Chapter 11: Assessing Competency to Stand Trial

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So welcome to this deep dive.

We are thrilled you're joining us for this special one -on -one tutoring session today.

Yeah, it's great to be here.

We've got a lot of really fascinating ground to cover.

We really do.

And if you are a college student diving into this for the first time, your mission today is to master Chapter 11 of the Handbook of Forensic Psychology, Fourth Edition.

Right, which is all about assessing competency to stand trial.

Exactly.

Because, you know, usually when we talk about a diagnosis, there's this expectation of precision.

It's like, like engineering.

Yeah, you want it to be black and white.

Right.

You break your arm, the x -ray shows that jagged white line, and the doctor just points to the screen and says, yep, there it is.

It's clean.

It's visible.

I mean, we instinctively want things to be easily categorized into healthy or broken.

But then you step into forensic psychology and specifically evaluating if a criminal defendant is legally competent to stand trial.

And suddenly,

that x -ray machine is just totally useless.

Oh, completely.

The diagnostic landscape there is incredibly murky.

Yeah.

And it happens a lot.

Like 60 ,000 times a year in the U .S., the justice system hits a hard pause.

A judge basically looks at a defendant and asks this incredibly high stakes question, are they actually capable of going on trial?

And that question forces the legal system, which, you know, demands absolute answers, to collide with human cognition, which operates entirely in shades of gray.

That is the tension we're unpacking today.

And it's so crucial to distinguish this from what you see on TV.

Oh, definitely.

Hollywood loves the insanity defense.

Maybe they really do.

Whenever a legal drama wants a plot twist, boom, insanity defense.

But the reality is that's incredibly rare.

Competency evaluations are the everyday reality.

Right.

And there is a massive difference between the two.

Yeah.

Competency is strictly about a defendant's present state of mind.

Like, can they participate in their trial right now, today?

Exactly.

That is entirely different from insanity, which looks backward in time.

It looks at their mental state at the exact moment the crime was committed.

OK, let's unpack this.

Because we can't really understand how psychologists evaluate competency without first understanding the legal rules they have to follow.

Right.

So we have to look at the Dusky standard.

This is the modern standard in the United States, born from a 1960 Supreme Court case, Dusky v.

United States.

And it's a two pronged test, right?

It is.

First, the defendant needs a rational as well as factual understanding of the proceedings.

And second, they must have a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding.

The way I try to wrap my head around that two prong thing is by comparing it to playing a team sport.

OK, I like that.

Like, having a factual understanding is just being physically awake on the field.

You know, you're at a game, you know, who the referee is, who the opposing team is.

Right, the basics.

Yeah.

But to actually be competent to play, you have to know the underlying rules of the game, and you have to be able to strategize with your coach.

Which represents the rational understanding and assisting counsel.

That's a great way to put it.

And that distinction fundamentally changed forensic psychology.

How so?

Well, historically,

evaluators made a massive conceptual error.

They would look at a defendant, diagnose them with severe schizophrenia,

and just automatically declare them incompetent.

Wow, just across the board.

Yeah, but under Dusky, the focus shifted to being purely functional and contextual,

meaning mental illness only matters if it directly impairs the specific abilities needed for this specific trial.

So just having a diagnosis doesn't disqualify you from the process.

Precisely.

If someone has auditory hallucinations, but they still fully understand the charges and can help their attorney form a defense, they are competent.

But the demands of a trial change, right?

What if a defendant wants to waive their right to a lawyer and defend themselves?

Proceeding per se.

Yeah.

You need a higher level of competency to act as your own lawyer than to just sit quietly at the defense table.

That exact question sparked a huge legal debate.

In 1993,

the U .S.

Supreme Court ruled in Godinez v.

Moran.

And the Canadian court had a similar one, right?

Yes, Regina v.

Whittle in Canada in 94.

Both courts ruled that there is only one single standard for competency.

Just one.

Yep.

They essentially said if you meet the baseline dusky standard, you are automatically competent to waive counsel and defend yourself.

But that had terrifying real world consequences.

I mean, the textbook mentions the Colin Ferguson case, the Long Island Railroad shooter.

Right.

A very tragic example.

Because of that Godinez ruling, he was allowed to represent himself despite clearly suffering from severe delusions.

He thought a huge government conspiracy was framing him.

It was a horrific spectacle.

Yeah.

He was allowed to literally pace the courtroom and cross examine the victims he had just shot.

And that completely undermined the dignity and fairness of the system.

So the courts realized that baseline trial competence is not the same as the competence to run a defense.

So did they change the rule?

They did.

In 2008, with Indiana v.

Edwards, the Supreme Court modified it.

They said states actually are allowed to deny a defendant the right to represent themselves if they have severe mental illness.

Okay.

So you can be competent to stand trial, but not competent to proceed, per se.

Exactly.

If we connect this to the bigger picture, legal scholar Richard Bonney proposed dividing competency into two distinct types, competence to assist counsel,

and decisional competence.

That makes a lot of sense.

Passively sharing info with your lawyer is way easier than making the massive choice to fire them entirely.

Exactly.

It's a completely different cognitive load.

So with all this at stake, what actually happens when a judge or lawyer raises a red flag?

I mean, we're talking upwards of $700 million spent annually in the U .S.

on evaluations and restorations.

It's a massive logistical undertaking, and competency can be raised at any time.

But crucially, when a psychologist steps in, the Fifth Amendment heavily protects that evaluation.

Because of Estelle V.

Smith, right?

Yes, from 1981.

Any information gathered in a competency evaluation cannot be used against the defendant to prove guilt.

Which is so important.

If you want them to be honest about their paranoid delusions, they need a guarantee it won't be handed to the jury as a confession.

Absolutely.

So what if they are found incompetent?

The trial is paused, right?

But what happens to the defendant?

Well, historically, they went to expensive inpatient psychiatric hospitals.

Today, a lot of it happens in community settings and jails.

But they can't just be locked up forever waiting for a cure.

No, they can't.

The Supreme Court ruled in Jackson v.

Indiana in 1972 that descendants cannot be held indefinitely.

So what's the limit?

There has to be a substantial probability that they will be restored to competency in the foreseeable future.

If not, the state either has to release them or start civil commitment proceedings.

Wait, hold on.

I want to push back on the treatment part.

Sure.

If a defendant refuses treatment, can the state physically force them to take psychiatric medication just to put them on trial?

That sounds really extreme.

It is extreme.

And it's one of the most profound ethical conflicts in forensic psychology.

I bet.

The Supreme Court tackled this in Selvy, United States in 2003.

The court ruled that yes, the state can involuntarily medicate a defendant to restore competency.

Wow.

But only under incredibly strict conditions.

It's a three -pronged test.

First, the medication must be highly likely to restore competency.

Second, it must not have side effects that ruin the defendant's ability to assist counsel, like making them too lethargic to communicate.

Right.

And third, there must be no less intrusive alternative available.

So it's a really high bar.

But does it actually work?

Statistically, yes.

Around 79 % of psychotic defendants involuntarily treated under the trial criteria are successfully restored.

That's fascinating.

But it brings up a huge question about the clinicians themselves.

How reliable are these evaluators making these massive decisions?

Well, if you look at reliability, meaning how often two evaluators agree, it's around 71 to 80%.

That sounds pretty high.

It does.

But it's inflated.

The vast majority of defendants are competent.

So if an evaluator just stamps competent on every file, they'll match other evaluators most of the time without doing much real analysis.

Oh, I see.

So what about the tricky cases?

In borderline cases, agreement plummets.

And remember, reliability just means they agree.

Validity, whether the decision is actually correct, is almost impossible to prove.

Because we don't let incompetent people stand trial to see if they fail.

Exactly.

Legal scholar Bruce Winnick suggested provisional trials to test this with extra supports for the defendant.

But that hasn't really happened.

Here's where it gets really interesting to me.

Think about amnesia.

OK.

If I have absolutely no memory of the crime, how can I defend myself?

I can't tell my lawyer where I was.

Isn't that the definition of being functionally incompetent?

It feels intuitive that it would be, but the courts completely disagree.

In Wilson, the United States, in 1968, the court said amnesia is not an automatic pass.

Really?

Why not?

Because they look at it functionally.

They outline six specific factors like can the crime be reconstructed without the memory?

Is there overwhelming physical evidence or camera footage?

Oh, so if there's a ton of external evidence, your internal memory might not matter for the defense attorney to do their job.

Precisely.

Psychologists must link clinical symptoms directly to legal functional impairments.

But you can't just sit in a room and chat with someone to figure that out.

How do they actually measure it?

They use forensic assessment instruments or FAIs, specialized tools developed over the last 50 years.

Yeah, let's walk through the evolution of these tools because the textbook lays them out chronologically.

It started with a guy named McGarry, right?

Yes, the pioneer.

He created the competency screening test, the CST.

It used sentence completion.

Like finishing a sentence about the law?

Exactly.

But it had way too many false positives.

It flagged perfectly competent people just because they couldn't articulate the sentence well.

So he pivoted.

Right, to the competency assessment instrument, the CAI.

It used a 13 -item structured interview and was much better.

And from there, we got the modern screeners, like the FITR in Canada, the Fittance Interview Test revised.

Yes.

It evaluates individuals on a three -point scale across three areas, factual knowledge, appreciation of consequences, and communication.

So you ask what a judge does, and they give a highly nuanced answer.

They score high.

If they just say he wears a robe, they score lower.

Exactly.

It maps the depth of their understanding.

Then there are visual tools like the Georgia Court Competency Test, the GCCT -MSH.

That one is so interesting.

They put a visual drawing of a courtroom in front of the defendant, right?

Yes, 21 items.

The defendant has to physically point to where the judge sits, where the jury is.

It's great for people who struggle verbally.

But it misses the deeper decisional stuff,

which brings us to the gold standard,

the CAT -CA, the MacArthur Competence Assessment Tool Criminal Adjudication.

Right.

It has 22 items, but it's totally different because it uses a hypothetical vignette.

Exactly.

The examiner reads a short story about two guys getting into a fight at a bar.

And the brilliance of it is how it tests understanding.

If the defendant gets a legal question wrong about the bar fight, the clinician actually teaches them the correct principle.

Right.

And they ask them to repeat it back.

It measures their capacity to learn new legal information in real time.

Across understanding, reasoning, and appreciation.

But introducing true or false tests brings up a huge vulnerability.

Malingering.

Faking it.

Yes.

To me, it's like trying to intentionally get a zero on a true or false test.

You'd actually need to know all the right answers to make sure you avoid them.

That is the exact statistical principle behind the malingering tools, like the ECSTR, the Evaluation of Competency to Stand Trial Revised.

How does that one work?

It has an atypical presentation scale to catch feigned psychosis.

It asks if they are experiencing bizarre Hollywood -style symptoms that don't match real mental illness.

So malingerers say yes, thinking it makes them look crazier.

Exactly.

And the other tool is the ILK, the Inventory of Legal Knowledge.

It's a 61 -item true or false test.

And if you score lower than chance, like 20%, it mathematically proves you are purposely suppressing legal knowledge.

Yep.

You can't consistently pick the wrong answer unless your brain knows the right one.

That is wild.

But those tools are for the average adult.

The textbook also highlights special populations, right, where this gets way more complicated.

Absolutely.

Especially with intellectual disabilities.

Evaluators often talk about the cloak of competence.

The cloak of competence?

What does that mean in practice?

Well, defendants with intellectual disabilities often spin their lives trying to hide their deficits due to stigma.

So in the legal system, they are highly cooperative.

They just nod and pretend to understand lawyers when they really don't.

Which leads to tragic underidentification by the courts.

They just slip through the crack.

All right.

So clinicians use the CaseSTMR, the Competence Assessment for Standing Trial for Defendants with Mental Retardation.

And that's a 50 -question oral test, right?

Yes.

It covers basic legal concepts and case events using very accessible language to make sure they actually comprehend the reality of their situation.

And juveniles are a whole different issue.

As the system shifts toward punishing youths in adult courts,

juvenile competency is a massive problem.

Age negatively correlates with competency.

Definitely.

A 14 -year -old just does not have the developmental maturity of a 35 -year -old.

So what do they use for them?

Tools like the JCI, the Juvenile Adjudicative Competence Interview.

It's a 12 -area guide for developmentally sensitive evaluations.

Oh, and the McGen, right, which is like the bar fight story tool, but for kids?

Yes.

It uses vignettes specifically evaluating adolescent immaturity of judgment, like how a teen responds to peer pressure or a police interrogation.

So we've covered the legal standards, the procedures, the tools.

If you are learning this to actually do it one day, what are the ethical best practices?

Well, preparation is key.

You must speak to both the defense and prosecution attorneys first.

Pull all mental health and police records.

And get strict informed consent.

Always.

But the golden rule of reporting, the biggest ethical pitfall, is that evaluators should never combine competency and insanity reports.

Never.

Because of a Stelvy -Smith.

Right, they have to be separated.

Exactly.

Competency is right now.

Insanity is in the past.

If you merged them, you might accidentally include a confession about the crime in the competency report, which totally prejudices the right to a fair trial.

And when you write that report, the textbook mentions People v.

Harris from 1983.

You can't just give a conclusory opinion.

No, you can't just say, he is competent and leave it at that.

The psychologist doesn't make the final decision.

The judge does.

Oh, so the report has to provide specific clinical facts and reasoning so the judge can weigh the evidence.

So what does this all mean for you as you study this?

I think the core realization here is that competency isn't just a clinical diagnosis.

It's this highly contextual functional translation of psychology into the specific demands of the legal battlefield.

It really is.

And I want to leave you with a final provocative thought to ponder.

Oh, I love these.

Let's hear it.

We've established that competency relies heavily on a defendant's ability to assist their attorney, right?

Yeah, the rational understanding part.

Well, how might that standard shift if we integrate advanced AI legal assistance into the defense?

Whoa.

Wait, really?

Think about it.

If technology can perfectly bridge a defendant's cognitive gaps,

sorting their disorganized thoughts into a flawless strategy,

will the threshold for what makes a human confident change entirely?

That is mind blowing.

If the machine assists the counsel, the human defendant barely has to carry any cognitive load.

That totally wrecks my sports analogy.

It definitely complicates things for the future of forensic psychology.

Well, you've got plenty to think about for Chapter 11.

Thank you for joining us on this Deep Dive.

On behalf of the Last Minute Lecture Team, you've got this.

Good luck with your studies and keep questioning the standards.