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Criminal Forensic Psychiatry Seminar in Psychiatry and Law Stanford Psychiatry Department August 31, 2006 Brad Novak

MD Stanford ACF I. Criminal Competencies (todays talk is focused on CST) A. Introduction 1. Examples a. To confess to a crime b. To waive Miranda rights c. To stand trial (CST) d. To plead guilty e. To represent oneself f. To be a witness g. To testify f. To be executed 2. A psychiatrist may be called to evaluate a defendants competency in each of the above situations. Each of the above examples have their own unique legal standard which the expert witness must understand prior to evaluating the defendant. B. Historical Perspective 1. Requirement to be competent to stand trial dates back to at least the 17th century. This arose from defendants who would not verbalize a plea to the court. The court would determine if the person was mute by visitation by God (in modern terms if due to mental illness) or if mute by malice (for example in modern terms not due to mental illness). If person was mute by

malice the court could try to force a plea by placing increasingly heavy stones on the defendants chest. 2. The U.S. Supreme Court has held that the right of an incompetent defendant to avoid trial is fundamental to an adversary system of justice. Drope v. Missouri, Dusky v. U.S., Godinez v. Moran. 3. Trying an incompetent defendant violates several constitutional rights: a. The Due Process Clause of the 14th Amendment b. The 6th amendments: 1. Right to effective assistance of counsel 2. Right to confront ones accuser 3. Right to present evidence. C. Competency to Stand Trial (CST) 1. Landmark case: Dusky v. U.S. (US Supreme Court 1960) Facts of the Case: Milton Dusky was alleged to have, along with two teenage boys, abducted a 15 year old girl and drove her across state lines. The two boys raped her and Dusky attempted to rape her. Dusky attorney had concerns for his competency and he was hospitalized at a federal medical center. A psychiatrist testified at the hearing that Dusky suffered from a Schizophrenic reaction marked by visual hallucinations. The trial court ruled Dusky was competent and the 8th circuit affirmed. The case was appealed to the US Supreme Court. Holding: The Court defined the test of competency to stand trial as whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational understanding of the proceedings against him. 2. Dusky impact a. With minor variation, the Dusky standard is employed in every state.

b. The Insanity Defense Reform Act of 1984 clarifies that in Federal Courts the incompetence has to be due to a present mental disease or defect. c. California Penal Code 1367 reads: A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetentif, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. 3. Evaluating the Defendant: a. According to the Group for the Advancement of Psychiatry competency to stand trial may involve the ability of a defendant to: 1. Understand the current legal situation. 2. Understand the charges against him. 3. Understand the facts relevant to his case. 4. Understand the legal issues and procedures in his case. 5. Understand the legal defenses available in his behalf. 6. Understand the dispositions, pleas and penalties possible. 7. Appraise the likely outcomes. 8. Appraise the roles of defense counsel, prosecuting attorney, judge, jury, witnesses and defendant. 9. Identify and locate witnesses. 10. Relate to defense counsel. 11. Trust and to communicate relevantly with his counsel. 12. Comprehend instructions and advice. 13. Make decisions after receiving advice. 14. Maintain a collaborative relationship with his attorney and to help plan legal strategy. 15. Follow testimony for contradictions or errors. 16. Testify relevantly and be cross-examined if necessary. 17. Challenge prosecution witnesses. 18. Tolerate stress at the trial and while awaiting trial. 19. Refrain from irrational and unmanageable behavior during trial. 20. Disclose pertinent facts surrounding the alleged offense. 21. Protect himself and to utilize the legal safeguards available to him.

b. Considering CST evaluations are done pretrial, be careful not to convey information to the court that may lead to a conviction. For example, be careful not to include a detailed description by the defendant of the alleged crime or a confession. Conveying such information to the court may land the expert witness in hot water as it may be an ethical if not legal violation of the defendants rights. c. The evaluating psychiatrist may wish to perform objective testing when assessing CST. The following is a brief summary of such testing:

1. McGarrys Competency Assessment Instrument: Developed by McGarry et al. in 1973 Semi-Structured Interview Scored on a 5-point scale (1=total incapacity and 5=no incapacity) 13 items Scoring is not standardized and the test lacks norms for interpreting scores. Unknown reliability. 2. Georgia Court Competency Test (GCCT)- MSH Revision Developed by Wildman et al. in 1979] 21 items grouped into 6 categories: Picture of Court, Functions, Charges, Helping the Law, Alleged Crime and Consequences Scored on a range of 0-100 (A score of 69 or less warrants further evaluation) Strong inter-rater reliability May be too focused on defendants knowledge and not enough on ability to assist with defense. 3. MacArthur Competency Assessment Tool-Criminal Adjudication (McCAT-CA) Developed by Bonnie et al. in 1997 in association with MacArthur Foundation. The MacCat is a standardized instrument in which a hypothetical case is presented to the defendant. Competency is rated along three axes: understanding, reasoning and appreciation. Has good reliability but some find working with the hypothetical case difficult.

4. Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) Requires 4th grade reading level, although questions could also be read to defendant. Includes 40 multiple choice items. Not tested with criminal defendants but rather subjects with mental retardation in the community. d. The psychiatrist doing CST evaluations may also after to do a sophisticated evaluation to rule out malingering. This may be particularly true when the defendant is alleging amnesia of the events surrounding the alleged crime. 4. CST Research a. There is a question if the legal system in essence inappropriately finds defendants of minor crimes who are not otherwise committable incompetent so they can be sent to mental hospitals and off the streets. Research into this matter has been equivocal. b. Different states use different models to evaluate competency. For instance, some states have the defendant committed to a forensic hospital and then evaluated for CST whereas other states use an outpatient model for CST evaluations (i.e. a private practice psychiatrist would go to the jail to evaluate the defendant.) c. Defendants in California may have a higher likelihood of malingering CST if they are facing a third strike. d. Objective testing continues to be an important aspect of CST evaluations. 5. Brief Summary of Landmark case holdings involving Criminal Competency (see above for Dusky). a. Cooper v. Oklahoma (US Supreme Court 1996) In terms of burden of proof, the Court ruled Oklahomas law that allows the state to try a defendant who is more likely than not incompetent is unconstitutional as it violates the Due Process Clause. In other words, the state must have the

burden of proof by at least preponderance of the evidence that the defendant is competent to proceed with trial. b. Godinez v. Moran (US Supreme Court 1993) The standard for a defendant to plead guilty or waive the right to counsel does not have to be higher or even different than the Dusky standard for CST. This case supersedes Seiling v Eyman (9th Circuit 1973) which set the standard for competency to plead guilty as the reasoned choice standard. c. Jackson v Indiana (U.S. Supreme Court, 1972) A person committed to a mental hospital solely on account of incompetency to stand trail cannot be held more than a reasonable period of time necessary to determine if they will attain competency in the future. Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. d. Wilson v U.S. (DC Circuit of Appeals, 1968) Gives the judge guidelines on how to evaluate if a person with amnesia has had a fair trial. e. Colorado v Connelly (US Supreme Court, 1986) Case has to do with how to determine if a confession is voluntary. The Court held that coercive police activity is a necessary predicate to finding that a confession is not voluntary. After Connelly, statements not caused by police misconduct are admissible regardless of defendants mental state unless the defendant did not understand he could remain silent (i.e. understand his Miranda rights). f. Ford v. Wainwright (US Supreme Court 1986) Court ruled an insane person (they meant incompetent person) cannot be put to death. The test for competence to be executed enunciated in Justice Powells concurring opinion is whether the prisoner is aware of his impending execution and the reason for it. g. State v. Perry (Louisiana Supreme Court, 1992) Court ruled you cannot force an inmate on death row who is incompetent to be executed to be medicated in order to restore his competency to be executed. e. Sell v. US (US Supreme Court, 2003)

The Court held that medication to restore trial competency for serious offenses could be administered involuntarily under certain circumstances. Because of this case, a psychiatrist doing a CST evaluation now often also has to offer an opinion regarding if the defendant should be forced to receive psychiatric medications based on the Sell criteria. II. Not Guilty by Reason of Insanity A. Historical Perspective 1. Crime Involves a. Actus Reus (Forbidden Act) The Act must be voluntary and conscious. Automatism: somnambulism, hypnotic states, fugues, epilepsy and metabolic disorders. Most jurisdictions distinguish between insanity and automatism as separate defenses. b. Mens Rea (guilty intent) Specific intent requires purposely or knowingly committing an act. No intent, no crime or lesser offense. (Diminished capacity was significantly reduced in California after the Dan White case.) 2. History Lesson Early concepts of criminal responsibility can be traced ancient Greece, Rome and religion. Much of what is relevant to American law can be traced to English common law. 3. Landmark Cases a. Rex v. Arnold Trial (England 1724)

Arnold shot and wounded Lord Onslow. He was sentenced to death but Lord Onslow secured a reprieve to life in prison. The trial set the wild beast standard: A man must be totally deprived of his understanding and memory, so as not to know what he is doing, no more than an infant, a brute, or a wild beast. b. James Hadfield Trial (England 1800) Hadfield shot at King George III as he entered the Royal Box at the Drury Lane Theatre. He believed God was going to destroy the world, but he thought he could prevent if by sacrificing his own life. The Court set a new standard for insanity, flowing from a delusion rather than lacking all understanding like the wild beast test. The flowing from a delusion foreshadows the Durham rule in the U.S. in 1954. c. Edward Oxford Trial (England 1840) Oxford committed the first of seven attempted assassinations of Queen Victoria. The Court gave the jury the charge: If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. This is an historical precedent for the irresistible impulse test. d. Daniel McNaughtan Trial (England 1843) McNaughtan was a Scottish woodturner who felt persecuted for several years. He stalked the Prime Minister, Sir Robert Peel, but mistook his secretary, Edward Drummond, for him who he shot and killed. The Court held To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know that he did not know he was doing what was wrong

The McNaughtan test is a combination of the wild beast test (nature and quality) and Spigurnels right-wrong test. The McNaughtan test is a cognitive test and does not have a volitional prong (i.e. irresistible impulse test). Following the 1981 John Hinckley insanity verdict many jurisdictions including the Federal Court system abandoned the volitional prong of insanity and returned to a standard similar to the original McNaughtan standard. e. Durham v U.S. (D.C. Circuit of Appeals 1954) The Court adopted a more liberal insanity standard: The accused is not criminally responsible if his unlawful act is the product of mental disease or defect. This became known as the product test. It led to an increase in NGRI acquittals 14 fold. It was only copied in Maine and the Virgin Islands. f. Ake v. Oklahoma (U.S. Supreme Court 1985) The Court held an indigent defendant must be provided with free psychiatric assistance in preparing an insanity defense if the defendants sanity at the time of the crime is in question. g. Frendak v U.S. (D.C. Circuit of Appeals, 1979) The Court ruled a trial judge may not force an insanity defense on a defendant found competent to stand trial if the defendant intelligently and voluntarily decides to forego that defense. h. Jones v. U.S. (U.S. Supreme Court, 1983) When a defendant is found NGRI, the government may confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society. i. Foucha v. Louisiana (U.S. Supreme Court, 1992)

The Court now rules if a defendant is found NGRI he can only be held in a mental institution as long as he is both mentally ill and dangerous. In other words, if someone malingered the way into the mental hospital, they cannot be held only because the treatment team thinks they are still dangerous but do not have a mental illness. 4. Model Penal Code 1955 (Also known as ALI) Test of Insanity becomes a combination of McNaughtan and Irresistible Impulse Test. Was used in the majority of US jurisdictions prior to the John Hinckley case. 5. Federal Insanity Defense Reform Act of 1984 Was passed due to the public outcry following John Hinckley being found NGRI after he attempted to assassinate President Reagan. It changes the Federal Insanity standard from the ALI to a McNaughtan standard. It also shifts the burden of proof to the defendant by clear and convincing. In effect, it makes it harder to be found NGRI. 6. California California standard changes from ALI back to MNaghten (proposition 8) in 1982. According to Penal code 25 insanity should be found: only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense. Penal Code 25 also abolishes the defense of diminished capacity. Amended penal code 25.5 1994: Prevents NGRI based on personality d.o., adjustment d.o, seizure, addiction or abuse of intoxicating substances. People v. Robinson (1999) prevents settled psychosis or intoxication as basis for NGRI in California. 7. Other States a. Five states have eliminated the NGRI defense: Montana, Idaho, Utah, Nevada, and Kansas.


b. In the year 2000, 16 states included a volitional arm in their insanity test. c. The U.S. Supreme Court has never ruled if any particular insanity test is minimally required by the Constitution. 8. Patterns of Mental Disorder and Criminality (Park Dietz) a. Crime is a response to psychotic symptoms, such as delusions or hallucinations. (some will be NGRI) b. Crime is motivated by compulsive desires, such as paraphilia or disorders of impulse control. (usually not NGRI). c. Crime is the result of personality disorder (cannot be NGRI in California) d. Mental disorder results from the crime (i.e. getting depressed in jailnot NGRI). e. Malingered mental illness. 9. Evaluating insanity a. Should include a through review of records which may include the f following: 1. Police reports 2. Witness statements 3. Criminal rap sheet 4. Past psychiatric records 5. Jail psychiatric records 6. Autopsy report 7. School records 8. Work records 9. 9-1-1 call of the alleged crime 10. Evaluations by other experts 11. Brain imaging 12. Medical records b. Clinical interview 1. The closest to the alleged crime as possible is ideal. The ideal situation would be to interview them the day of the crime.

2. Direct questions about defendants knowledge of wrongfulness. 3. Be careful not to feed answers regarding mental illness. For instance be careful when reading off a checklist of symptoms in which the defendant can easily answer yes to all of correct symptoms for a particular mental illness. 4. Detailed account of the defendants version of the crime. 5. Consider questioning the same or similar questions at different times during the interview to check for consistent answers. 6. Either take very detailed notes (including direct quotes from the defendant) or record the interview. 7. Consider psychological testing (although be careful not to over rely on it.) 8. Consider the motive for the crime. Is there a rational alternative motive (i.e. a non-psychotic motive)? 9. Consider factors such as the defendants planning and preparation of the crime. Did the defendant try to conceal the crime? Did the defendant try to avoid apprehension? Did the defendant confess to the crime and if so why? 10. What role if any did intoxicating substances play? 11. Carefully consider the possibility of malingering. Interview in a style that may be able to detect malingering. c. Insanity by the Numbers 1. Only raised in 1% of felony trials. Of this 1%, only 25% are successful. 2. In a study in Oregon, 86% of successful NGRI defenses were agreed to by the prosecution (Rogers et al, 1984).


3. Research indicates evaluators often offer their opinions on the basis of incomplete data (without having seen statements by the defendants, defendants past criminal records or witness statements). (Warren et. al 2003) 4. More research is needed to understand how evaluators form their opinions in NGRI cases. Sources 1. Borum and Grisso: Establishing Standards for Criminal Forensic Reports: An Empirical Analysis, Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996. 2. Competency to Stand Trial-6.06. Structured Evaluation Formats, In Psychological Evaluations for the Courts- A Handbook for Mental Health Professionals and Lawyers-Second Edition (Ed. Melton G.B., Petrila, J., Poythress, N.G., Slobogin, C.) Guilford Press: New York: pp 139-150, 1997. 3. Competency to Stand Trial, In Psychological Evaluations for the Courts-A Handbook for Mental Health Professionals and LawyersSecond Edition (Ed. Melton G.B., Petrila, J., Poythress, N.G., Slobogin, C.) Guilford Press: New York: pp119-139, 1997. 4. Gerbasi, J: Criminal Competencies, from the American Academy of Psychiatry and the Law Board Review Course, pp123138, 2004. 5. Gutheil, T and Appelbaum, P: Clincal Handbook of Psychiatry and the Law, 3rd Edition, Lippincott Williams and Wilkins, 2000 pp 266281. 6. Mumley, D et al: Five Year Research Update (1996-2000): Evaluation for Competence to Stand Trial (Adjudicative Competence), Behav. Sci. Law 21: 329-350, 2003. 7. Resnick, P: The Insanity Defense: A Historical Perspective and Modern Application, from the American Academy of Psychiatry and the Law Board Review Course, pp 667-742, 2004.

8. Warren, J et al: Opinion Formation in Evaluating Sanity at the Time of the Offense: An Examination of 5175 Pre-Trial Evaluations, Behav. Sci. Law 22: 171-186, 2004.