reported a restoration rate of 95% after an average of two months;
Nicholson, Barnard, Robbins, and Hankins (1994) reported a rate of
90% after an average of 280 days; Cuneo and Brelje (1984) reported
a restoration rate of 74% within one year; and Carbonell, Heilbrun, 3
chapter
and Friedman (1992) reported a rate of about 62% after three

months. Thus, regardless of the upper time limits on competence
restoration allowed by state statute, it is now the case that most
incompetent defendants are returned to court as competent within
six months (Bennett & Kish, 1990; Nicholson & McNulty, 1992;
Pinals, 2005; Poythress et al., 2002), and the vast majority of incom-
petent defendants are restored to competency within a year.
PREDICTION OF RESTORABILITY
In 1980, Roesch and Golding speculated that forensic mental
health professionals were limited in their ability to predict which
defendants would not be restorable to competence. Research
since that time has confirmed that the ability of evaluators to pre-
dict competence restoration is poor (Carbonnell, Heilbrun, &
Friedman, 1992; Hubbard, Zapf, & Ronan, 2003; Nicholson &
McNulty, 1992; Nicholson et al., 1994). A study by Cuneo and
Brelje (1984) illustrates the problems in predicting restoration.
These researchers found a 78% accuracy rate for professionals
who were asked to predict whether competency would be
restored within one year. Although, at first glance, this rate may
seem impressive, it becomes less so when the high base rate for
56 Foundation
restoration is taken into consideration (i.e., the fact that most

defendants are restored within a six-month period). The false-
positive rate (i.e., proportion of defendants who are predicted to
regain competency but do not) is a more appropriate statistic to
evaluate the ability to accurately predict responsiveness to treat-
ment. In the Cuneo and Brelje (1984) study, the false-positive
rate was 23%. Thus, evaluators appear to have difficulty identify-
ing the smaller percentage of incompetent defendants who will
not respond to treatment.
Hubbard and Zapf (2003) used logistic regression to investi-
gate the variables related to predictions of restorability for a sam-
ple of 89 incompetent defendants, and found that current violent
charge and previous criminal history were the two most significant
predictors of restorability decisions. When criminal, diagnostic,
and sociodemographic variables were considered individually,
defendants predicted not restorable were more likely to be older
and to have impairment in the ability to understand information
about the legal process, whereas those predicted to be restorable
were more likely to have less serious diagnoses (nonpsychotic
minor mental disorders) and more serious, violent criminal histo-
ries (Hubbard, Zapf, & Ronan, 2003).
A recent Ohio study by Mossman (2007), however, suggests
that certain variables may hold promise for predicting nonrestor-
ability. Mossman found that individuals with a long-standing psy-
chotic disorder with lengthy periods of prior psychiatric
hospitalizations or irremediable cognitive deficits such as mental
retardation were well below average in terms of their chances of
restoration.
The growing literature on prediction of restorability has impli-
cations for both assessment and treatment. Research identifying
the strongest predictors of restorability should be incorporated
into the initial assessment of competency, in responding to the
issue of probability of restoration for defendants considered
incompetent. In addition, this research has implications for inter-
vention planning in that being able to identify those who will be
difficult to restore would allow for an earlier start in an intensive
restoration track that might serve to reduce the amount of time
spent treating incompetent individuals before recommending to

the court that they are unable to be restored. Finally, what this lit-
erature makes clear is that it is rare that an incompetent individual
will not be restored. Thus, it would be inappropriate to conclude,
at the initial competency evaluation stage, that an individual who
appears incompetent would not be restorable within the foresee-
able future.
COMPETENCE RESTORATION TREATMENT

The most common form of treatment for the restoration of compe-
tence involves the administration of psychotropic medication. Some
jurisdictions have also established educational treatment programs
designed to increase a defendant’s understanding of the legal process
or individualized treatment programs that confront the problems
that hinder a defendant’s ability to participate in her defense
(Bertman et al., 2003; Davis, 1985; Pendleton, 1980; Siegal & 3
chapter
Elwork, 1990). In addition, some jurisdictions have implemented

treatment programs specifically targeted toward those defendants
with mental retardation who are found incompetent to proceed.
Siegal and Elwork (1990) evaluated the use of an educational
program as part of the competence restoration process by compar-
ing randomly assigned control and experimental groups wherein
the experimental group included the use of a videotape that
described the roles of courtroom personnel and court procedure,
as well as group problem-solving sessions in which problems aris-
ing from a subject’s actual legal case were presented and discussed.
Results showed greater improvement on
competency assessment instrument INFO
scores for the experimental group and a Competence restoration
greater number of staff recommenda- treatment may include
tions of competence to stand trial (at 45 ● psychotropic

days after treatment, 43% of the treated medication,
group, but only 15% of the controls, ● educational programs,
were considered competent by staff). and
The success of treatment programs
● individualized
for the restoration of competence is vari-
treatment.
able and depends upon the nature of the
58 Foundation
treatment program and the type of

INFO
defendant targeted. Anderson and
Psychotropic medication is
Hewitt (2002) examined treatment
the most common form of
programs designed to restore compe-
competence restoration
tency in defendants with mental retar-
treatment and aims to
dation and found that only 18% of their
relieve symptoms that affect
sample was restored. These researchers
the defendant’s functioning
concluded, “for the most part, compe-
in a legal context.
tency training for defendants with MR
[mental retardation] might not be that
effective” (p. 349). Other researchers and commentators have
found similar results and have noted the difficulty in treating a
chronic condition such as mental retardation (Daniel &
Menninger, 1983; Ellis & Luckasson, 1985).
Treatment programs that target defendants with various other
types of mental disorders have met with more success in that larger
proportions of the defendants are restored to competency; how-
ever, it is not clear that individualized treatment programs that tar-
get specific underlying deficits for each defendant are any more
effective than educational programs that teach defendants about
their legal rights (Bertman et al., 2003). What appears to be accu-
rate is that successful restoration is related to how well the defen-
dant responds to psychotropic medications administered to
alleviate those symptoms of the mental disorder that initially
impaired those functional abilities associated with trial competency.
PROVISIONAL TRIALS
One alternative to treatment, especially when it appears that treat-
ment is likely to be lengthy, is to allow possibly incompetent
defendants to proceed with their criminal cases (Burt & Morris,
1972; Roesch & Golding, 1980). This may, at first blush, appear
to be contradictory, since competency laws were designed to
protect the rights of incompetent defendants to a fair trial.
However, as Gobert (1973) commented, the consequences of
denying a trial results in the loss of a number of rights:
“Effectively lost are his rights to jury trial, to confront witnesses,
to call witnesses in his own behalf, to take the stand on his own
behalf, and to have his guilt determined

beyond a reasonable doubt” (p. 668). INFO
Allowing a trial would provide an oppor- Allowing the trial to
tunity to advance a defense to any crim- proceed appears to be
inal charges and force the state to show the only way to determine
that it had sufficient evidence for a con- a defendant’s true
viction. Roesch and Golding (1980) competency status;
commented that allowing a trial would however, no jurisdiction
serve as a true test of judgments that a currently allows for this.
defendant is IST, in that clinicians could

directly assess a defendant’s capacities in
the actual criterion situation. If a defendant were acquitted, the
issue of competency would be moot. If convicted, the verdict
could be set aside if evidence was presented that the defendant’s
competency was an issue.
3
chapter
Competency Assessment Methods

In this section, various competency assessment methods will be
reviewed, with a specific focus on the available competency assess-
ment instruments. The reader is referred to additional sources for
more detailed information on the various competency assessment
instruments discussed (see Grisso, 1986, 2003; Melton, Petrila,
Poythress, & Slobogin, 1997; Roesch, Zapf, Golding, & Skeem,
1999; Zapf & Viljoen, 2003).
Clinical Interview
The clinical interview remains to this day the primary method used
to evaluate CST. Given the contextual nature of the competency
construct and the emphasis on functional abilities, it is impossible
to evaluate a defendant’s competency without engaging in a clini-
cal interview. Although much commentary exists regarding the
unreliability of clinical decision making, no research has examined
the reliability of the clinical interview as a competency evaluation
method per se; however, research has indicated that the use of com-
petency assessment instruments (discussed in the next section)
serves to increase the reliability of competency determinations
60 Foundation
(Golding, Roesch, & Schreiber, 1984; Nicholson & Kugler, 1991;

Skeem, Golding, Cohn, & Berge, 1998).
Forensic Assessment Instruments

In addition to simply using a clinical interview, Grisso (2003)
delineated three logical benefits of using forensic assessment instru-
ments (FAIs) in the evaluation of competency:
• they provide structure for the examiner,

• they may improve communication in legal settings,
and
• they “facilitate empirical research on the associations
between legally relevant functional abilities (opera-
tionally defined by FAIs) and the constructs of psychi-
atry and psychology (operationally defined by more
traditional, clinical instruments),” which “provides
an empirical basis for mental health professionals to
employ when interpreting individual cases” (p. 46).
Prior to the 1960s, no FAIs (a term coined by Grisso in 1986)

existed to assist experts in the evaluation of various legal issues.
Trial competency was the first area for which FAIs were developed.
The evolution of FAIs for the evaluation of competency has gone
from early checklists (i.e., Robey, 1965; Bukatman, Foy, & de
Grazia, 1971) and sentence completion tasks (i.e., Lipsitt, Lelos,
& McGarry, 1971) to self-report questionnaires (i.e., Barnard et
al., 1991), to interview-based instruments without, and then
with, criterion-based scoring. This section provides a brief review
of many of the competency assessment instruments, as well as a
review of the research conducted using these instruments to assist
evaluators in selecting an appropriate instrument to aid in the eval-
uation of competency. We have used three categories to organize
this section: nomothetic instruments (those based on generalized,
normative interpretation), idiographic instruments (those focused
on the specific and contextual characteristics of the individual being
evaluated), and instruments for use with special populations. Within
each section, we move from the more recently developed instru-
ments to the older instruments.
NOMOTHETIC INSTRUMENTS
The Evaluation of Competency to Stand Trial–Revised The ECST-
R (Rogers, Tillbrook, & Sewell, 2004) was designed to be con-
gruent with the Dusky standard. It is a hybrid interview,
containing both semi-structured and structured components,
designed to assess CST generally, as well as specific competencies
such as competence to plead and competence to proceed pro se.
The ECST-R takes approximately 30 minutes to administer, and
its structure provides a “focus on case-specific information that
is relevant to the pending case and the individual’s relationship
with his or her defense counsel” (Rogers et al., 2004, p. 9). The
ECST-R is comprised of 18 items, yielding scores on four differ-
ent scales:
1. Factual Understanding of the Courtroom

Proceedings (FAC; six items),
3
chapter
2. Rational Understanding of the Courtroom
Proceedings (RAC; seven items),
3. Consult with Counsel (CWC; six items), and
4. Overall Rational Ability (raw scores for RAC and
CWC combined).
In addition, the ECST-R contains 28 items that yield scores on

five response style scales that screen for
feigned incompetency: INFO
Nomothetic instruments
1. realistic (nine items), include the following:
2. psychotic (nine items), ● Evaluation of
3. nonpsychotic (nine items), Competency to Stand
4. impairment (19 items), and Trial–Revised
(ECST-R)
5. both psychotic and nonpsy-
chotic (18 items). ● MacArthur
Competence
Each item on the ECST-R is scored on
Assessment
the basis of ratings (which can range from
Tool–Criminal
one to several for each item), and scale
Adjudication
scores are obtained by summing the raw
(MacCAT-CA)
scores for each relevant item; however,
62 Foundation
the scale scores are not summed to total one final score for the
ECST-R, and no cut-offs are used to determine whether a defendant
is competent or incompetent. As with every other competency
assessment instrument, information obtained with the ECST-R is
used in conjunction with various other sources of information in the
evaluation of an individual’s competence to stand trial.
The ECST-R demonstrates high internal consistency, with
␣-coefficients for the competency scales ranging from .83 to .89
and ␣-coefficients for the feigning scales ranging from .63 to
.87. Interrater reliability for the ECST-R scales ranged from .91
to 1.00 (Rogers, Grandjean, Tillbrook, Vitacco, & Sewell, 2001;
Rogers, Tillbrook, & Sewell, 2004).
The MacArthur Competence Assessment Tool—Criminal Adjudication

The MacCAT-CA (Hoge, Bonnie, Poythress, & Monahan, 1999;
Poythress et al., 1999) was developed between 1989 and 1996 by
the MacArthur Foundation Research Network on Mental Health
and the Law. The MacCAT-CA consists of 22 items grouped into
three sections that measure a defendant’s understanding, reason-
ing, and appreciation abilities, respectively. Administration time is
approximately 30 minutes. The examiner begins by reading a
hypothetical vignette, which serves as the basis for the first two
sections (16 items); the third section asks questions related to the
defendant’s specific case. The vignette describes a bar fight
between two men, Fred and Reggie, which results in an aggra-
vated assault charge against Fred. The defendant is asked a series
of questions about Fred’s situation and how Fred might deal with
various aspects of his case. More details of the vignette are pro-
vided as the examiner moves through the first two sections of the
MacCAT-CA.
The first section (eight items) assesses the defendant’s ability to
understand information about the legal system and the legal
process. For each item, the defendant is asked a question related to
the vignette (e.g., “What is the job of the attorney for the defense”)
and is awarded 2 points (items are rated 0, 1, 2) if he is able to
answer the question in a manner that demonstrates full understand-
ing. If the defendant earns less than 2 points, the examiner discloses
the answer and asks the defendant to repeat the disclosure in his
own words. The purpose of the disclosure is to assess separately the
defendant’s capacity to understand apart from his actual or preex-
isting understanding. This provides an evaluation of the informa-
tion the defendant knew without prompting and the capacity of the
defendant to acquire and process new information.
The second section (eight items) assesses the defendant’s
ability to reason. The first five items in this section assess the
defendant’s ability to consider two pieces of factual information
related to the vignette and identify the most important or legally
relevant piece of information that one should disclose to a lawyer.
The last three items require the defendant to think through mock
legal options (relevant to the vignette) and to evaluate them in
various ways.
The final section (six items) assesses the defendant’s ability to
appreciate her own legal circumstances and situation. This section 3
chapter
departs from the hypothetical vignette format to explore the

defendant’s beliefs and perceptions about her personal role as a
defendant and how she will be treated during the course of adju-
dication. These items are scored on the basis of the reasons that the
defendant provides for her judgment and whether they are plausi-
ble or implausible (i.e., grounded in reality or based on delusional
beliefs). The manual provides clear scoring criteria for each of the
three sections and information regarding when additional prompts
are necessary.
The authors of the MacCAT-CA emphasize that this instru-
ment was developed for use as a tool rather than a test of compe-
tence. That is, the results do not indicate that a person is or is not
competent. Rather, the scores obtained must be interpreted within
the context of the specific defendant’s case and integrated with all
the other clinically relevant factors and information collected by
the evaluator.
The psychometric properties of the MacCAT-CA were exam-
ined based on a sample of 729 felony defendants in eight different
states (Otto et al., 1998; see also Rogers et al., 2001). The results
indicated that the MacCAT-CA demonstrated good reliability.
For each of the three sections, internal consistency ranged
64 Foundation
from .81 to .88 (␣ ⫽ .81 for Reasoning, .85 for Understanding,

.88 for Appreciation) and interrater reliability ranged from very
good to excellent (intraclass R ⫽ .75 for Appreciation, .85 for
Reasoning, .90 for Understanding).
Otto and colleagues (1998) reported that additional support for
the construct validity of the MacCAT-CA was “found in the pattern
of correlations between the MacCAT-CA measures and select clini-
cal variables” (p. 439). MacCAT-CA Understanding, Reasoning,
and Appreciation scores correlated .41, .34, and .14, respectively,
with estimated Wechsler Adult Intelligence Scale—Revised (WAIS-
R) full-scale IQ, and ⫺.23, ⫺.29, and ⫺.36, respectively, with Brief
Psychiatric Rating Scale (BPRS) total scores (these scores correlated
more strongly with BPRS Psychoticism and Emotional Withdrawal
than with Depression and Hostility scales). The three MacCAT-CA
scales correlated moderately with clinicians’ global ratings of compe-
tency (r ⫽ .36, .42, and .49, respectively).
Zapf, Skeem, and Golding (2005) conducted a confirmatory
factor analysis of the MacCAT-CA using the original norming data-
base (n ⫽ 729). They found that a three-factor model, which corre-
sponded to the three sections of the MacCAT-CA, was a reasonably
good fit of the data; however, they determined that a modified three-
factor model provided a better fit. Zapf and colleagues noted that,
The method of measurement is somewhat confounded with

the facet of competency measured. Specifically, the first factor
in the modified model was composed of items that addressed
vignette-based understanding (including legal options); the
second factor, case-specific items that addressed specific appre-
ciation; and the third factor, vignette-based items that
required identification of the more relevant of two pieces of
information. (p. 442)
Zapf and colleagues’ comment regarding their finding that

method variance may be confounded with construct variance is
consistent with prior research (Rogers et al., 2001), which found
that the vignette-based items on the MacCAT-CA loaded sepa-
rately from the case-specific inquiries.
IDIOGRAPHIC INSTRUMENTS
The Fitness Interview Test–Revised The FIT (Roesch, Webster, &
Eaves, 1984) was originally created in 1984 to assess fitness to
stand trial in Canada. It has since been extensively revised
to reflect issues and considerations relevant in both Canada (FIT-
R; Roesch, Zapf, Eaves, & Webster, 1998) and the United States
(FIT-R; Roesch, Zapf, & Eaves, 2006). The FIT-R focuses on the
psycholegal abilities of the defendant and uses a 3-point rating
scale: a score of 2 indicates definite or serious impairment; 1 indi-
cates possible or mild impairment; and 0 indicates no impairment.
The items on the FIT-R were developed to parallel the standards
for fitness that were established in the Criminal Code of Canada as
well as the Federal standard for competence to stand trial used in
the United States (U.S. Code Annotated, Title 18, Part III, chap-
ter 13, section 4241).
The FIT-R takes approximately 30 minutes to administer and 3
chapter
uses a semi-structured interview format to assess three main areas:
1. the ability to understand the

INFO
nature or object of the
Idiographic instruments
proceedings, or factual knowl-
include the following:
edge of criminal procedure;
● The Fitness Interview
2. the ability to understand the
Test–Revised (FIT;
possible consequences of the
FIT-R)
proceedings, or the apprecia-
tion of personal involvement in ● The Interdisciplinary
and importance of the pro- Fitness Interview (IFI;
ceedings; and IFI-R)
3. the ability to communicate with ● Georgia Court
counsel, or to participate in the Competency Test
defense. (GCCT)
● Competency
Each of these three sections is bro- Assessment
ken down into specific questions that tap Instrument (CAI)
into different areas involved in compe-
● Competency
tence to proceed. The first section
Screening Test (CST)
assesses the defendant’s understanding
66 Foundation
of the arrest process, the nature and severity of current charges,

the role of key players, legal processes, pleas, and court proce-
dure. The second section assesses the defendant’s appreciation of
the range and nature of possible penalties, appraisal of available
legal defenses, and appraisal of likely outcome. The final section
assesses the defendant’s capacity to communicate facts to the
lawyer, relate to the lawyer, plan legal strategy, engage in his own
defense, challenge prosecution witnesses, testify relevantly, and
manage courtroom behavior.
Research has indicated that the FIT-R appears to have ade-
quate psychometric properties. Viljoen, Roesch, and Zapf
(2002a) found the interrater reliability of the FIT-R to be high
across psychologists, psychiatrists, nurses, and graduate students
in psychology. Specifically, intraclass correlation coefficients
ranged from .98 to 1.00 across groups of professionals (or .63
to 1.00 across single raters from professional groups). The mean
intraclass correlation coefficients for most items on the FIT-R
fell within the .80 and .90 range, when based on the full sample
of raters.
Research indicates that the FIT-R demonstrates excellent
utility as a screening instrument. In two studies, Zapf, Roesch,
and Viljoen (2001) compared the results of a FIT-R-based com-
petency evaluation with an institution-based evaluation.
Hospital evaluators were blind to the results of the FIT-R
evaluation. Each study used a sample of 100 defendants referred
for competency evaluations who were interviewed by one of
several clinical psychology doctoral students. Each study also
evaluated the utility of a particular measure of mental status.
In the first study, the FIT-R was combined with the Structured
Clinical Interview for DSM-III-R–Patient Edition (SCID-P;
Spitzer, Williams, Gibbon, & First, 1990). Agreement between
FIT-R-based evaluations and hospital evaluations occurred in
87 cases (85 agreements of competence; two agreements of
incompetence); thus, overall agreement was 87%. Disagreement
occurred in 13 cases—two in which the FIT-R-based evaluation
indicated competence but the hospital evaluation indicated
incompetence. Thus, the false-negative rate was 2%. There
were 11 cases in which the FIT-R-based evaluation resulted

in a decision that the defendant was incompetent but the hos-
pital evaluation determined the defendant to be competent.
Thus, the false-positive rate was 11%. In the second study,
the FIT-R was used in conjunction with the Brief Psychiatric
Rating Scale (BPRS; Overall & Gorham, 1962). Methodology
was the same as for the first study, except defendants in the
second study were chosen on the basis of their active
psychotic symptoms, so as to increase the potential rate of
incompetence in the sample. Results of the FIT-R-based evalu-
ation and the hospital evaluation were in agreement for 74
defendants—66 agreements of competence and eight agree-
ments of incompetence; thus, the overall rate of agreement was
74%. Disagreement occurred in 26 cases—in two, the FIT-R-
based evaluation found the defendant competent, but the hos-
pital-based evaluation found the defendant incompetent. Thus, 3
chapter
again, the false-negative rate was 2%. The other 24 cases of dis-
agreement were in the opposite direction (FIT-R indicated
incompetence but hospital indicated competence); thus, the
false-positive rate was 24%.
Taken together, these two studies indicate that using the
FIT-R as a screen for competency would have resulted in avoid-
ing lengthier evaluations in all but 45 cases. Thus, instead of 200
referrals for inpatient evaluation, only 45 would have been
referred. It is of interest to highlight the differences between
decisions based on the FIT-R/SCID-P with decisions based on
the FIT-R/BPRS. The FIT-R focuses on legal issues but, as pre-
viously discussed, an assessment of mental status is essential in
order to reach a decision about a defendant’s competency. The
FIT-R/SCID-P interview took an average of 90 minutes to
complete, compared to 30 minutes for the FIT-R/BPRS. Both
the SCID-P and the BPRS did a good job of screening the vast
majority of cases; therefore, jurisdictions considering use of the
FIT-R as a screening instrument are left to decide whether the
additional time and cost of the SCID-P is worthwhile.
It should also be noted that the false-positive rates reported in
these two studies do not necessarily indicate that the initial decision
68 Foundation
was “incorrect.” The average length of hospitalization was 23 days

for Study 1 and 22 days for Study 2. Since the FIT-R-based evalu-
ation was conducted within a few days of admission, it is likely that
some of the defendants were initially incompetent but became com-
petent as their situation changed during the course of the inpatient
evaluation (almost all defendants were treated with psychotropic
medication during their evaluation stay).
Evidence for the construct validity of the FIT-R was
reported by Zapf and Roesch (2001), who found reasonably
high agreement (chance-corrected ␬ ⫽ .51) between the FIT-R
and the MacCAT-CA. In addition, the FIT-R has been shown
to correlate positively with intelligence scores and psychotic
symptoms (Viljoen, Roesch, & Zapf, 2002b; Viljoen, Zapf, &
Roesch, 2003).
The Interdisciplinary Fitness InterviewThe IFI was designed to

assess both the legal and psychopathological aspects of competency
(Golding, Roesch, & Schreiber, 1984). The original IFI was com-
prised of three major sections:
1. legal issues (five items);
2. psychopathological issues (11 items); and
3. overall evaluation (four items).
Each of the items represents an organizing scheme for more
specific subdomains that have influenced competency decisions.
For example, six subdomains are subsumed under the broad
“capacity to appreciate,” which forms the core of item 1. These are
1. appreciating the nature of the state’s criminal
allegation;
2. having the ability to provide a reasonable account of
one’s behavior prior to, during, and subsequent to
the alleged crime;
3. having the ability to provide an account of relevant
others during the same time period;
4. having the ability to provide relevant information
about one’s own state of mind at the time of the
alleged crime, including intentions, feelings, and

cognitions;
5. having the ability to provide information about the
behavior of the police during apprehension, arrest,
and interrogation; and
6. having the projected ability to provide feedback to
an attorney about the veracity of witness testimony
during trial, if a trial is likely to be involved.
Note, however, in line with the open-textured nature of the

competency construct, that a complete enumeration is not pos-
sible; rather, an attempt is made to summarize the general “lay
of the land,” allowing for specifics to be a matter of personal
judgment.
The IFI was designed so that evaluators would have to con-
sider both legal and mental status issues, but neither in isolation. 3
chapter
Indeed, the developers of the IFI recommended that, ideally, the

interview would be conducted jointly by a mental health profes-
sional and an attorney. The format of the IFI requires evaluators to
relate their observations to the specific demands of the legal situa-
tions. Items are scored on a 3-point scale, ranging from 0 (“no or
minimal incapacity”) to 2 (“substantial incapacity”). For each
item, evaluators are asked to rate the degree of incapacity of the
defendant, and to give the item a score, also on a 3-point scale, to
indicate the influence that the incapacity might have on the over-
all decision about competency. Thus, a defendant may receive a
score indicating the presence of hallucinations (item 10) but
receive a low weight score because the evaluator has determined
that the presence of hallucinations would not have much effect on
the conduct of the legal case. Another defendant with the same
symptom may receive a high weight score because the hallucina-
tions are considered to be more of a potential problem during the
legal proceedings.
Golding and colleagues (1984) used the IFI in a study of pre-
trial defendants in the Boston area who were referred by court
clinics to a state mental hospital for competency evaluation.
Defendants were interviewed by a two-person team composed of
70 Foundation
a lawyer and either a psychologist or a social worker. Although the

interviews were conducted jointly, each evaluator independently
completed the IFI rating form. Results demonstrated that judg-
ments about competency could be made in a reliable manner by
lawyers and mental health professionals. These two groups were in
agreement on 97% of their final determinations of competency
(58 defendants were considered competent, 17 incompetent, and
disagreement occurred in the remaining two cases).
The IFI has been revised (Golding, 1993) to reflect changes in
constitutional law and the adoption by many states of “articulated”
competency standards (e.g., Utah, 1994). In its current form, the
Interdisciplinary Fitness Interview-Revised (IFI-R) taps 31 rela-
tively specific psycholegal abilities organized into 11 global
domains. The IFI-R was developed on the original model used by
Golding and colleagues (1984), but was altered to reflect a decade
of experience, numerous court opinions, and the accumulated pro-
fessional literature on competency assessments. For example, the
IFI-R specifically addresses the issue of the iatrogenic effects of
psychotropic medications (Riggins v. Nevada, 1992), a defendant’s
decisional competence to engage in rational choice about trial
strategies, proceeding pro se or pleading guilty, and competence to
confess. It was developed to mirror Utah’s (1994) articulated
competency code, which mandates that examiners address its 11
global domains, but should also apply to other jurisdictions. A
revised and comprehensive training manual is available from the
author (Golding, 1993).
The Georgia Court Competency Test The GCCT was originally

developed by Wildman and colleagues (1978) as a screening
device to filter out those defendants who were clearly competent. It
has since gone through a number of revisions (see Bagby,
Nicholson, Rogers, & Nussbaum, 1992; Johnson & Mullett, 1987;
Nicholson, Briggs, & Robertson, 1988; Wildman, White, &
Brandenburg, 1990). The original version consisted of 17 items;
the most common revised version, referred to as the Mississippi
State Hospital Revision (GCCT-MSH), consists of 21 items.
The first seven items of the GCCT-MSH require the defendant to
visually identify the location of certain participants in the court-

room (i.e., defendants are shown a drawing of a courtroom and
asked “where does the Judge sit?”). This is then followed by ques-
tions related to the function of certain individuals in the courtroom
(such as witnesses and lawyers), the nature of the charges that the
defendant is facing, how the defendant would assist her lawyer, the
nature of her relationship with the lawyer, and the consequences of
a guilty verdict. Each item is assigned both a weight and a rating.
Research on the GCCT-MSH has indicated that this instrument
displays high levels of reliability and validity (Nicholson, Robertson,
Johnson, & Jensen, 1988). Three factors were identified by
Nicholson and colleagues (1988)—Courtroom Layout, General
Legal Knowledge, and Specific Legal Knowledge—and these were
later replicated by Bagby and colleagues (1992). It was later sug-
gested that this three-factor solution might only be appropriate for
defendants who were ordered to undergo assessment at the pretrial 3
chapter
stage since a two-factor solution (Legal Knowledge and Courtroom

Layout) was found to be more appropriate for defendants who had
been adjudicated incompetent and who were undergoing inpatient
treatment to restore competence (Ustad, Rogers, Sewell, &
Guarnaccia, 1996). The major drawback of the GCCT-MSH is that
it focuses upon foundational competencies and ignores the more
important decisional competencies (Zapf & Viljoen, 2003).
The Competency Assessment Instrument The CAI (Laboratory of

Community Psychiatry, 1973; McGarry & Curran, 1973) was
developed by McGarry and his colleagues in the late 1960s. It uses
a semi-structured interview to obtain information to score 13
items related to legal issues. The items include “appraisal of avail-
able legal defenses,” “quality of relating to attorney,” “capacity to
disclose pertinent facts,” and “capacity to testify relevantly.” Each
item is scored on a 5-point scale, ranging from “total incapacity”
to “no incapacity.” The CAI manual contains clinical examples of
levels of incapacity as well as suggested interview questions.
The CAI has been used in a number of jurisdictions, although
perhaps more as an interview-structuring device than in the two-
stage screening manner (with the CST) as originally intended by
72 Foundation
McGarry (see Laben, Kashgarian, Nessa, & Spencer, 1977;

Schreiber, 1978). Unfortunately, few studies report either reliabil-
ity or validity data. Roesch and Golding (1980) used the CAI in a
North Carolina study. Thirty interviews conducted by pairs of inter-
viewers yielded item percent agreement ranging from 68.8% to
96.7%, with a median of 81.2%. The interviewers were in agreement
on the competency status of 29 of the 30 defendants (26 compe-
tent, three incompetent). The interviewers’ decisions were in con-
cordance with the more lengthy hospital evaluation decisions in 27
of 30 cases (90%). In subsequent studies (Golding et al., 1984; see
also a summary of research in Nicholson & Kugler, 1991), the CAI
has shown high levels of trained interexaminer agreement and
examiner–outcome agreement.
The Competency Screening Test The CST was created by Lipsitt,

Lelos, and McGarry (1971) as a screening measure to identify clearly
competent defendants and thus minimize the need for lengthy inpa-
tient evaluations. The CST is a 22-item measure in sentence comple-
tion format. Representative items are “Jack felt that the judge ___,”
or “If the jury finds me guilty ___.” Defendants are asked to fill in
the blanks to complete the sentence. Each item is given a score of 2
(competent), 1 (questionable), or 0 (incompetent). The CST was
designed so that a low total score (Lipsitt and colleagues used a cut-
off score of 20) would identify possible incompetent defendants, who
would then be referred for further assessment.
The scoring method has been criticized (Brakel, 1974; Roesch
& Golding, 1980) because of its idealized perception of the crimi-
nal justice system. On one item, “Jack felt that the judge ___,”
responses such as “was right” or “was fair” would receive a score of
2, while responses such as “was unjust,” “was too harsh,” or “was
wrong” would get a score of zero. On another item, “when Bob dis-
agreed with his lawyer on his defense, he ___,” a score of zero would
be given to “figured there was no sense arguing.” Roesch and
Golding (1980) suggested that such responses might actually reflect
a sense of powerlessness in controlling one’s outcome in the legal
system, which may be based in part on past experiences with the
legal system and may well be an accurate interpretation.
The CST can be scored reliably (Randolph, Hicks, & Mason,

1981), and studies comparing classification based on CST cutoff
scores and hospital evaluation decisions reveal that it has a false-
positive rate ranging from about 14% to 28%; thus, it tends to iden-
tify many individuals as incompetent who are later determined to be
competent in hospital evaluations (Lipsitt et al., 1971; Nottingham
& Mattson, 1981; Randolph et al., 1981; Shatin, 1979). False-pos-
itive errors are considered acceptable in screening instruments since
the consequence of this error is simply further evaluation, but it is
desirable to avoid high false-positive rates in order to minimize
unnecessary evaluations. Psychometrically, it is most desirable to
minimize false-negative errors, as these errors result in a possibly
incompetent defendant being returned to trial. Most studies have
found the false-negative rate of the CST to be low, although Roesch
and Golding (1980) reported a false-negative rate of nearly 24% in
their North Carolina study. The ideal screening instrument has a 3
chapter
low false-positive rate and a close to zero false-negative rate.

The results of these studies suggest a mixed review of the CST.
Although it appears that the CST is a reliable instrument, serious
questions can be raised about its usefulness as a screening device
because of the potential for misclassifying possibly incompetent
defendants. Further, as Melton and colleagues (2007) comment,
higher illiteracy rates and lower intellectual functioning in offender
samples may present difficulties for the written administration of
the CST. In addition, it does not directly assess the three prongs of
the Dusky standard.
SPECIAL POPULATIONS
The Competence Assessment for Standing Trial for Defendants with
Mental Retardation. The CAST*MR (Everington, 1990; Everington
& Luckasson, 1992) was developed to assess competence with men-
tally retarded defendants. The items of the CAST*MR were derived
from a review of relevant literature, case law, and existing CST assess-
ment instruments (Everington, 1990). The CAST*MR comprises
50 questions, administered orally to the defendant. The questions
are divided into three sections that address the basic elements of
the Dusky standard. Section I, Basic Legal Concepts, includes
74 Foundation
25 multiple-choice items that address concepts related to the crimi-

nal trial process (e.g., the roles of the judge, a jury, the prosecutor,
and defense attorney) and terms that are critical to the trial process
(e.g., felony, plea bargain, and probation). Section II, Skills to Assist
Defense, comprises 15 multiple-choice items that address the attor-
ney–client relationship. Items on Sections I and II are scored as either
correct (1 point) or incorrect (0 points). Section III, Understanding
Case Events, consists of 10 open-ended questions designed to assess
the defendant’s ability to describe the relevant circumstances of his
offense. Items are scored as 1 point, 1/2 point, or 0 points based on
the ability of the individual to relay information to his case in an accu-
rate and understandable manner (Everington & Luckasson, 1992).
The CAST*MR was developed to assist in the determination of
whether a defendant with mental retardation is competent to stand
trial. The authors of the CAST*MR emphasize its use as only one
component of an overall assessment. Results of the CAST*MR
should be considered in the context of other relevant information
(e.g., interviews, observations, social history) (Everington &
Luckasson, 1992).
Two studies have been conducted to examine the psychomet-
ric properties of the CAST*MR. The results indicated that the
instrument has good reliability and validity. Reliability and valid-
ity findings were similar to those found with other competency
assessment instruments (Everington, 1990; Everington & Dunn,
1995). Results from the first study demonstrated that the internal
consistency of the CAST*MR total score was .93 when estimated
by Cronbach’s ␣ and .92 when estimated by the Kuder-Richardson
(KR) method (Everington, 1990). The results from the second
study were consistent with the first study. Internal consistency of
the total score, using the Kuder-Richardson method, was esti-
mated between .92 for KR formula 20 and .92 for KR formula 21.
These findings indicate that the CAST*MR has a high level of
homogeneity (Everington & Dunn, 1995). Using the Pearson
product moment correlation, test-retest reliability was estimated
twice at .89 and .90 (Everington, 1990; Everington & Dunn,
1995). Interrater reliability for Section III was estimated between
80% and 87% (Everington & Dunn, 1995).
Assessment Practices
Evaluation Settings
Until as recently as the 1980s, virtually all competency evaluations
took place in inpatient settings. As we have indicated in our review
of competency assessment instruments, a number of screening
measures are now available that can be used to conduct brief
assessments of defendants. Many evaluations now take place in com-
munity-based settings, including jails and mental health centers (see
Fitzgerald, Peszke, & Goodwin, 1978; Melton, Weithorn, &
Slobogin, 1987; Ogloff & Roesch, 1992; Roesch & Ogloff, 1996).
As Grisso, Coccozza, Steadman, Fisher, and Greer (1994) com-
mented, “the traditional use of centrally located, inpatient facilities
for obtaining pretrial evaluations survives in only a minority of states,
having been replaced by other models that employ various types of
outpatient approaches” (p. 388). 3
chapter
Surveys of Current Practices

Borum and Grisso (1995, 1996) surveyed forensic psychologists
and psychiatrists with at least five years of experience in conducting
forensic evaluations, the majority of whom were board-certified,
regarding their professional practices and psychological test usage in
evaluations of competence to stand trial and criminal responsibility.
In terms of the types of information that these professionals consid-
ered to be key elements of competency evaluation reports, the fol-
lowing were considered to be essential by the majority of evaluators:
1. basic identifying information about the defendant

and the methods used in the evaluation, including
the criminal charges, the date and place of the evalu-
ation, and description of the purpose of the evalua-
tion and the limits of confidentiality;
2. clinical data information, such as psychiatric history,
current mental status, and current use of psy-
chotropic medication; and
3. psycholegal information, including the defendant’s
understanding of the charges/penalties and the
76 Foundation
possible pleas, the defendant’s appreciation of the

consequences of accepting a plea bargain or entering
a guilty plea, the defendant’s understanding of the
roles of trial participants and her ability to communi-
cate with and consider the advice of legal counsel, as
well as the defendant’s capacity for self-control and
her ability to make decisions and process information
without distortion due to mental illness.
Borum and Grisso (1996) also found that the experts con-
sidered it important to include certain opinions, such as the
presence or absence of mental illness or mental retardation, and
the expert’s reasoning regarding the relationship between men-
tal illness or mental retardation and the observed deficits in psy-
cholegal abilities. In addition, the majority of experts rated as
“important” the inclusion of a description of the situational cir-
cumstances in which the defendant’s deficits might be more or
less likely to compromise his participation. Less agreement was
found with respect to whether an ultimate opinion regarding the
defendant’s competence should be offered, with about one-half
of the experts endorsing this practice, whereas about 13% said
ultimate opinions should not be included. Other experts
reported that it did not matter, as fact-finders were not obligated
to accept an expert’s opinion. (This issue is discussed further in
Chapter 7 of this book.) Another area of disagreement pertained
to whether a defendant’s description of the alleged offense
should be included in the report. About one-half of the psychol-
ogists and one-third of the psychiatrists stated that it should not
be included. (This issue is discussed further in Chapter 5 of
this book.)
With regard to psychological testing, Borum and Grisso (1995)
found that only 16% of psychiatrists and 29% of psychologists
thought that testing was essential; however, the majority in each
group agreed that psychological testing was either recommended or
essential, with 56% reporting they used psychological tests “almost
always” (in more than 80% of their cases) or “frequently” (in
41–80% of their cases). The most commonly used tests were the
Minnesota Multiphasic Personality Inventory (MMPI-2; Hathaway
& McKinley, 1989) and the Wechsler Adult Intelligence Scale-

Revised (WAIS-R; Wechsler, 1981) or other intellectual/cognitive
abilities tests. Projective tests and neuropsychological tests were used
infrequently. Forensic assessment instruments specifically designed
for competency evaluations were used almost always or frequently by
about 40% of the experts, but about half said that they rarely or
never used such instruments. The most commonly used instruments
were the CAI and the CST. It is important to keep in mind, how-
ever, that this survey was conducted over a decade ago, at a time
when many of the competency assessment instruments that are avail-
able today were still being developed. A more recent survey of
forensic evaluators’ psychological test use in juvenile competency
evaluations indicates that use of competency assessment instruments
has increased since Borum and Grisso’s original survey (see Ryba,
Cooper, & Zapf, 2003).
3
chapter
APPLICATION
Preparation for
the Evaluation 4
I n this chapter, we outline the process of preparing for the evalua-

tion of a defendant’s competence to proceed. Before agreeing to
participate as an evaluator in a competency assessment, however, a
forensic mental health professional must ensure that he possesses the
expertise to do so. Statutes with respect to competency evaluations
vary by jurisdiction, with many jurisdictions specifically identifying the
type of professional who may participate as an evaluator. As a general
statement, most jurisdictions in the United States allow for a psychia-
trist or a licensed psychologist to conduct competency evaluations.
Some also allow for psychiatric social workers, psychiatric nurses or
nurse practitioners, or other types of mental health professionals to act
as evaluators. Thus, it is important to be familiar with the relevant
legal statutes pertaining to competency evaluations in the particular
jurisdiction in which the evaluation is requested.
Evaluator Preparation
Once it has been established that a
mental health professional is legally BEST
eligible to participate as an evaluator PRACTICE
Ensure that you have the
in a competency assessment, it then
proper qualifications for the
must be determined whether she referral case, including the
possesses the appropriate qualifica- required
tions for the referral case. ● knowledge,
● training,
Knowledge
● skill set, and
Specific knowledge with respect to
court procedure and legal doctrine ● experience.
81
82 Application
is required before participating in forensic

BEST
PRACTICE mental health assessment (FMHA). In
Be sure to have specialized addition, the evaluator must have knowl-
knowledge regarding
edge regarding forensic psychology or
● the criminal justice
psychiatry, as distinct from clinical psy-
system and court
procedure, chology or general psychiatry. Given that
● the legal doctrine relevant there are differences in the ways in which
to mental health law, individuals involved with the legal system
● forensic psychology or should be evaluated (as compared to those
psychiatry, and who seek out psychological evaluation
● the differences between but are not involved with the legal sys-
clinical and forensic
tem), the competent forensic practitioner
evaluations.
should also have an understanding of these
differences (see Greenberg & Shuman,
1997, for a discussion of the fundamental differences between
clinical and forensic roles).
Training
In addition to general clinical training (clinical theories, assessment
methods, diagnostic methods), specific training in the forensic realm
is also necessary. That is, the forensic mental health professional
should be trained in forensically relevant theories, assessment meth-
ods, and issues. This training may have been part of predoctoral edu-
cation or be acquired through workshops, seminars, or other
professional academic/training settings. In addition, some states
require attendance at a training workshop on forensic assessment and
forensic issues for those wishing to become or remain involved in
FMHA work. Of course, the authors also strongly recommend that
evaluators continue to enhance their skills and training through con-
tinuing education on forensic issues, regardless of whether this is
required by the particular jurisdiction in which they practice (see
Heilbrun, Grisso, & Goldstein, 2009, for a detailed discussion on
training in forensic mental health practice). Evaluators should also
stay abreast of the relevant legal statutes, case law, and administrative
rules pertaining to forensic issues and evaluations in the jurisdictions
in which they practice.
Preparation for the Evaluation 83
Skills
In addition to formal clinical and forensic training, it is also
important for evaluators to have the requisite skills necessary to
conduct forensic assessments. Many of the basic skills (interview-
ing, general assessment methods, diagnostic skills) will have been
developed during predoctoral education and refined through pre-
and postdoctoral clinical experience. Given the particular role of
the forensic evaluator, however, specific forensic skills (adminis-
tration and interpretation of forensic assessment instruments
[FAIs], collateral information gathering) must also be acquired.
The reader who is unfamiliar with the many important ways in
which the forensic examiner’s role differs from the role of the
mental health professional in a therapeutic setting is referred to
Greenberg and Shuman (1997), Heilbrun (2001), and Chapter 3
in Melton, Petrila, Poythress, and Slobogin (2007).
CULTURAL COMPETENCE
In addition to clinical and forensic skills, the evaluator must also be
familiar with the various ways in which a defendant’s racial, ethnic,
social, and cultural background and experiences might impact upon
her knowledge, skills, language, communication style, and test 4
chapter
results. Culturally sensitive clinical and forensic practices are neces-

sary to ensure fairness and accuracy in the evaluation context. A full
discussion of cultural competence and culturally sensitive practices
is beyond the scope of this book, but the reader is referred to Miller
(2003), Tseng, Matthews, and Elwyn
BEWARE
(2004), and Saldaña (2001) for a thorough The impor-
discussion of these issues. tance of
obtaining the necessary
training, skills, and
Experience experience cannot be
Closely associated with having the requisite understated, especially
skills for conducting forensic assessments is since the courts scrutinize
these in considering
the need to obtain experience with this whether to qualify an
type of evaluation. Supervision of forensic evaluator as an expert for
the purposes of testifying
work by competent and qualified forensic about the results of a
mental health professionals is an important forensic assessment.
84 Application
component of the learning process. It allows

BEST
PRACTICE evaluators to obtain the necessary experience
Accept referrals to conduct while working closely with someone who
evaluations of competence to
proceed only after possesses the skills and experience that they
seek. For mental health professionals work-
● determining legal
eligibility to participate ing in state hospitals, forensic facilities, or
as an evaluator in the group practices, it may be relatively easy to
specific jurisdiction, and
obtain consultation and supervision of clini-
● acquiring the requisite
cal-forensic work. For those mental health
knowledge, training,
skills, and experience. professionals working in independent practice
or academic settings, it may be more difficult,
although no less important, to secure consultation and supervision
of clinical-forensic work. Supervision of clinical-forensic work
should continue until the mental health professional has enough
skill and experience to be considered competent as per ethical and
professional guidelines. (As will be discussed later in this chapter,
the competent forensic evaluator should possess a high degree of
familiarity with relevant ethical and professional guidelines; see
American Psychological Association, 2002; Committee on Ethical
Guidelines for Forensic Psychologists, 1991.) Consultation with
other professionals about difficult cases or issues is part of profes-
sional practice and should occur on an ongoing basis as needed.
Clarifying the Referral

Depending upon the professional setting in which an evaluator prac-
tices, he may have more or less discretion to accept or decline partic-
ular referrals. Evaluators working in independent practice often have
complete discretion to decide which referrals they will take on,
whereas those working in state forensic facilities have little or no dis-
cretion. The evaluator needs to ensure that he will be able to conduct
the assessment free of any bias or precon-
BEWARE
ceived notions about the defendant or Take heed of
the nature of the case. The evaluator any personal
working in a private practice setting may bias or preconceived
notions that may interfere
simply decline the referral if objectivity with your objectivity in a
may be compromised in a particular case. particular case.
The evaluator working in a state facility

BEST
should discuss her concerns with a supervisor PRACTICE
who may be able to reassign the case or with Clarify or confirm the specific
referral question with the
a colleague who may be able to trade cases. referring party whenever
possible and feasible.
Referral Question
Once the referral has been received, it is important to ascertain the
specific referral question to be addressed in the evaluation. It is not
uncommon for court-ordered evaluations to include incorrect or
misleading information, such as confusing issues of competency with
insanity. In addition, it may be that some attorneys are not familiar
with the specific relevant legal statutes pertaining to competence to
proceed and thus are unclear regarding the referral question.
Melton and colleagues (2007) specify three reasons regarding
why it is important to clarify the referral question:
1. to ensure that the evaluator will be able to practice

within the bounds of competence;
2. to ensure that expectations on the part of both the
evaluator and the retaining attorney are understood,
so as to minimize the possibility of conflict regarding
chapter
4
the evaluation or testimony developing at some later
point in time; and
3. to ensure that the evaluator will be able to provide
all relevant information in the notification to the
defendant regarding
• the purpose and scope of the evaluation,

• who will have access to the results of the
evaluation,
• and the limits on confidentiality of the informa-
tion obtained during the course of the
evaluation.
Referral Source
It is necessary to determine who has requested the evaluation, as
well as the means by which the referral is made. That is, there is an
86 Application
important distinction to be made between a

BEST
PRACTICE court-ordered evaluation and a private (ex
Understand who is parte) evaluation.
requesting the evaluation, as
well as who is retaining your In a court-ordered evaluation, regard-
services. less of which party may have initiated the
request for the assessment, the forensic eval-
uator is working for the court. Therefore, the evaluator must exer-
cise caution with respect to any communications with defense and
prosecution, so as not to give the impression that she is favoring
one side over the other. In addition, in court-ordered evaluations,
a written report will always be necessary.
In ex parte evaluations, the forensic evaluator will be retained by
either the prosecution or the defense, and therefore will communicate
mainly with the retaining attorney. In addition, the retaining attorney
should be consulted before the forensic evaluator engages in any dis-
cussions with the opposing attorney. Finally, in private evaluations, an
initial verbal report is provided to the retaining party, who will then
determine whether a written report is necessary. In those cases in
which the opinion of the forensic evaluator is not helpful to the retain-
ing attorney, a written report will usually not be requested. Thus, it is
imperative that the forensic mental health professional understands
who is requesting the evaluation and who is retaining her services.
In addition to clarifying the referral question and under-
standing who has requested the assessment and retained the
expert, the forensic evaluator will need to obtain relevant back-
ground information from the referral source before he can pro-
ceed with the evaluation. Two pieces of information are crucial:
information regarding the current charges/allegations (and the
possible penalties); and information regarding why the issue of
competency was raised. Information regarding the defendant’s
previous criminal history and experiences with court proceed-
ings, while not crucial, is often helpful.
CURRENT CHARGES AND ALLEGATIONS

To conduct an assessment of a defendant’s competence to pro-
ceed, the evaluator needs to know the current criminal charges
that the defendant is facing, as well as some indication of the
content of the allegations. The distinction

BEST
between charges and allegations is an PRACTICE
important one. The specific criminal Be aware of the nature of the
allegations, as well as the
charge or charges that the defendant is criminal charges the defendant
facing may not necessarily indicate to the is facing.
evaluator the circumstances surrounding
the alleged offense. Thus, although it is important to know the
formal charges that the defendant is facing, it is arguably more
important to be aware of the nature of the allegations surround-
ing the charges. Having knowledge regarding the allegations will
assist the evaluator in making a thorough assessment of the
defendant’s understanding and appreciation of the charges that
she is facing. In addition, this information will provide the evalu-
ator with specific knowledge about the case that may be useful in
formulating questions to ascertain the defendant’s competence-
related abilities.
INFORMATION REGARDING REASON FOR REFERRAL

In addition to information regarding the current charges and
allegations, the evaluator will also need to obtain information
regarding the reason for the competency referral. Specifically, the 4
chapter
evaluator will need to inquire about why the competency issue

was raised. That is, what was it about the defendant or his behav-
iors or interactions with the referring party that resulted in the
request for evaluation? As was discussed in Chapter 3, there can
be many reasons why a competency referral is made, including
the simple fact that the defendant has a history of mental illness.
Therefore, it is important for evaluators to obtain information
regarding the specific reason for referral in each case.
Evaluators who work in state forensic facilities or those who rou-
tinely perform court-ordered evaluations may find it useful to have
the referring party submit a form with referral information regarding
criminal charges, allegations, and the reasons for referral. Appendix A
contains a modified version of a form originally developed by Kruh,
Sullivan, and Dunham (2001) and adapted by Grisso (2005) for the
purpose of collecting relevant information from the defense attorney.
Evaluators who work in independent practice can collect relevant
88 Application
BEWARE
referral information over the phone from the
Do not agree
to financial referring attorney during the initial referral con-
compensation contingent tact. They will also want to request that the refer-
upon the outcome of the
case. ring attorney provide copies of the arrest report,
indictment, and other relevant documents.
CRIMINAL HISTORY AND PREVIOUS LEGAL EXPERIENCE

Information regarding the defendant’s criminal history and her expe-
riences with the legal system can usually be obtained from the retain-
ing attorney. While not crucial for the evaluation of a defendant’s
CST, this information is useful for making a determination regarding
her level of knowledge about court proceedings and court process.
Fee Arrangement/Negotiation
The fee structure for professional services should be clarified with
the retaining attorney prior to commencement of the evaluation.
If the evaluator is court-appointed, it will usually be the case that
a predetermined fee for the evaluation as been set by the court. Ex
parte evaluators will need to clarify the financial arrangements early
on in their initial contacts with the retaining party. Discussions sur-
rounding the fee structure should include information regarding
whether a retainer is expected and when payment for services is
due. In addition, the forensic evaluator should be aware that finan-
cial arrangements in which compensation is contingent upon the
outcome of the case are not appropriate.
Attorney Representation
All defendants have a right to assistance of counsel. Thus, as a general
rule, it is necessary to determine whether a defendant who has been
ordered to undergo an evaluation of CST has had an opportunity to
discuss this with his attorney. In most cases, this will be obvious as it
will be the defense attorney who either requests the evaluation or
retains the forensic examiner. It is conceivable, however, that the
court may order a competency evaluation before the defendant has
retained counsel or counsel has been

BEST
appointed for the defendant. If this is the PRACTICE
case, the evaluation should be postponed Contact the defense attorney
to provide notice of the
until counsel has been appointed and the evaluation and to obtain
defendant has had the opportunity to discuss relevant information before
meeting the defendant.
the evaluation request with the defense attor-
ney. Thus, the forensic evaluator is responsi-
ble for determining who the defendant’s attorney is and for providing
notification to the defense attorney regarding the fact that a compe-
tency evaluation has been ordered (if the defense attorney was not the
one to request the evaluation or retain the evaluator).
In general, it is useful for the forensic examiner to contact the
defense attorney before meeting with the defendant. This ensures
that the defense counsel is aware of the evaluation (if he was not
the one to make the request or retain the evaluator) and allows the
evaluator the opportunity to obtain information regarding the
charges, allegations, possible penalties, possible defense strategies,
and abilities required of the defendant to meet the contextual
demands of the case before the evaluation interview.
Assistance in Obtaining Relevant 4

chapter
Sources of Information
The defense attorney will be an important resource in terms of assist-
ing the evaluator in obtaining relevant sources of information, includ-
ing the following:
• arrest reports and/or indictments (to provide informa-
tion regarding the charges as well as the allegations);
• information regarding previous criminal history and
contacts with the legal system;
• information regarding possible penalties and possible
defense strategies (to assist the evaluator in deter-
mining whether the defendant has a rational as well
as factual understanding of these issues);
• information regarding the complexity of the case and
the abilities required of the defendant to meet the
90 Application
demands of the case (to allow for a functional evalu-

ation within the contextual nature of the case); and
• collateral contacts and other sources of information
about the defendant.
If the defense attorney requested the competency assessment,
the ex parte evaluator should be able to request this information
during their initial or ongoing contact. If, however, the competency
evaluation was court-ordered, and the evaluator is participating as an
independent party, prolonged personal contacts with the defense
attorney (such as phone calls) should be limited, and the relevant
information should be requested in writing (see Appendix A). If the
evaluator chooses to place a telephone call to the defense attorney to
obtain relevant information (since this may be more timely than a
written request), he should be aware of attempts by the attorney to
influence the course and outcome of the evaluator and guard against
these. Using a form, such as that presented in Appendix A, to struc-
ture the telephone call will assist in guarding against lengthy discus-
sions about the defendant and the case.
Determining What Is Required of the Defendant

Since the defense attorney is the only party who knows what will be
required of the defendant for the particular case, it is important to
speak with him (or request this information in writing) to gain an
understanding of the complexities of the case and the requirements
of the defendant in participating or assisting in her defense. This is
particularly important given that the evaluation of a defendant’s
competence to proceed should be conducted in a contextualized
manner. As discussed in Chapter 2 and throughout this book, a
functional assessment of competency requires that the evaluation
take into account the specific demands of the case. For example, an
evaluator’s opinion regarding a defendant’s competence-related
abilities may hinge on whether that defendant will be required to
testify. That is, it may be the case that, should the defendant be
required to testify, the evaluator may opine that the individual is
unable to assist in his defense, whereas the reverse may be true if the
defendant is not required to testify.
Having the Defense Attorney BEST

Present PRACTICE
Conduct a functional
Although it is rare that defense attorneys
assessment of a defendant’s
are present during an evaluation, there abilities within the context of
may be occasions when a defendant her particular case, including
her ability to communicate
requests the presence of her attorney. The with and assist counsel.
courts have been inconsistent with respect
to whether the defendant has a right to
the presence of counsel during pretrial evaluations of compe-
tency (see Melton et al., 2007); however, Melton and colleagues
(2007) recommend that defense counsel be permitted to
observe the evaluation process when practicable. In some
instances, especially in those cases wherein the competency eval-
uation has been requested by the defense, it may be necessary for
the defense attorney to participate in, rather than simply
observe, the evaluation. This would be particularly relevant
when the defense attorney’s relationship with the defendant is at
issue in the determination of CST. Of course, participation by
the defense attorney may also be relevant in court-ordered eval-
uations. In these cases, it is wise for the evaluator to approach
the defense attorney beforehand, as he may not be willing to 4
chapter
participate in court-ordered assessments.

When the evaluation is court-ordered, the defendant does
not have the right to remain silent; thus, if present during the
assessment, the defense attorney does not have the prerogative
to direct the client not to answer certain questions. In this type
of situation, it is best to have the defense attorney sit in a loca-
tion that would allow her to observe, but not interfere with, the
evaluation. In addition, it is always best for the evaluator to dis-
cuss the expectations ahead of time with the defense attorney, so
that she is aware of the need to conduct the evaluation with lit-
tle or no interference.
If the defense attorney wishes to be present at a court-ordered
evaluation, and the logistics of scheduling then precludes conduct-
ing the evaluation in a timely manner, audio- or video-taping the
evaluation may present an acceptable alternative.
92 Application
Logistics of the Evaluation

Timeline
Ascertaining the timeline for the evaluation is an important aspect in
preparing to conduct a competency evaluation. It is important to
determine the stage at which the defendant is currently in the pro-
ceedings and whether the next court date has been set. Many jurisdic-
tions will allow 30 days for a competency evaluation; however, the
American Bar Association (1989) has recommended a period of
14 days when the defendant is on pretrial release and seven days when
the defendant is in jail. Given the focus on the current functioning of
the defendant, many competency evaluations can take place within a
relatively short timeframe (as discussed in detail in Chapter 3). In
some instances, however, the evaluator may need to request copies
of relevant information required for the evaluation (see subsequent
section on third-party or collateral information sources). This may
involve having the defendant sign releases, so having sufficient time to
obtain relevant information in this situation is paramount.
If the timeline is too short, and the evaluator does not believe
that there is enough time to conduct a thorough evaluation, this
should be communicated to the referral party, so that an extension
might be obtained. If it is imperative that the evaluation occurs
within a timeframe that does not allow for the collection of all rel-
evant information, the evaluator should indicate in the report which
records or information sources were requested but not received by
the time of writing. This serves the purpose of acknowledging that
some important information may not have been taken into consid-
eration in rendering the opinions set forth in the report.
Setting
If the defendant is in jail, the evaluation usually takes place at the jail;
however, some jurisdictions allow for the defendant to be trans-
ported to the evaluator’s office or to an out-
BEST
PRACTICE patient forensic facility for the purposes of the
Check that the timeline assessment. If the evaluation is to occur at the
allows sufficient time to
obtain all the relevant
jail, the evaluator should inquire with the
information for the evaluation. party requesting the evaluation about
whether any specific procedures must be fol-

BEST
lowed to gain access to the defendant. Some PRACTICE
jails require the evaluator to be cleared by Make sure the evaluation
setting allows for enough
security ahead of time (as much as two weeks privacy to adequately assess
or more in advance), and some require an the defendant’s functioning.
appointment be set to see the defendant. In
addition, the facilities available for an evaluation vary by jail. An
inquiry regarding whether an interview space is free for the particu-
lar time that the evaluator is to see the defendant may prove useful.
If the defendant is not in jail, he will usually be seen at the
evaluator’s office (some jurisdictions provide the opportunity for
court-appointed community evaluators to see the defendant at a
forensic facility on an outpatient basis). It is important for the eval-
uator to keep track of the appointment that was set with the defen-
dant. If the defendant does not show up for the appointment, the
evaluator should inform the party requesting the evaluation.
In some jurisdictions, the evaluation of competency may take
place on an inpatient basis at a forensic facility or state psychiatric
hospital. In this situation, the evaluator will be an employee of the
inpatient facility and, thus, access to the defendant is relatively easy.
As much as possible, the setting for the evaluation should be 4
chapter
quiet, private, and free from distraction. Of course, this may prove
difficult to obtain in some jails or pretrial facilities. At a minimum,
however, the setting should allow for privacy. If an evaluator finds
that the evaluation setting is not private and thus does not allow for
an adequate assessment of the defendant’s functioning, she may
need to request that the evaluation occur in a different setting.
Authorization
Before conducting an evaluation of competency it is important for
the forensic mental health expert to obtain the appropriate author-
ization. For court-ordered evaluations, this authorization comes in
the form of a signed court order, a copy of which should be
obtained by the evaluator before proceeding. In this instance, the
evaluator need only provide the defendant with a notification of
purpose (discussed later); obtaining consent from the defendant is
not necessary.
94 Application
For defense-requested ex parte evalua-

BEST
PRACTICE tions, proper authorization comes in the form
Obtain proper authorization. of consent from both the attorney and the
For court-ordered
evaluations, client. Thus, in addition to providing the
defendant with a notification of purpose,
● obtain a copy of the
signed court order, and informed consent must also be obtained. In
● provide defendant with some jurisdictions, when the evaluator is
notification of purpose. being retained privately by one party or the
For ex parte evaluations, other (as opposed to the court more gener-
● provide defendant with ally), a request for evaluation will be submit-
notification of purpose, ted to the court for approval and for payment
and
authorization. This generally occurs only
● obtain consent of both when the defense attorney has made a request
the attorney and the
client. for an evaluator of his choosing and is asking
the court to pay for the evaluation. In these
cases, it is wise, but not necessary, to wait for this approval before
proceeding with the evaluation. When one does proceed, it is still
necessary to obtain the consent of the attorney and the defendant.
Recording the Evaluation

Whether to record the evaluation, either via video or audio, is usu-
ally a matter for the evaluator to decide. In those cases in which the
defense attorney has requested to be present at the evaluation, but
for logistical reasons this is not feasible, recording the evaluation
may be an appropriate alternative. There is no requirement to
record the evaluation, except perhaps in those cases where it has
been requested or court-ordered; however, recording the assess-
ment provides the evaluator with a convenient record for subse-
quent review. This may be particularly helpful when preparing for
a competency hearing wherein the evaluation took place months
earlier or for clarifying specific procedures (or the duration of those
procedures) that were used during the evaluation.
Use of Obtained Information

Every defendant has the right to remain silent so as not to provide
information to the prosecution that would be self-incriminating;
however, virtually every state allows for the prosecution to compel
a defendant to undergo a competency evaluation once competency

arises as an issue. Given that the focus of the competency evalua-
tion is on the functional abilities required of the defendant, it is
likely that the defendant may make self-incriminating statements
during the evaluation.
The U.S. Supreme Court examined the issue of a defendant’s
Fifth Amendment right against self-incrimination in Estelle v. Smith
(1981). In this case, the court-ordered pretrial competency evalu-
ator, Dr. James Grigson, a psychiatrist, returned after the guilty
verdict to testify about the defendant’s dangerousness at the sen-
tencing hearing of a death penalty trial. His testimony at sentenc-
ing, that the defendant would be a danger to society, was based on
his pretrial competency evaluation of the defendant. The issue of
whether the results of a competency evaluation could be used for
the purposes of sentencing was brought before that Court. The
U.S. Supreme Court decided that competency evaluation results
should be limited to the issue of competency and that to enter this
information into evidence at a sentencing hearing would violate a
defendant’s Fifth Amendment right against compelled self-incrim-
ination. Thus, defendants do not have to participate in court-
ordered competency evaluations unless the results are only used to 4
chapter
determine competence. In addition to the constitutional protection

offered by Estelle, many states also include statutory protection of
the information obtained in a pretrial competency evaluation and
limit its use to the issue of competency.
Regardless of the fact that there exists
court-ordered or statutory protection against
using the results of a competency evaluation CASE LAW
at trial, evaluators must be careful to consider Estelle v. Smith
this issue when writing the competency eval- (1981)
uation report. Given the potential for prose- ● U.S. Supreme Court
cutorial misuse of incriminating information held that competency
contained within the report, it appears that evaluation results
the best strategy is the most conservative. should be limited to
That is, evaluators should make general, the issue of
process-oriented statements regarding competency and not
whether the defendant was able or unable to be used at trial.
96 Application
perform specific tasks and regarding the abilities of the defendant,

rather than statements regarding specific content. (See further dis-
cussion of this issue in Chapter 5.)
Scope and Focus of the Evaluation

Consulting Relevant Statutes
Every jurisdiction possesses legal statutes relevant to CST,
although some contain more detailed information than others. It
is crucial that evaluators consult the relevant legal statutes, case
law, and administrative rules for the particular jurisdiction in which
the evaluation is sought. Often, the legal statutes or administrative
rules will contain information regarding the specific factors or cri-
teria that must be addressed in either the assessment or the report,
or both. In addition, these sources may detail any specific proce-
dures that are to be followed in a competency evaluation. Some
jurisdictions require evaluators who opine that a defendant is
incompetent to proceed to include information regarding the con-
dition causing incompetence, the types of treatment available to
treat the condition, the facilities wherein the types of treatments
may be offered, the prognosis for the individual, the likelihood
that the individual will be able to be restored to competency, and
the amount of time that will be necessary to restore an individual
to competency.
Determining What Collateral

Information Is Needed
As is the case with any type of forensic evaluation, collateral
information must be sought to either confirm or disconfirm the
defendant’s account of events and self-report of relevant infor-
mation. Given that the focus of a competency evaluation is on
the defendant’s current mental status and
competence-related abilities, it may not be
BEST
PRACTICE necessary in every evaluation to consult
Be familiar with the numerous collateral information sources.
jurisdictional requirements for
the evaluation as well as for
At a minimum, before meeting the defen-
the content of the report. dant, the evaluator should obtain informa-
tion regarding the charges and allega-

tions, the possible penalties, the complex- BEST
PRACTICE
ity of the case, and the abilities required Be guided by the nature
of the defendant. The complexity of the of the case and the
presentation of the defendant
case, as well as the characteristics of in your search for collateral
the particular defendant, should guide information.
the evaluator in terms of additional collat-
eral information to be sought. Thus, collateral interviews with
family members or other individuals who have had close contact
with the defendant may be necessary in those cases in which the
evaluator requires more information about the current func-
tioning of the defendant. Similarly, mental health records may
be sought in those cases in which the defendant has a docu-
mented history of mental illness, and the evaluator requires
more information regarding previous functioning to make a
judgment about current functioning. Records from the jail or
pretrial facility where the defendant is being detained may be
necessary in those cases in which the evaluator requires more
information about the defendant’s current functioning when
the defendant does not believe he is being monitored. Potential
third-party or collateral information sources are listed 4
chapter
in Appendix B.
Determining What Forensic Assessment

Instruments to Use
The evaluator will need to make a determination regarding
whether to use FAIs during the course of the competency evalu-
ation. Although no professional guidelines mandate the use of
FAIs for the purposes of a competency evaluation, a number of
such instruments have been developed, and empirical data
suggest that trained evaluators using FAIs achieve the highest
levels of interexaminer and examiner–adjudication agreement
(Golding, Roesch, & Schreiber, 1984; Nicholson & Kugler,
1991; Skeem, Golding, Cohn, & Berge, 1998). As elaborated in
Chapter 5, there are a number of advantages to using FAIs and
few limitations (to thoughtfully selected instruments). Thus, we
recommend the use of FAIs to guide the evaluation of CST.
98 Application
Those instruments that have been developed to assist in the

evaluation of CST have been discussed in Chapter 3. Suffice it to
say that the evaluator should select an instrument on the basis
of relevance and reliability, and should become familiar with the
instrument before using it in an evaluation. (More discussion
regarding the selection of an appropriate FAI can be found in
Chapter 5.) One issue of concern is with regard to some of the
competency assessment instruments being “harder” or “easier”
than others. Thus, it might be possible for an evaluator to select
an instrument for use in a specific case that would either increase
or decrease the possibility of the defendant being considered
incompetent. In response to this concern, we recommend that
the evaluator select a FAI, such as the Fitness Interview
Test–Revised (FIT-R) or the Interdisciplinary Fitness
Interview–Revised (IFI-R), that can be utilized in every evalua-
tion of CST to ensure adequate, consistent coverage of the rele-
vant competency domains, and then supplement the evaluation
with additional FAIs, such as the MacArthur Competence
Assessment Tool–Criminal Adjudication (MacCAT-CA) or the
Evaluation of Competency to Stand Trial– Revised (ECST-R), in
those cases in which normative information regarding how the
defendant compares to other defendants in terms of compe-
tence-related abilities is applicable and relevant. This ensures
consistent coverage (both in terms of breadth and depth) of
competence-related issues by the evaluator for every evaluation
but also allows for supplementation of this information with
additional instruments relevant to the specific situation.
In addition to FAIs for the purposes of evaluating compe-
tence-related abilities, the evaluator may also need to employ
forensically relevant instruments (see Chapter 5) to assist in the
evaluation of conditions (such as malingering response style or
psychopathy) that need to be considered
BEST within the context of any forensic evalua-
PRACTICE
Select a reliable FAI to use in tion. The use of forensically relevant
every competency evaluation, instruments will depend upon the nature of
supplementing it with
additional instruments as
the case and the characteristics of the
relevant for a specific case. defendant. As with the selection of FAIs for
use as part of a CST evaluation, evaluators should be careful to

select forensically relevant instruments on the basis of the relia-
bility of the instrument and relevance to the particular issue to
be evaluated (in this case, the issue would be something that
may be related to the issue of CST—such as malingering—but
not competence to stand trial per se).
Heilbrun, Marczyk, and DeMatteo (2002) state that the use
of FAIs (developed to measure the capacities related to a particu-
lar legal question, such as CST) are preferable to conventional psy-
chological tests for assessing functional legal capacities when the
following criteria are met: “clear directions for administration,
objective scoring criteria, quantification of the level or degree of
performance, research on reliability and validity, and documenta-
tion in a manual” (p. 5).
Determining Whether Other Psychological

Tests Are Necessary
It may be the case that, during a CST evaluation, a certain issue
arises for which psychological testing may be useful. For example,
there may be a concern about how the intellectual or emotional
functioning of the defendant impacts the defendant’s competence- 4
chapter
related abilities. In these instances, it is important for the evaluator

to select psychological tests that are relevant to the specific legal
inquiry (i.e., CST). That is, a link must exist between the particu-
lar issue at hand and the defendant’s com-
petence-related abilities. In addition,
BEST
Melton and colleagues (2007) as well as PRACTICE
Heilbrun and colleagues (2002) recom- If psychological tests are
necessary to provide
mend that psychological test results be additional information about
treated as hypotheses to be verified through a particular competence-
other sources (such as third-party inter- related capacity,
views or collateral information sources). ● be sure the testing is

relevant to the specific
Finally, the psychological tests selected legal inquiry (CST),
should be face valid. That is, they should
● select tests that are face
appear to be accurate measures of the indi- valid, and
cated capacities, as well as actually be accu- ● verify the test results
rate measures of those capacities. through other sources.
100 Application
Since CST deals with a defendant’s mental state at the pres-

ent point in time, any psychological tests used should accurately
reflect the defendant’s present mental state, rather than her men-
tal state at an earlier time. Thus, previous psychological testing
may not be relevant to the current assessment of competence. In
rare instances, evaluators may be asked to reconstruct a defen-
dant’s previous mental state to determine whether that individual
was competent at that point in time, such as when she may have
waived her Miranda rights. In these cases, the role of psycholog-
ical tests that reflect the defendant’s present mental state may have
limited utility in attempting to reconstruct her mental state at
some earlier time.
It is not necessary to use traditional psychological tests as part
of a standard battery of testing in CST evaluations; in fact, we
would argue that it is only necessary in those cases in which the
evaluator requires additional information about a particular capac-
ity that may impact upon the defendant’s competence-related
abilities. In those instances, it may be useful for the evaluator to
select psychological tests that are relevant to the particular capac-
ity to be assessed, then tie the results to the defendant’s compe-
tence-related functioning. Selected tests should be reliable (in
terms of their psychometric properties) and valid (in terms of their
measuring what they purport to measure). Thus, the evaluator
may wish to make a list of the capacities for which more informa-
tion need be sought and select the best, most appropriate, psycho-
logical tests for measuring those capacities. Obviously, this will
need to be done on a case-by-case basis, usually after interviewing
the defendant.
In terms of assisting mental health professionals in determin-
ing whether a particular psychological test should be used in a
forensic evaluation, Heilbrun (1992) provides the following
guidelines:
1. The test is commercially available and adequately docu-

mented in two sources. First, it is accompanied by a man-
ual describing its development, psychometric properties,
and procedure for administration. Second, it is listed in

Mental Measurements Yearbook or some other readily avail-
able source.
2. Reliability should be considered. The use of tests with a relia-
bility coefficient of less than .80 is not advisable. The use of
less reliable tests would require an explicit justification by the
psychologist.
3. The test should be relevant to the legal issue, or to a psy-
chological construct underlying the legal issue. Whenever
possible, this relevance should be supported by the avail-
ability of validation research published in refereed
journals.
4. Standard administration should be used, with testing condi-
tions as close as possible to the quiet, distraction-free ideal.
5. Applicability to this population and for this purpose should
guide both test selection and interpretation. The results of a
test (distinct from behavior observed during testing) should
not be applied toward a purpose for which the test was not
developed (e.g., inferring psychopathology from the results of
an intelligence test). Population and situation specificity should 4
chapter
guide interpretation. The closer the “fit” between a given indi-
vidual and the population and situation of those used in the
validation research, the more confidence can be expressed in
the applicability of the results.
6. Objective tests and actuarial data combinations are prefer-
able when appropriate outcome data and a “formula” exist.
7. Response style should be explicitly assessed using
approaches sensitive to distortion and the results of psy-
chological testing interpreted within the context of the
individual’s response style. When response style appears
to be malingering, defensive, or irrelevant, rather than
honest or reliable, the results of psychological testing
may need to be discounted or even ignored and other
data sources emphasized to a greater degree.
(pp. 264–267)
102 Application
Collateral Information
Preparing to Obtain Relevant Collateral
Information
Once the evaluator has determined the third-party or collateral infor-
mation sources that are relevant to the particular defendant’s case,
she must go about the business of obtaining these pieces of data for
inclusion in the evaluation. The usual means of obtaining access to
this information is through the referring party. The ex parte evalua-
tor should work with the retaining attorney (usually the defense
attorney) to collect the relevant pieces of information. When the eval-
uation is court-ordered, it is necessary for the evaluator to work
through the court to obtain this information. This is usually easiest
to do by sending a letter to the defense attorney, with a copy to the
prosecuting attorney and the judge who ordered the competency
evaluation, asking for the relevant records (these should be listed in
the letter). It may also be necessary to include release of information
forms to be signed by the defendant, which can be sent to the party
or institution in possession of the information.
Making direct contact with third parties or those in posses-
sion of collateral records should be a last resort of the evaluator.
The ex parte evaluator should be aware that legal ethics prohibit
directly contacting persons represented by counsel; thus, one
must be careful not to contact parties (as opposed to witnesses) to
the proceedings. If necessary, Melton and colleagues (2007) sug-
gest that the evaluator remind the referring party who balks at
providing assistance that a report will not be forthcoming until all
necessary data have been obtained. Another alternative is to pro-
vide an incomplete report, with a note detailing the reasons for its
incompleteness.
RECORDS
To obtain relevant medical, mental health, aca-
BEWARE
Do not demic, institutional, or other types of records, it
directly con- will usually be necessary to have the defendant
tact persons represented by
counsel, as this goes
sign a release of information form, which is
against legal ethics. then sent to the relevant agency with a request
for the records. This is usually easiest done by sending the release
forms to the retaining attorney with instructions to have the defen-
dant sign and then send the forms to the relevant agency to obtain
the records. To expedite the process, the evaluator may want to
include instructions on the release of information forms to have
the records sent directly to her office.
INTERVIEWS
To obtain interviews with relevant individuals, the examiner should
request that the retaining attorney put him in contact with those
individuals believed to be important and relevant sources of third-
party information. Upon contacting these individuals, the examiner
should be clear about the purpose of the evaluation and his role as
either court-appointed or ex parte evaluator. In some instances, it
may be appropriate for the evaluator to contact individuals directly,
without going through the retaining attorney; however, these con-
tacts should probably be reserved to those situations where its per-
missibility has been established through custom or common sense
(such as contacting the mental health professionals or other person-
nel at the jail where the defendant is being held).
4
chapter
Ethical Issues
Confidentiality
Although the issue of confidentiality is of the utmost importance
in therapist–client interactions, its importance is somewhat less so
within the context of forensic assessment. That is, the nature of
forensic evaluation is such that the evaluator is required to provide
information about the evaluee, generally in the form of a written
report, but also potentially in the form of testimony. However, it
is important to recognize that professional guidelines still advise
that forensic evaluees be made aware of their rights with respect to
confidentiality and that forensic evaluators still maintain confiden-
tiality of information not directly related to the legal purpose of
the evaluation.
Section V of the Specialty Guidelines for Forensic Psychologists
(Committee on Ethical Guidelines for Forensic Psychologists, 1991)
104 Application
delineates a number of guidelines with respect to confidentiality and

privilege (discussed next). Specifically, “Forensic psychologists
inform their clients of the limitations to the confidentiality of their
services and their products by providing them with an understand-
able statement of their rights, privileges, and the limitations of con-
fidentiality” (p. 660). In addition,
In situations where the right of the client or party to confidential-

ity is limited, the forensic psychologist makes every effort to main-
tain confidentiality with regard to any information that does not
bear directly upon the legal purpose of the evaluation. (p. 660)
Section IV.E. of the American Academy of Psychiatry and the

Law (AAPL) Practice Guideline for the Forensic Psychiatric
Evaluation of Competence to Stand Trial (Mossman et al., 2007)
also delineates that psychiatrists attempt to communicate the lack of
confidentiality of the interview and the findings to evaluees.
Thus, it is important that the forensic evaluator provide the
relevant information regarding the limits of confidentiality to the
defendant being evaluated. Even those exceptions to confidential-
ity mandated by law, such as elder or child abuse or neglect,
should be disclosed to the forensic evaluee. It is important to
note, however, that when the evaluator is privately retained by the
defense attorney, reporting of legally mandated information to the
usual authorities may be inappropriate, given that the evaluator’s
work is covered under the attorney–client privilege (see next sec-
tion). In this case, the defense attorney should be made aware of
the defendant’s disclosure of information requiring legally man-
dated reporting.
Privilege
Within the context of forensic evaluation, the issue of privilege is
essentially irrelevant to communication between the defendant and
the examiner. As a court-appointed evaluator, information
obtained about the defendant relevant to the legal issue in ques-
tion is provided to all parties in the form of a written report. Thus,
no assertion of privileged communications between the evaluator
and the evaluee can be made. When retained by the defense, the
ex parte evaluator is acting as an agent of the defendant’s attorney,

and all information obtained during the course of the evaluation
becomes part of the attorney’s work product. These communica-
tions thus become protected by attorney–client privilege (until
such time that a report is submitted or testimony offered).
Duty to Protect
Although most jurisdictions recognize a duty to protect, as per
Tarasoff v. Regents of the University of California (1976), this duty
usually applies to situations in which: (1) a patient has communi-
cated a serious threat of physical violence, and (2) this threat is
made against a reasonably identifiable victim or victims. It is unclear
whether this Tarasoff-like duty (which was in the context of a psy-
chotherapist–patient relationship) extends to the evaluator–evaluee
relationship; thus, forensic examiners should be familiar with any
Tarasoff-like statutes in the jurisdictions in which they practice. For
those examiners who are functioning as ex parte evaluators retained
by defense counsel, any specific threats of violence against an identi-
fiable victim should be brought to the attention of the defense attor-
ney. For those examiners who are functioning as court-appointed
evaluators, the American Bar Association’s Criminal Justice Mental 4
chapter
Health Standards (1989) recommend that these types of threats be

brought to the attention of the court, as well as the defense attorney.
Of course, examiners should be familiar with the relevant jurisdic-
tional requirements regarding the duty to protect and should follow
these accordingly.
Informed Consent
Whether informed consent must be obtained before conducting an
evaluation of CST depends upon the context of the evaluation. If
the evaluation is court-ordered, the defendant generally does not
have the right to refuse to participate in the evaluation and thus
informed consent need not be obtained. The defendant, however,
must be notified regarding the purpose of the evaluation, the limits
on confidentiality, the methods to be used in the evaluation, the
potential uses of the results of the evaluation, and who will have access
to these, as well as the consequences of refusing to participate in the
106 Application
evaluation (detailed information regarding notification is presented

in Chapter 5). If, after proper notification, the defendant refuses to
participate or cooperate with the assessment, the evaluator must
determine whether this is simply a refusal to cooperate or whether the
refusal reflects an inability to cooperate (due to symptoms of mental
disorder) that may be a manifestation of incompetence. In either case,
this is important information to note in the report to court.
In the case of an ex parte evaluation, the defendant must give
informed consent to be evaluated. If, in this type of situation, the
defendant refuses to cooperate, the evaluator should put the defen-
dant in touch with her defense counsel.
In general, the same types of information will be provided to
obtain informed consent as would be provided in the notification
to a defendant who has been court-ordered to undergo a compe-
tency evaluation. In the case of obtaining informed consent,
however, the evaluator may wish to consider having the defen-
dant sign an informed consent form. In either case (notification
or informed consent), the evaluator will want to be sure to doc-
ument the notification or informed consent procedures in his
notes, as well as in the written report.
Multiple Roles
The Specialty Guidelines for Forensic Psychologists discourage
forensic psychologists from engaging in multiple relationships,
stating,
Forensic psychologists recognize potential conflicts of interest in

dual relationships with parties to a legal proceeding, and they
seek to minimize their effects.
1. Forensic psychologists avoid providing professional services

to parties in a legal proceeding with whom they have per-
sonal or professional relationships that are inconsistent with
the anticipated relationship.
2. When it is necessary to provide both evaluation and treat-
ment services to a party in a legal proceeding (as may be the
case in small forensic hospital settings or small communities),
the forensic psychologist takes reasonable steps to minimize
the potential negative effects of these circumstances on the

rights of the party, confidentiality, and the process of treat-
ment and evaluation. (Committee on Ethical Guidelines for
Forensic Psychologists, 1991, p. 659)
In addition, the AAPL Practice Guideline for the Forensic

Psychiatric Evaluation of Competence to Stand Trial also discour-
ages psychiatrists from engaging in conflicting roles with evaluees
(Mossman et al., 2007).
Forensic examiners should be clear with evaluees about their
role as experts in the case. That is, they serve as evaluators and not
as therapists or “helping professionals.” In addition, forensic exam-
iners must be careful to maintain their role as objective evaluators
and not slip into a therapeutic or helping role with the evaluee.
In addition to being clear about the nature of their role as
evaluators, forensic examiners should also make attempts to ensure
that they do not fulfill more than one role with an evaluee when-
ever possible. That is, whenever possible, evaluators should avoid
engaging in a therapeutic role with defendants whom they have
evaluated. When this is not possible, Melton and colleagues (2007)
provide two suggestions. First, “mental health professionals should
4
chapter
alert facility administrators to ethical problems related to dual-role
assignments and work with them to design services in a way that
minimizes this risk” (pp. 86–87). Second, “the clinician should
take great care to inform the client/patient of the clinician’s dual
responsibilities and the limits on confidentiality in therapy imposed
by the duty to perform, or inform, collateral forensic evaluations”
(p. 87). Furthermore, they recommend that the patient be given
periodic reminders of the clinician’s dual-role obligation and clar-
ification of the clinician’s role in particular sessions.
Privacy
BEST
The forensic evaluator should be careful to
PRACTICE
(1) limit his inquiries to the specific legal Elicit only information
issue at hand and (2) not expand the evalua- relevant to the referral
question. Do not expand
tion to include other legal issues. The defen- the evaluation to address
dant’s right to privacy should be respected additional legal issues.
108 Application
such that the forensic mental health expert should elicit only that
information relevant to the referral question. That is, evaluators
should be careful not to engage in “voyeurism” in their forensic
assessments. With respect to competency evaluations, Melton and
colleagues (1997) write, “clinicians who find themselves performing
extensive batteries of tests or conducting in-depth psychodynami-
cally oriented interviews routinely in such situations might well
explore their motivations for doing so” (p. 91).
Evaluators should be careful not to unilaterally expand the eval-
uation to address additional legal issues (such as mental state at the
time of the offense or risk assessments). Similarly, evaluators cannot
use information collected as part of a CST evaluation for the pur-
poses of addressing other legal issues if the defendant was not
informed of these additional potential uses of the information
obtained. In Estelle v. Smith (1981), discussed earlier, the court
ruled that clinical information obtained for the purposes of a com-
petency evaluation could not be introduced later at sentencing,
since the defendant was not informed that it might be used for the
purposes of determining his future dangerousness.
In addition to maintaining a focus on information relevant to
the referral question during the course of the assessment, evalua-
tors should also be careful not to violate the defendant’s privacy in
terms of including sensitive information, irrelevant to the legal
issue at hand, in the evaluation report.
Record Keeping
Maintaining Records of All Contacts
Given that the standards of accountability are higher for forensic
evaluations than for general clinical assessments, evaluators should be
careful to ensure that they are maintaining accurate documentation
for each and every step of a forensic evaluation. Detailed written
records, including dates and contents, should be kept for every con-
tact made, every conversation held, and every piece of data collected
during the course of an evaluation of CST. Psychologist evaluators
should be familiar with the American Psychological Association’s
most recent record keeping guidelines (see APA, 2007).
Information regarding both the process and the content of

evaluation methods should be maintained, including the time and
sequencing of the various methods used, as well as raw data in the
form of interview responses and test item responses. Any psycho-
logical testing should be double-checked for accuracy of scoring.
Tracking All Requested Information

The evaluator should maintain a record of all information requested
for the assessment, including dates and names of institutions or
individuals from whom the information was requested. In addition,
records regarding all materials received, including the date and
from whom the information was received, should be maintained.
Information that was requested but that was not forthcoming
should be indicated in the written report.
Challenges to Restoration of Competency

Reevaluation of the issue of competency is required at various
intervals (depending upon the statutory requirements of the juris-
diction) for any defendant found incompetent to proceed. Most
often, this will take place at the facility 4
chapter
where the defendant was sent for com-

BEST
PRACTICE petence restoration treatment. As is
For assessment of generally the case, most defendants are
restoration to competency,
evaluate medication-related
restored to competency within a six-
issues as well as each of the month period and returned to court.
four prongs: What, however, is to be done when the
1. consult with the lawyer defendant’s attorney does not believe
with a reasonable
degree of rational
that the now supposedly restored
understanding, defendant has attained competence?
2. otherwise assist in the This issue was considered by the
defense, U.S. District Court in Duhon v.
3. have a rational United States (2000). The court in
understanding of the Duhon rejected the notion that the
criminal proceedings, and
defendant in this case had been edu-
4. have a factual
understanding of the
cated into compe-tency through a
proceedings. psychoeducational group (Duhon
110 Application
was mentally retarded). Further, the court, which posited a four-

prong test for competency on the basis of Dusky and Drope, con-
cluded that the competency reevaluation report submitted for
Duhon failed to adequately consider each of these four prongs
(specifically, the defendant’s ability to consult and “otherwise
assist” in his defense). Thus, evaluators must ensure that they are
adequately assessing each of the four prongs in both the initial
evaluation and subsequent reevaluations of competency.
In addition, since psychotropic medication is the most com-
mon form of treatment to “restore” a defendant’s competency,
evaluators should also ensure that they assess the defendant’s com-
pliance with any prescribed medication regime and the role that the
medications play in the defendant’s competence, as well as the
potential impact of the medication (i.e., side effects) or its discon-
tinued use on the defendant’s functioning at trial.
The ex parte evaluator who has been retained to conduct an
independent reevaluation of a defendant’s competency after restora-
tion efforts should obtain the initial competency assessment report,
records regarding the defendant’s competence restoration treat-
ment, and the treating facilities’ competency reevaluation report to
ensure that all relevant information is evaluated and considered.
Data Collection
5
—Data collection should be guided by theories and empirical research findings
(within the examiner’s areas of expertise) that provide the empirical relations
and theoretical assumptions from which causal explanations and
predictions generally are made.
(Grisso, 2003, p. 39)
T he purpose of this chapter is to outline and discuss the process

of data collection for CST evaluations. Generally, this process
can be conceptualized as comprising three different categories of
data: information obtained through a clinical interview with the
defendant; information obtained through the administration of
forensic assessment instruments, forensically relevant, or other psy-
chological tests; and information obtained through collateral or
third-party sources. Each of these categories of data will be dis-
cussed.
With approximately 60,000 evaluations conducted each year
in the United States (Bonnie & Grisso, 2000), CST is the single
most common type of criminal forensic assessment. Wide vari-
ability exists with respect to the specific demands of each case.
Case-specific demands must be a primary consideration in deter-
mining what data need be obtained. The quotation at the begin-
ning of this chapter illustrates the importance of using theory
and empirical research findings to guide data collection. Just as
the contextual demands of each case impact a defendant’s com-
petence-related abilities, so too the contextual demands of each
case impact the evaluation data to
be collected. BEST
Competency evaluations can PRACTICE
Collect data depending upon
be performed within a relatively brief the contextual demands of
timeframe, a fact that can be both the case.
111
112 Application
encouraging and burdensome (in the case of state employees who

are assigned high caseloads with numerous competency evaluations
to be conducted). Real-life demands are such that most evaluators
are often required to conduct multiple evaluations in a relatively
short period and for minimal compensation. The key to managing
these demands is an accurate determination regarding the most rel-
evant pieces of data to obtain. At a minimum, the most straightfor-
ward (or “typical”) case will require an interview with the defendant
(targeted specifically at the functional abilities relevant to the context
of the proceedings) and the collection of collateral information
(regarding the charges/allegations, their possible consequences, and
the abilities required of the defendant to proceed). Any additional
information to be collected will depend upon the specific nature of
the defendant’s case and his presenting characteristics.
The Clinical Interview

Preparation for the clinical interview with the defendant can take
many forms and is mainly a matter of personal preference; how-
ever, at a minimum, the evaluator should have ascertained
• information regarding the charges and allegations
that the defendant is facing,
• an explanation regarding what led to the issue of
competency being raised (including any specific
observations of defense counsel regarding abilities
and/or deficits noted), and
• information from the defense attorney regarding the
abilities required of the defendant specific to the
context of the case.
Given that many competency evaluations require completion
within a relatively short timeframe, it is most expedient for the
evaluator to have reviewed as much of the available information as
BEST possible about the defendant before going
PRACTICE into the clinical interview. Obviously, the
Review as much available
information as possible amount of information available will vary by
before the clinical interview. case; however, the examiner should make
Data Collection 113
reasonable attempts to collect as much relevant information as

possible. Reviewing the available information ahead of time allows
the evaluator to compare the defendant’s version of events (both
with respect to the competence-related inquiries as well as with
respect to the defendant’s history) with those from collateral
information sources. The evaluator can then confront the defen-
dant regarding any discrepancies during the clinical interview,
rather than have to come back an additional time.
Notification
One of the first things that the evaluator should do is provide the
defendant with the relevant notification information and obtain
informed consent (if necessary). At a minimum, the defendant
should be notified regarding
• the purpose of the evaluation,
• for whom the evaluation is being performed (and to
whom a report may be submitted),
• the procedures to be used for the evaluation (e.g.,
interview, third-party data sources, testing) and the
types of information to be elicited,
• the possibility that testimony by the examiner in
legal proceedings to determine competency may be
required,
• the additional limits on confidentiality in terms of
those types of information that may require special 5
chapter
disclosure to third parties (e.g., legally required child
abuse and/or elder abuse reporting), and
• whether the defendant has the right to refuse to partici-
pate in the evaluation and the potential consequences of
refusal.
A sample notification form can be found in Appendix C.
COURT-ORDERED EVALUATIONS
In many jurisdictions, defendants who have been court-ordered to
undergo an evaluation of their CST do not have the right to refuse
participation; thus, there is no need to obtain informed consent
114 Application
from the defendant for court-ordered evaluations. In these cases,

the defendant should be provided with the relevant notification
information, engaged by the evaluator in a dialogue about the
information presented, and asked to sign a copy of the notification
form or indicate his understanding of the notification orally. The
evaluator should be sure to give the defendant an opportunity to ask
questions, which should be answered in a candid manner. A signed
copy (or a copy with a notation by the evaluator that the defendant
indicated his understanding orally) of the notification should be kept
in the evaluator’s file and a copy of the notification can be provided
to the defendant to keep.
EX PARTE EVALUATIONS
In defense-requested ex parte evaluations, informed consent should
be obtained from the defendant before proceeding with the evalua-
tion. All relevant notification information should be provided to the
defendant, and the evaluator should engage the defendant in a dia-
logue about the information presented to ensure an adequate under-
standing on the part of the defendant. Once the evaluator is satisfied
that the defendant understands the relevant information, informed
consent should be obtained. A signed copy (or a copy with a notifi-
cation indicating that the defendant gave informed consent orally) of
the informed consent form should be retained in the evaluator’s file
and a copy given to the defendant to keep. If the evaluator has rea-
son to suspect that the defendant is unable to give informed consent,
he should contact the retaining attorney to discuss this issue and to
obtain informed consent on the client’s behalf (this may be from the
defendant’s attorney or from a responsible family member). In these
cases, the assent of the defendant should be obtained in addition to
informed consent from a responsible party.
Background and History

The amount of background and historical information collected for
any defendant depends, to some extent, on the context and circum-
stances of the case, as well as the characteristics of the defendant.
Several different domains or types of background or historical infor-
mation can be collected, including early family history, educational
Data Collection 115
history, marital history (including whether the defendant has any

children), military history, religious history, employment history,
alcohol and drug use history, sexual history (for sexual offenses),
history of suicidal or self-injurious behavior, medical history
(including whether the defendant has suffered any major injuries or
suffers from any diseases), legal history, and psychiatric history
(including history of treatment). The amount of information col-
lected in each of these domains will depend upon the circumstances
of the case and the characteristics of the defendant. For example,
more information will be elicited about prior mental health treat-
ment and psychiatric hospitalization for a defendant with a history
of mental illness than for a defendant with no history of mental ill-
ness. Similarly, more information about a defendant’s drug and
alcohol use will be elicited from a defendant whose defense attor-
ney believes that substance use is impairing that defendant’s per-
formance than from a defendant who strictly adheres to religious
prohibitions against the use of drugs or alcohol.
Some forensic mental health professionals believe that the focus
of CST evaluations should remain solely on the defendant’s present
functioning and, therefore, argue that no historical information
need be obtained. We disagree with this perspective for two reasons.
First, we believe that context is always important; thus, it is only
within the context of an individual’s previous functioning (history or
background) that we can fully understand and interpret her current
level of functioning. Second, it is often difficult, if not impossible, to
know what factors will eventually turn out to be important or piv- 5
chapter
otal for a case; thus, it appears important to have at least some

knowledge regarding the defendant’s background in each of the rel-
evant domains. For these two reasons, it is important to conduct an
interview with the defendant to inquire about each of the relevant
domains. As indicated earlier, the amount of detail to be covered
within each domain may be tailored to the context of the case and
the characteristics of the defendant. Those
domains that appear to be irrelevant to either BEST
the context of the case or the characteristics PRACTICE
Gather historical information
of the defendant can either be eliminated in the domains relevant to the
from inquiry or significantly limited, whereas defendant’s case.
116 Application
those domains that appear to be of particular

BEST
PRACTICE relevance can become subject to more
Use inquiring about a detailed inquiry.
defendant’s background and
history as an opportunity to
Questions about a defendant’s back-
establish rapport and gather ground and history are often an easy means of
information for comparison establishing rapport, as these types of questions
and verification.
are generally less threatening to the defendant.
The evaluator can begin with these types of questions and eventually
work her way toward asking questions that are generally perceived as
more threatening to the defendant, such as those regarding the cur-
rent charge(s) that the defendant is facing, the circumstances sur-
rounding those charges and allegations, and possible sentences that
might be imposed if found guilty. Thus, in addition to allowing the
evaluator an opportunity to develop a sense of the current function-
ing of the defendant within the context of his previous functioning,
the evaluator is also able to develop rapport with the defendant by
inquiring about his background and history.
Two additional benefits are obtained by conducting an inquiry
into the defendant’s background and history. First, it allows the eval-
uator to collect a sample of the defendant’s verbal behavior and to
draw inferences about the defendant’s thought content and organi-
zation. Since this is done within the context of relatively nonthreat-
ening questions, the defendant is more likely to feel at ease. Thus,
the evaluator will then be able to compare the defendant’s verbal
behavior (and related inferences regarding thought content and
organization) in this context with her verbal behavior within a more
threatening context, such as when being asked questions pertaining
to her mental health and functioning or her current criminal
charges. Second, it allows the evaluator to obtain information from
the defendant that can be verified through third-party information
sources, thus providing the opportunity for a reliability check.
Current Clinical Assessment

The current clinical functioning of the defendant is at issue in a
competency evaluation; thus, a current clinical assessment, including
a mental status examination and diagnostic inquiries, is a necessary
Data Collection 117
component of the clinical interview with the defendant. In the next

chapter, we will discuss, in detail, the issue of determining or establish-
ing the linkage between psychiatric symptoms and deficits in compe-
tence-related abilities. The first step in attempting to determine or
establish this linkage is in developing a comprehensive understanding
and assessment of the defendant’s current clinical functioning. To do
this, the evaluator will need to ask questions and make observations of
the defendant in a number of different clinical domains. These include,
but are not limited to the following:
• general appearance and attitude (including observa-
tions regarding dress and grooming; personal
hygiene; marks, scars, or other notable observations;
and general attitude and demeanor);
• cognitive functioning (including memory; orientation;
concentration and attention; fund of information;
abstract reasoning ability; judgment and insight;
estimated intelligence; speech productivity, flow, tone,
and understandability; thought productivity and struc-
ture; hallucinations; and delusions or other unusual
content);
• motor activity, eye contact, mannerisms, use of ges-
tures, facial expressions, quality of mood, range of
affect, and affective control.
In addition, for those defendants who are on psychotropic
medication at the time of the evaluation, the evaluator will need to 5
chapter
assess the defendant’s compliance with the prescribed medication
regime. The evaluator must also consider the potential impact that
the medication (i.e., side effects) might have on the defendant’s
functioning during the proceedings.
The structure and format of the inquiries necessary to make a
comprehensive current clinical assessment
of the defendant will vary according to the
BEST
preferences of the individual evaluator. It PRACTICE
should be noted that, historically, an empha- When assessing a
defendant’s current clinical
sis was placed on diagnosis in competency functioning, be sure to note
evaluation, with certain diagnoses, such as specific symptoms.
118 Application
psychosis, being equated with incompetence (see Chapter 3); how-

ever, over time, the emphasis on diagnosis has diminished, whereas
the emphasis on legal functioning has increased. Thus, it is not diag-
nosis per se that is important in determining whether a defendant is
impaired in terms of his competence-related abilities. Rather, it is the
presence of symptoms that interfere with or impair a defendant’s
functioning in one or more competence-related abilities that is of
interest. That is, a symptom-level focus may be more relevant to
competency evaluation than simply a determination of diagnosis (see
Chapter 2 for a discussion of functional assessments). Therefore, a
comprehensive clinical assessment should take into consideration a
defendant’s cognitive and psychiatric functioning, as well as the pres-
ence of specific symptoms. This will set a solid foundation for deter-
mining whether there is a linkage to any observed deficits in
competence-related (psycholegal) abilities.
Issues Specific to Competency

In addition to inquiries about the defendant’s background and his-
tory and an assessment of the defendant’s current clinical function-
ing, the evaluator must also inquire about issues specific to CST. It is
generally easiest to make these inquiries after having developed a
rapport or working relationship with the defendant (e.g., after col-
lecting information on the defendant’s history and background). The
structure and format of competence-related inquiries will depend
upon the personal preferences of the evaluator; however, a compe-
tency-specific forensic assessment instrument, such as the Fitness
Interview Test–Revised (FIT-R) or the Interdisciplinary Fitness
Interview–Revised (IFI-R) may be useful to structure this portion
of the interview. Other forensic assessment instruments, such as the
MacArthur Competence Assessment Tool–Criminal Adjudication
(MacCAT-CA) or the Evaluation of Competency to Stand
Trial–Revised (ECST-R), may be useful to administer as a means of
determining how the defendant compares (normatively) with other
defendants in terms of specific competence-related abilities.
As discussed previously, the evaluator should be familiar with
and knowledgeable about the relevant criteria for competence in
her jurisdiction, since many of the specific inquiries will flow
Data Collection 119
directly from these criteria. In addition to BEST

general inquiries regarding the nature, PRACTICE
Assess the defendant with
object, and consequences of the court pro- respect to each of the
ceedings, the forensic mental health profes- various competence-
related abilities that have
sional will also want to ask the defendant
been identified in the
questions about why he was referred for a literature and apply them to
competency evaluation (obviously, the the case as appropriate,
including
information the evaluator received regard-
● understanding,
ing the reason for the referral will be invalu-
able here) as well as inquiries about the ● appreciation,
defendant’s relationship with counsel. ● reasoning,

In addition to being knowledgeable ● decision making,
about the specific jurisdictional criteria for ● communicating or
competency, the evaluator should also have a consulting with counsel,
and
general familiarity with the literature on CST.
A number of competence-related abilities ● assisting in his or her
defense.
have been identified in the available literature
on competency, and the evaluator should be
careful to consider each of these abilities in relation to the specific
context of the defendant’s case and the specific characteristics of the
defendant. Even if the jurisdictional criteria for competence do not
use the same words as the literature, the evaluator should be
knowledgeable about the ways in which the competence criteria have
been interpreted and used in case law within the jurisdiction. It is
quite possible that a jurisdiction may use a term such as “understand
the personal importance of” or “rational understanding” rather than 5
chapter
the word “appreciate,” but the knowledgeable evaluator will under-

stand that the same ability is being referred to by both of these terms.
Finally, it is important for evaluators to recognize the distinc-
tion between capacity and ability. If a defendant is unable to pro-
vide a particular piece of information, it should not be assumed
that his inability to do so reflects incapacity. Rather, the evaluator
should attempt to tease apart capacity from ability by disclosing the
relevant information to the defendant
BEWARE and then making inquiries about the
Don’t
assume
disclosed information at a later point in
inability equals incapacity. the evaluation.
120 Application
FORENSIC ASSESSMENT INSTRUMENTS

One forensic assessment instrument, the MacCAT-CA, was devel-
oped to assist in the evaluation of CST by providing a means of
comparing a particular defendant’s performance on three compe-
tence-related abilities—understanding, reasoning, and appreciation—
to the typical (normative) performance of defendants. Although the
MacCAT-CA (as well as any other forensic assessment instrument)
represents only one component of the competency evaluation (i.e.,
supplies only one piece of relevant data), having some indication of
where a particular defendant falls in terms of his abilities relative to
other defendants is a potentially useful piece of information.
Other forensic assessment instruments, such as the FIT-R or
the IFI-R, were developed as a means of guiding the evaluator
through many of the relevant areas of inquiry specific to CST. Of
course, the context and circumstances of the case and the particu-
lar characteristics of the defendant may necessitate additional areas
of inquiry; however, the FIT-R captures the majority of the rele-
vant areas for the majority of cases. The IFI-R also leads the eval-
uator through many of the various relevant areas of inquiry. (See
Appendix D for a list of relevant competence-related domains and
suggested areas of inquiry.)
HANDLING INCRIMINATING INFORMATION

Since evaluators must ask about the defendant’s current charges and
her understanding of the allegations surrounding those charges as
part of any competency evaluation, it is important to remember that,
although relevant to the assessment of a defendant’s competency,
this information also has the potential to be incriminating for the
defendant. How is an evaluator to handle this situation? Whereas
some commentators have recommended that the evaluator not ask
the defendant any questions specifically about the index offense(s),
it appears to us that this tactic is problematic in that it does not allow
the evaluator to make an assessment regarding whether the defen-
dant is able to provide relevant information to his defense counsel.
Since we promote a functional evaluation of competency, we believe
that it is impossible to evaluate all relevant aspects of a defendant’s
competence-related abilities without asking specifically about the
Data Collection 121
index offense(s). As addressed in Chapter 7,

BEST
evaluators must be cautious about what they PRACTICE
write in their reports and ensure that general Ask specifically about the
index offense(s) during the
statements about the “process” rather than clinical interview, but be
specific statements about the “content” of aware that self-incriminating
the defendant’s account are used. If the eval- information should not be
included in the report.
uator is careful to avoid including incrimi-
nating information in the report, there is no
reason to skirt the issue of asking the defendant specific questions
about the index offense(s).
Trial Demands
An assessment of an individual’s competency entails an evaluation
of the degree of congruence or incongruence between the individ-
ual’s functional abilities and the specific situational demands of
her case. Therefore, it is important for the evaluator to have a
clear understanding of the potential abilities required of each defen-
dant, as well as the situational demands of the case. Grisso (2003,
pp. 87–88) compiled a list of variables or factors that might be
gathered to assist in evaluating the defendant’s ability to meet spe-
cific trial demands. This list includes the
• 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; 5
chapter
• 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 the offense, relation of parties in the trial
process); and
122 Application
• sources of social support for defendant during trial

process.
Once the evaluator has determined the particular abilities
required of the defendant for the specific legal proceedings, these
factors can be used to guide the competence-related inquiries.
Observed Interactions With Defense Counsel

A functional approach to the evaluation of a defendant’s CST is
based on the notion that the defendant who is able to perform
specific competence-related actions or tasks during the course of
the evaluation should be able to perform those same actions or
tasks when working with his defense attorney or at trial. Similarly,
the defendant who is unable to perform some competence-related
task during the course of the evaluation is also unlikely to be
able to perform that task at trial or when working with his defense
attorney (unless, perhaps, interventions designed to increase
the likelihood of the defendant being able to perform the task
are employed). A functional evaluation, then, requires that the
defendant be given the opportunity to perform competence-rele-
vant tasks, so that the evaluator can then extrapolate from the
defendant’s performance during the evaluation and form an opin-
ion about his abilities within the context of the criminal proceed-
ings he faces.
Grisso (2003) noted that the most fundamental objective of a
competency assessment is to “obtain information about a person’s
functional abilities—what the person understands, knows, believes, or
can do that is directly related to the competence construct” (p. 25,
italics in original). Further, Grisso states, “Whenever possible, there-
fore, forensic examiners should observe directly the functional abilities
associated with a legal competence” (p. 26, italics in original). The
interaction between the defendant and defense counsel is an
important consideration in any competency evaluation and thus,
whenever possible, this interaction should be directly observed.
Direct observation will allow the evaluator to make an informed
judgment about the ability of the defendant to work with her
defense attorney. In addition, direct observation may allow for
potential remediation of any noted problems or deficiencies in the
Data Collection 123
interaction between the defendant and her

BEST
defense attorney. PRACTICE
The evaluator may choose to “prepare” When possible, directly
observe the interaction
the defense attorney with a list of questions between the defendant and
or information to work through with the the defense attorney to
assess performance of
defendant during observation by the evalua-
competence-related tasks.
tor; it is often the case that this preparation
allows the expert to observe legally relevant interaction between the
defense attorney and the defendant. Useful content areas to observe
include having the defense attorney review possible legal defenses
with the defendant, engaging the defendant in a discussion of possi-
ble legal strategies to be used, and eliciting information from the
defendant regarding her version of the alleged events.
Of course, some of what is said between attorney and client
regarding the facts of the case may well be privileged and should
not be included in the report. Only those statements that capture
the process of the interactions, rather than the specific content,
should be included in the report.
It may be that logistic constraints do not allow the evaluator to
observe the interaction between the defendant and the defense attor-
ney. In this case, the evaluator will have to extrapolate from his own
interactions with the defendant the manner in which she should be
able to interact with defense counsel. In addition, the defendant’s
observations, attitudes, and reported experiences with the defense
attorney will need to be taken into consideration by the evaluator.
5
chapter
Issues of Response Style

A defendant’s response style must be considered in any forensic eval-
uation. In cases in which the defendant appears to be responding in
any way other than candid, honest, or straightforward, a formal
evaluation of response style (incorporating data from interview, test-
ing, and third-party information sources) is warranted. Thus, the
collection of relevant third-party and collateral information becomes
of primary importance as a means of confirming the defendant’s self-
report and evaluating his response style in any forensic evaluation.
Different types of response styles exist (e.g., malingering, defensive,
irrelevant, random, honest, and hybrid, as delineated by Rogers,
124 Application
1997; reliable/honest, malingering, defen-

BEST
PRACTICE sive, and irrelevant, as delineated by
Always consider the Heilbrun, 2001), but one—malingering
possibility of a malingering
response style in a forensic (feigned response style)—must always be
evaluation. considered by any evaluator working within
the forensic context. With respect to this
issue, Melton and colleagues (2007) recommend that forensic eval-
uators have a “low threshold for suspecting dissimulation . . .
accompanied by a conservative stance with respect to reaching con-
clusions on that issue” (p. 57).
The evaluation of a defendant’s response style can be made on
the basis of interviewing techniques and observation, formal test-
ing, and a comparison of self-report information with that obtained
from third-party and collateral information sources. We recom-
mend that evaluators obtain data from third-party/collateral infor-
mation sources and directly from the defendant in every case, then
use testing to collect additional data for those cases that appear to
warrant further evaluation. Testing may include the use of both
forensically relevant instruments (such as the Structured Interview
of Reported Symptoms [SIRS; Rogers, Bagby, & Dickens, 1992],
the Validity Indicator Profile [VIP; Frederick, 1997], or the Test of
Memory Malingering [TOMM; Tombaugh, 1996]) and/or psy-
chological instruments (such as the Minnesota Multiphasic
Personality Inventory–2 [MMPI-2; Hathaway & McKinley, 1989];
see later section in this chapter). It is difficult to underestimate the
utility of confronting the defendant with respect to inconsistencies
between his self-report and information obtained through third-
party and collateral sources in the evaluation of response style.
One final word with respect to malingering; it is important for
the evaluator to remember that a defendant may malinger in two
different ways relevant to CST—feigning or exaggerating mental
illness/psychiatric symptomatology and feigning or exaggerating
mental impairment/cognitive deficit. Therefore, the evaluator must
consider the totality of the defendant’s responses in all relevant
areas. Once a conclusion regarding the defendant’s response style
has been reached, the evaluator must be sure to weigh information
obtained through the defendant’s self-report accordingly.
Data Collection 125
Special Issues With Various Examinee Populations

INDIVIDUALS WITH MENTAL RETARDATION (INTELLECTUAL
DISABILITY)
Research and commentary on the competency of individuals with
mental retardation has highlighted a number of important issues.
Scholars such as Bonnie (1992a) have noted that this population
tends to be under-identified. That is, a considerable number of
individuals with mental retardation are not referred for psycholog-
ical evaluations. Bonnie hypothesized that this low rate of referral
is due to a general failure to recognize the magnitude and/or exis-
tence of the disabilities of those with mental retardation.
Persons with mental retardation often attempt to hide their
limitations by acting in a compliant and cooperative way with
authority figures, and often pretend to understand their lawyers
when they, in fact, may not (Bonnie, 1992a). This “cloak of
competence” (Edgerton, 1993) gives these individuals an
appearance of normalcy; thus, legally significant impairments
become visible only when the individual has a mental illness or
acts in a strange or disruptive manner. It is common for these
individuals to proceed to trial without ever having been identi-
fied or evaluated with respect to their competence to proceed
(Cooper & Grisso, 1997).
Simply having mental retardation does not make an individ-
ual incompetent to proceed; however, available research appears
to demonstrate a higher probability of being found incompetent
for individuals with mental retardation as compared to those 5
chapter
without (see Ericson & Perlman, 2001;

Everington & Dunn, 1995). The defen- BEST
dant must be evaluated with respect to her PRACTICE
competence-related abilities to determine For referrals of individuals
with mental retardation, be
whether any competence-related impair- certain that you possess the
ments exist. Thus, it is important that these relevant knowledge and
experience to conduct
individuals are evaluated by an expert competency assessments
familiar with the specific issues relevant to with this population. If this is
mental retardation. not the case, the referral
should be transferred to an
Qualified evaluators should be aware evaluator who has expertise
that there exists a forensic assessment in this area.
126 Application
instrument developed specifically for the purpose of assisting in the

evaluation of CST in individuals with mental retardation (see
Chapter 3)—the Competence Assessment for Standing Trial for
Defendants with Mental Retardation (CAST*MR; Everington &
Luckasson, 1992). As is the case with any other competence-spe-
cific forensic assessment instrument, the results of the CAST*MR
constitute one piece of data to be incorporated within the larger
context of the competency evaluation.
Specific techniques that have been recommended for use in
the evaluation of individuals with mental retardation include
• using open-ended questions (as opposed to yes/no

questions),
• using language appropriate to the developmental
level or level of understanding of the individual,
• using confrontational questioning to assess the abil-
ity to withstand cross-examination,
• observing the defendant in consultation with her
attorney to gain a sense of her strengths and weak-
nesses,
• providing simple definitions or explanations of legal
concepts, and
• asking questions to ensure that the defendant under-
stands any information presented and is not merely
parroting back or acquiescing (see Appelbaum,
1994; Ericson & Perlman, 2001).
Rates of incompetence among individuals with mental retarda-

tion vary widely but, as a general statement, a relationship appears
to exist between degree of mental retardation and the probability
of being considered incompetent, with those individuals having
moderate mental retardation being found incompetent at higher
rates than those with mild mental retardation (Petrella, 1992). In
terms of the restoration of competency in individuals with mental
retardation, a recent analysis of the predictors of restorability indi-
cate that the presence of mental retardation was associated with a
lower probability of restoration (Mossman, 2007).
Data Collection 127
INDIVIDUALS WITH ACUTE PSYCHOSIS OR OTHER

SEVERE MENTAL ILLNESS
The issue of what to do with those individuals who are acutely psy-
chotic at the time of evaluation or who are displaying other signs
of severe mental illness that significantly impairs their day-to-day
functioning most often hinges on the current living situation of the
defendant. For those defendants housed at a forensic facility, the
evaluator can speak with the attending physician to determine
whether the defendant can be medicated or treated in such a way
as to reduce the symptoms of the psychosis or other severe mental
disorder before proceeding with the evaluation. For those defen-
dants being held at a jail or other pre-trial facility, the evaluator can
speak with the facility medical staff to determine the feasibility of
medication or other treatment for the defendant before proceed-
ing with the evaluation. In those cases in which it is not possible,
because of institutional or statutory procedure, to administer med-
ication or other treatment to reduce the defendant’s severe symp-
toms, the evaluator may wish to proceed with the evaluation,
making clear the defendant’s lack of ability to give meaningful
assent to the evaluation in the evaluation report.
In those cases in which the evaluator is retained directly by the
defense counsel to perform an ex parte evaluation, and thus has an
obligation to obtain informed consent from the defendant or the
defendant’s guardian before proceeding, the evaluator should con-
tact the retaining attorney to determine how best to proceed. In
those (rare) instances in which the defendant is not in an inpatient 5
chapter
facility but rather is living in the community, the expert should

inform the referring party about the acute state of the defendant.
It is possible that instigation of civil commitment proceedings may
be necessary for those individuals whose acute mental state is caus-
ing them to become dangerous to themselves or others and thus
meet criteria for commitment. Alternatively, it may be the case that
a court-ordered competency evaluation to be conducted at an
inpatient facility could be requested.
In those cases in which the evaluator is able to proceed with
the competency assessment, Goldstein and Burd (1990) noted
that various factors must be considered including the likelihood of
128 Application
deterioration in the defendant’s mental state before adjudication

of his case, possible signs of deterioration, and factors that are
likely to precipitate deterioration. In addition, these authors high-
light the need for the evaluator to inquire about the defendant’s
background, education, literacy, prior legal (court) experience,
and psychiatric treatment history in making a determination
regarding his competence-related abilities.
For any defendant being treated with psychotropic medication
at the time of the assessment, the evaluator must consider the
effects of the medication on the defendant’s functional abilities
(e.g., capacity to track the proceedings given the sedative effect of
the medication). The evaluator’s report should include informa-
tion regarding relevant issues, such as the potentially detrimental
effects of the medication on the defendant’s courtroom demeanor.
INDIVIDUALS WITH AMNESIA

Cases in which the defendant is claiming to have amnesia for the
time of the alleged crime may require the evaluator to make a
determination regarding the veracity of the claim. Sources of
third-party or collateral information should be sought by the eval-
uator in an attempt to corroborate the claim of amnesia. In addi-
tion, the evaluator should inform the defendant that having
amnesia for the time of the crime would not necessarily lead to a
finding of incompetence; this, by itself, may cause the defendant
to suddenly “recover” the relevant memories.
As discussed in Chapter 1, the issue of amnesia as it relates to
CST has been considered by the courts, and a unanimous refusal
to equate amnesia with incompetence has emerged. The court in
Wilson (1968) delineated six guidelines (see Chapter 1) to assist
in determining whether an amnesic defendant was competent.
Thus, the court adopted a functional approach, wherein the eval-
uation of competency is based on a determination of the manner
in which a defendant’s incapacity might have an effect on the legal
proceedings. The evaluator, therefore, should examine each of the
six Wilson criteria, as well as any others that appear to be pertinent
to the case, to ensure that a thorough analysis of the potential
impact of the amnesia has been made.
Data Collection 129
INDIVIDUALS POSING A THREAT TO THE EXAMINER

In those rare instances in which the defendant poses a threat to the
evaluator, it may be necessary to take precautionary measures to
ensure the evaluator’s safety. For defendants assessed at a jail or
inpatient facility, the expert can request that a correctional officer
or security guard be assigned to stand outside the evaluation room
door (or inside the evaluation room if absolutely necessary).
Although it is certainly not optimal for developing rapport, the
evaluator may also request that the defendant be shackled or hand-
cuffed during the evaluation. If the evaluation is to be conducted
on an outpatient basis, some states allow court-ordered evaluators
the opportunity to see defendants at a state forensic facility where
security officers can be assigned to assist if necessary. If the evalu-
ator has been retained to conduct an ex parte evaluation, and the
defendant poses a real and significant threat to the evaluator’s
safety, she may insist that the defense attorney be present during
the evaluation. (If the defense attorney is not willing to be present,
the evaluator may consider giving up any income that the evalua-
tion might bring and simply refuse the case!)
JUVENILES
The evaluation of juvenile trial competence is a burgeoning field
that is not covered in this volume. The interested reader is
referred to Evaluations of Juveniles’ Competence to Stand Trial by
Kruh and Grisso (2009), another volume in this series, for
detailed information regarding best practices in assessing trial 5
chapter
competence of juveniles.
Testing
Forensic Assessment Instruments
Grisso (2003) outlined a number of advantages, both conceptual
and procedural, of using forensic assessment instruments (FAIs).
Conceptually, forensic assessment instruments provide structure for
the examiner, help to improve communication in legal settings, and
facilitate empirical research on the associations between psycholog-
ical constructs and legally relevant functional abilities. Procedurally,
130 Application
the benefits of forensic assessment instruments and the standardiza-

tion of the assessment process that they promote include reduction
of error and bias, the promotion of meaningful comparisons across
time, allowing for the collection of data on normative samples, the
facilitation of comparisons between examiners, and the possibility
of programs of research on the empirical reliability of examiners’
methods and the validity of their assessment data (pp. 46–47).
To summarize, Grisso (2003) stated,
FAIs [forensic assessment instruments] provide operational

definitions for functional abilities that are related conceptually
to legal competence constructs as well as our psychological and
psychiatric constructs. Therefore, they offer two main potential
benefits. One is to assist examiners in constructing assessments
with conceptual relevance to legal criteria. The other is to con-
tribute data to forensic assessments in a manner consistent with
scientific standards for the reliability and validity of assess-
ments. (p. 47)
Thus, those forensic examiners who do not use FAIs to assist

in their evaluations of CST are encouraged to consider the utility
of these instruments for their practice in this area.
SELECTING AN APPROPRIATE FORENSIC ASSESSMENT

INSTRUMENT
Numerous FAIs exist for the assessment of CST (see Chapter 3
for a review of these FAIs). Some of these, such as the IFI-R and
the FIT-R, were developed to guide the evaluator through many
of the topic areas relevant to CST. Others, such as the ECST-R
and the MacCAT-CA, were developed to assist evaluators in
assessing various relevant psycholegal domains in a way that
allows for normative comparisons of defendants. In addition,
other instruments, such as the CAST*MR, were developed for
use with specific populations of defendants. Strengths and limita-
tions are associated with each forensic assessment instrument,
and it is up to the evaluator to select an instrument that will work
well with his personal style, as well as with the specific needs of
the defendant to be evaluated.
Data Collection 131
Numerous case- and defendant-specific factors must be con-

sidered when selecting an appropriate forensic assessment instru-
ment, including but not limited to
• the seriousness of the charges,
• whether a plea has been offered,
• whether the defendant will be required to testify,
• whether or not there is a feasible defense,
• whether the defendant has a developmental disability,
• and whether the characteristics of the defendant’s case
are such that the defendant will be required to pro-
vide all relevant information to defense counsel (as
opposed to those cases in which additional sources of
information, other than the defendant, are available).
The forensic evaluator should become familiar with the

strengths and limitations of the various forensic assessment
instruments developed to assist in the evaluation of CST and
should consider these carefully when selecting an instrument to
use in a particular case. To gain the benefit of consistency, as well
as the ability to make comparisons across time and defendants,
we recommend that each evaluator select a forensic assessment
instrument that can be used in the majority of his cases and then
to supplement the data supplied by this forensic assessment
instrument with data from other FAIs as necessary.
5
chapter
Forensically Relevant Instruments

Forensically relevant instruments are those that assist in evaluating
characteristics or conditions that, although not the specific focus of
legal inquiry, are relevant to evaluations of specific legal inquiries.
Two of the most important of these con-
ditions or characteristics that must be con- BEST
PRACTICE
sidered in any forensic evaluation are
Become familiar with the
malingering and psychopathy. Thus, forensi- strengths and limitations of
cally relevant instruments are those that focus any forensically relevant
instrument before selecting
on the evaluation of malingering or psy- it for use in a forensic
chopathy as a means of assisting the evaluator evaluation.
132 Application
in forming an opinion regarding a relevant area of legal inquiry, such

as CST. As is the case with FAIs, forensically relevant instruments
each have their strengths and limitations.
MALINGERING
Malingering, the feigned production or exaggeration of psycho-
logical, cognitive, or physical symptoms to achieve some external
incentive, must be ruled out in every legal context, including CST.
Several forensically relevant instruments have been developed to
assist in the evaluation of malingering. Instruments such as the
Structured Interview of Reported Symptoms (SIRS; Rogers,
Bagby, & Dickens, 1992) and the Miller Forensic Assessment of
Symptoms Test (M-FAST; Miller, 1995) were developed to assist
in the evaluation of malingering of psychiatric impairment,
whereas instruments such as the Validity Indicator Profile (VIP;
Frederick, 1997) and the Test of Memory Malingering (TOMM;
Tombaugh, 1996) were developed to assist in the assessment of
malingering of cognitive impairment. In addition, the aforemen-
tioned ECST-R (Rogers, Tillbrook, & Sewell, 2004) is a compe-
tency assessment instrument that includes a scale for the evaluation
of feigned incompetence.
PSYCHOPATHY
Psychopathy, a constellation of affective, interpersonal, and behavioral
characteristics, may arise as a clinical issue in the full range of criminal
forensic assessments, including CST. Although a direct link between
psychopathy and competency status has yet to be explored, some
evidence suggests that individuals high on the trait of psychopathy are
more likely to attempt to malinger or feign mental disorder or incom-
petence (Ciccone, 2007; Gacono, Meloy, Sheppard, Speth, & Roske,
1995; Heinze & Vess, 2005). Instruments such as the Hare
Psychopathy Checklist–Revised (PCL-R; Hare, 1991, 2003) and the
Hare Psychopathy Checklist: Screening Version (PCL:SV; Hart, Cox,
& Hare, 1995) were developed to assist in the evaluation of psychopa-
thy using file review and an interview with the defendant, whereas
instruments such as the Psychopathic Personality Inventory (PPI;
Lilienfeld & Andrews, 1996) use a self-report rating format.
Data Collection 133
Psychological Testing
DETERMINING THE NECESSITY FOR
PSYCHOLOGICAL TESTING
In every case, the evaluator will need to determine whether there is a
need for psychological testing. In some cases, psychological testing is
warranted to provide further information about a specific, relevant
characteristic or condition. For example, intelligence testing may be
appropriate and necessary in those cases in which the intellectual abil-
ity of the defendant is at issue or when the examiner is unsure about
whether the defendant meets criteria for having mental retardation or
another developmental disability. In this situation, psychological test-
ing may be necessary to assist the examiner in determining where the
defendant falls in terms of her intellectual and/or adaptive function-
ing. Similarly, neuropsychological testing may be appropriate in a case
in which the defendant appears to be suffering from some form of
cognitive deficit and does not appear to be malingering.
SELECTING APPROPRIATE PSYCHOLOGICAL TESTS

In selecting the appropriate psychological tests to administer in
those cases that appear to warrant such testing, the evaluator must
attend to the issue of relevant evaluee characteristics. That is, tests
should be chosen according to the particular issue to be examined,
as well as the characteristics of the defendant to be tested. The pop-
ulation upon which the psychological test was validated must be
taken into consideration and, as much as possible, should match the
characteristics of the population from which the defendant belongs. 5
chapter
Defendant characteristics such as age, ethnicity, gender, and pres-

ence of disabilities, among others, should be considered.
The goal of psychological testing should always be to gain
more data regarding a specific issue under consideration. Of
course, it should follow that the specific
issue under consideration should have a BEST
clear, identifiable link to the relevant legal PRACTICE
Determine those situations in
issue of CST and should address a causal which there appears to be a
connection to a deficit in one or more need for psychological testing
and then choose testing
of the functional abilities related to CST. instruments according to the
Grisso (2003) noted “psychological relevant circumstances.
134 Application
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” (p. 86).
Collateral Information
Records: Minimal Requirements Versus
Aspirational
As has been stated numerous times throughout this book, minimal
requirements in terms of collateral information for CST evalua-
tions include information regarding the charges and allegations
surrounding those charges, information relevant to the reasons for
the referral, and information related to what is to be expected of
the defendant in moving forward with his case. In addition, it is
often helpful to have some information regarding the defendant’s
prior criminal history and contacts with the legal system. Of
course, a large gray area exists between minimal collateral informa-
tion requirements and aspirational standards for collateral informa-
tion. In the perfect world, it would be easy for an evaluator to
obtain any and all relevant information about a defendant to
inform a competency evaluation; however, it is often the case that
evaluators have a relatively short timeframe for completion of an
evaluation, and collateral information and records, once identified,
are not often quickly forthcoming. It is up to the evaluator to
decide which pieces of information are imperative to the assess-
ment (and thus must be obtained before moving forward with the
evaluation) and which are merely supplementary. As always, this
will depend upon the circumstances of the case and the character-
istics of the defendant.
Interviews With Collateral Sources

It is often helpful for the evaluator to speak with other professionals
or individuals with whom the defendant has had contact to obtain
additional information beyond that given by the defendant. Other
mental health professionals who have had contact with the defen-
dant are often able to speak to their impressions of the defendant, as
Data Collection 135
well as about her response to any treatment BEST

that has been administered. Jail personnel, PRACTICE
Corroborate self-report
both correctional officers as well as mental information from the
health or medical staff, are often able to give defendant through third-party
or collateral information
their impressions of the defendant’s func-
sources.
tioning. Given that CST focuses on the
defendant’s current mental state, any person with whom the defen-
dant has had recent contact may be useful to the evaluation.
Evaluating the Reliability of Collateral

Information
Any collateral or third-party information that is obtained as part of
a competency evaluation must be evaluated with respect to its accu-
racy and reliability. It is often assumed that medical or other records
are accurate and reliable; however, there may be instances in which
the information contained in these records is inaccurate or unreli-
able. In addition, interviews with third-party sources may not nec-
essarily provide accurate or reliable information. Therefore, it is up
to the evaluator to consider all information in light of the source
from which it was obtained, to make a determination regarding the
veracity of the information, and to weigh the information accord-
ingly in making a judgment about the defendant’s CST. Just as eval-
uators may look to collateral information sources to corroborate
information obtained through the defendant’s self-report, so too
may evaluators look to collateral or third-party information sources
to corroborate other sources of information. As a general rule, self-
5
chapter
reported information from the defendant should be corroborated
through third-party or collateral information sources. (More
detailed information on the use of third-party information in foren-
sic assessment can be found in Heilbrun, Warren, & Picarello, 2003
and Otto, Slobogin, & Greenberg, 2007).
Interpretation
6
—For clinical information to be relevant in addressing legal questions of
competence, examiners must present the logic that links these observations
to the specific abilities and capacities with which the law is concerned.
(Grisso, 2003, p. 13, emphasis in original)
The Functional/Contextual Nature

of the Evaluation
Throughout this book the functional and contextual nature of
competency assessment have been highlighted. The importance
of these two concepts cannot be understated. Thus, after col-
lecting all the various pieces of data (e.g., interview data, collat-
eral information, psychological test data), the evaluator must
then interpret these data in light of the functional abilities of
the defendant and the context of the defendant’s case. In the
words of Grisso (2003),
a decision about legal competence is in part a statement about

congruency or incongruency between (a) the extent of a person’s
functional ability and (b) the degree of performance demand
that is made by the specific instance of the context in that case.
Thus, an interaction between individual ability and situational
demand, not an absolute level of ability, is of special signifi-
cance for legal competence decisions. (pp. 32–33, italics in
original)
The evaluator’s task is to describe the defendant’s functional

abilities or, as Grisso (2003) states, “to describe as clearly and accu-
rately as possible that which the defendant knows, understands,
believes, or can do” (p. 38). There is no absolute cutoff that can
be used to determine whether a defendant is able to perform some
specific action or task relevant to the legal proceedings; rather, the
137
138 Application
BEST level of ability demonstrated by the defendant

PRACTICE must be considered and described in light of
Describe the defendant’s
functional abilities and the demands of the defendant’s specific case.
deficits within the context of To make a determination regarding the
the specific demands of the
degree of congruence or incongruence
case.
between the defendant’s abilities and the
demands of the case, the evaluator must have
a good understanding of what will be required of the defendant
during the course of the legal proceedings. This information should
be obtained through discussions or written communications with
the defense attorney. The evaluator should consider all possible
relevant trial and non–trial related abilities or demands specific to
the defendant’s case in describing the defendant’s abilities and
deficits. Given that competency is an open-textured construct for
which no fixed set of abilities can be defined, the evaluator is wise to
err on the side of describing the defendant’s abilities and deficits
on any foreseeable case demands when information regarding
the specific demands of the defendant’s case is uncertain or not
forthcoming.
Mental Disorder
The available statutes and guidelines regarding competency either
imply or explicitly require that any noted deficits be the result of
mental disorder or cognitive disability. Therefore, “the presence of
cognitive disability or mental disorder is merely a threshold issue
that must be established to ‘get one’s foot in the competency
door’” (Zapf, Skeem, & Golding, 2005, p. 433).
Ascertaining Whether the Defendant

Has a Mental Disorder
Determining whether a defendant meets criteria for a mental dis-
order or cognitive disability is perhaps the area of greatest
strength or skill for mental health professionals in their role as
forensic evaluators. Each evaluator will have his own preferences
for how this is done. What is important to discuss here, however,
is that the presence of mental disorder is a separate consideration
Interpretation 139
from the presence of psycholegal deficits. BEWARE

Presence of
The presence of mental disorder or cogni-
either a men-
tive disability is a prerequisite to being tal disorder or cognitive
found incompetent; however, empirical disability in itself does not
establish incompetency.
investigations have confirmed that mental
disorder exists in individuals who demon-
strate no functional deficits, and functional deficits exist in indi-
viduals who do not meet criteria for mental disorder. Additionally,
the co-occurrence of mental disorder (or cognitive disability) and
psycholegal deficits is insufficient to establish the bases for a deter-
mination of incompetence. A causal connection between the men-
tal disorder or cognitive disability and any noted functional
deficits must also be established.
Some jurisdictions may require specific, formal diagnoses to
serve as the prerequisite for a determination of incompetence
and may limit the types of diagnoses that would be acceptable
for such a finding. We take the position here, however, that the
symptoms observed in the defendant, rather than the diagnosis
per se, are of primary importance and need to be highlighted.
Evaluators should be careful to consult the relevant competency
statutes and guidelines and to offer formal diagnoses when
required or when custom dictates, but the focus should remain
on the specific symptoms that the defendant manifests. The
symptomatic behaviors observed in the defendant will form
the basis for the evaluator’s inferences regarding whether
and the extent to which these symptoms will affect the defen-
dant’s context-relevant abilities (e.g., the ability to testify, the
ability to relate the facts of the case to the defense attorney,
the ability to engage in a plea bargain) and thus her competence
to proceed.
6
BEST Response Style/ chapter
PRACTICE
Focus on the defendant’s
Malingering
specific symptoms and The issue of a defendant’s response
whether these affect the style, especially a malingering
competence-related abilities
required by the defendant’s response style, must be considered
case. in any forensic evaluation. The
140 Application
BEST
evaluator should take care to observe the
PRACTICE evaluee’s behavior and to compare this to
Weigh information according his self-reported behavior in an attempt to
to the reliability of the source.
determine the degree of consistency or
inconsistency. As noted in Chapter 5,
forensically relevant instruments developed to assess response
style exist, and these should be used when concern arises regard-
ing response style.
The defendant’s response style should be taken into consider-
ation in determining how much weight to place on information
obtained from the defendant. The evaluator must consider all
information, as well as the source of the information, in determin-
ing the relevance and importance of each particular piece of data.
In general, self-reported information from individuals who show
other than honest or straightforward response styles should receive
less weight than information from other, more reliable data
sources. Although collateral information sources are important in
forensic assessments of all types, they become even more important
when concerns arise regarding the defendant’s response style.
Psycholegal Deficits
As discussed in detail in Chapter 2, a number of psycholegal abili-
ties must be assessed as part of any competency evaluation. Each of
these abilities must be evaluated within the context of the specific
defendant’s case. Any noted deficits in one or more of these com-
petence-related abilities should then be described in terms of how
it would affect the defendant’s functioning at trial (or during the
course of his proceedings).
Understanding
The defendant must demonstrate the ability to factually under-
stand general, legally relevant information. Inability of the defen-
dant to comprehend general information about the arrest process
and courtroom proceedings (including the roles of key participants
within the legal process), the current charges being faced, the ele-
ments of an offense, the general consequences of conviction, or the
Interpretation 141
rights waived in making a guilty plea is usually interpreted as a

deficit in factual understanding.
Appreciation
The defendant must demonstrate the ability to apply general, legally
relevant information to his own specific case in a rational manner.
Inability of the defendant to comprehend or to accurately perceive
how specific information regarding the arrest or courtroom process
will impact him or his case is usually interpreted as a deficit in appre-
ciation (rational understanding). Deficits in the ability to appreciate
may manifest as irrational thinking regarding the likelihood of being
found guilty, the consequences of being convicted, the appraisal of
available legal defenses and their likely outcomes, the appraisal of
whether or not to testify, or the inability to make rational decisions
regarding the case.
Reasoning
The defendant must be able to consider and weigh relevant infor-
mation in a rational, reality-based manner (undistorted by pathol-
ogy). Inability of the defendant to distinguish more relevant from
less relevant information, to weigh and evaluate various legal
options and their consequences, to make appropriate comparisons,
or to provide reality-based justification for making a particular
case-specific decision is usually interpreted as a deficit in the ability
to reason.
Assisting Counsel
The defendant must be able to consult with and assist counsel.
This generally means that she must have the ability to reason (as
just discussed) and to communicate coherently. Inability to consult
with counsel, to relate to counsel, to assist in planning legal strat-
egy, to engage in her defense, to challenge witnesses, to testify rel- 6
chapter
evantly, or to manage courtroom behavior may be interpreted as a

deficit in the ability to assist counsel.
Decision Making
Decision-making ability is incorporated within other competence-
related abilities, such as the ability to appreciate, reason, and assist
142 Application
counsel (as just discussed). Inability of the defendant to make

rational decisions regarding specific, relevant aspects of her case is
interpreted as a deficit in decision-making ability. Deficits in deci-
sion-making ability should be described in terms of their impact on
the defendant’s ability to appreciate, reason, or assist counsel and/or
her functional abilities.
Linkage Between Mental Illness and

Context-Relevant Functional Deficits
Once the evaluator has determined that (a) the defendant dis-
plays symptoms of mental disorder or cognitive impairment, and
(b) that the defendant displays some level of functional deficit in
one or more competence-related abilities, the next step involves
determining whether the cause of the defendant’s competence-
related deficits can be attributed to mental disorder or cognitive
impairment. It is not enough for mental disorder and functional
deficits to co-exist; rather, the mental disorder must be causally
related to the defendant’s functional deficits. There may be many
causes for a defendant’s functional deficits; mental illness is only
one possible cause of impairment. Situational characteristics
(such as lack of sleep or proper nutrition), personal characteristics
(such as a lack of experience or education), or response styles are
possible alternative explanations that may account for an individ-
ual’s observed functional deficits. Thus, the evaluator must deter-
mine the causal attribution for each relevant deficit since this
often dictates the type of remediation necessary.
As legally relevant functional deficits are noted during the
assessment, the evaluator should develop hypotheses regarding the
cause of the deficits and then collect additional data to test these
hypotheses. The evaluator should attempt to confirm or disconfirm
the hypotheses regarding the defendant’s rel-
evant capacities and behaviors. The goal for
BEST
PRACTICE the evaluator is to connect the source of
Determine whether the deficits information and the raw data that it provides
can be attributed to a mental
disorder or cognitive disability with conclusions regarding relevant psyc-
or some other cause. holegal capacities. Grisso (2003) noted the
Interpretation 143
importance of indicating the linkage between mental illness and

psycholegal deficits, stating, “examiners must present the logic that
links these observations to the specific abilities and capacities with
which the law is concerned” (p. 13).
The causal attribution for any noted deficits and the logic and
inferences of the evaluator in arriving at the causal attribution should
be described for the court. The evaluator can think of the chain of
linkages that must be made in the following way (see Figure 6.1):
1. determine whether the defendant displays symptoms
of mental illness or cognitive impairment;
2. determine whether the defendant displays
competence-related functional deficits;
3. determine whether the cause for the relevant func-
tional deficits can be attributed to mental disorder or
cognitive impairment; and
4. for those deficits that can be causally attributed to
mental disorder or cognitive impairment, describe
the degree of congruence or incongruence between
the defendant’s functional abilities and deficits and
the contextual demands of the case.
1) Determine whether the defendant displays symptoms of

mental illness or cognitive impairment.
2) Determine whether the defendant displays competence-

related functional deficits.
3) Determine whether the cause for the relevant functional deficits

can be attributed to mental disorder or cognitive impairment.
6
chapter
4) For those deficits that can be causally attributed to mental

disorder or cognitive impairment, describe the degree of
congruence or incongruence between the defendant’s
functional abilities and deficits and the contextual demands
of the case.
Figure 6.1 Chain of Linkages

144 Application
Prescriptive Remediation
Many jurisdictions require that forensic mental health evalua-
tors include specific information regarding the prognosis for
those defendants opined incompetent. It is important that eval-
uators be aware of the jurisdictional requirements with respect
to the competency evaluation report and that they provide the
required information to assist the legal decision maker. Even if
not required in a particular jurisdiction, it would still be appro-
priate to provide this type of information in a court-ordered
evaluation.
Evaluators need to consider all relevant factors in making a
determination regarding the probability of restoration for a partic-
ular defendant. In particular, the defendant’s specific functional
deficits, treatment history, and previous response to treatment
must be considered when offering an opinion on the probability of
restoration to competence.
Strategies and Interventions

In addition to general information regarding prognosis and
appropriate treatments to restore competency, it is useful for the
evaluator to include information about strategies or interventions
that may serve to decrease the level of incongruence between a
defendant’s abilities and the specific demands of the case. That is,
evaluators should provide relevant information regarding how
BEST
PRACTICE
Appropriate information regarding prescriptive remediation for the competency
evaluation report may include
● information regarding the cause of any noted deficits,
● possible interventions or treatment strategies to remediate the deficits,
● facilities where appropriate treatment might be provided,
● an opinion regarding the likelihood of restorability, and
● an estimate of the length of time it might take to restore the defendant to

competence.
Interpretation 145
best to manage a defendant’s functional BEST

deficits or impairments for the particular PRACTICE
Make specific
legal proceedings. recommendations for
A defendant’s competency is depend- remediation, which can target
ent upon his specific abilities and deficits the defendant, the situation,
or both.
within the context of his case; thus, remedi-
ation can occur either by changing the defendant or by changing
the situation in some way. Defendants who have deficits in compe-
tence-related abilities that are due to mental illness can be treated
for their condition; deficits that can be attributed to being unin-
formed or misinformed can be remedied by educating the defen-
dant. If a defendant’s deficits can be attributed (or partially
attributed) to the situation, these might be remedied by changing
some relevant aspect of the situation. For example, a defendant
with hearing impairment may benefit from the use of an inter-
preter, a defendant with paranoid psychopathology that interferes
with her ability to work with a particular attorney may benefit from
a change in counsel, or a defendant with intellectual deficits may
benefit from having the proceedings conducted at a slower pace
and with simpler language. A change in the situation can serve to
decrease the incongruence between a defendant’s functional
deficits and the abilities required of her to proceed.
The Bases for One’s Opinion

Once the evaluator has collected and considered all relevant infor-
mation, evaluated whether the defendant displays symptoms of
mental disorder or cognitive impairment, evaluated whether the
defendant displays any competence-related deficits, and determined
whether the cause of any noted competence-related deficits can be
attributed to the mental disorder or cognitive impairment, the eval- 6
chapter
uator must then arrive at a conclusion or opinion regarding the
defendant’s competence to proceed. Even if the evaluator is not
required to arrive at an ultimate opinion regarding the defendant’s
competence, the ways in which the defendant’s competence-related
abilities are congruent or incongruent with the abilities required to
proceed must still be delineated. In addition, information regarding
146 Application
how the defendant’s deficits may affect his

BEST
PRACTICE functional abilities at trial is necessary.
Substantiate opinions or Perhaps the most important part of any com-
conclusions with information
from multiple sources, giving petency evaluation report is the substantia-
more weight to data from tion of any opinions or conclusions.
more reliable sources.
Relying on Multiple Sources of Converging

Information
Grisso (2003) noted, “no interpretations should be based on any
single measure or index alone, no matter what level of reliability or
validity may have been demonstrated for it” (p. 48). Thus, the
evaluator should rely on multiple sources of converging informa-
tion in substantiating opinions or conclusions regarding the defen-
dant’s competency. The data as a whole should be considered,
including self-reported interview data, collateral information
sources, testing data, and data obtained from record review. The
evaluator should attribute appropriate weight to each piece of
information on the basis of the reliability of the data source. Less
weight should be attributed to information that is of lower relia-
bility and more weight placed on more reliable information.
In those situations in which the data in a certain domain are
inconsistent, the evaluator should consider the reliability of each
source of information in making a determination regarding where to
place the greater weight. If all sources appear to be equally reliable,
but the information provided by each is different, the evaluator
should attempt to obtain additional collateral information that would
clarify the appropriate information. Of course, this would only be
necessary in those instances when that particular piece of information
is of primary importance to a competency determination. Conflicting
information that is not of primary relevance to a determination of
competence can either be noted in the report to court or left out
altogether if it is insignificant to the issue of competence.
Outlining the Bases for Opinions

The evaluator should be careful to outline the bases for any opin-
ions or conclusions in the report to court. The data, the source of
the data, and the inferences made by the evaluator should be set
Interpretation 147
out so that the legal decision maker is able to follow the logic and
reasoning of the evaluator in arriving at conclusions or opinions.
This serves to substantiate the opinions of the evaluator as well as
educate the legal decision maker. More information about the
written report is found in the next chapter.
6
chapter
Report Writing
and Testimony 7
—The examiner’s task is to describe as clearly and accurately as possible that which
the defendant knows, understands, believes, or can do.
(Grisso, 2003, p. 38)
Determination Regarding Whether

a Report Is to Be Written
Once the competency assessment has been completed, the evalu-
ator will usually present his opinions and conclusions regarding
the issue of CST in a written report. As discussed in Chapter 4,
there are some instances when a written report may not be neces-
sary or desired. Thus, it is important that the evaluator consider
the referral source and his role, as either a court-ordered or an ex
parte evaluator, before writing a report.
In a court-ordered evaluation, the forensic evaluator is working
for the court (regardless of which party may have initiated the request
for evaluation), and a written report is expected. The written report
should be sent to the court clerk, as well as the prosecution and
defense; thus, all parties are privy to the evaluation report. The court-
appointed evaluator will then need to remain available to the court,
as he may be subpoenaed to provide testimony about the evaluation
and the written report at some later point in time.
In an ex parte evaluation, the forensic evaluator is retained by the
defense and therefore will communicate his opinions or conclusions
regarding the issue of competency to only the retaining attorney. This
is initially done in the form of an oral report to the retaining attorney
either face-to-face or by phone. This oral report should include the
evaluator’s opinion regarding the referral question (competence to
proceed), as well as relevant information regarding the bases for the
opinion. The retaining attorney can then make a decision regarding
149
150 Application
BEWARE
whether to enter the evaluation results as evi-
When
retained by dence. The oral report provides the opportunity
the defense as an ex parte for the retaining attorney and the evaluator to
evaluator, communicate
opinions or conclusions discuss any issues of legal or psychological signif-
regarding the issue of com- icance that might have arisen in the competency
petency only to the retaining
evaluation but that would not necessarily be
attorney.
included in a written evaluation report. In addi-
tion, it provides the evaluator the opportunity to
inform the retaining attorney about any special issues or potential
problems that may arise in court as a result of the evaluation findings.
Finally, it allows the evaluator the opportunity to suggest appropriate
strategies for improving or remediating any noted deficiencies in the
interactions between the retaining attorney and the defendant. After
this oral report, the retaining attorney will then decide whether the
evaluator is to provide a written report.
In those cases in which the opinion of the evaluator does not
support a determination of incompetence, a written report may
not be requested. It is acceptable practice for attorneys to reject
the opinions/conclusions of experts whom they retained and to
seek other evaluators’ opinions in an attempt to find better support
for their cases. Generally, this is when the evaluator’s role in the
case comes to an end.
In those cases in which a written report is requested, it should be
sent to the retaining attorney only (as it is up to the retaining attor-
ney to decide whether to enter the report into evidence or share the
results with other parties). In this instance, the evaluator should con-
tinue to keep track of all contacts and conversations with the retain-
ing attorney and any other relevant parties, as he may be required to
testify about the evaluation and the written report at some later date.
Nature and Purpose

of the Written Report
Purpose of the Report
The purpose of the written report is to document relevant infor-
mation regarding the assessment and procedures, and to commu-
nicate the conclusions and opinions formed regarding the referral
Report Writing and Testimony 151
question. The written report may serve to negate the need for tes-
timony at a competency hearing if all parties accept the findings
in the report; thus, reports should be carefully written and inform-
ative. In addition, in those cases in which the expert is called to
testify at a competency hearing, the written report will usually
form the basis for direct examination and thus anything in the
report may be subject to question on cross-examination.
Nature of the Report

Written reports should be thorough yet concise. In discussing the
necessary characteristics of forensic reports, Weiner (2006) noted
that reports must be clear, relevant, informative, and defensible. In
addition, it is important that the written report be appropriate in
its scope and focus.
SCOPE AND FOCUS

Relevant ethics codes and guidelines provide guidance regarding
the appropriate scope and focus of the written competency evalu-
ation report. Ethical Standard 4.04(a) of the Code of Conduct of
the American Psychological Association (2002) states that “psy-
chologists include in written and oral reports and consultations,
only information germane to the purpose for which the communi-
cation is made” (p. 1066). In addition, section VI. F. 2. of the
Specialty Guidelines for Forensic Psychologists (1991) states,
With respect to evidence of any type, forensic psychologists

avoid offering information from their investigations or evalua-
tions that does not bear directly upon the legal purpose of their
professional services and that is not critical as support for their
product, evidence, or testimony, except where such disclosure is
required by law. (Committee on Ethical Guidelines for Forensic
Psychologists, 1991, p. 662)
Finally, the American Academy of Psychiatry and the Law (AAPL)

Practice Guideline for the Forensic Psychiatric Evaluation of
Competence to Stand Trial indicates that “reports should be free
of gratuitous comments about defendants’ behavior, need for inca- 7
chapter
pacitation, dangerousness, or lack of remorse” and that “reports on
152 Application
adjudicative competence should not take

BEST
PRACTICE up other legal matters” (Mossman et al., 2007,
Limit the scope and focus p. S51). Thus, competency evaluation reports
of the written report to
information that is directly should focus specifically on the issue of compe-
relevant to the issue of tence to proceed, and information that is not
competence to proceed.
directly relevant to this issue should be limited.
CLARITY
In writing competency evaluation reports, it is necessary to con-
sider the audience for the report and to write accordingly. It is
inappropriate to assume that technical jargon used to communi-
cate with other mental health professionals will be understood by
legal professionals. Thus, reports should be written in a clear, con-
cise manner using as little technical jargon as possible. In those
(relatively few) instances when technical jargon must be used (such
as when it is necessary to justify legal or clinical relevance), it is
appropriate to include a definition or description of what is meant
by the term immediately following its use. Even relatively common
terms, such as hallucinations or delusions, are often misunderstood
by non–mental health professionals.
Weiner (2006) offers the following advice:
The written report itself should be as clear and conversational as

the psychologist can make it. This means using unstilted and
uncomplicated language that will be comfortable for [evalua-
tors] to repeat on the witness stand, that will be comprehensi-
ble to judge and jury, and that will limit a cross-examining
attorney’s opportunities to badger them with questions about
what their statements mean. (p. 645)
In addition, Weiner cautions that the evaluator should concentrate

on writing about the person who was evaluated, rather than about
psychological processes, since
“impersonal descriptions of psycho-
BEST
logical processes often go hand in PRACTICE
hand with jargon” (p. 645). For Write clearly and concisely,
avoiding technical jargon
example, a statement such as “con- when possible, and with the
centration was intact” does not legal audience in mind.
communicate as clearly as “Mr. Z was able to demonstrate appro-

priate concentration by staying focused during a lengthy discussion
of his charges and contributing detailed information without
becoming distracted.”
RELEVANCE
Section VII. F. of the Specialty Guidelines for Forensic
Psychologists (1991) states, “forensic psychologists are aware that
their essential role as expert to the court is to assist the trier of fact
to understand the evidence or to determine a fact in issue”
(Committee on Ethical Guidelines for Forensic Psychologists,
1991, p. 665). The second draft of these Specialty Guidelines,
which are still under revision at the time of writing, elaborate that
evaluators are to provide information most relevant to the psychole-
gal issue: In reports and testimony, forensic practitioners typically
provide information about examinees’ functional abilities, capaci-
ties, knowledge, and beliefs, depending on the psycholegal issue in
question, and address their opinions and recommendations to the
factors identified in the court order, law, rule, or contract relevant
to the matter. In addition, the AAPL Practice Guideline for the
Forensic Psychiatric Evaluation of Competence to Stand Trial states
that “the report must provide a meaningful response to the compe-
tence inquiry” and “should convey all relevant information con-
cisely, allowing the reader to apprehend the facts and reasoning the
expert used in formulating the opinion” (Mossman et al., 2007, p.
S48). Thus, the written forensic report should address all factors
relevant to the issue of competency. As discussed in Chapter 4, eval-
uators should be knowledgeable about relevant legal standards,
statutes, and jurisdictional case law regarding competence. Their
written reports should address these relevant standards and jurisdic-
tional competency requirements and summarize those features of
the defendant that bear directly on
the issue of competency.
BEST
PRACTICE During the course of a compe-
Address the relevant legal tency evaluation it is common to
standards and jurisdictional
competency requirements in accumulate much more information 7
chapter
the written report. than is needed to address the issue of
154 Application
competence. As a general rule, only information that bears directly

on the issue of competence should be included in the written report.
Grisso (1988) advocates a “problem-focused” approach to deciding
what information to include in a written report:
The examiner can determine the extent to which information

from hospital records, criminal records, and a social history
must be described in a given case by applying a simple ‘problem-
focused’ question: ‘Does the piece of information I am preparing
to report act as an important basis for the reasoning I will use in
arriving at one of the competency evaluation’s objectives?’ If the
answer is no, the piece of information usually should not be
included. (p. 74, italics in original)
INFORMATIVE
The written report should be informative and educational. Data
and inferences should be presented and explained in a way that is
easy to understand by those who are not forensic mental health
professionals. The report can be used as a forum to educate the
reader about relevant psychological concepts and their relation to
the issue of competency. Brief descriptions of psychological tests or
forensic assessment instruments (FAIs) and the abilities that they
measure can be provided to assist the reader in understanding the
relevance of test results to the issue of competency.
To guard against information overkill (and an unnecessarily
lengthy report), it is important to carefully consider which pieces
of information to include. Those pieces of information that are
directly relevant to the issue of competence or the inferences made
should be included, and inferences should be explained. In addi-
tion, it is important to indicate the source from which the informa-
tion was obtained. Informative and educational reports are those
that lead the reader through the relevant
BEST pieces of information that were considered
PRACTICE
Educate the reader by
and weighed by the evaluator. Furthermore,
including relevant information the report should delineate the expert’s
and clearly explaining how it thought processes in coming to an opinion
was used to reach an opinion
or conclusion regarding the or conclusion regarding the defendant’s
defendant’s competency. competency.
BEWARE
To avoid the possibility of having the
Opinions and
results of an evaluation conducted within conclusions
one context misapplied to another context, may be challenged in court
on the basis of the written
Skeem, Golding, and Emke-Francis (2003) report.
suggest the inclusion of a summary state-
ment such as,
At the time of this report, the defendant has a good relationship

with his attorney and his capacity to engage in rational choice of
trial strategies, with the assistance of counsel, was unaffected by
his mental disorder. Should the context of his case change, I
would need to evaluate this defendant in order to render a reli-
able and current opinion as to his competency. (p. 187)
DEFENSIBLE
Written reports are discoverable and may be entered into evidence;
thus, evaluators may be held accountable for every statement made
in their reports. For this reason, it is imperative that evaluators
choose their words carefully and thoughtfully and be able to defend
the opinions and conclusions set out in their reports. Weiner (2006)
cautioned that “forensic psychologists should limit their written
reports to statements they will feel comfortable hearing read aloud
in the courtroom and to conclusions they feel able to defend against
reasonable challenge” (p. 639).
Written reports should present information in as defensible a
manner as possible. Weiner (2006, pp. 648–650) delineated four
ways in which to guard against potential pitfalls in giving expert
witness testimony on the basis of written reports:
1. Evaluators should use description, rather than
categorization, when offering conclusions about
their evaluees. Thus, it is more defensible to say,
“This defendant shows many features in common
with people who have developed a stress disorder
subsequent to a traumatic experience” than “this
defendant has a posttraumatic stress disorder.”
2. Relative statements about evaluees should be favored 7
chapter
over absolute statements. Thus, statements that a

156 Application
defendant is more likely or less likely than other

people to show certain characteristics are more
defensible than absolute, black-and-white statements.
3. Evaluators should avoid writing statements that rule
out certain conditions or events. The fact that an
evaluator’s data do not provide evidence for a particular
condition does not eliminate the possibility of its exis-
tence. Therefore, evaluators should be careful not to
overstate their findings and should place the emphasis
on what their findings demonstrate as probably being
present rather than on what can be ruled out. In those
situations, however, when reporting of negative find-
ings is warranted, evaluators should exercise caution in
drawing conclusions from these findings.
4. Evaluators should avoid including illustrative test
responses in their reports. This last point pertains to
the selection of responses from critical items of
self-report inventories or other psychological tests
wherein the meanings of individual items are of little
significance by themselves but, rather, must be
interpreted when combined into multi-item scales.
Selecting responses from critical items belonging to
tests of this format for inclusion in the report leaves
the evaluator open to questions about the meaning
of individual test responses. This, however, is
different from including illustrative responses from
FAIs developed specifically for use in the evaluation
of competency. In this situation, illustrative responses
may be helpful in delineating the defendant’s
thought processes and competence-related abilities.
Contents of the Written Report

We recognize that there are many ways to organize a report; however,
any competency evaluation report should include the types of infor-
mation that are encompassed by the organizational structure pre-
sented in this section.
Relevant Case and Referral BEST

Information PRACTICE
Include the following in
The report should begin by providing rele-
competency evaluation
vant case and defendant information. reports:
Typically included at the beginning of the ● relevant case and
report are the defendant’s name, defen- referral information,
dant’s date of birth, case number, date(s) of ● notification information,
the evaluation, and the date that the report ● summary of alleged
was written. In addition, relevant referral offense(s),
information should be provided, including ● data sources,
• the referral source, ● background information,
• the referral question(s) (i.e., CST), ● clinical assessment,
• the defendant’s charge(s), and ● forensic assessment,

and
• the reason for the referral (infor-
● summary and
mation obtained from the referral recommendations.
source regarding the types of
statements or behaviors the defendant
displayed that raised the issue of competency).
Notification
This section of the report should contain a brief summary of the
notification or informed consent of the defendant (see Chapter 5
and Appendix C). In addition, statements regarding the extent to
which the defendant appeared to understand the notification infor-
mation, whether the defendant agreed or refused to participate in
the evaluation, and whether the defendant signed a notification of
rights form should be included in this section.
Summary of Alleged Offense(s)

This section should include a summary of the alleged offense(s)
as described in the police report or other official documenta-
tion. As will be discussed in a later section on inappropriate
report contents, the defendant’s version of the alleged
offense(s) should not be included in the report. This section
should be reserved for a description of the charges and allega- 7
chapter
tions as depicted by official sources of documentation or as

158 Application
provided by the referral source. In addition, the source of the

information should be noted.
Data Sources
This section should contain a list of all data sources consulted for
the purposes of the assessment. This would include
• medical, criminal, educational, or other records that
were reviewed (record dates and sources of informa-
tion should be clearly identified);
• collateral contacts who were interviewed (including
the date, name of the contact, amount of time spent
interviewing, and whether the interview was
conducted in person or by phone);
• observations of interactions between the defendant
and defense counsel (including dates and length of
time observed);
• and the date(s) and length of time for which the
defendant was interviewed.
In addition, the presence of any individuals (such as defense
counsel or correctional officers) during any of the interviews can
be noted.
To assist the reader in surveying all data sources at a glance, it
is also useful to include a list of any psychological tests, forensically
relevant instruments, or competency assessment instruments
administered for the purposes of the evaluation in this section.
Dates and administration times can also be included.
Finally, it is also useful to include a list of those data sources
that were requested but that were not forthcoming and so were
not considered by the evaluator in arriving at an opinion regarding
the defendant’s competence.
Background Information
This section should include relevant information about the defen-
dant’s background. As discussed earlier in this chapter, it is impor-
tant to carefully consider the amount of information (as well as the
amount of detail) provided in this section of the report. Using
Grisso’s problem-focused approach—including only information

relevant to the reasoning regarding an opinion on the defendant’s
competency or competence-related abilities—appears to be a use-
ful strategy. In addition, it is important to accurately attribute
information included in this section of the report to its appropri-
ate source (e.g., defendant’s self-report, medical records, collateral
interview).
Clinical Assessment
This section of the report should include information about the
defendant’s clinical presentation, mental status, and psychological
functioning. Observations of the defendant’s behavior should be
included in this section, especially if they bear directly on the eval-
uator’s inferences regarding the defendant’s competence-related
abilities or deficits. Descriptions of and conclusions about the
defendant’s psychological functioning and the presence of any
mental illness or psychiatric symptoms should also be included.
If psychological tests were administered as part of the compe-
tency evaluation, descriptions of these tests and the performance of
the defendant on these instruments should be included in this sec-
tion of the report. The evaluator should be clear about the link
between the ability or characteristic measured by the test and the
defendant’s psychological functioning. In the next section of the
report, forensic assessment, any psychological testing results will
need to be directly tied to inferences regarding the defendant’s
competence-related abilities or deficits.
Forensic Assessment
This section is the most important and comprises the “meat” of the
report. A description of the defendant’s competence-related abilities
and deficits should be provided. In addition, the question of malin-
gering or response style should be addressed, even if only to indicate
that there appeared to be no evidence of malingering on the part of
the defendant. Of course, if malingering was indicated, more detail
about response style and any formal evaluation of malingering should
be described. If a competency assessment instrument was used to 7
chapter
structure the evaluation or to supplement competence-related
160 Application
BEST
PRACTICE
Give priority to the forensic assessment section, which should include
● a description of competence-related abilities and deficits,
● cause of any noted deficits,
● the impact of symptoms on the defendant’s performance or

participation in the case,
● possible prescriptive remediation,
● conclusions or opinions regarding each of the jurisdictional criteria, and
● prognosis for restorability.
inquiries, this section should provide a brief description of the instru-

ment(s) used, as well as a description of the defendant’s performance
in terms of her competence-related abilities and deficits.
DESCRIPTION OF COMPETENCE-RELATED
ABILITIES AND DEFICITS
To structure the presentation of information regarding the defen-
dant’s competence-related abilities and deficits, it is often helpful to
include the jurisdictional definition, standard, or criteria for compe-
tency. This way, the evaluator can provide a description of the
defendant’s relevant abilities and deficits for each component of the
legal standard. For example, in providing information about the
defendant’s understanding of the nature or object of the proceed-
ings (the first prong of the Federal standard for competency), the
evaluator could describe the defendant’s abilities and deficits
regarding understanding of the arrest process, the nature and sever-
ity of the current charges, the role of key participants, the legal
process, pleas, court procedure, and any other relevant inquiry.
CAUSE OF DEFICITS
Once a description of the defendant’s competence-related abilities
and deficits has been provided, the evaluator then must explain the
cause of any noted deficits (e.g., mental illness, malingering, situa-
tional factors, other). The bases for the evaluator’s conclusions or
opinions on this matter should be clearly delineated. Providing
examples of the defendant’s inadequate or impaired competence-
related abilities (e.g., understanding,

BEST
PRACTICE appreciation, reasoning, assisting
When a mental disorder is counsel, decision making) may assist
believed to be the cause of
the psycholegal deficits, the evaluator in describing these
clearly describe how the deficits. In the case of mental disor-
mental disorder accounts for
der, it is not sufficient to merely
the noted deficits.
establish that it co-exists with psyc-
holegal deficits; a causal connection between the two must be
established and should be clearly described in the report.
IMPACT OF SYMPTOMS ON
PERFORMANCE/PARTICIPATION
For those deficits that are caused by mental illness, the evaluator
should then describe how the relevant symptoms would affect the
defendant’s performance or participation in the case. This is where
knowledge regarding the expectations and capacities required of
the defendant for the specific legal proceeding becomes important.
When the evaluator is unsure about the specific expectations or abil-
ities required of the defendant, it is appropriate to use conditional
statements that set out how the defendant’s functional abilities at
trial may be affected by his deficits. For example, a defendant whose
depression causes an inability to concentrate for more than brief
periods of time may have difficulty following lengthy trial proceed-
ings but may remain focused during a short trial. Thus, if the eval-
uator is uninformed about how long the defendant’s trial is
expected to last, a conditional statement may be included in the
report regarding the defendant’s concentration abilities in relation
to the length of the proceedings.
PRESCRIPTIVE REMEDIATION
If prescriptive remediation for any noted deficits can be offered,
a description of this should be included in this section of the
report. For example, if the evaluator
BEST determines that a defendant with
PRACTICE low IQ is unable to understand
Explain how the noted deficits
may interfere with the
lengthy, complicated sentences but is 7
chapter
defendant’s functioning at trial. able to comprehend short sentences,
162 Application
then including a recommendation to use concise language with an

uncomplicated structure and to define uncommon or difficult
words for the defendant would be appropriate.
CONCLUSIONS OR OPINIONS
This section of the report should also contain the evaluator’s con-
clusions or opinions regarding each of the jurisdictional criteria for
competency. If comfortable for the evaluator or required by the
jurisdiction, the ultimate issue of competency (to be discussed later)
may be addressed. Of course, the bases for all opinions rendered
should be included.
RESTORABILITY
Finally, many jurisdictions require the evaluator to include
information in the report about the defendant’s prognosis for
restorability, the type of treatments required and available for
restoration, appropriate treatment facilities, and an estimate of
the amount of time needed to restore a defendant to compe-
tency for those defendants opined incompetent to proceed.
Thus, this and other relevant jurisdictionally required informa-
tion should be included in this section of the report.
Summary and Recommendations

This final section of the report will offer a brief summary of the eval-
uator’s conclusions and opinions. Brevity is expected in this section,
as detailed descriptions of the information provided here should have
been included in earlier sections of the report. A brief description of
the defendant’s competence-related abilities and deficits should be
provided along with the cause of the deficits and their relationship to
the defendant’s functional abilities at trial (e.g., how they will impact
the defendant’s participation in her proceedings). A formal diagnosis
would be included in this section of the report if one is required or
expected. In addition, the evaluator may offer an ultimate legal opin-
ion regarding the defendant’s competency, if acceptable or expected,
in this section of the report. Finally, a brief summary of prescriptive
remediation or remediation potential should be offered for those
defendants with significant competence-related deficits.
Linkages Between Mental Illness,

Competence-Related Deficits, and the
Defendant’s Functional Abilities at Trial
or Within the Context of the Legal
Proceedings
The issue of the linkages between mental illness, competence-
related deficits, and functional abilities at trial (or for the purposes
of the defendant’s proceedings) has been mentioned earlier in this
chapter but its importance will be highlighted again here.
In a survey of forensic diplomates of the American Board
of Forensic Psychology (ABPP), Borum and Grisso (1996)
found that 90% of respondents agreed that detailing the link
between mental illness and competence-related deficits in com-
petency reports was either recommended or essential. However,
an examination of CST reports from two states indicated that
only 27% of the reports provided an explanation regarding
how the defendant’s mental illness influenced his competence-
related abilities (Robbins, Waters, & Herbert, 1997). Further,
in another study, only 10% of competency evaluation reports
reviewed provided an explanation regarding how the defen-
dant’s psychopathology compromised required competence-
related abilities (Skeem et al., 1998). In addition to the issue of
the linkage between mental illness and competence-related
deficits, the extant research also indicates that examiners rarely
(Skeem et al., 1998) or never (Robbins et al., 1997) assess the
congruence between a defendant’s abilities and the specific
case context.
This discrepancy between what experts deem recommended or
essential for competency evaluation reports and what is actually
routinely contained in these reports is concerning, especially in light
of the significant weight that these reports are given by judges in
making competency determinations. It has been widely reported
that judicial decisions regarding competency rarely deviate from the
evaluator’s opinion or conclusion. Empirical research examining
rates of agreement between judicial decisions of competency and
7
chapter
examiner opinions show that upward of 90% of the time—indeed,
164 Application
agreement rates as high as 99.6% have been reported—judges are in

agreement with the evaluator’s opinion regarding competency
(Hart & Hare, 1992; Reich & Tookey, 1986; Zapf, Hubbard,
Cooper, Wheeles, & Ronan, 2004).
Thus, the highest standards of practice must be adhered to by
forensic evaluators if their reports will have such a strong influence
on the disposition of the competency issue (see Zapf et al., 2004).
Given that the nature and reliability of the evaluator’s reasoning
become critical components of the adjudication process, they must
be spelled out accordingly. As Heilbrun, Marczyk, and DeMatteo
(2002) suggest, the evaluator can use contingency statements in the
form of “if x, then y; if not x, then z” to assist the audience in
understanding the links between clinical observations, the evalua-
tor’s reasoning, and the conclusions that he or she reaches”
(p. 53). Such careful delineation between mental illness and com-
petence-related deficits and between competence-related deficits
and functional abilities within the specific context of the defen-
dant’s case will serve to elevate the quality and utility of the report.
Skeem and her colleagues (1998) devised a coding scheme
for evaluating the extent to which the relationship between
symptomatology and competence-related abilities was described
by evaluators in their reports. We replicate her coding scheme
here, as we believe that it clearly demonstrates the types of state-
ments that evaluators need to make to substantiate their opin-
ions (Skeem & Golding, 1998, p. 363):
• Cases in which the evaluator simply described the

competency domain as being impaired but did not
provide any information regarding the relationship
of this impairment to the defendant’s symptoms
were characterized by statements such as, “the
accused is unable to relate to her attorney.”
• Cases where the evaluator presented quotes from the
defendant or examples that merely implied a link
between impairment and psychopathology were
characterized by statements such as, “the defendant
stated that the role of her attorney is ‘a lot of persons
on your property, the private-side for my defense

some friends and family’ [sic].”
• Cases in which the evaluator asserted a relationship
by attributing impairment to psychopathology
without specifically describing the relationship were
characterized by statements such as, “the defendant’s
ability to relate to her attorney will be compromised
by her delusional thought processes.”
• Cases where the author substantiated the relationship
by specifying how the impairment was caused by
psychopathology were characterized by statements
such as, “the defendant is committed to a delusional
system that includes a belief that her attorney is
receiving commands from God to ensure that she is
punished. This delusion compromises her trust in
and ability to relate to her attorney.”
Inappropriate Report Contents

The Defendant’s Version of the Circumstances
Surrounding the Offense
The issue of inquiring about the defendant’s version of the cir-
cumstances surrounding the time of the offense was addressed in
Chapter 5. There, we concluded that a functional evaluation of com-
petency requires that the evaluator inquire about the charges and
allegations; however, we also noted that caution must be exercised by
evaluators in writing the evaluation report so as not to include poten-
tially incriminating information provided by the defendant. General
statements regarding whether the defendant’s account of events dif-
fers substantially from official accounts, and whether this reflects an
incapacity or deficit on the part of the
defendant, should be used instead of a
BEWARE
Be careful summary of the defendant’ s account or
not to include the defendant’s verbatim answers. The
potentially incriminating
information provided by careful consideration on the part of eval- 7
chapter
the defendant in the report. uators about what to include and what to
166 Application
BEWARE leave out of the report can act as an added pro-

In the com-
petency
tection against any potential prosecutorial misuse
evaluation report, stick to of the information obtained during a compe-
answering the referral tency evaluation.
questions and do not offer
opinions or conclusions on
other legal or psychological Other Legal Issues
issues. In many jurisdictions, competency evaluations
and assessments of mental state at the time of the
offense are often ordered simultaneously. In this situation, the evalu-
ator may choose to prepare a separate report for each referral ques-
tion or to address both referral questions within the same report, as
determined by personal preference or by jurisdictional requirement.
If the evaluator chooses or is required to address both legal issues
within the same report, the aforementioned warnings with respect to
including the defendant’s version of the events surrounding the time
of the offenses(s) in the report still apply. If separate reports are
issued, the evaluator should ensure that no information or opinions
regarding mental state at the time of the offense is included in the
competency assessment report.
The evaluator should be careful to address only those referral
questions that have been asked and to refrain from offering unso-
licited information about other, possibly relevant, legal issues in the
competency evaluation report. Opinions or conclusions regarding a
defendant’s future risk for violent behavior, or any other legal or psy-
chological issue, have no place in a competency evaluation report.
The “Ultimate Issue” Issue

The question of whether to speak to the ultimate legal issue (i.e.,
whether the defendant is competent or incompetent) has been a
long-standing subject of much debate within the field (see, for exam-
ple, Grisso, 1986, 2003; Melton, Petrila, Poythress, & Slobogin,
1987, 1997, 2007; Morse, 1978; Slobogin, 1989). Those who
believe that forensic evaluators should not offer an opinion on the
ultimate legal issue argue that evaluators can offer scientific and clin-
ical opinions, but that legal decisions (which encompass moral and
social considerations) are beyond their area of expertise. To offer an
opinion on the ultimate legal issue of a defendant’s competency

would be to intrude on the role of the legal fact-finder. Grisso (2003)
noted that the question of “how much of a deficit in abilities is enough
to justify the restriction of individual liberties” requires a social and
moral judgment, as it cannot be answered without applying personal
values (p. 15, italics in original).
On the other hand, those who believe that forensic evalua-
tors should offer an opinion on the ultimate legal issue argue that
the fact-finder should be able to consider all available informa-
tion, including ultimate opinions of forensic evaluators, and
weigh the evidence accordingly in arriving at a final determina-
tion on the issue. No requirement exists that the fact-finder
accept the evaluator’s opinion on the ultimate issue. In addition,
stating an opinion on the ultimate issue might assist the fact-
finder in following the evaluator’s testimony, since the direction
of the testimony is made obvious.
Empirical evidence suggests that this issue is far from settled.
Approximately 25% of the ABPP forensic diplomates surveyed by
Borum and Grisso (1996) indicated that ultimate opinions were to
be avoided, whereas the other 75% were either neutral on the issue
or believed it was important to offer such opinions. Robbins and
colleagues (1997) found that upward of 90% of the competency
evaluation reports they examined offered ultimate opinions, and
Skeem and her colleagues (1998) found ultimate opinions offered
in about 75% of the reports they examined.
In some jurisdictions, ultimate opinions are expected or
required, whereas in others they may be prohibited or discouraged.
In many jurisdictions, the court-appointed expert is required to
check a box on the evaluation form indicating whether the defen-
dant “is” or “is not” competent. In this situation, a court-ordered
assessment and the requirements of the law would override ethical
considerations against providing an ultimate opinion. In addition,
the evaluator who believes that the opinion is too complex to sim-
ply check a box should include any necessary stipulations near the
box and in the attached report.
Each evaluator must consider the requirements of the rele- 7
chapter
vant jurisdiction, as well as her training, experience, and beliefs in
168 Application
determining whether to offer an opinion on the ultimate legal

issue. Those evaluators who are not comfortable with offering an
ultimate opinion could write their reports in such a way as to sep-
arate the legal issue (competency) from the psychological issues
affecting the legal issue. These psychological issues could then be
described in detail, and the relationship between the psychological
issues to the legal question delineated in the report. Those evalua-
tors who are comfortable with offering an ultimate opinion should
do so (if jurisdictional requirements permit) but must also ensure
that their logic, inferences, and thought processes in arriving at a
conclusion on the ultimate issue are laid out in the report.
Testimony
What follows is a brief discussion of some issues relevant to the
presentation of competency evaluation findings through expert wit-
ness testimony. The reader should consult other sources for more
detailed information on preparing for and delivering effective
expert testimony (e.g., Bank & Packer, 2007; Brodsky, 1991, 1999,
2004; Ewing, 2003; Gutheil, 1998; Hess, 2006; Tsushima &
Anderson, 1996; Ziskin & Faust, 1995).
Preparation for Taking the Stand

A forensic evaluator may be subpoenaed (in the case of court-ordered
evaluations) or asked (in the case of ex parte evaluations) to testify at
a competency hearing. At this point, the evaluator will need to ade-
quately prepare to take the stand as an expert. The written report will
usually serve as the basis for direct examination and be entered into
evidence; thus, any information contained in the written report will
also be subject to cross-examination. Given the significant weight
attached to the written report, the evaluator should carefully review
the report as many times as necessary to become familiar with all the
material contained within it. The evaluator should review all other
materials that were relied on for the evaluation (i.e., the data sources
listed in the written report). In addition, the evaluator should refa-
miliarize himself with the psychometric properties for any psycholog-
ical tests, forensically relevant instruments, and FAIs administered as
part of the assessment. In cases in which the evaluator was privately

retained, he may wish to check with retaining counsel to determine
whether any other information sources should be reviewed (e.g.,
sometimes the retaining attorney will ask the expert to review the
opinions and conclusions of the opposing side’s expert).
If the evaluator conducted an ex parte evaluation, a pretrial
conference with the retaining attorney is common. During this
meeting, the retaining attorney will generally tell the evaluator the
theory of the case, how she would like the evaluator’s information
presented, and any relevant information regarding what the oppos-
ing side may try to prove. In addition, general information about
the courtroom process may be discussed. Multiple copies of the
evaluator’s curriculum vita should be provided, as this will be used
to structure the retaining attorney’s questions regarding the evalu-
ator’s qualifications and to have the evaluator qualified as an expert.
In addition, the evaluator should inform the retaining attorney
about any possible weaknesses in his opinion or conclusions as well
as any possible weaknesses in the opposing side’s opinion (if
known). The attorney may ask practice questions (both direct and
cross-examination) to help prepare the evaluator for testimony.
If the evaluator conducted a court-ordered evaluation, a pre-
trial conference usually does not occur. The evaluator should arrive
somewhat early for the hearing and wait outside the courtroom
until called to testify. Even if the curriculum vita has already been
sent to the court ahead of time, the evaluator should bring addi-
tional copies to the hearing.
On the Witness Stand

In general, the evaluator should not be present in the courtroom for
anything other than his testimony. In some instances, the evaluator
will be asked to stay in the courtroom and to listen to the testimony
of other witnesses, but he should not do so unless specifically
requested.
The sources listed at the beginning of this section provide
detailed information on many aspects of courtroom demeanor.
Briefly, it is appropriate to dress conservatively in the courtroom and 7
chapter
to focus attention on the judge (or the jurors, if applicable). The
170 Application
evaluator should use clear, conversational

INFO
language and should explain unfamiliar
In qualifying the expert, the
concepts, using lay language rather than
court considers
professional jargon. Deference to the
● education,
judge and courtesy toward the attorneys
● experience, and should be displayed.
● the evaluation After being sworn in, the evaluator
procedure and will be asked questions about his creden-
methods used. tials for the purposes of being qualified as
an expert. Three basic factors will be con-
sidered in determining whether an evaluator should be qualified as an
expert—education, experience, and the evaluation procedure and
methods used—although the judge is the final arbiter of this issue.
Often, evaluators will be asked (either on direct or cross-examina-
tion) about how many times they have appeared as a witness for the
prosecution and for the defense, so it is helpful if the evaluator has
anticipated this line of questioning.
When being questioned, the evaluator should speak in a con-
fident manner and loud enough for the judge (or jury) to hear. If
a question is unclear, the evaluator should ask that it be repeated
or reworded. The evaluator should answer only what has been
asked without volunteering additional information. When an
objection has been made, the evaluator should stop speaking and
wait for the judge to make a ruling. If the evaluator does not have
a particular piece of knowledge, the answer should be an honest
one: “I do not know.”
The purpose of the evaluator’s testimony is to educate the
fact-finder about the relevant issues and to provide data, infer-
ences, and opinions. Just as in the written report, the data should
be set out and the inferences explained, so that the evaluator’s
logic in arriving at conclusions and opinions is evident.
Cross-Examination
Cross-examination can be a stressful experience; however, the
expert should maintain a calm demeanor throughout. Cross-exam-
ination allows the evaluator the opportunity to reiterate points
made during her direct examination testi-

BEST
mony. The sources listed at the beginning of PRACTICE
this section deal with cross-examination testi- Stay calm and focused on
the relevant data throughout
mony in great detail and should be consulted testifying.
by the evaluator before testifying in court.
Briefly, cross-examining attorneys may use multiple tactics in
an attempt to attack or discredit the expert witness, her testimony,
and the opinion on trial competence. The main objective of the
evaluator is to remain calm and focused on the data. If questions
are long or confusing, the evaluator should ask that they be
repeated. When asked a “hypothetical” question, the evaluator
should be clear about what data are provided in the question and
should state whether more data are needed to answer the question.
If the cross-examining attorney misstates a fact, the evaluator
should clarify the facts before answering the question (e.g., being
careful not to let the attorney put words in her mouth). If the eval-
uator misspeaks on the stand, she should indicate that she spoke in
error and correct the error. If the cross-examining attorney asks a
question for which a yes or no answer is demanded, and the eval-
uator believes that this type of answer is not appropriate, she
should indicate to the court that a yes or no answer would be mis-
leading.
As a general statement, testimony, whether it be on direct or
cross, is most effective when the evaluator presents the data and
inferences in a clear, concise manner in language that is easy to
understand while focusing attention on the trier of fact. It is impor-
tant that the evaluator maintain a calm
demeanor on the witness stand and
BEST
PRACTICE speak in a confident manner about the
The goal of testimony for any evaluation and the data. Effective pres-
forensic mental health
evaluator is to present entation offers the evaluator the
conclusions or opinions as opportunity to share his knowledge
well as the data and
and to educate others about issues
inferences on which those
conclusions and opinions relevant to the defendant’s fitness
were based. for trial.
7
chapter
Appendix
A
Attorney CST Questionnaire*

TO (Client’s Attorney): __________________________________________
FROM (Evaluator): _____________________ DATE: ______________
Your client, ______________, (Docket # ______________) has been

referred to me for evaluation of competence to stand trial. I would greatly
appreciate your completion of the following form, which will provide valu-
able assistance in conducting this evaluation. Please do not hesitate to
phone me if you have any questions. My contact information is as follows:
Telephone ____________ FAX _____________ E-mail _____________
Agency & Address _______________________________________________
Who brought your client’s competency to the attention of the court?
Myself Prosecuting Court’s own Probation

attorney motion officer
Detention staff Arresting Client’s Other: _______

officers family
*This form represents a slight modification of an adaptation by Grisso (2005) to the original form
developed by Kruh, Sullivan, & Dunham (2001). Permission from both Tom Grisso and Ivan Kruh was
obtained to include this form as an appendix.
Original version: Kruh, I., Sullivan, L., & Dunham, J. (2001). Respondent’s attorney competency
questionnaire. State of Washington Department of Social and Health Services, Child Study and
Treatment Center.
Adapted version: Grisso, T. (2005). Attorney CST questionnaire. In Evaluating juveniles’ adjudica-
tive competence: A guide for clinical practice. Sarasota, FL: Professional Resource Press.
173
174 Appendix A
What factors, if any, contributed to the perceived need for a compe-

tency evaluation?
Check all that apply Describe factors checked

History of mental illness _________________________
History of psychiatric medication _________________________
History of psychiatric hospitalization _________________________
History of counseling/therapy _________________________
History of mental retardation _________________________
Difficulty communicating with client _________________________
Client’s unusual behavior _________________________
Other _________________________
One aspect of competency is the client’s understanding of the charges

and the associated possible dispositions. To assist me in evaluating
this, please describe:
The charges against your client: ___________________________________
The nature of the dispositions that your client might face, given these charges
and your client’s past record: ______________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Please describe any collateral consequences or added stressors in the

client’s life that I should consider when interacting with this client:
________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Appendix A 175
Another aspect of competency is the client’s ability to assist coun-

sel and to manage the attorney–client relationship in a way that
does not detract from the opportunity to develop the defense.
Below, please indicate any factors that you have seen detract from
these objectives and describe how.
Check all that apply Describe factors checked

Easily confused _________________________
Detached or indifferent _________________________
Depressed _________________________
Hostile, aggressive, defiant _________________________
Inattentive or distracted _________________________
Immature or childlike _________________________
Difficulty communicating things _________________________
Difficulty understanding you _________________________
Difficulty retaining information _________________________
Disorganized speech _________________________
Peculiar/Odd statements or beliefs _________________________
Seeing/Hearing things not present _________________________
Very bizarre behavior _________________________
Other _________________________
Have observed nothing detracting from attorney–client interaction
Competency is in part a comparison of the client’s abilities to the

demands of his or her case. Please describe the likelihood of the fol-
lowing demands for this client’s case (circle one response for each).
1. Is likely to have No Unlikely Don’t know Likely Definitely

to make a
decision about a
plea agreement
176 Appendix A
2. Evidence against No Unlikely Don’t know Likely Definitely

client is unclear
and the defense
largely depends
on the client’s
ability to provide
information
3. Case will involve No Unlikely Don’t know Likely Definitely

many adverse
witnesses
4. Client will need No Unlikely Don’t know Likely Definitely

to testify in the
case
5. The pre- No Unlikely Don’t know Likely Definitely

adjudication
process will be
lengthy
6. The adjudication No Unlikely Don’t know Likely Definitely

hearing will be
lengthy
7. The adjudication No Unlikely Don’t know Likely Definitely

hearing will be
complex (e.g.,
difficult to follow,
complicated
evidence)
Appendix
B
Collateral and Third-Party Information

Sources
Records and Written Interview Sources
Documents
Previous competency evaluations Defense attorney
Witness statements Spouses or partners
Transcripts from depositions or Roommates

hearings
Police reports Neighbors
Crime reports Family members
Crime scene evidence Employers, supervisors, and colleagues
Autopsy reports Police/arresting officers
Mental health records Parole or probation officers
Medical records Jail staff (medical, mental health,

correctional, or treatment staff)
Criminal records Community case managers
(Continued)
177
178 Appendix B
Records and Written Interview Sources

Documents
Juvenile criminal records Hospital or correctional facility staff
School records Medical professionals who have

evaluated/treated defendant
Employment records Mental health professionals who have

evaluated/treated defendant
Military records Others who have had recent contact

with the defendant
Diaries, journals, or letters
Jail or prison records

Appendix
C
Sample Notification Form

Nature & Purpose: I have been asked to evaluate you with regard
to your competence to stand trial. The purpose of this evaluation
is to provide the court with information regarding your abilities to
participate in your trial. This evaluation may involve any or all of
the following: (a) talking with you about your history, (b) talking
with other people who know you about your history, (c) reading
reports and other file information about you, (d) talking with your
attorney, and (e) having you complete psychological tests.
Extent: In addition to some general questions about your history,

I will be asking you some questions about your relationship with
your attorney; your understanding of the legal system, such as what
goes on at trial; and questions about the charges against you.
Amount of time: The entire evaluation will most likely take me

about 2 weeks to conduct and I may need to speak with you again
after we speak today.
Psychological report: I will be writing a psychological report,

which will be sent to the court and will also be made available to
your attorney and the prosecutor. If the judge orders a hearing on
the issue of your competency, I might be called to testify in court.
How information will be used: Because this is an evaluation of

your competence to stand trial, nothing you tell me now about
your case or what you did can be used against you at your trial.
The information that we discuss for this evaluation can only be
used at the hearing on the issue of your competency, if there is
179
180 Appendix C
one. Otherwise, this information cannot be used against you

when you go to trial.
Confidentiality: I am a psychologist, but our relationship will not

be like the typical relationship between a psychologist and client.
Usually, psychologists are required to keep everything that is said
confidential. That is not the case in our relationship. I will be con-
ducting an evaluation and everything that you tell me can be put
into my report. I cannot keep anything that you tell me confiden-
tial between only you and I.
Duty to warn or protect: If you were to tell me that you had

plans to hurt yourself or someone else, I will need to tell your
lawyer, and possibly others, about this. Also, if you tell me that you
are currently involved in abusing a minor (or an elderly person), I
am required by law to inform child protective services (or elder
protective services) about this.
Right to refuse: The court ordered this evaluation and, therefore,

you do not have the right to refuse to participate. Should you
decline to answer my questions, I may still need to provide a writ-
ten report to the court.
or, for ex parte evaluations,
Your attorney has asked me to conduct this evaluation. Should you

decline to participate, you will need to speak with your attorney
about the benefits and risks of doing so.
The purpose of this evaluation, as summarized above, has been

explained to me and I understand the limited confidentiality that
applies. I agree to participate in the evaluation at this time.
Signature of Defendant: ____________________________________
Date: ____________________________________
Witness to verbal consent: ____________________________________
Date: ____________________________________
Appendix
D
List of Relevant Competence-Related

Domains and Areas of Inquiry
Domain Subdomain
Capacity to understand Ability to provide an account of police behavior

the arrest process at the time of arrest
Comprehension of the Miranda warning
Confession behavior (influence of mental disorder,
suggestibility, and so forth on confession)
Capacity to comprehend Factual knowledge of the charges (ability to

and appreciate the report charge label)
charges or allegations Understanding of the behaviors to which the
charges refer
Comprehension of the police version of events
Understanding of the severity of the charges
Capacity to disclose to Ability to provide a reasonable account of one’s

counsel pertinent facts, behavior around the time of the alleged offense
events, and states Ability to provide information about one’s state
of mind of mind around the time of the alleged offense
Ability to provide an account of the behavior of
relevant others around the time of the alleged
offense
Capacity to comprehend Knowledge of penalties that could be imposed

and appreciate the range (e.g., knowledge of the relevant sentence label
and nature of potential associated with the charge, such as “5 to life”)
penalties that may be Comprehension of the seriousness of the
imposed in the charges and potential sentences
proceedings
(Continued)
181
182 Appendix D
Domain Subdomain
Capacity to appreciate the Capacity to provide a realistic appraisal of the

likely outcome of the likelihood of being convicted
proceedings Understanding of the finality of the court’s
decision and the authority of the court
Basis knowledge of legal Understanding of the meaning of alternative

strategies and options pleas (e.g., guilty, not guilty, NGRI, GBMI, nolo
contendre, as applicable)
Knowledge of the plea bargaining process
Capacity to engage in Capacity to comprehend legal advice

reasoned choice of legal Capacity to participate in planning a defense
strategies and options strategy
(decision making)
Ability to deal appropriately with disagreements
with counsel
Plausible appraisal of likely outcome (e.g., likely
disposition for one’s own case)
Comprehension of the implications of a guilty
plea or plea bargain (i.e., the rights waived on
entering a plea of guilty)
Comprehension of the implications of proceed-
ing pro se (e.g., the rights waived and the
ramifications of the waiver)
Capacity to make a reasoned choice about
defense options (e.g., trial strategy, guilty plea,
plea bargain, proceeding pro se, pleading
insanity) without distortion attributable to mental
illness (an ability to rationally apply knowledge to
one’s own case and make decisions)
Capacity to understand the Understanding of the roles of courtroom

adversarial nature of the personnel (i.e., judge, jury, prosecutor)
proceedings Understanding of courtroom procedure (the
basic sequence of trial events)
Understanding of legal procedure (types of
information that can be used as evidence, what
is meant by an oath/pledge, how certain a
judge or jury has to be to find one guilty)
Capacity to manifest Appreciation of appropriate courtroom behavior

appropriate courtroom Capacity to manage one’s emotions and
behavior behavior in the courtroom
(Continued)
Appendix D 183
Domain Subdomain
Capacity to participate Capacity to track events as they unfold (not

in trial attributable to the effects of medication)
Capacity to challenge witnesses (i.e., recognize
distortions in witness testimony)
Capacity to testify Capacity to manage one’s emotional or

relevantly communication difficulties
Capacity to track oral questions and respond
appropriately
Relationship with counsel Recognition that counsel is an ally

Appreciation of the attorney–client privilege
Confidence in and trust in one’s counsel
Confidence in attorneys in general
Particular relationship variables that may interfere
with the specific attorney–client relationship (i.e.,
attorney skill in working with the client; problem-
atic socioeconomic or demographic differences
between counsel and client)
Medication effects on CST Capacity to track proceedings, given sedation

level on current medication
Potentially detrimental effects of medication on
the defendant’s courtroom demeanor
Source: Adapted mainly from the work of Jennifer Skeem and colleagues (Skeem &
Golding, 1998; Skeem, Golding, & Emke-Francis, 2004; Skeem, Golding, Cohn, & Berge,
1998) but with additions made from the Fitness Interview Test– Revised (Roesch, Zapf, &
Eaves, 2006).
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IFI: Interdisciplinary Fitness Interview (Golding, Roesch, & Schreiber,
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IFI-R: Interdisciplinary Fitness Interview–Revised (Golding, 1993)
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PCL-R: Hare Psychopathy Checklist–Revised (Hare, 1991, 2003)
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TOMM: Test of Memory Malingering (Tombaugh, 1996)
VIP: Validity Indicator Profile (Frederick, 1997)
WAIS-R: Wechsler Adult Intelligence Scale–Revised (Wechsler, 1981)
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Wieter v. Settle, 193 F. Supp. 318 (W. D. Mo. 1961).
Wilson v. United States, 391 F. 2d. 460 (1968).
Youtsey v. United States, 97 F. 937 (6th Cir., 1899).
199
Key Terms
adjudicative competence: a newer term used for CST as it more

accurately reflects the need of defendants to meaningfully par-
ticipate in all stages of the adjudication process, not just at
trial. See also competence to stand trial.
civil commitment: legally mandated psychiatric treatment based
on specific criteria, usually including imminent risk of harm to
self, risk of harm to others, and/or an inability to maintain
adequate self-care.
competence restoration: intervention services aimed at establish-
ing competence in a defendant found incompetent to stand
trial, so that the adjudication process can go forward; based on
the notion that psychotic defendants were once competent and
can be “restored” to competence if the psychosis is diminished.
criminal responsibility: also known as insanity; refers to the
mental status of the defendant at the time of the offense and
is a defense that takes into consideration the ability of the
defendant to understand the nature, quality, and wrongful-
ness of his actions.
competence to proceed: a newer term used for CST as it more
accurately reflects the need of defendants to meaningfully par-
ticipate in all stages of the adjudication process, not just at
trial. See also competence to stand trial.
competence to stand trial (CST): a legal doctrine that requires
meaningful participation of criminal defendants in their defense
at various stages of the proceedings by requiring that defendants
possess specific relevant abilities (i.e., understanding, apprecia-
tion, reasoning, assisting counsel, and decision making).
court-ordered evaluations: evaluations that are ordered by and
“owned by” the court. Therefore, the court controls access to
its contents through its own distribution practices or through
statutes that direct the examiner about how to make those
distributions.
201
202 Key Terms
cross-examination: testimony provided in response to question-

ing by the attorney who did not call the witness; more likely
to take on an adversarial tone.
direct examination: testimony provided in response to question-
ing by the attorney who called the witness; more likely to be
conducted in a supportive tone.
Dusky standard: the standard for competence that was delineated
in Dusky v. United States (1960), wherein a defendant must
have a rational as well as factual understanding of the proceed-
ings and be able to consult with counsel with a reasonable
degree of rational understanding.
ex parte evaluations: evaluations that are conducted on behalf of
one of the attorneys within the context of being retained by
that attorney. The results of the evaluation are typically shared
with that attorney only, to be used at the discretion of the
retaining attorney and as specified in law.
forensic assessment instruments (FAIs): structured quantitative
interview tools designed for focused assessment of the func-
tional legal abilities of direct relevance to legal questions.
forensically relevant instruments: psychological tests or instru-
ments that assist in evaluating characteristics or conditions that,
although not the focus of legal inquiry, might be considered in a
forensic evaluation (e.g., intelligence tests, tests of malingering).
functional assessment of competency: an evaluation and descrip-
tion of the degree of congruence or incongruence between a
defendant’s competence-related abilities and the contextual
demands of his case.
idiographic: data obtained through the investigation of one individ-
ual, usually the individual under consideration.
Incompetent to Stand Trial (IST): a legal finding in which a
given defendant is identified as lacking in the abilities neces-
sary to meaningfully participate in a relevant stage(s) of the
proceedings.
informed consent: an individual’s consent for another person to
engage in intervention that would otherwise constitute an
invasion of the individual’s privacy, after the individual has
been fully informed of the nature and consequences of the
Key Terms 203
proposed action, is competent to consent, and consents volun-

tarily. Informed consent is not necessary on court-ordered or
statutorily mandated evaluations in criminal or delinquency
cases, or when authorized by legal counsel for the individual.
nomothetic: data obtained through the investigation of groups.
notification of rights: an explanation to the defendant about the
conditions and limits of confidentiality inherent in the evalua-
tion; the notification is often memorialized in writing.
pro se: Latin for “for self” and referring to representing oneself in
a court proceeding without an attorney.
qualifying the expert: the process of expert testimony through
which the court determines if an examiner is qualified to be
admitted as an expert witness in the case at hand.
response style: the subtle or overt motivational approach used by
an examinee during an evaluation that can significantly impact
the data obtained. For example, some examinees may respond
with full honesty and full effort, some may distort the results
in an effort to appear a certain way, and others may put forth
minimal effort in their responses.
threshold for questioning competence: the point at which ques-
tions about defendant’s competence are significant enough to
warrant a competence evaluation; generally a low threshold.
ultimate legal opinion: the legal determination to be made by the
court regarding the issue before the judge (e.g., whether the
individual should be civilly committed, whether the individual
is competent to stand trial).
Index
Adjudicative competence. See Competence ex parte evaluations, 114 (See also Ex
to stand trial (CST) parte evaluations)
Alaska CST standards, 8 forensic assessment instruments (See
Alcohol/drug abuse, 52, 115 Forensic assessment instruments
American Bar Association Criminal Justice (FAIs))
Mental Health Standards, 7 notification, 89, 113–14
Amnesia, 31, 44, 128 self-incriminating statements, 95,
Anderson, S.D., 58 120–21
Antipsychotics, 24–26 trial demands, 121–22
Appearance/attitude assessment, 117 Coccozza, J., 75
Appreciation capacity, 38–39 Cognitive complexity model, 34
domains/areas of inquiry, 181t–183t Cognitive functioning assessment, 117
evaluation of, 6–7, 63–66 Cohn, N., 41, 44–45, 167
present ability, 7 Competence Assessment for Standing Trial
psychosis, 51 for Defendants with Mental
requirements, 141 Retardation (CAST*MR), 33,
Assisting capacity, 40 73–74, 126, 130
decisional vs., 34–35 Competence restoration. See Restoration
delusions, 31 of competency
domains/areas of inquiry, 181t–183t Competence to proceed. See Competence
evaluation of, 6–7, 65–66 to stand trial (CST)
memory impairment/deficits, 31 Competence to stand trial (CST)
mental retardation, 32 Bonnie model, 34–37
psychosis, 51 defined, 5–6
requirements, 141 history, 4
schizophrenia, 30 Competency Assessment Instrument
(CAI), 71–72
Bagby, R, 71 Competency doctrine history, 4–6
Barnard, G., 55 Competency issue, raising, 19–20, 47–50
Berge, G., 41, 44–45, 167 Competency Screening Test (CST), 72–73
Blackstone, Sir William, 4 Confidentiality, 103–4, 113
Bonnie, R.J., 5, 6, 7, 33–37, 47, 48, 125 Conflicts of interest, 106–7
Borum, R., 75, 76, 163, 167 Cooper, V.G., 51
Brelje, T., 55, 56 Cooper v. Oklahoma, 22, 40
Burd, M., 31, 127–28 Court-ordered evaluations
authorization, 93–94
Canadian CST standards, 9 clinical interview, 113–14
Capacity vs. ability, 119 defense attorney presence, 88–91
Carbonell, J., 55 information, obtaining, 90
Civil commitment, 21, 28, 54–55, 127 informed consent, 105–6
Clinical interview, 59–60, 112–13 referral question, 85
background/history, 114–16 referral source, 85–86
capacity vs. ability, 119 reporting requirements, 149
competency-specific issues, 118–21 right to remain silent, 91
court-ordered evaluations, 113–14 (See testimony, 168–69
also Court-ordered evaluations) Criminal responsibility, 6
current clinical assessment, 116–18 Cross-examination, 170–71
205
206 Index
CST. See Competence to stand trial (CST) concentration deficits, 30

Cultural competency, 83 context-relevant functional deficits,
Cuneo, D., 55, 56 142–43, 143f, 163–65
delusions/hallucinations, 30–31, 69
Data collection, 111–12 evaluator qualifications, 20–21
amnesia, 128 memory impairment/deficits, 31
background/history, 114–16 mental retardation (See Mental retardation)
capacity vs. ability, 119 opinion bases, 145–47
client/defense attorney interactions, rate of thinking, 30
122–23, 183t research data, 50–52
competency-specific issues, 118–21 schizophrenia (See Schizophrenia)
current clinical assessment, 116–18 thought disorder, 30
forensic assessment instruments Disorientation, 29
(See Forensic assessment Drope v. Missouri, 7–8, 19–20, 40
instruments (FAIs)) Duhon, United States v., 32
juveniles, 129 Duhon v. United States, 109–10
malingering, 123–24, 132, 139–40 Dunham, J., 87
mental disease or defect, 127–28 Dunn, C., 32
mental retardation (See Mental Dusky v. United States, 6–7
retardation) application of, 14
notification, 89, 113–14 conceptualization of, 34
psychological testing, 99–101, 124, ECST-R, 61–62
133–34 Duty to protect, 105
psychopathy, 132
psychosis (See Psychosis) Elwork, A., 57
response style issues, 123–24, 132, Emke-Francis, P., 155
139–40 Epilepsy, 4
safety issues, 129 Estelle v. Smith, 95
self-incriminating statements, 95, Ethical issues, 102–8
120–21, 165–66 Evaluation of competency
trial demands, 121–22 attorney representation, 88–91
Decision-making capacity, 40–41 authorization, 93–94
adjudication and, 35–36 charges/allegations, 86–87, 89
assisting vs., 34–35 clinical interview (See Clinical interview)
domains/areas of inquiry, 181t–183t court-ordered (See Court-ordered
evaluation/Dusky test, 6–7, 14 evaluations)
mental retardation, 32 (See also Mental defendant’s criminal history/legal
retardation) experience, 88
requirements, 141–42 determination, 22
Defense attorneys diagnosis (See Diagnosis of mental
client interactions, 122–23, 183t disorders)
competency issue, raising, 47–49 epidemiology, 3
as information resource, 89–90, 102 ethical issues, 102–8
presence of during evaluation, 91 evaluator preparation, 81–84
representation in competency evaluator qualifications, 20–21
evaluations, 88–89 ex parte (See Ex parte evaluations)
Delusions, 29–31, 52 FAIs (See Forensic assessment
DeMatteo, D., 99, 164 instruments (FAIs))
Determination of competency procedure, 22 fee structure, 88
Diagnosis of mental disorders, 29–30, functional assessment (See Functional
138–40. See also specific disorders assessment)
Index 207
functional/contextual nature of, 41–45, Fisher, W., 75

43f, 137–38 Fitness Interview Test–Revised (FIT-R),
information applications, 21, 94–96 52, 65–68, 98, 118, 120, 130
interviews, collateral, 96–97, 103, Florida CST standards, 8
134–35 Forensically relevant instruments, 98–99,
logistics, 92–96 131–32, 140
malingering, 123–24, 132, 139–40 Forensic assessment instruments (FAIs),
methods, 59 (See also specific tools) 60. See also specific tools
notice requirements, 89, 113–14 benefits of, 129–30
opinion bases, 145–47 idiographic, 52, 65–73
practice, current, 75–77 nomothetic, 52, 61–64
professional qualifications, 81 reporting on, 154
psycholegal abilities, 33, 140–42 selecting, 97–99, 118, 120, 130–31
psychological testing, 99–101, 124, Friedman, F., 55
133–34 Functional assessment, 27–28, 41–45, 43f
recording, 94
record keeping, 108–9 Georgia Court Competency Test
referral, reason for, 87–88 (GCCT), 70–71
referral clarification, 84–88 Gobert, J.J., 58
referral question, 85 Godinez v. Moran, 11–16, 40
referral source, 85–86 Golding, S.L., 3, 22–23, 27, 32, 41, 42,
reliability/validity, 52–54 44–45, 48, 49, 51, 52, 54, 55, 59,
requirements/defendant, case-specific, 72, 73, 155, 164–65, 167
90, 91 Goldstein, A.M., 31, 127–28
response style issues, 123–24, 132, Greer, A., 75
139–40 Grisso, T., 7, 41, 42, 60, 75, 76, 87,
scope/focus, 96–101 121–23, 129–30, 133–34, 137,
settings, 21, 75, 92–93 142–43, 146, 154, 163, 167
statues, consulting, 96
third-party source information (See Hallucinations, 29–31, 52, 69
Third-party source information) Hankins, G., 55
timeline, 92 Hare Psychopathy Checklist: Screening
Evaluation of Competency to Stand Version (PCL:SV), 132
Trial–Revised ( ECST-R), 61–62, Haroun, A.M., 23
98, 118, 130, 132 Heilbrun, K., 55, 99–100, 164
Everington, C.T., 32, 33 Herbert, P., 167
Ex parte evaluations Hewitt, J., 58
authorization, 94 Hoge, S., 6, 47, 48
clinical interview, 114 Horton, M.L., 33
fee arrangements, 88 Hubbard, K.L., 56
information, obtaining, 90, 102
informed consent, 106, 127 Illinois CST standards, 8
mental illness/psychoses, 127 Incompetent to Stand Trial (IST)
referral source, 86 basis for
reporting requirements, 149–50 delusions, 29, 52
testimony, 168–69 disorientation, 29
Expert witness testimony, 155–56, 168–71 hallucinations, 29, 52
mental disease or defect, 4, 27–29,
Faretta v. California, 15 138–40
Fee structure, 88 mental retardation as, 27–29, 76
Ferguson, Colin, 11 organic brain disorders, 28, 29
208 Index
Incompetent to Stand Trial (Continued) right to waive counsel/plead guilty,

paranoia, 29 11–19
psychosis, 27–29, 53 standards
schizophrenia, 28, 29 federal, 6–8
thought disorder, 29 state, 8–9
defendant characteristics, 50–52 statues, consulting, 96
defendant disposition, 54–59
detention, 22–23 MacArthur Competence Assessment
history, 4 Tool–Criminal Adjudication
medication, involuntary, 24–26 (MacCATCA), 52, 62–64, 68, 98,
rates, study data, 49 118, 120, 130
Indiana v. Edwards, 14–19 Malingering, 123–24, 132, 139–40
Informed consent, 9, 105–6, 113–14, 127 Marczyk, G.R., 99, 164
Intellectual and developmental disability. McGarry, A.L., 71–72
See Mental retardation McNulty, J., 55
Interdisciplinary Fitness Interview (IFI), Medications
68–70, 98, 118, 120, 130 antipsychotics, 24–26
Interviews, collateral, 96–97, 103, 134–35. involuntary, 24–26
See also Clinical interview psychotropic, 57, 58, 110, 117, 128,
IST. See Incompetent to Stand Trial (IST) 183t
restoration of competency, 24–26,
Jackson v. Indiana, 22–23, 54 109–10
Jenkins v. United States, 20 Mellaril® (thioridazine), 24–25
Jensen, G., 71 Melton, G.B., 48, 73, 85, 91, 99, 102,
Johnson, W.G., 71 107, 108, 124
Memory, episodic, 38
Kruh, I., 7, 87 Memory impairment/deficits, 4, 31
Kugler, K.E., 51 Mental disease or defect
context-relevant functional deficits,
Lawrence, United States v., 4 142–43, 143f, 163–65
Legal issues, 3 data collection, 127–28
case law, 9–11 as IST basis, 4, 27–29, 138–40
confidentiality, 103–4, 113 medication, 24–26
conflicts of interest, 106–7 right to waive counsel, 14–19
Dusky v. United States (See Dusky v. Mental retardation
United States) characteristics, 50–51
duty to protect, 105 data collection, 125–26
history, 4–6 diagnosis, 32–33, 73–74
informed consent, 9, 105–6, FAI evaluation of, 33, 73–74,
113–14, 127 126, 130
mental disease or defect (See Mental as IST basis, 27–29, 76
disease or defect) restoration, prediction of, 56
privacy, 107–8 treatment, 57, 58
privilege, 104–5, 123 Miles v. Stainer, 24
procedures (See also Evaluation of Miller Forensic Assessment of Symptoms
competency) Test (M-FAST), 132
determination of competency, 22 Minnesota Multiphasic Personality
evaluators, 20–21 Inventory (MMPI-2), 76
medication, 24–26 Mitchell, C.N., 43
raising the issue, 19–20 Monahan, J., 6, 47, 48
settings, 21 Morris, G.H., 23
Index 209
Mossman, D., 56 Record keeping, 108–9

Multiple roles of evaluators, 106–7 Records, obtaining, 102–3, 134
Referred defendant characteristics, 50
Naimark, D., 23 Remediation/CST. See Restoration of
New Jersey CST standards, 8 competency
Nicholson, R., 51, 55, 71 Report writing
Notario- Smull, H., 33 background information, 158–59
Notification requirements, 89, 113–14, 157 case/referral information, 157
Nussbaum, D., 71 clarity, 152–53
clinical assessment, 159
Organic brain disorders, 28, 29, 51 content, inappropriate, 165–66
Otto, R., 6, 47, 48, 64 contents, 156–62
data sources, 158
Paranoia, 29 defensibility, 155–56
Pate v. Robinson, 19–20 forensic assessment, 159–62
Petrila, J., 48, 73, 85, 91, 99, 102, 107, as informative/educational, 154–55
108, 124 jurisdictional requirements, 96
Poythress, N.G., 6, 47, 48, 73, 85, 91, 99, linkage information, 163–65
102, 107, 108, 124 mental state assessments, 166
Prescriptive remediation. See Restoration nature of, 151–56
of competency notifications, 157
Privacy, 107–8 opinion bases, 145–47
Privately-ordered evaluations. See Ex parte purpose of, 150–51
evaluations relevancy, 153–54
Privilege, 104–5, 123 as requirement, 86, 149–50
Pro se appearance, 11–19 scope/focus, 151–52
Provisional trials, 58–59 self-incriminating statements, 95,
Psycholegal abilities, 33, 140–42, 161, 120–21, 123
163–65. See also specific abilities summary/alleged offense(s), 157–58
Psychological testing, 99–101, 124, summary/recommendations, 162
133–34, 154 “ultimate issue” issue, 166–68
Psychopathic Personality Inventory Utah CST standards, 8–9
(PPI), 132 Research data
Psychopathy, 132 competency issue, raising, 47–50
Psychopathy Checklist–Revised (PCL-R), diagnosis of mental disorders, 50–52
132 evaluation reliability/validity, 52–54
Psychosis incompetent defendant characteristics,
characteristics, 50–51 50–52
data collection, 127–28 provisional trials, 58–59
diagnosis, 30–31 referred defendant characteristics, 50
as IST basis, 27–29, 53 restoration of competency, 55–58
Psychotropic medications, 57, 58, 110, Response style issues, 123–24, 132,
117, 128, 183t 139–40
Restoration of competency
Qualifying the expert, 20–21, 169–70 case law, 9–10
challenges to, 109–10
Rapport building, 116 detention, 22–23
Reasoning capacity, 39 determination of, 144–45
domains/areas of inquiry, 181t–183t medication, 24–26, 109–10
evaluation of, 63, 64 prediction of, 55–57
requirements, 141 recommendations for, 145, 161–62
210 Index
Restoration of competency (Continued) Thioridazine (Mellaril®), 24–25

research data, 55–58 Third-party source information
treatment, 57–58 amnesia claims, 128
Riggins v. Nevada, 24–25, 70 obtaining, 89–90, 96–97, 102–3
Right to remain silent, 91, 94–95 as opinion basis, 146
Robbins, E., 167 records, 102–3, 134
Robbins, L., 55 Thought context/organization, 116
Robertson, H., 71 Thought disorder, 29, 30
Roesch, R., 22–23, 29, 32, 42, 48, 49, 51, Three-prong discrete abilities model, 34
52, 53, 54, 55, 59, 66, 68, 69–70, Trial participation capacity, 182t–183t
72, 73 Two-construct model, 34–37
Rogers, R., 34, 43, 71
Rosenfeld, B., 29, 33, 52 Understanding capacity, 37–38
domains/areas of inquiry, 181t–183t
Schizophrenia, 28–30 evaluation of, 6–7, 62–66
Schreiber, J., 53, 69–70 factual/rational, 7
Self-incriminating statements, 95, 120–21, psychosis, 51
165–66 requirements, 140–41
Sell v. United States, 25–26 sufficient/reasonable, 7
Siegal, A.M., 57 Utah CST standards, 8–9, 44, 70
Sieling v. Eyman, 12
Skeem, J., 27, 41, 42, 44–45, 155, Validity Indicator Profile (VIP), 124, 132
164–65, 167 Verbal behaviors, 116
Slobogin, C., 48, 73, 85, 91, 99, 102, Viljoen, J.L., 29, 50, 51, 52, 66
107, 108, 124
Specialty Guidelines for Forensic Wall, A., 29, 33, 52
Psychologists, 153 Waters, J., 167
Statues, consulting, 96 Wechsler Adult Intelligence Scale-Revised
Steadman, H., 75 (WAIS-R), 77
Structured Interview of Reported Weiner, I.B., 152, 155
Symptoms (SIRS), 124, 132 Wieter v. Settle, 9–10
Sullivan, L., 87 Wildman, R.W., 70
Syntactical analysis model, 34 Wilson v. United States, 10–11, 31, 44, 128
Tarasoff v. Regents of the University Youtsey v. United States, 4

of California, 105
Testimony, 155–56, 168–71 Zapf, P.A., 27, 29, 50, 51, 52, 56, 64,
Test of Memory Malingering (TOMM), 66, 68
124, 132
About the Authors
Patricia A. Zapf, PhD, is currently associate professor in the

Department of Psychology at John Jay College of Criminal Justice,
the City University of New York. She is the associate editor of the
Encyclopedia of Psychology and Law and an associate editor of Law
and Human Behavior. She was appointed Fellow of the American
Psychological Association in 2006 for outstanding contributions to
the field of psychology and law. She has published over 60 articles
and chapters, mainly on the assessment of criminal competencies.
In addition to her research and publishing, she serves as a consult-
ant to various criminal justice and policy organizations and main-
tains a private practice in forensic assessment. She received her
doctoral degree in clinical forensic psychology from Simon Fraser
University in Canada in 1999.
Ronald Roesch, PhD, is professor of psychology and director of

the Mental Health, Law, and Policy Institute at Simon Fraser
University. He served as president of the American Psychology-Law
Society (APLS), and is president-elect of the International
Association of Forensic Mental Health Services. He was editor of
the journals Law and Human Behavior and the International
Journal of Forensic Mental Health, and is currently the acting editor
of Psychology, Public Policy, and Law. His book with Dr. Stephen
Golding, Competency to Stand Trial, won a merit award in the
American Bar Association Gavel Awards Competition. Dr. Roesch
remains interested in research focusing on competency issues for
both adult and juvenile offenders, and is also involved in studies of
jail/prison mental health assessment, and youth violence.
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What is the purpose of evaluating competence to stand trial?

What is the purpose of evaluating competence to stand trial?

What are some of the challenges in restoring competence?

What are some of the challenges in restoring competence?

EVALUATION OF

Series Advisory Board

Titles in the Series

Juvenile and Family Titles

Oxford New York

Copyright © 2009 by Oxford University Press, Inc.

Published by Oxford University Press, Inc.

Oxford is a registered trademark of Oxford University Press

All rights reserved. No part of this publication may be reproduced,

Library of Congress Cataloging-in-Publication Data

Zapf, Patricia A., 1971–

Printed in the United States of America

forensic mental health concepts, and empirical foundations and limits

of these evaluations. This book will serve as a guide for forensic

Chapter 1 The Legal Context 3

Chapter 2 Forensic Mental Health Concepts 27

Chapter 3 Empirical Foundations and Limits 47

Chapter 4 Preparation for the Evaluation 81

Chapter 5 Data Collection 111

Chapter 6 Interpretation 137

Chapter 7 Report Writing and Testimony 149

Appendix A Attorney CST Questionnaire 173

Appendix B Collateral and Third-Party Information

Appendix C Sample Notification Form 179

Appendix D List of Relevant Competence-Related

Tests and Specialized Tools 195

Cases and Statutes 199

Key Terms 201

About the Authors 211

O ne of the primary foundations of criminal law is that all

If a man in his sound memory commits a capital offence, and

Blackstone’s Commentaries on the Laws of England (1765–1769)

“Presence” at Trial, Fairness, and Accuracy

required plea. In these instances, the court would be required to

1. to safeguard the accuracy of any criminal adjudication;

Bonnie (1992b) explained that allowing only those who are

Competence to Stand Trial and Its Relation

getting to trial and that the issue of “trial” competency can be

The Dusky decision provides little detail or elaboration on

Kruh and Grisso (2009) provide a closer analysis of some of

• Sufficient ability and reasonable understanding specify that

Fifteen years after Dusky, the U.S. Supreme stand trial

Court in Drope v. Missouri (1975) appeared ● Defendant must have

● Required that the defendant be able to assist in preparing his defense

that defendant be able to “otherwise assist with his defense” (ABA,

unable on account of mental disorder to conduct a defence at any

5. that he has a lawyer (self-employed or

6. any other facts and circumstances

Competence to Waive Counsel and Plead Guilty

criminal cases. Again, should there be a different standard for eval-

A defendant who stands trial is likely to be presented with choices

This decision appeared at odds with researchers and legal

be appropriate for the various legal situations that a defendant

Requiring that a criminal defendant be competent has a modest

In his dissent, Justice Blackmun noted that the “majority’s

The standard for competence to stand trial is specifically designed