Defing and Assessing Competency to Stand Trial

DEFINING AND ASSESSING COMPETENCY TO STAND TRIAL

Ronald Roesch, Patricia A. Zapf, Stephen L. Golding, and Jennifer L. Skeem

Competency to stand trial is a concept of jurisprudence allowing the postponement of

criminal proceedings for those defendants who are considered unable to participate in

their defense on account of mental or physical disorder or retardation. Because trial

competency issues are raised substantially more often than the insanity defense,

psychologists involved in forensic assessment and consultation are likely to have

frequent experience with it. It is estimated that between 25,000 and 39,000 competency

evaluations are conducted in the United States annually (Hoge et al., 1997; Steadman &

Hartstone, 1983). Stated somewhat differently, between 2% and 8% of all felony

defendants are referred for competency evaluations (Bonnie, 1992; Golding, 1993;

Hoge, Bonnie, Poythress, & Monahan, 1992). Given a steady increase in felony arrest

rates, the rate of competency referrals is increasingly steadily as well. In this chapter,

we will present an overview of competency laws, research, and methods of assessment

with the aim of providing forensic psychologists with the basic information they need to

conduct competency evaluations. We do not believe, however, that this chapter will

sufficiently prepare a novice forensic psychologist to carry out such evaluations. As we

will make clear, the issues surrounding a competency determination are highly complex.

An evaluator needs not only a high level of clinical knowledge and skills but also

considerable knowledge of the legal system.

We urge the reader interested in pursuing work in the competency area to supplement

this chapter with other materials (e.g., Bonnie, 1992, 1993; Grisso, 1992; Melton,

Petrila, Poythress, & Slobogin, 1987; Ogloff, Wallace, & Otto, 1991; Roesch, Ogloff, &

Golding, 1993; Roesch, Hart, & Zapf, 1996; Winick, 1995, 1996) as well as workshops

and other forms of continuing education. The Specialty Guidelines for Forensic

Psychologists (Committee on Ethical Guidelines for Psychologists, 1991) also contain

important practice standards for competency evaluations.

Defining Competency

Provisions allowing for a delay of trial because a defendant was incompetent to proceed

have long been a part of the legal due process. English common law allowed for an

arraignment, trial, judgment, or execution of an alleged capital offender to be stayed if

he or she "be(came) absolutely mad" (Hale, 1736, cited in Silten & Tulis, 1977, p. 1053).

Over time, statutes have been created in the United States and Canada that have

further defined and extended the common law practice (see Davis, 1994; Rogers &

Mitchell, 1991; Verdun-Jones, 1981; and Webster, Menzies, & Jackson, 1982 for

reviews of Canadian competency law and practice). The modern standard in U.S. law

was established in Dusky v. United States (1960). Although the exact wording varies, all

states use a variant of the Dusky standard to define competency (Favole, 1983). In

Dusky, the Supreme Court held that:

It is not enough for the district judge to find that '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 ability 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)

Although the concept of competency to stand trial has been long established in law, its

definition, as exemplified by the ambiguities of Dusky, has never been explicit. What is

meant by "sufficient present ability"? How does one determine whether a defendant

"has a rational as well as factual understanding"? To be sure, some courts (e.g., Wieter

v. Settle, 1960) and legislatures (e.g., Utah Code Annotated, §77-15-1 et seq., 1994)

have provided some direction to evaluators in the form of articulated Dusky standards

(discussed below), but the typical forensic evaluation is left largely unguided except by a

common principle, in most published cases, that evaluators cannot reach a finding of

incompetency independent of the facts of the legal case (an issue we will return to

later).

The problems in defining and assessing competency leads to a broad range of

interpretations of the Dusky standard. Since the courts and legislatures have given

mental health professionals a large share of the responsibility for defining and

evaluating competency, it should not be surprising to find that mental status issues such

as presence or absence of psychosis have played (historically at least) a dominant role

in the findings of evaluators. In fact, evaluators initially involved in assessing

competency seemed to equate psychosis with incompetency (Cooke, 1969; McGarry,

1965; Roesch & Golding, 1980). Furthermore, evaluators in the past rarely took into

account the specific demands of a defendant's case.

This has begun to change in recent years. Early evaluators were employed typically in

state mental hospitals settings (the site of the majority of competency evaluations at that

time) and had no training either in the assessment of competency or in matters of law.

As a consequence, the evaluations were based on the same standard mental status

examinations that had been used with other patients in the hospital. If psychological

tests were used at all, they were used as a diagnostic tool to determine presence or

absence of psychosis.

Over the past 20 years, these entrenched practices have been challenged and

changed. Thus, research provided evidence that the presence of psychosis was not

sufficient by itself for a finding of incompetency (Roesch & Golding, 1980), and modern

empirical studies of competency reports demonstrate that evaluators rarely make that

simple conceptual error (Heilbrun & Collins, 1995; Nicholson, LaFortune, Norwood, &

Roach, 1995; Skeem, Golding, Cohn, & Berge, 1997). However, while forensic

evaluators today typically have more training than in the past, most states still do not

require forensic evaluator training (Farkas, DeLeon, & Newman, 1996) and examiners

are usually only "occasional experts" (Grisso, 1987).

The specific psycholegal abilities required of a defendant are the most important aspect

of assessing fitness. The contextual nature of competence has been explored by

researchers in the area. Some researchers and scholars have argued that competence

should be considered within the context in which it is to be used. For example, the

abilities required by the defendant in his or her specific case should be taken into

account when assessing competence. This contextual perspective was summarized by

Golding and Roesch (1988) as follows:

Mere presence of severe disturbance (a psychopathological criterion) 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 characteristics, results in the defendant

being unable to rationally assist the attorney or to comprehend the nature of the

proceedings and their likely outcome. (p. 79)

The importance of a contextual determination of specific psycholegal abilities has been

repeatedly demonstrated by empirical findings that assessed competencies in one area

of functioning are rarely homogenous with competencies in other areas of functioning

(Bonnie, 1992; Golding & Roesch, 1988; Grisso, Appelbaum, Mulvey, & Fletcher, 1995;

Skeem et al., 1997).

Recent Supreme Court decisions in both the United States and Canada, however, have

confused this issue by finding that the standard by which competency to be judged is

not context-specific. In Whittle v. The Queen (1994) the Supreme Court of Canada ruled

that there is to be only one standard for competency regardless of the specific abilities

to be performed by an accused. The Supreme Court of Canada concluded that there is

no difference between the essential abilities needed in making active choices about

waiving counsel, making decisions at trial, confessing, or pleading guilty. The Court

ruled that different standards of competency should not be applied for different aspects

of criminal proceedings and that the test to be used is one of "limited cognitive capacity"

(p. 567) in each of these circumstances. However, unlike Godinez v. Moran (1993; see

below), the forensic examiners had actually evaluated Mr. Whittle in these specific

contexts, regardless of whether or not the standard to be applied was the same or

different as a function of the context.

In Godinez v. Moran (1993), the United States Supreme Court held similarly that the

standard for the various types of competency (i.e., competency to plead guilty, to waive

counsel, to stand trial) should be considered the same. Justice Thomas wrote for the

majority:

The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead

guilty or waive counsel has the capacity for "reasoned choice" among the alternative

available to him. How this standard is different from (much less higher than) the Dusky

standard -- whether the defendant has a 'rational understanding' of the proceedings -- is

not readily apparent to us. ... 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 the defendant who

does not, since there is no reason to believe that the decision to waive counsel requires an

appreciably higher level of mental functioning than the decision to waive other constitutional

rights. (p. 2686)

In his dissent, Justice Blackmun noted that the "majority's analysis is contrary to both common

sense and long-standing case law" (p. 2691). He reasoned that competency cannot be considered

in a vacuum, separate from its specific legal context. Justice Blackmun argued that "competency

for one purpose does not necessarily translate to competency for another purpose" (p. 2694) and

noted that prior Supreme Court cases have "required competency evaluations to be specifically

tailored to the context and purpose of a proceeding" (p. 2694). What is egregiously missing from

the majority's opinion in Godinez however, is the fact that, unlike Whittle, Moran's competency

to waive counsel or plead guilty to death penalty murder charges was never assessed by the

forensic examiners, regardless of which standard (rational choice or rational understanding) was

employed.

The Godinez holding has been subsequently criticized by legal scholars (Perlin, 1996) and courts

alike. In the words of the Third Circuit Court of Appeals, "This difficult case presents us with a

window through which to view the real-world effects of the Supreme Court's decision in

Godinez v. Moran, and it is not a pretty sight" (Government of the Virgin Islands v. Charles,

1995). The problem is not whether or not the standards for various psycholegal competencies are

higher, different, or the same, but rather, more fundamentally, whether or not the defendant has

been examined with respect to these issues in the first place.

Standards of competence are one area of inquiry whereas the conceptualization of competence is

another. Some researchers and scholars have provided re-conceptualizations of competence to

stand trial. Winick (1985, 1995) persuasively argued that in some circumstances it may be in the

best interests of the defendant to proceed with a trial, even if he or she is incompetent. Winick

postulated that this could take the form of a provisional trial wherein the support of the defense

attorney would serve to ensure protection of the defendant. This would allow the defendant to

proceed with his or her case while maintaining decorum in the courtroom and without violating

the defendant's constitutional rights. As well, Bonnie (1992, 1993) has provided a reformulation

of competence to stand trial. Bonnie proposed a distinction between two types of competencies--

competence to assist counsel and decisional competence. He argued that defendants found

incompetent to assist counsel would be barred from proceeding until they were restored to

competence. Defendants found decisionally incompetent, on the other hand, may be able to

proceed in certain cases where his or her lawyer is able to present a defense.

The past 15 years has also seen the development of better training programs for professionals in

forensic psychology and psychiatry. Many graduate psychology programs and law schools

cooperate to provide instruction in psychology as well as law, and a number of departments of

psychology include forensic psychology as an area of expertise (Bersoff et al., 1997; Roesch,

Grisso, & Poythress, 1986).

Another major change has been the shift in the location of competency assessments. Roesch and

Golding (1980) argued that inpatient evaluation, which was the common practice until recently,

is unnecessary in all but perhaps a small percentage of cases as most determinations of

competency can easily be made on the basis of brief screening interviews (to be discussed later

in this chapter). Community-based settings, including jails and mental health centers (see

Fitzgerald, Peszke, & Goodwin, 1978; Melton, Weithorn, & Slobogin, 1985; Ogloff & Roesch,

1992; Roesch & Ogloff, 1996) appear to be increasingly used to conduct evaluations. In 1994,

Grisso and his colleagues published the results of a national survey they had conducted to

determine the organization of pretrial forensic evaluation services in the United States (Grisso,

Coccozza, Steadman, Fisher, & Greer, 1994). These researchers concluded that "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). One compelling reason for this shift is cost. Laben, Kashgarian, Nessa, and

Spencer (1977) estimated that the cost of the community based evaluations they conducted in

Tennessee was one-third the cost of the typical mental hospital evaluation (see also Fitzgerald,

Peszke, & Goodwin, 1978). In 1985, Winick estimated that in excess of $185 million is spent

each year on competency evaluation and treatment in the United States. He estimated that these

costs could currently be two to three times as high as they were in 1985 (Winick, 1996).

The widespread use of screening instruments would serve to lower these rising costs as the

majority of individuals, for whom incompetence is clearly not an issue, would be screened out.

Only those defendants whom the screening instrument has identified as potentially incompetent

would then be sent on for a more formal assessment of competence. Screening instruments can

be administered in outpatient settings as well as in local jails or courthouses, thereby also serving

to eliminate the unnecessary detention of clearly competent individuals.

Base rates for competency referrals (from 2% to 8% of felony arrests) and for incompetency

determinations (from 7% to 60%) vary widely across jurisdictions and evaluation settings

(Nicholson & Kugler, 1991; Skeem, Golding, Cohn & Berge, 1997). This occurs for a number of

reasons including variations in examiner training and use of forensically relevant evaluation

procedures (Skeem et al., 1997), the availability of pretrial mental health services, the nature of

the referral system, inadequate treatment services for the chronically mentally ill and a

criminalization of their conduct, and the extent to which judges scrutinize bona fide doubt about

a defendant's competency before granting evaluation petitions (Golding, 1992). Nevertheless, the

modal jurisdiction typically finds only 20% of those referred incompetent to proceed with their

trial. Precise data are not available, but conservatively, half of those found competent presented

little or no reason for doubting their competency and could have been detected by adequate

screening procedures. This is true in the United States as well as in other countries. Zapf and

Roesch (in press) investigated the rate of (in)competence in individuals remanded to an inpatient

setting for an assessment of fitness to stand trial in Canada. Their results indicate that only 11%

of the remands were unfit to stand trial and, further, that with the use of a brief screening

interview 82% of the remands could have been screened out at some earlier time as they were

clearly fit to stand trial (Zapf & Roesch, 1997). Many of the assessment procedures we describe

later in this chapter are either explicitly designed for screening or could easily be adapted for use

in such settings.

A major change in the past few decades has been the development of a number of instruments

specifically designed for assessing competence. This work was pioneered by McGarry and his

colleagues (see Lipsitt, Lelos, & McGarry, 1971; McGarry, 1965; McGarry & Curran 1973).

Their work was the starting point for a more sophisticated and systematic approach to the

assessment of competency. In 1986, Grisso coined the term "forensic assessment instrument"

(FAI) to refer to instruments that provides frameworks for conducting forensic assessments.

FAIs are typically semi-structured elicitation procedures and lack the characteristics of many

traditional psychological tests. However, they serve to make forensic assessments more

systematic. These instruments help evaluators to collect important and relevant information and

to follow the decision-making process that is required under the law. Since the time that the term

was coined, a number of assessment instruments have been developed that are designed to work

in this way, and it appears that the use of FAIs has been slowly increasing (Borum & Grisso,

1995; but see Skeem et al.'s 1997 finding that few occasional experts use such devices). This

trend is encouraging in that empirical data suggest that trained examiners using FAIs achieve the

highest levels of inter-examiner and examiner-adjudication agreement (Golding, Roesch, &

Schreiber, 1984; Nicholson & Kugler, 1991; Skeem et al., 1997). Before turning to a review of

assessment methods, we will provide a brief overview of the legal procedures involved in

competency questions.

Overview of Procedures

Laws regarding competency vary from state to state, although most jurisdictions follow

procedures similar to the overview we will describe in this section. Clinicians should consult

their own statute for the specific law and procedure applicable in each state .

The issue of competency may be raised at any point in the adjudication process (Golding &

Roesch, 1988). If a court determines that a bona fide doubt exists as to a defendant's competency,

it must consider this issue formally (Drope v. Missouri, 1975; Pate v. Robinson, 1966), usually

after a forensic evaluation which can take place, as we noted, in the jail, an outpatient facility, or

in an institutional setting.

One legal issue that may concern evaluators is whether information obtained in a competency

evaluation can be used against a defendant during the guilt phase of a trial or at sentencing.

While some concerns have been raised about possible self-incrimination (Berry, 1973; Pizzi,

1977), all jurisdictions in the United States and Canada provide either statutorily or through case

law that information obtained in a competency evaluation cannot be introduced on the issue of

guilt unless the defendant places his or her mental state into evidence at either trial or at

sentencing hearings (Estelle v. Smith, 1981; Golding & Roesch, 1988) .

Once a competency evaluation has been completed and the written report submitted (see Melton

et al., 1987; Petrella & Poythress, 1983; Skeem et al., 1997, for a discussion of the content of

these reports), the court may schedule a hearing. If however, both the defense and the

prosecution accept the findings and recommendations in the report, a hearing does not have to

take place. It is likely that in the majority of the states, a formal hearing is not held for most

cases. If a hearing is held, the evaluators may be asked to testify, but most hearings are quite

brief and usually only the written report of an evaluator is used. In fact, the majority of hearings

last only a few minutes and are held simply to confirm the findings of evaluators (Steadman,

1979). The ultimate decision about competency rests with the court, which is not bound by the

evaluators' recommendations (e.g., North Dakota v. Heger, 1982). In most cases, however, the

court accepts the recommendations of the evaluators (Hart & Hare, 1992; Steadman, 1979;

Williams & Miller, 1981).

At this point defendants found competent proceed with their case. For defendants found

incompetent, either trials are postponed until competency is regained or the charges are

dismissed, usually without prejudice. The disposition of incompetent defendants is perhaps the

most problematic area of the competency procedures. Until the case of Jackson v. Indiana

(1972), virtually all states allowed the automatic and indefinite commitment of incompetent

defendants. In Jackson, the U.S. Supreme Court held that defendants committed solely on the

basis of incompetency "cannot be held more than the reasonable period of time necessary to

determine whether there is a substantial probability that he will attain that capacity in the

foreseeable future" (p. 738). The Supreme Court did not specify how long a period of time would

be reasonable nor did it indicate how progress toward the goal of regaining competency could be

assessed.

The Jackson decision led to revisions in state statutes to provide for alternatives to commitment

as well as limits on the length of commitment (Roesch & Golding, 1980). The length of

confinement varies from state to state, with some states having specific time limits (e.g., 18

months) while other states base length of treatment on a proportion of the length of sentence

which would have been given if the defendant was convicted.

Once defendants are found incompetent, they may have only limited rights to refuse treatment

(see Winick, 1983 for a review). Medication is the most common form of treatment, although

some jurisdictions have established treatment programs designed to increase understanding of

the legal process (e.g., Pendleton, 1980; Webster, Jenson, Stermac, Gardner, & Slomen, 1985),

or that confront problems that hinder a defendant's ability to participate in the defense (Davis,

1985; Siegel & Elwork, 1990).

This brief overview of the competency procedures is intended to provide a basic understanding

of the process. For a more complete discussion of the legal issues as well as a review of

empirical research on the various aspects of the competency procedures, the reader is referred to

reviews by Golding and Roesch (1988), Nicholson and Kugler (1991), Roesch et al. (1993), and

Winick (1996).

Assessing Competency

Though there has been some confusion over the definition of competency, there nevertheless

appears to be generally good agreement between evaluators about whether a defendant is

competent or not. The few studies of reliability that have been completed report that pairs of

evaluators agree in 80% or more of the cases (Goldstein & Stone, 1977; Poythress & Stock,

1980; Roesch & Golding, 1980; Skeem et al., 1997). When evaluators are highly trained and use

semi-structured competence assessment instruments, even higher rates of agreement have been

reported (Golding et al., 1984; Nicholson & Kugler, 1991).

When base rates of findings of competency are considered, however, these high levels of

agreement are less impressive and they do not suggest that evaluators are necessarily in

agreement about the criteria for a determination of competency. A psychologist, without even

directly assessing a group of defendants, could achieve high levels of agreement with an

examining clinician, simply by calling all defendants competent (base-rate decision). Since in

most jurisdictions, approximately 80% of all referred defendants are competent (for reasons

discussed later in this chapter), the psychologist and the examiner would have modest agreement,

even with making no decisions at all (though the problem of base rates can be corrected through

the use of certain statistics such as Kappa, the studies reporting reliability usually have small

samples overall and consequently very few incompetent defendants). Most disturbingly, Skeem

and her colleagues (1997) demonstrated that examiner agreement on specific psycholegal deficits

(as opposed to overall competency) averaged only 25% across a series of competency domains.

It is the more difficult decisions, involving cases where competency is truly a serious question,

that are of concern. How reliable are decisions about these cases? To date, no study has

accumulated enough of these cases to answer this question.

High levels of reliability do not, of course, ensure that valid decisions are being made. Two

evaluators could agree that the presence of psychosis automatically leads to a finding of

incompetency. As long as the evaluators are in agreement about their criteria for determining

psychosis, the reliability of their final judgments about competency will be high. As we suggest

throughout this chapter, it is quite possible that the criteria used by too many evaluators

inappropriately rely on traditional mental status issues without considering the functional aspects

of a particular defendant's case.

Validity is, of course, difficult to assess because of the criterion problem. Criterion-related

validity is usually assessed by examining concurrent validity and predictive validity (Messick,

1980). Predictive validity is impossible to assess fully because only defendants who are

considered competent are allowed to proceed. It is feasible to look at the predictive validity of

decisions about competent defendants, but not possible, of course, to assess the decisions about

incompetent defendants, since they are referred for treatment and judicial proceedings are

suspended. Concurrent validity is also difficult to determine because it does not make sense to

look simply at correlations with other measures (e.g., diagnosis, intelligence) if one adopts a

functional, case by case, assessment of a defendant's competency. For these reasons, then, there

is no "correct" decision against which to compare judgments.

As we have indicated, the courts usually accept mental health judgments about competency.

Does this mean that the judgments are valid? Not necessarily, since courts often accept the

evaluator's definition of competency and his or her conclusions without review, leading to very

high levels of examiner-judge agreement (Hart & Hare, 1992; Skeem et al., 1997). We have

argued (Roesch & Golding, 1980) that the only ultimate way of assessing the validity of

decisions about incompetency is to allow defendants who are believed to be incompetent to

proceed with a trial anyway. This could be a provisional trial (on the Illinois model) in which

assessment of a defendant's performance could continue. If a defendant was unable to participate,

then the trial could be stopped. If a verdict had already been reached and the defendant was

convicted, the verdict could be set aside.

We suspect that in a significant percentage of trials alleged incompetent defendants will be able

to participate. In addition to the obvious advantages to defendants, the use of a provisional trial

could provide valuable information about what should be expected of a defendant in certain

judicial proceedings (e.g., the ability to testify, identify witnesses, describe events, evaluate the

testimony of other witnesses, etc.). Short of a provisional trial, it may be possible to address the

validity issue by having independent experts evaluate the information provided by evaluators and

other collateral information sources. We have used this technique in our research and will

discuss this later in the chapter. In the next section, we will review various methods for assessing

competency.

The Functional Evaluation Approach

We believe the most reasonable approach to the assessment of competency is based on a

functional evaluation of a defendant's ability matched to the contextualized demands of the case.

While an assessment of the mental status of a defendant is important, it is not sufficient as a

method of evaluating competency. Rather, the mental status information must be related to the

specific demands of the legal case, as has been suggested by legal decisions such as the ones

involving amnesia. As in the case of psychosis, a defendant with amnesia is not per se

incompetent to stand trial, as has been held in a number of cases (e.g., Ritchie v. Indiana, 1984;

Wilson v. United States, 1968). In Missouri v. Davis (1983), the defendant had memory

problems due to brain damage. Nevertheless, the Missouri Supreme Court held that amnesia by

itself was not a sufficient reason to bar the trial of an otherwise competent defendant. In Montana

v. Austed (1983), the court held that the bulk of the evidence against the defendant was physical

and not affected by amnesia. Finally, in a Maryland decision (Morrow v. Maryland, 1982), the

court held that, because of the potential for fraud, amnesia does not justify a finding of

incompetence. The court also stated that everyone has amnesia to some degree since the passage

of time erodes memory. These decisions are of interest because they support the view that

evaluators cannot reach a finding of incompetency independent of the facts of the legal case--an

issue we will return to later. Similarly, a defendant may be psychotic and still be found

competent to stand trial if the symptoms do not impair the defendant's functional ability to

consult with his or her attorney and otherwise rationally participate in the legal process.

Some cases are more complex than others and may, as a result, require different types of

psycholegal abilities. Thus, it may be that the same defendant is competent for one type of legal

proceeding but not for others. In certain cases, a defendant may be required to testify. In this

instance, a defendant who is likely to withdraw in a catatonic like state may be incompetent. But

the same defendant 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 is illustrated in the famous amnesia case of Wilson v. United States

(1968). In that decision, the Court of Appeals held that six factors should be considered in

determining whether a defendant's amnesia impaired the ability to stand trial:

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 extrinsically 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 substantial

possibility 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.

6. Any other facts and circumstances which would indicate whether or not the defendant had a

fair trial. (Wilson v. United States, 1968, pp. 463-464).

One could substitute any symptom for amnesia in the above quote. If this were done, the

evaluation of competency would certainly be one based on a determination of the manner in

which a defendant's incapacity may have an effect on the legal proceedings. In fact, some states,

such as Florida (Florida Rules of Criminal Procedure 3.21(a)(1) see Winick, 1983) and Utah

(1994), already specify that the evaluators must relate a defendant's mental condition to clearly

defined legal factors, such as the defendant's appreciation of the charges, the range and nature of

possible penalties, and capacity to disclose to attorney pertinent facts surrounding the alleged

offense (see Winick, 1983). Utah's (1994) statute goes the furthest in this direction, specifying

the most comprehensive range of psycholegal abilities to be addressed by evaluators (including

the iatrogenic effects of medication and decisional competencies) and also requiring judges to

identify specifically which psycholegal abilities are impaired when a defendant is found

incompetent.

The assessment of competency requires consideration of both mental status as well as

psycholegal abilities. Unfortunately, current data indicate that evaluators often do not address an

appropriate range of psycholegal abilities and most often do not tie their psychopathological

observations to their psycholegal conclusions (Skeem et al., 1997). We will now turn to a review

of the history of competency assessment methods.

Measures of Competency

Prior to the 1960s, there were no standard methods for assessing competency. One of the first

was a checklist developed by Robey (1965), which focuses on court process issues such as

understanding of the legal process. Another early procedure used a checklist and a set of

interview questions devised by Bukatman, Foy, and de Grazia (1971). Neither of these early

measures was used often (Schreiber, 1978). By far, the greatest impact on competency

assessment came first from the seminal work of A. Louis McGarry and his colleagues at the

Harvard Medical School's Laboratory of Community Psychiatry. McGarry, a psychiatrist, was

involved in the development of two measures: the Competency Screening Test and the

Competency Assessment Instrument. We will discuss these measures in addition to a number of

other measures that have since been developed.

The Competency Screening Test. The Competency Screening Test (CST) was created by Lipsitt

et al. (1971) as a screening measure to identify clearly competent defendants and thus minimize

the need for lengthy inpatient evaluations. Such a screening process was considered important

because the vast majority of defendants referred for evaluations are competent. The reason is that

many other factors influence referrals, including the use of the evaluation commitment as a

method for denying bail, as a tactical maneuver to delay a trial, as a way of providing a basis for

a reduction in charges or sentences, and as a means of getting defendants who are seen as in need

of mental health treatment out of the jails and into the hospitals (Dickey, 1980; Golding, 1992;

Menzies, Webster, Butler, & Turner, 1980; Roesch & Golding 1985; Teplin, 1984).

The CST, however, has not often been used as a screening device. Many evaluators have not

chosen to use the CST because of various validity considerations. The scoring method has been

criticized (Brakel, 1974; Roesch & Golding, 1980) because of its idealized perception of the

criminal justice system; certain responses may actually reflect a sense of powerlessness in

controlling one's outcome in the legal system and may be based on past experiences with the

legal system.

The CST has been examined in a number of studies. While it has high levels of inter-rater

reliability in terms of scoring the incomplete sentence format (Randolph, Hicks, and Mason,

1981) studies comparing classification based on CST cutoff scores and hospital evaluation

decisions reveal that it has a high false positive rate, i.e., it tends to identify many individuals as

incompetent who are later determined to be competent in hospital evaluations. (Lipsitt et al.,

1971; Nottingham & Mattson, 1981; Randolph, 1981; Shatin, 1979).

The results of these studies lead one to give a mixed review of the CST. While 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. At this point,

it is not possible to recommend that it be used as a sole method of screening defendants.

The Competency Assessment Instrument. The most important measure developed by McGarry,

the Competency Assessment Instrument (CAI), contains 13 items related to legal issues. It has

served as the basis for the subsequent forensic assessment instruments. The items include

"appraisal of available legal defenses," "quality of relating to attorney", and "capacity to disclose

pertinent facts...". Each item is scored on a 1 to 5 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 McGarry (see Laben et al., 1977; Schreiber, 1978). Unfortunately, there are few studies

reporting either reliability or validity data. We used the CAI in a North Carolina study (Roesch

& Golding, 1980). Thirty interviews conducted by pairs of interviewers 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 competent, 3 incompetent).

The interviewers' decisions were in concordance with the more lengthy hospital evaluation

decisions in 27 of 30 cases, or 90%. In subsequent studies (Golding et al., 1984; others

summarized Nicholson & Kugler, 1991) the CAI has shown high levels of trained inter-examiner

agreement and examiner-outcome agreement. Obviously the CAI appears to hold promise as a

both a screening device and as a full-blown interview. Its primary disadvantage, relative to the

IFI, IFI-R and FIT and FIT-R discussed below is in the range of psycholegal abilities articulated

and its lack of focus on the nexus between psychopathology and psycholegal impairment.

The Interdisciplinary Fitness Interview. The IFI is designed to assess both the legal and

psychopathological aspects of competency (Golding et al., 1984). The original IFI comprised

three major sections: (a) legal issues (5 items); (b) psychopathological issues (11 items); and (c)

overall evaluation (4 items). The three items in the consensual judgment section reflect post-

assessment resolution of differences between judges.

Each of the general items represents an organizing scheme for more specific subareas that have

been seen to influence competency decisions. For example, six subareas are subsumed under the

broad "capacity to appreciate" which forms the core of item 1. These are (a) appreciating the

nature of the state's criminal allegation; (b) ability to provide a reasonable account of one's

behavior prior to, during, and subsequent to the alleged crime; (c) ability to provide an account

of relevant others during the same time period; (d) ability to provide relevant information about

one's own state of mind at the time of the alleged crime, including intentions, feelings, and

cognitions; (e) ability to provide information about the behavior of the police during

apprehension, arrest, and interrogation; and (f) 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 possible; 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 consider both legal and mental status

issues, but neither in isolation. The format of the IFI requires evaluators to relate their

observations to the specific demands of the legal situations. For each item, evaluators are asked

to rate the degree of incapacity of the defendant, as well as to give the item a score to indicate the

influence that the incapacity might have on the overall 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 hallucinations are considered to be more

of a potential problem during the legal proceedings.

A training manual is available for use of the IFI has been developed as a guide for evaluators.

For each item, the manual provides a set of suggested questions and follow-up probes and also

gives clinical guidance for the handling of typical problems.

Golding et al. (1984) used the IFI in a study of pretrial defendants in the Boston area who were

referred by court clinics to a state mental hospital for competency evaluation. They were

interviewed by teams composed of a lawyer and either a psychologist or a social worker. While

the interviews were conducted jointly, each evaluator independently completed the IFI rating

form. The results demonstrated that judgments about competency can be made in a reliable

manner by lawyers and mental health evaluators. They were in agreement on 97% of their final

determinations of competency. By type of decision, the interviewers found 58 defendants to be

competent, 17 incompetent, and disagreed on the remaining 2 cases.

The IFI has recently 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 taps 31 relatively specific psycholegal

abilities organized into 11 global domains. The IFI-R was developed on the original model used

by Golding et al. (1984), but was altered to reflect a decade of experience, numerous court

opinions and the accumulated professional literature on competency assessments. For example, it

specifically addresses the issue of the iatrogenic effects of psychotropic medications (Riggins v.

Nevada, 1992), a defendant's decisional competency to engage in rational choice about trial

strategies, proceeding pro se or pleading guilty (see discussion of Godinez v. Moran, 1993,

above) and competency to confess. It was developed to mirror Utah's (1994) new articulated

competency code which mandates that examiners address its 11 global domains. While it has not

yet been empirically studied, a revised and comprehensive training manual is available (Golding,

1993).

Golding et al. (1984) also commented on one of the research problems inherent in studies of

competency assessment. Since most defendants are competent (77% in the above study), it is

difficult to obtain a sufficiently large sample of incompetent defendants. It is clear to us that

decisions about most defendants referred for competency evaluations are straightforward -- that

is, they are competent to stand trial, a finding which is evident regardless of the method of

assessment. The potential value of the IFI-R or other structured assessment methods, we believe,

is in assessing defendants whose competency is truly questionable.

The Fitness Interview Test. The Fitness Interview Test (FIT; Roesch, Webster, & Eaves, 1984)

was originally created in 1984 to assess fitness to stand trial in Canada. It has since been

extensively revised and the current version is referred to as the Fitness Interview Test - Revised

(FIT-R; Roesch, Webster, & Eaves, 1994). The FIT-R focuses on the psycholegal abilities of the

individual. The scoring system has been changed to a 3-point scale, with a score of "0" meaning

definite or serious impairment, "1" meaning possible or mild impairment, and "2" meaning no

impairment. As well, the items on the FIT-R were developed to parallel the standards for fitness

that were established in section 2 of the 1992 revision of the Criminal Code of Canada.

The FIT-R takes approximately 30 minutes to administer and consists of a structured interview

which taps into three main areas: (a) the ability to understand the nature or object of the

proceedings, or factual knowledge of criminal procedure, (b) the ability to understand the

possible consequences of the proceedings, or the appreciation of personal involvement in and

importance of the proceedings, and (c) the ability to communicate with counsel, or to participate

in the defense. Each of these three sections is broken down into specific questions which tap into

different areas involved in fitness to stand trial. The first section assesses the defendant's

understanding of the arrest process, the nature and severity of current charges, the role of key

players, legal processes, pleas, and court procedure. 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 or her

own defense, challenge prosecution witnesses, testify relevantly, and manage courtroom

behavior.

Recent research indicates that the FIT-R demonstrates excellent utility as a screening instrument

(Zapf & Roesch, 1997). In this study, results of the FIT-R and an institution-based fitness

assessment were compared for 57 defendants remanded to an inpatient psychiatric institution for

an evaluation of fitness. The FIT-R correctly predicted fitness status (i.e., fit or unfit) for 49 of

the 57 individuals. The remaining 8 individuals were judged to be unfit by the FIT-R and fit as a

result of the inpatient assessment. This was to be expected as a screening instrument should

overestimate the rate of unfitness without making any false negative errors. There was 100 %

agreement between the FIT-R and the institution-based assessment for those individuals deemed

fit to stand trial.

The Georgia Court Competency Test (GCCT). The Georgia Court Competency Test (GCCT)

was originally developed by Wildman et al. (1978) and has since gone through a number of

revisions (see Bagby, Nicholson, Rogers, & Nussbaum, 1992; Johnson & Mullet, 1987;

Nicholson, Briggs, & Robertson, 1988; Wildman, White, & Brandenburg, 1990). The original

version consisted of 17 items and the 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 courtroom.

This is then followed by questions related to the function of certain individuals in the courtroom,

the charges that the defendant is facing, and his or her relationship with the lawyer.

Recent research on the GCCT-MSH has indicated that this instrument displays high levels of

reliability and validity (Nicholson, Robertson, Johnson, & Jensen, 1988). Three factors have

been identified by Nicholson et al. (1988): Courtroom Layout, General Legal Knowledge, and

Specific Legal Knowledge. These same three factors were later replicated by Bagby et al. (1992).

It was later suggested that this three factor solution may only be appropriate for defendants who

have been ordered to undergo assessment at the pretrial stage (Ustad, Rogers, Sewell, &

Guarnaccia, 1996). These researchers indicated that a two-factor solution (Legal Knowledge and

Courtroom Layout) may be more appropriate for defendants who have been adjudicated

incompetent and who are undergoing inpatient treatment to restore competence. The major

drawback of the GCCT-MSH is that it focuses upon foundational competencies and relatively

ignores the more important decisional competencies stressed in the IFI and FIT approaches

(Bonnie, 1992).

The MacArthur Competence Assessment Tool - Criminal Adjudication. The MacArthur

Competence Assessment Tool - Criminal Adjudication (MacCAT-CA; Bonnie, Hoge, Monahan,

& Poythress, 1996) was developed as part of the MacArthur Network on Mental Health and the

Law. This instrument is currently only being released for research purposes. It was developed

from a number of research instruments (see Hoge et al., 1997, for a complete discussion of its

development) and assesses three main abilities: understanding, reasoning, and appreciation.

The MacCAT-CA consists of 22 items and takes approximately 30 minutes to administer. The

basis of the items is a short story about two men who get into a fight and one is subsequently

charged with a criminal offense. The first 8 items assess the individual's understanding of the

legal system. Most of these items consist of two parts. The defendant's understanding is first

assessed and, if it is unsatisfactory or appears to be questionable, the information is then

disclosed to the defendant and his or her understanding is again assessed. This allows the

evaluator to determine whether or not the individual is able to learn disclosed information. The

next 8 items assess the individual's reasoning skills by asking which of two disclosed facts would

be most relevant to the case. Finally, the last 6 items assess the individual's appreciation of his or

her own circumstances. A large study is currently underway to determine national norms for the

MacCAT-CA.

Other Specialized Assessment Instruments. In recent years, there has been a move toward the

development of competence assessment instruments for specialized populations of defendants.

We will not go into detail about these specialized instruments here but the reader should be

aware that they exist. Everington (1990) has developed an instrument designed to assess

competence with mentally retarded defendants called the Competence Assessment for Standing

Trial for Defendants with Mental Retardation (CAST-MR) . Recent research on the CAST-MR

has indicated that this instrument shows good reliability and validity (Everington & Dunn, 1995).

Other researchers have focused their efforts on another special population--juvenile defendants

(see Cooper, 1995; Cowden & McKee, 1995). Research in this area has indicated that there

appears to be a negative correlation between age and competency status. That is, younger

defendants are more likely to be found incompetent (Cooper, 1995; Cowden & McKee, 1995).

Guidelines for Evaluators

We conclude our chapter with a discussion of several issues to which an examiner must pay

special attention when conducting an evaluation of competency (see generally, Committee on

Ethical Guidelines for Psychologists, 1991). Even before seeing a defendant face to face, it is

good clinical practice to speak with both the defense and prosecuting attorneys in order to

determine as accurately as possible why the fitness issue was raised, what evidence was offered,

and what sort of trial and dispositional alternatives are being considered by both sides.

All indications of prior mental health contacts should be pursued before the interview takes

place, so that the examiner has as complete a set of mental health records as possible. Similarly,

complete police reports of the alleged crime are necessary and a past criminal history record

helpful, particularly if the defendant has cycled through the criminal justice and mental health

systems several times. Obviously, if the defendant is an inpatient, observational records should

be consulted, as well as all routine psychological test data. Finally, the examiner should maintain

an accurate record of when, where, and how information about the defendant was made

available, as well as a date and time record of all contacts with the defendant, attorneys, and

other mental health professionals. These records are invaluable at later stages if legal tactics

designed to confuse or mislead a witness are attempted.

Having prepared for an examination in this fashion, one can conduct an efficient and

comprehensive interview in a short period of time. Most delays in conducting an evaluation and

most time spent in an inpatient status can thus be avoided, and a more relevant examination

conducted, if these steps are taken. Prior to the interview, the defendant should be fully informed

about any limitations on the interview's confidentiality. The possibility of recording the interview

should be discussed, although permission should also be obtained from the defendant's attorney.

The examiner should be aware of any aspects of the interview and the resulting report that are

covered by statute or accepted practice within the jurisdiction. As an example of the former,

some states require Miranda-like warnings that inform the defendant of the limitations of

confidentiality that may apply. Similarly, other states dictate the form of the report to the court,

and an examiner's report may be excluded if it does not comply with the required format.

In People v. Harris (1983), for example, a psychiatrist's report (that the defendant was

competent) was excluded, and the defendant's subsequent conviction was reversed because the

opinion was presented in conclusory terms and failed to give the clinical facts and reasons upon

which it was based, thus precluding the trier of fact from independently assessing the weight to

be given such an opinion. The current competency statutes in Illinois (as in Florida and Utah) are

in many ways models of this developing trend. They require the examiner to address the facts

upon which the conclusion is based, to explain how the conclusion was reached, to describe the

defendant's mental and physical disabilities and how these impair the ability to understand the

proceedings and assist in the defense, to discuss the likelihood that the defendant will respond to

a specified course of treatment, and to explain procedures that would be employed to compensate

for the defendant's disabilities, if any. We applaud this sort of specification and urge examiners

to adopt the practice, even if it is not mandated in their own jurisdiction.

The conduct of a competency evaluation and the reports prepared for court should therefore be in

complete accord with both the spirit and the letter of contemporary legal standards. The

examiner must therefore be thoroughly acquainted with the legal literature and in some sense

anticipate developments in one's practice. For example, Estelle v. Smith (1981) clearly prohibits

the introduction of material obtained under court-ordered competency proceedings at a "critical"

(guilt or sentencing) stage of trial. Many states mirror this in their statutes but nevertheless do

not regulate the common practice of requesting competency and sanity evaluations at the same

time, often resulting in a combined report. We believe this practice is unfortunate, and

recommend that separate interviews, with distinct reports, be prepared. While a trier of fact is

required to separate these issues, it is cognitively almost impossible to do so when the reports are

combined. A defendant who is clearly psychotic and "legally insane" at the time of an assault

may respond rapidly to treatment upon arrest and be just as non-psychotic and "legally fit" when

actually examined. Caution and fairness dictate keeping the reports separate so that the two

issues can be considered independently by the courts.

Conclusions

This chapter touches upon only a small selection of the vast amount of research and writing on

competence to stand trial. The purpose of this chapter was only to give a brief overview of

competency law, research, and assessment. For a comprehensive review of the recent empirical

research on competence to stand trial, the reader is referred to Grisso (1992) and Cooper and

Grisso (1996). These authors review the research on the evaluation of competence in two 5-year

intervals (1986-1990 and 1991-1995). As well, Nicholson and Kugler (1991) conducted a meta-

analysis using 30 studies and over 8000 defendants that provides a quantitative review of the

comparative research on competence. These references as well as those listed in the introductory

paragraph of this chapter will provide the reader with a more in-depth understanding of

competency to stand trial.

References

Bagby, R. M., Nicholson, R. A., Rogers, R., & Nussbaum, D. (1992). Domains of competency to

stand trial: A factor analytic study. Law and Human Behavior, 16, 491-507.

Berry, F. D., Jr. (1973). Self-incrimination and the compulsory mental examination: A proposal.

Arizona Law Review, 15, 919-950.

Bersoff, D., Goodman-Delahunty, J., Grisso, J. T., Hans, V. P., Roesch, R., & Poythress, N. G.

(1997). Training in psychology and law: Models from the Villanova conference. Unpublished

manuscript. [Ron, is this now in press in Amer Psy?]

Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation.

Behavioral Sciences and the Law, 10, 291-316.

Bonnie, R. J. (1993). The competence of criminal defendants: Beyond Dusky and Drope.

University of Miami Law Review, 47, 539-601.

Bonnie, R. J., Hoge, S. K., Monahan, J., & Poythress, N. G. (1996). The MacArthur Competence

Assessment Tool - Criminal Adjudication. Unpublished manuscript.

Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evaluations.

Professional Psychology: Research and Practice, 26, 465-473.

Brakel, S. J. (1974). Presumption, bias, and incompetency in the criminal process. Wisconsin

Law Review, 1974, 1105-1130.

Bukatman, B. A., Foy, J. L., & DeGrazia, E. (1971). What is competency to stand trial?

American Journal of Psychiatry, 127, 1225-1229.

Chernoff, P. A., & Schaffer, W. G. (1972). Defending the mentally ill: Ethical quicksand.

American Criminal Law Review, 10, 505-531.

Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for

forensic psychologists. Law and Human Behavior, 15, 655-665.

Cooke, G. (1969). The court study unit: Patient characteristics and differences between patients

judged competent and incompetent. Journal of Clinical Psychology, 25, 140-143.

Cooper, D. K. (1995). Juvenile competency to stand trial: The effects of age and presentation of

factual information in the attainment of competency in juveniles. Dissertation Abstracts

International, 56 (10-B), 5761.

Cooper, D. K., & Grisso, T. (1996, August). Five-year research update (1991-1995): Evaluations

for competence to stand trial. Paper presented at the American Psychological Association

Convention, Toronto, Ontario, Canada.

Cowden, V, L., & McKee, G. R. (1995). Competency to stand trial in juvenile delinquency

proceedings--cognitive maturity and the attorney-client relationship. University of Louisville

Journal of Family Law, 33, 629-660.

Davis D. L. (1985). Treatment planning for the patient who is incompetent to stand trial.

Hospital and Community Psychiatry, 36 , 268-271.

Davis, S. (1994). Fitness to stand trial in Canada in light of the recent Criminal Code

amendments. International Journal of Law and Psychiatry, 17, 319-329.

Dickey, W. ( 1980). Incompetency and the nondangerous mentally ill client. Criminal Law

Bulletin , 16, 22-40.

Drope v. Missouri, 420 U. S. 162 (1975).

Dusky v. United States, 362 U.S. 402 (1960).

Estelle v. Smith, 49 U. S. L. W. 4490 (1981).

Everington, C. T. (1990). The Competence Assessment for Standing Trial for Defendants with

Mental Retardation (CAST-MR): A validation study. Criminal Justice and Behavior, 17(2), 147-

168.

Everington, C., & Dunn, C. (1995). A second validation study of the competence assessment for

standing trial for defendants with mental retardation (CAST-MR). Criminal Justice and

Behavior, 22, 44-59.

Farkas, G., DeLeon, P., & Newman, R. (1997). Sanity examiner certification: An evolving

national agenda. Professional Psychology: Research & Practice, 28, 73-76.

Favole, R. J. (1983). Mental disability in the American criminal process: A four issue survey. In

J. Monahan & H. J. Steadman (Eds.), Mentally disordered offenders: Perspectives from law and

social science (pp. 247-295). New York: Plenum.

Fitzgerald, J. F., Peszke, M. A., & Goodwin, R. C. (1978).Competency evaluations in

Connecticut. Hospital and Community Psychiatry, 29, 450-453.

Godinez v. Moran, 113 St. C. 2680 (1993).

Golding, S. L. (1993). Interdisciplinary Fitness Interview-Revised: A training manual. State of

Utah Division of Mental Health.

Golding, S.L. (1992). Studies of incompetent defendants: Research and social policy

implications. Forensic Reports, 5, 77-83.

Golding, S. L., Roesch, R., & Schreiber, J. (1984). Assessment and conceptualization of

competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Law and

Human Behavior, 8, 321-334.

Golding, S. L., & Roesch, R. (1988). Competency for adjudication: An international analysis. In

D. N. Weisstub (Ed.), Law and mental health: International perspectives (Vol. 4, pp. 73-109).

NY: Pergamon.

Goldstein, R. L., & Stone, M. (1977). When doctors disagree: Differing views on competency.

Bulletin of the American Academy of Psychiatry and the Law, 5, 90-97.

Golten, R. J. (1972). Role of defense counsel in the criminal commitment process. American

Criminal Law Review, 10, 385-430.

Grisso, T., Appelbaum, P., Mulvey, E., & Fletcher, K. (1995). The MacArthur treatment

competence study II: Measures of abilities related to competence to consent to treatment. Law &

Human Behavior, 19, 127-148.

Grisso, T. (1986). Evaluating competencies: Forensic assessments and instruments. New York:

Plenum.

Grisso, T. (1987). The economic and scientific future of forensic psychological assessment.

American Psychologist, 42, 831-839.

Grisso, T. (1992). Five-year research update (1986-1990): Evaluations for competence to stand

trial. Behavioral Sciences and the Law, 10, 353-369.

Grisso, T., Coccozza, J. J., Steadman, H. J., Fisher, W, H, & Greer, A. (1994). The organization

of pretrial forensic evaluation services: A national profile. Law and Human Behavior, 18, 377-

393.

Hart, S. D., & Hare, R. D. (1992). Predicting fitness for trial: The relative power of demographic,

criminal and clinical variables. Forensic Reports, 5, 53-65.

Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at time of

offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61-67.

Hoge, S. K., Bonnie, R. J., Poythress, N., Monahan, J., Eisenberg, M., & Feucht-Haviar, T.

(1997). The MacArthur Adjudicative Competence Study: Development and validation of a

research instrument. Law and Human Behavior, 21, 141-179.

Hoge, S. K., Bonnie, R. J., Poythress, N., & Monahan, J. Attorney-client decision-making in

criminal cases: Client competence and participation as perceived by their attorneys. Behavioral

Sciences and the Law, 10, 385-394.

Jackson v. Indiana, 406 U.S. 715 (1972).

Johnson, W. G., & Mullett, N. (1987). Georgia Court Competency Test - R. In M. Hersen & A.

S. Bellack (Eds.), Dictionary of behavioral assessment techniques. New York: Pergamon Press.

Kaufman, H, (1972). Evaluating competency: Are constitutional deprivations necessary?

American Criminal Law Review, 10, 465-504.

Laben, J. K., Kashgarian, M., Nessa, D. B., & Spencer, L. D. (1977). Reform from the inside:

Mental health center evaluations of competency to stand trial. Journal of Clinical Psychology, 5,

52-62.

Lewin, T. H. (1969). Incompetency to stand trial: Legal and ethical aspects of an abused

doctrine. Law and Social Order, 2, 233-285.

Lipsitt, P. D., Lelos, D., & McGarry, A. L. (1971). Competency for trial: A screening instrument.

American Journal of Psychiatry, 128, 105-109.

McGarry, A. L. (1965). Competency for trial and due process via the state hospital. American

Journal of Psychiatry, 122, 623-631.

McGarry, A. L., & Curran, W. J. (1973). Competency to stand trial and mental illness. Rockville,

MD: National Institute of Mental Health.

Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1987). Psychological evaluations for

the courts: A handbook for mental health professionals and lawyers. New York: Guilford.

Melton, G. B., Weithorn, L. A., & Slobogin, L.A. (1985). Community mental health centers and

the courts: An evaluation of community-based forensic services. Lincoln, NE: University of

Nebraska Press.

Menzies, R. J., Webster, C. D., Butler, B. T., & Turner, R. C. (1980). The outcome of forensic

psychiatric assessment: A study of remands in six Canadian cities. Criminal Justice and

Behavior, 7, 471-480.

Messick, S. (1980). Test validity and the ethics of assessment. American Psychologist, 35, 1012-

1027.

Missouri v. Davis, 653 S. W. 2d. 167 (Mo. Sup. Ct. 1983).

Montana v. Austed, 641 P. 2d. 1373 (Mont. Sup. Ct. 1982).

Morrow v. Maryland, 443 A. 2d. 108 (MD. Ct. App. 1982).

Nicholson, R., LaFortune, K., Norwood, S., & Roach, R. (1995, August). Pretrial competency

evaluations in Oklahoma: Report characteristics and consumer satisfaction. Paper presented at

the American Psychological Association Convention, New York.

Nicholson, R. A., Briggs, S. R., & Robertson, H. C. (1988). Instruments for assessing

competency to stand trial: How do they work? Professional Psychology: Research & Practice,

19, 383-394.

Nicholson, R. A., & Kugler, K. E. (1991). Competent and incompetent criminal defendants: A

quantitative review of comparative research. Psychological Bulletin, 109, 355-370.

Nicholson, R. A., Robertson, H. C., Johnson, W. G., & Jensen, G. (1988). A comparison of

instruments for assessing competency to stand trial. Law and Human Behavior, 12, 313-321.

North Dakota v. Heger, 326 N.W.2d 855 (1982).

Nottingham, E. J., & Mattson, R. E. (1981). A validation study of the competency screening test.

Law and Human Behavior, 5, 329-336.

Ogloff, J. R. P., & Roesch, R. (1992). Using community mental health centers to provide

comprehensive mental health services to jails. In J. R. P. Ogloff (Ed.), Psychology and law: The

broadening of the discipline (pp. 241-260). Durham, NC: Carolina Academic Press.

Ogloff, J. R. P., Wallace, D. H., & Otto, R. K. (1991). Competencies in the criminal process. In

D. K. Kagehiro & W. S. Laufer (Eds.), Handbook of psychology and law (pp. 343-360). New

York: Springer-Verlag.

Pate v. Robinson, 383 U. S. 375 (1966).

Pendleton, L. (1980). Treatment of persons found incompetent to stand trial. American Journal

of Psychiatry, 137, 1098-1100.

People v. Harris, 133 Ill. App. 3d. 633 (1983).

Perlin, M. L. (1996). "Dignity was the first to leave": Godinez v. Moran, Colin Ferguson, and the

trial of mentally disabled criminal defendants. Behavioral Sciences and the Law, 14, 61-81.

Petrella, R. C., & Poythress, N. G. (1983). The quality of forensic evaluations: An

interdisciplinary study. Journal of Consulting and Clinical Psychology, 51, 76-85.

Pizzi, W. T. (1977). Competency to stand trial in federal courts: Conceptual and constitutional

problems. University of Chicago Law Review, 45, 20-71.

Poythress, N. G., & Stock, H. V. (1980). Competency to stand trial: A historical review and

some new data. Psychiatry and Law, 8, 131-146.

Randolph, J. J., Hicks, T., & Mason, D. (1981). The Competency Screening Test: A replication

and extension. Criminal Justice and Behavior, 8, 471-482.

Regina v. Whittle, 2 S. C. R. 914 (1994).

Riggins v. Nevada 112 S. Ct. 1810 (1992).

Ritchie v. Indiana, 468 N. E. 2d. 1369 (Ind. Sup. Ct. 1984).

Robey, A. (1965). Criteria for competency to stand trial: A checklist for psychiatrists. American

Journal of Psychiatry, 122, 616-623.

Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Urbana: University of Illinois

Press.

Roesch, R., & Golding, S. L. (1985). The impact of deinstitutionalization. In D. P. Farrington &

J. Gunn (Eds.), Current research in forensic psychiatry and psychology (pp. 209-239). NY:

Wiley.

Roesch, R., Grisso, T., & Poythress, N. G., Jr. (1986). Training programs, courses, and

workshops in psychology and law. In M. F. Kaplan (Ed.), The impact of social psychology on

procedural justice (pp.83-108). Springfield, Ill.: Thomas.

Roesch, R., & Hart, S. D., & Zapf, P. (1996). Conceptualizing and assessing competency to

stand trial: Implications and applications of the MacArthur Treatment Competence Model.

Psychology, Public Policy, and Law, 2, 96-113.

Roesch, R., & Ogloff, J. R. P. (1996). Settings for providing civil and criminal mental health

services. In B. D. Sales & S. A. Shah (Eds.), Mental health and law: Research, policy and

services (pp. 191-218). Durham, NC: Carolina Academic Press.

Roesch, R., Ogloff, J. R. P., & Golding, S. L. (1993). Competency to stand trial: Legal and

clinical issues. Applied and Preventative Psychology, 2, 43-51.

Roesch, R., Webster, C. D., & Eaves, D. (1984). The Fitness Interview Test: A method for

assessing fitness to stand trial. Toronto: University of Toronto Centre of Criminology.

Roesch, R., Webster, C. D., & Eaves, D. (1994). The Fitness Interview Test - Revised.

Unpublished manuscript, Simon Fraser University. (Available from Ronald Roesch, Department

of Psychology, Simon Fraser University, Burnaby, BC, Canada, V5A 1S6).

Rogers, R. R., & Mitchell, C. N. (1991). Mental health experts and the criminal courts.

Scarborough, Ont.: Carswell.

Schreiber, J. ( 1978). Assessing competency to stand trial: A case study of technology diffusion

in four states. Bulletin of the American Academy of Psychiatry and the Law, 6, 439-457.

Shatin, L. (1979). Brief form of the Competency Screening Test for mental competence to stand

trial. Journal of Clinical Psychology, 35, 464-467.

Siegel, A.M., & Elwork, A. (1990). Treating incompetence to stand trial. Law and Human

Behavior, 14, 57-65.

Silten, P. R., & Tullis, R. (1977). Mental competency in criminal proceedings. Hastings Law

Journal, 28, 1053-1074.

Skeem, J. L., Golding, S. L., Cohn, N. B., & Berge, G. (1997). The logic and reliability of

evaluations of competence to stand trial. Manuscript submitted for publication.

Steadman, H. J. (1979). Beating a rap?: Defendants found incompetent to stand trial. Chicago:

University of Chicago Press.

Steadman, H. J., & Hartstone, E. (1983). Defendants incompetent to stand trial. In J. Monahan &

H. J. Steadman (Eds.), Mentally disordered offenders: Perspectives from law and social science

(pp. 39-62). New York: Plenum.

Teplin, L. (1984). Criminalizing mental disorder: The comparative arrest rate of the mentally ill.

American Psychologist, 39, 794-803.

Utah Code Annotated §77-15-1 et seq. (1994).

Ustad, K. L., Rogers, R., Sewell, K. W., & Guarnaccia, C. A. (1996). Restoration of competency

to stand trial: Assessment with the Georgia Court Competency Test and the Competency

Screening Test. Law and Human Behavior, 20, 131-146.

Verdun-Jones, S. N. (1981). The doctrine of fitness to stand trial in Canada: The forked tongue

of social control. International Journal of Law and Psychiatry, 4, 363-389.

Webster, C. D., Jenson, F. A. S., Stermac, L., Gardner, K., & Slomen, D. (1985).

Psychoeducational programmes for forensic psychiatric patients. Canadian Psychology, 26, 50-

53.

Webster, C. D., Menzies, R. J., & Jackson, M. A. (1982). Clinical assessment before trial.

Toronto: Butterworths.

Wieter v. Settle, 193 F. Supp. 318 (W.D. Mo. 1961).

Williams, W., & Miller, K. K. (1981). The processing and disposition of incompetent mentally

ill offenders. Law and Human Behavior, 5, 245-261.

Wildman, R. W., Batchelor, E. S., Thompson, L., Nelson, F. R., Moore, J. T., Patterson, M. E., &

deLaosa, M. (1978). The Georgia Court Competency Test: An attempt to develop a rapid,

quantitative measure of fitness for trial. Unpublished manuscript, Forensic Services Division,

Central State Hospital, Milledgeville, GA.

Wildman, R. W., II, White, P. A., & Brandenburg, C. A. (1990). The Georgia Court Competency

Test: The baserate problem. Perceptual and Motor Skills, 70, 1055-1058.

Wilson v. United States, 391 F. 2d. 460 (1968).

Winick, B. J. (1983). Incompetency to stand trial: Developments in the law. In J. Monahan & H.

J. Steadman (Eds.), Mentally disordered offenders (pp. 3-38). New York: Plenum.

Winick, B. J. (1985). Restructuring competency to stand trial. UCLA Law Review, 32, 921-985.

Winick, B. J. (1995). Reforming incompetency to stand trial and plead guilty: A restated

proposal and a response to Professor Bonnie. The Journal of Criminal Law and Criminology, 85,

571-624.

Winick, B. J. (1996). Incompetency to proceed in the criminal process: Past, present, and future.

In D. B. Wexler & B. J. Winick (Eds.), Law in a therapeutic key: Developments in therapeutic

jurisprudence (pp. 77-111). Durham, NC: Carolina Academic Press.

Zapf, P. A., & Roesch, R. (1997). Assessing fitness to stand trial: A comparison of institution-

based evaluations and a brief screening interview. Canadian Journal of Community Mental

Health, 16, 53-66.

Zapf, P. A., & Roesch, R. (in press). Fitness to stand trial: Characteristics of remands in Canada

since the 1992 Criminal Code amendments. Canadian Journal of Psychiatry.