Introduction to Forensic Psychology

697 Pages·2012·11.156 MB·English

by  Shipley, Stacey (Auth.)

CHAPTER 1
Adult Forensic Evaluation
Chapter Outline
Overview 4
Competency to Stand Trial 5
Introduction 5
Literature Review 8
Competency versussanity 9
Raisingthe question 10
The roleof mentalillness 11
Conducting theCST evaluation 12
Psychological testsand competencyevaluations 14
The written report 14
Restoration oftrial competency 15
Forensic Psychologyand PolicyImplications 16
Suggestions for Future Research 17
Psychological Tests and Forensic Assessment Instruments in the Courtroom 17
Introduction 17
Literature Review 18
Psychological testsand competencyevaluations 21
Sanity evaluations 23
Forensic Psychologyand PolicyImplications 24
Suggestions for Future Research 25
Mental State at the Time of the Offense: Not Guilty by Reason of Insanity and Guilty
But Mentally Ill Verdicts 25
Introduction 25
Literature Review 27
The purposeofthe insanity defense 27
The historical basisof theinsanity defense 29
Forensic Psychologyand PolicyImplications 30
Suggestions for Future Research 33
Violence Risk Assessment 33
Introduction 33
Literature Review 35
Forensic Psychologyand PolicyImplications 40
Suggestions for Future Research 42
Competency Restoration and Sanity Acquittees: The Maximum-Security Forensic Hospital 43
Introduction 43
IntroductiontoForensicPsychology.DOI:10.1016/B978-0-12-382169-0.00001-3
Copyright(cid:1)2012ElsevierInc.Allrightsreserved. 3
4 Chapter 1
Literature Review 44
Forensic Psychologyand Policy Implications 50
Suggestions forFuture Research 52
Overview
The role of psychology in the legal system is both diverse and expansive. In addition, new
and/oremergingapplicationareasarebeingdiscoveredallthetime.Theadultforensicfield
isonedomainwherethisparticularfocusisappreciable,particularlyintherealmofforensic
evaluation. The adult forensic arena encompasses all facets of criminal adjudication, from
thepretrialstagetothepost-convictionphase,wherepsychology’sroleinthecourtprocess
is evident, necessary, and, ultimately, impactful. Psychologists are frequently called upon
to answer difficult questions at the intersection of law and psychology. Answering
psycholegal questions requires specialized training encompassing both psychological and
legal principles.
Inthischapter,fiveareasofforensicevaluationorpracticeareexplored.Thesetopicsinclude
(1)competencytostandtrial;(2)psychologicaltestsandforensicevaluationinstruments;(3)
mentalstateatthetimeoftheoffense(NGRI&GBMI);(4)violenceriskassessment;and(5)
competency restoration and insanity acquittees in maximum security forensic hospitals.
These areas of practice demonstrate some of the most common and challenging specialized
roles that exist for forensic psychologists in the court system.
Inorderforapersontobeprosecuted,theindividualmustbecompetenttostandtrial.Whatis
thelegalstandardforcompetencytostandtrial?Whatroledoespsychologyplayinfurthering
our understanding of competency? How does the “psycholegal” standard relate to one’s
capacity to stand trial? How do symptoms of mental illness or other impairments impact
relevant legal functional capacities? What role does psychiatric diagnosis play in
adeterminationofcompetencytostandtrial?Doforensictestsprovideaccurateinformation
about the personality, intelligence, ability, and psychopathology of an offender? Are such
instruments and their findings legally admissible? What is the reliability and validity of
testimony based on forensic assessments in the courtroom? Mentally ill defendants can be
found guilty or not guilty. In addition, however, they can be found Not Guilty by Reason of
Insanity (NGRI) or Guilty But Mentally Ill (GBMI). How does the legal system understand
insanityandmentalillness?Whatarethevarioustestsorstandardsthecourtusesforinsanity?
How do NGRI and GBMI verdicts differ?
One type of forensic evaluation is violence risk assessment. In short, the question posed is
whether the defendant presents a risk for future violent behavior. How accurately do risk-
assessment instruments predict future dangerousness? Do evaluations tend to be over- or
underinclusiveandwhataretheimplicationsfordefendants?Whatistheconstitutionalityof
using riskevaluationsin acriminal case? What happensto amentally ill defendantwho has
Adult Forensic Evaluation 5
beenadjudicatedincompetenttostandtrialoronewhohasbeenfoundNGRI?Whattypeof
settingaccommodatestheiruniquetreatmentneeds?Howdoesamaximum-securityforensic
hospital differ from a general clinical facility? What is the role of the forensic psychologist
working in this setting? What ethical dilemmas arise with the provision of psychological
services and forensic evaluation services in a secure hospital setting?
Thefivetopicsexaminedinthischapter,thoughlimitedinscope,nonethelessexploreseveral
criticalareasofforensicpsychologypracticethatdramaticallyrevealtheinterplayoflawand
psychologyintheadultforensicarena.Astheindividualsectionsofthischapterexplain,the
policyimplicationsforthiscontinuedtrendnecessitatethatcarefullytrainedspecialistswho
understand the mechanics of law, the science of psychology, and the complexities of human
behavior be called upon to assist the legal system. In part, as is suggested in the pages that
follow,moreandbetterresearchisthereforeessentialtoaccomplishingthisend.Indeed,this
levelof training will readythewayfor futuregenerationsofforensic specialistsso thatthey
can confront the challenges that await them in the adult forensic field.
Competency to Stand Trial
Introduction
Questionsofcompetencyinthelegalsystemcanberaisedatanypointthroughoutthe
proceedingsofthecriminalprocess.Suchquestionsmayberaisedbytheprosecution,the
defense,orthejudge.Themostfrequentapplicationofthecompetencyruleinvolves
adjudicativecompetency.Inaddition,anumberofothercompetencyissuesmayberaised
includingcompetencytopleadguilty,competencytoconfess,competencytowaivetherightto
anattorney,competencytotestify,andcompetencytobesentencedandexecuted.Psychologists
answeringpsycholegalquestionsforthecourtsorthoseconcerningpsychologyandthelegal
systemhaveanobligationtobewellversedinmentalhealthlawandtherelevantliterature.
The idea of competency to stand trial (CST) or competency to proceed has a long history,
beginning in English common law. This allowed for an arraignment, trial, judgment, or
executionofanallegedcapitaloffendertobestayedifheorshe“be(came)absolutelymad”
(Hale, 1736, cited in Silten & Tullis, 1977, p. 1053). Mossman, Noffsinger, Ash, Frierson,
Gerbasi, et al. (2007, p. S4), define competency to stand trial as “the legally determined
capacityofacriminaldefendanttoproceedwithcriminaladjudication.Jurisdictionalstatutes
andcaselawsetoutthecriteriaforcompetencetostandtrial.”Itshouldalsobenotedthatthe
terms “adjudicative competency” can be used interchangeably with CST. The precise
meaning of competency assumes different forms, however, depending on the context for
which it is addressed. In general, there is longstanding agreement that an individual should
not be subjected to the processes of the legal system if he or she is unable to understand the
nature and purpose of those proceedings and be able to participate meaningfully in their
defense (Shipley, 2013). Further, it is important for defendants to be competent in order to
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ensureaccurateresults,maintainthedignityofthelegalsystem,andjustifytheimpositionof
punishment (Weiss, 1997; Shipley, in press).
The laws addressing a defendant’s competency to proceed to trial are to protect the due
processrightsofthatindividual(e.g.,righttoafairandspeedytrial;righttoconfrontone’s
accusers). Our criminal justice system affords us the opportunity to be physically and
mentallypresenttofaceourchargesandaccusersinacourtoflaw.Theadversarialnatureof
thissystemmakesputtinganincompetentdefendantontrialcomparabletoafight“inwhich
thedefendant,likeasmallboybeingbeatenbyabully,isunabletododgeorreturntheblows”
(Frith’s Case, 1790, as cited in Golding, 2008, p. 76).
ThissectionisintendedtobeanintroductiontoCSTandwillprovideabriefoverviewofthe
historicalcontext,relevantcaselaw,keyelementsoftheCSTinterview,sourcesofevidence,
opinionformulation,andwrittenreport.Therearemanyuniqueandimportantareasrelatedto
CST that are either described briefly or that will be beyond the scope of this chapter (e.g.,
juvenile fitness to proceed, intellectually disabled defendants). For further analysis of
competency to be sentenced and executed, refer to the section entitled “Incarcerating and
Executing the Mentally Ill”. The implications for forensic psychology, policy analysis and
practice are also briefly discussed. High profile cases such as Ted Kaczynski (the
Unabomber), Colin Ferguson (Long Island Railroad Massacre), and most recently Brian
David Mitchell have created significant debate regarding issues related to CST.
Brian David Mitchell was alleged to have kidnapped Elizabeth Smart from her bed in 2002
and his casewas in legal limbo for a number of years due to the conflicting expert opinions
abouthisCST.Thiscasewillbeusedtodemonstratemanyofthecoreissuesofadjudicative
competency. The information in the case vignette is summarized from a number of public
recordssources,particularlyJudgeAthertonandJudgeKimball’sdecisionsregardingCSTin
districtandfederalcourtrespectively,whichincludedaspectsofthecompetencyevaluations
completed by the various experts (Shipley, 2013).
Brian David Mitchell
In2002,BrianDavidMitchell(now56)kidnappedElizabethSmartatage14byknifepointfrom
herSaltLakeCityhome.Mitchell,adrifterandself-describedprophet,whocalledhimself
Emmanuel,haddonesomehandymanworkattheSmarts’home.InMarchof2003,nine
monthslater,BrianDavidMitchellandhisnow-estrangedwifeWandaBarzeewerearrestedafter
theywerespottedwalkingonasuburbanstreetwithElizabethSmart.Attheageof21,Elizabeth
SmarttestifiedinMitchell’scompetencyhearinginOctoberof2010,andindicatedthatshehad
beenheldcaptiveinUtahandCaliforniaafterherabduction.Shortlyafterbeingkidnapped,
Mitchelltookhertoawoodedareabehindherhomeandperformedamockmarriageceremony
withher,thenrapedher.Shesaidthatduringtheninemonthsofhercaptivity,no24-hour
periodpassedwithoutherbeingrapedbyMitchell.Afterhisarrest,hewasreferredforaCST
evaluationforbizarrebeliefsandhisunwillingnesstodiscussissueswithhisdefensecounsel.
Adult Forensic Evaluation 7
MitchellclaimedtoreceiverevelationsfromGodthathefeltcompelledtoactupon.However,at
hislatercompetencyhearingsandtrial,witnesses,particularlyElizabethSmartandWanda
Barzee,aswellasotherlaywitnesses,testifiedthatMitchell’sactionsweremanipulativeandhis
allegedrevelationsoccurredwhenheneededthemtojustifyhisactionsforself-gratification.
Therewassignificantdebateregardingthepresenceandextentofdelusionspotentiallyaffecting
hisCST.
MitchellwasfoundincompetenttostandtrialbySaltLakeCityDistrictJudgeJudyAthertonon
26July2005. Mitchell wascommitted toa forensichospital inSaltLakeCity. Later,Judge
Athertondenied a requestto involuntarily medicate Mitchell.On 18December2006, hewas
again found incompetent to standtrial. Mitchell wasindictedin federal court in2008 on
chargesofkidnappingandunlawfultransportationofaminoracrossstatelines.Newtestimony
was included inthe federal competency hearing to include expert witness testimony, primarily
Dr.Michael Welner, a forensic psychiatrist,as well asnumerous laywitnesses, includingEliz-
abeth Smart and individuals who cared for Mitchell inthe Utah state hospital. The issue of
having laypersons,includingthe alleged victim,testifyata competency hearing washotly
contested.ThefederalcompetencyhearingbeganonOctober2009,withElizabethSmartgiving
early testimony, and continued throughout November and December 2009.
In 2008, Dr.Richart DeMier, a court-appointed forensicpsychologist fromtheU.S. Medical
Centerfor Federal Prisoners inSpringfield, Missouri,diagnosed Mitchell with schizophrenia,
paranoidtype.HesaidhebelievedMitchellhadafactualunderstandingofthelegalproceedings
butdidnothavearational understandingandopined thathewasincompetenttostandtrial.
Dr.DeMierindicated that Mitchell was not capable ofmaking rational decisions about his
criminaldefenseduetoreligiousdelusionssuchasthebeliefthatheisgoingtobemiraculously
deliveredfromprison byGod intwo years’ time.
Dr.Michael Welner, a forensic psychiatrist,indicated that Mitchell was not psychoticor delu-
sional.Hereportedthatbeliefsthatwerebeinginterpretedasdelusionalwerenotbizarrewithin
thesubcultureoftheLatterDaySaints’movementsorMormonism.Hisconclusionsfocusedon
Mitchell’stwistingofreligiousbeliefstomanipulateothers.AcriticismofDr.Welner’sfindings
include interpretingall ofMitchell’s thoughtsand behaviorsas a result ofan extremely malig-
nant and often prejudicial combination of personalitycharacteristics (i.e., antisocial,narcis-
sistic,psychopathic, andsadistic).
On1March2010,afederaljudgeruledthatBrianDavidMitchellwascompetenttostandtrial,
making it possiblefor him tomove forward with facing charges almosteight yearsafter
kidnapping Elizabeth Smart.U.S. District Judge Dale Kimball wrote ina 149-page ruling that
BrianDavidMitchell“doesnotpresentlysufferfromamentaldiseaseordefectthatimpedeshis
rationalandfactualunderstanding”oftheproceedingsagainsthim.Therulingcameaftera10-
daycompetency hearing held for Mitchell in2009, where expertswho testified splitin their
opinionsabout Mitchell’scompetency.
In November2010,Wanda Barzee pleadedguiltyin federal court to kidnappingand unlawful
transportationofa minor for herpartofElizabeth Smart’s abduction.Brian David Mitchell’s
criminaltrialonfederalkidnappingchargesbeganon8November,2010,andafteronlyafive-
hourdeliberation,thejuryrejectedtheinsanitypleaandreturnedguiltyverdictsonbothcounts
on10 December2010.
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Literature Review
Toallowcriminalcourthearingsoratrialtoproceedwhilethedefendantispsychologically
incapacitated would prevent that individual from making decisions affecting their liberty.
Melton, Petrila, Poythress, and Slobogin (2007) estimated that there are around 60,000
competencycasesannuallywith20%to30%ofthosecasesresultinginthedefendantbeing
found incompetent to stand trial. Grisso (2003) reports that attorneys have doubts about
their clients’ competence in approximately 10% to 15% of their criminal cases but raise the
issue in only half of those cases. The increasing number of felony arrests results in rising
numbers of competency referrals. Thus, the sheer number of individuals facing competency
evaluations leaves CSTas one of the most significant issues confronted in the fields of law
and criminal or forensic psychology. Rogers and Johanson-Love (2009) describe the
assessment of CST as “the most common pretrial focal point” in forensic psychology or
psychiatry (p. 452).
The legal definition of CSTwas put forth by the Supreme Court in Dusky v. United States
(1960). The Dusky standard requires the individual to have (1) “sufficient present ability to
consultwithalawyerwithareasonabledegreeofrationalunderstanding”and(2)“rationalas
well as factual understanding” of the general proceedings (Dusky v. United States, 1960,
p. 402). However, the Dusky court was silent about what conditions may make a person
incompetent to stand trial (Dusky, 1960). The Dusky court’s attention was on defendant’s
“ability,”not“willingness.”TheambiguityofDuskyleavestheverydefinitionandevaluation
of CSTin manyjurisdictions vague and opento interpretation.Some legislatures and courts
have attempted to develop guidelines for evaluators, but ample opportunities for variance
remain.
Adult Forensic Evaluation 9
Though competency standards vary somewhat from state to state, nearly every state has
adopted some variation of Dusky (Grisso, 2003). Some courts and legislatures (e.g., Texas)
have provided direction to evaluators but there is no uniform way to interpret Dusky
(Roesch, Zapf, & Golding, 1999). In Texas, defendants are presumed competent and are
foundcompetentunlessprovedincompetentbyapreponderanceoftheevidence.Thepurpose
ofraisingtheissueistoprotectthedueprocessrightsofthedefendantinquestion.Heorshe
should be capable of being a rational, independent, decision maker and participant in the
preparation and execution of their defense.
Clinicians who undertake forensic evaluations without the appropriate training for the
specific psycholegal questions they are tasked to answer are working beyond the scope of
their competence and could be misleading the trier of fact. The evaluation of adjudicative
competency involves examining both mental status and psycholegal abilities. In the past 20
years,advancesintheunderstandingofcompetencyandthetrainingofevaluatorshavebeen
made,butnoteverystaterequiresspecializedforensictrainingforevaluators(Roesch,Zapf,
& Golding, 1999; Mossman et al., 2007).
ForensicexpertsarefrequentlycalledupontoassessforCSTandtoaddressthestandardsset
forth in Dusky v. United States (Rogers, Grandjean, Tillbrook, Vitacco, & Sewell, 2001). In
U.S. v. Timmins (9th Circuit, 2002), the court ruled that when offering an opinion about
a defendant’s competence to stand trial, evaluators must be careful to closely scrutinize the
independentdecision-makingabilitiesofthedefendant.Thecasedemonstratedthenecessity
ofutilizingamentalhealthexperttoassistinacompetencydeterminationinpartbecause“a
lawyerisnotatrainedmentalhealthprofessionalcapableofaccuratelyassessingtheeffects
of paranoid delusions on the client’s mental process” (Osinowo & Pinals, 2003, p. 261). On
the other hand, Melton et al. (2007) discuss the perils of courts relinquishing their role in
making the ultimate decision on competency issues to experts. Specifically, they state,
“Presumably,conclusoryrelianceondiagnosisorunsubstantiatedopinionwillexacerbatethe
tendency on the part of the courts and lawyers to avoid investigating the competency issue;
this abdication in turn will ill serve defendants, who deserve a legal, not a clinical
determination of competency (p. 136).”
Competency versus sanity
Competency to stand trial must be differentiated from the standard of insanity. Competency
refersonlytoadefendant’spresentabilitytofunction.Forexample,anindividualmayhave
beenlegallyinsaneatthetimeheorshecommittedacrime,butperfectlycompetenttostand
trial andbe sentenced.Likewise,an individual whowaslegally saneduringthecommission
of a crime may not be competent several months later when he or she faces criminal trial.
Thus,insanityandadjudicativecompetenceareentirelydifferentlegalconstructsand,though
often confused, must be considered as such. A competency evaluation centers on a patient’s
10 Chapter 1
currentmentalstateandabilitiesand,asaresult,typicallydoesnotrequireasmuchcollateral
information as a sanity evaluation, which is retrospective (Mossman et al., 2007). A sanity
evaluation requires the evaluator to do their best to recreate or determine from a variety of
sources the defendant’s state of mind at the time of the crime.
Someonewhoisfoundincompetenttostandtrialhasnotbeentried,convicted,orsentenced
for any wrongdoing, and the court must determine the defendant’s competence before
proceeding with any elements of this process. He or she is simply treated in an effort to
restore his or her ability (if possible) to understand the charges, proceedings, and ability to
assist his or her counsel in the trial. Grisso (2003, pp.74e75) identifiesfive main stages for
determining and disposing of adjudicative competence cases to include: (1) Requesting
a competence determination (often called “raising the question”); (2) The competence
evaluation stage; (3) The judicial determination of competence or incompetence; and in
some cases (4) Disposition and provision of treatment, and (5) Rehearings on competence.
If it appears that the defendant’s incompetence is amenable to treatment, admission to
a forensic treatment facility for restoration of trial competency is the most common
disposition (Grisso, 2003). Follow-up competency evaluations by appropriately trained
mental health professionals at the admitting facility will be required periodically to
ascertain whether or not the defendant has improved amply to merit a return to court for
another competency hearing.
Authors recommend that sanity and competency be conducted separately and that sanity
evaluations are not conducted on incompetent defendants (Roesch, Zapf, & Golding, 1999;
Melton et al., 2007; Mossman et al., 2007). Some state laws prohibit performing a sanity
evaluation on a defendant who has been evaluated and recommended to be incompetent to
stand trial; for example, the Texas Code of Criminal Procedure Article 46B.025 addressing
competency evaluationsstates: “(c) An expert’s report may not state the expert’s opinionon
the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the
defendant is incompetent to proceed.” If a defendant is thought to be incompetent or
incapable of rationally participating in their defense or legal proceedings, moving forward
withanevaluationthatcouldlikelyimpacttheultimatedispositionoftheircaseisattheleast
ill advised.
Raising the question
Raising the issue of competency to proceed to trial creates an opportunity for a delay in the
process (Roesch, Zapf, & Golding, 1999). In Pate v. Robinson (1966, p. 385), the United
States Supreme Court ruled that a suitable hearing on CST must be held whenever there is
a“bonafidedoubt”aboutadefendant’scompetency.Thisisalowthresholdandsuggeststhat
inordertoprotectalldefendants’rightstoafairtrial,manycompetentdefendantsmayhave
to gothroughan evaluationto prevent theprosecutionof adefendantwho isincompetentto
Adult Forensic Evaluation 11
standtrial(Mossmanetal.,2007).WhenissuesareraisedbyanypartyregardingCST,almost
invariably the motions are granted by the courts, primarily to avoid a due process violation.
The role of mental illness
The concept of CST concerns not only the presence of mental illness, but also centrally the
individual’sabilitytofunctionasadefendantinlightoftheeffectsofhisorhermentalillness.
A psychiatric diagnosis does not equal incompetence, which is a legal construct. Slovenko
(2002,p.421)cautionsthatpsychiatricdiagnosismay“playaroleinthelegalprocessbutitis
not always a sine qua non in the resolution of a legal matter.” The primary concern, then, is
whetherthementallyilldefendantiscapableoffulfillinghisorherroleasadefendantandto
what extent their legal functional capacities are impaired. The knowledge and ability to do
those things required by the court before and during the trial process are of primary
importance (Grisso 2003; Melton et al., 2007; Wolber, 2008).
Forexample,adiagnosisorsymptomsofpsychosisdonotnecessarilymeanthatadefendant
isincompetent.Itwouldbecriticaltoascertainthenatureofthesymptomsandiftheywould
impact the individual’s capacities such as being able to rationally understand their charges,
work with their attorney, or prepare a defense. Do symptoms of psychosis (e.g., auditory
hallucinations,delusions) interminglewith issuesrelated to their case andthe courtsystem?
For example, if a defendant experiences delusions that include the belief that his attorney is
part of a government conspiracy to incarcerate him in order to steal all of his inventions,
property, and money, he is unlikely to be able to rationally work with that attorney in
preparingadefense(Shipley,2013).Theevaluatormustconsiderifinappropriatebehavioris
volitional or driven by mental illness. The specific demands and circumstances of each
individualcasemustbeconsideredbytheevaluatorwhenformulatingtheiropiniononCST.
Similarly intellectual and developmental disabilities do not necessarily mean that person is
incompetenttostandtrial.Duskydoesnotrequirethatamentaldisorderbepresentinorderto
findadefendantincompetent,butsomestatelegislatureshavedoneso.Texasstatuteindicates
the evaluator must consider “whether the defendant has a diagnosable mental illness or is
apersonwithmentalretardation”and“theimpactofthementalillnessormentalretardation,
if existent, on the defendant’s capacity to engage with counsel in a reasonable and rational
manner (Art. 46B.024).” Godinez v. Moran (1993) established that the States may adopt
criteria for competence that are more structured than Dusky. It also interpreted Dusky as
requiringadefendanttohavedecision-makingcapacitiesrelatedtoCST(e.g.,whetherornot
to testify, what type of defense to put forward, etc.). This certainly impacts the types of
questions forensic evaluators need to ask to form an opinion regarding CST.
ExamplesofhowthethreeprongsofDuskyareexaminedinclude:(1)FactualUnderstanding
eConditionssuchasbraindamage,dementia,intellectualdisabilities,severedepression,and
thoughtdisordersarethemostlikelytopotentiallyimpactthisarea(Mossmanetal.,2007).
12 Chapter 1
Askingfollowupquestionsisimportanttoensurethatadefendantisnotjustparrotinganswers
withoutaconceptualunderstanding.(2)RationalUnderstandingeTheevaluatorhasto
determinewhethersymptomsimpactthereality-basedunderstandingoftheirlegalsituation,
perceptionsanddecisionsregardingit,aswellastheirlogicalparticipationinthatprocess(e.g.,
adelusionthatoneismarriedtosomeonefamousmaynotimpacttheirrationalcompetence;
whereas,adelusionthatoneisthePresidentoftheUnitedStatesandbelieveshecanissuehis
ownpardonandnotfacetrialwould).(3)AbilitytoAssistCounseleAddressesthe
defendant’sabilityversuswillingnesstoassisttheircounselortheaverageattorney.Achoice
tonotparticipatedoesnotrenderoneincompetent.Thedefendantneedstobecapableof
providingrationalinformationtotheattorneyregardingdefensestrategy,cross-examining
witnesses,consideringtheattorney’sadvice,consideringpleaoptionsinconsultationwith
theirattorney,andthelike.RogersandShuman(2005,p.154)notethatanumberofdefendants
“makepoor,emotionallybaseddecisionsthatdonotaccuratelycapturethepotentialrisksand
benefits,”buttheirfacultiesarenotcompromisedbymentaldisorders.
InDropev.Missouri(1975,p.171),theSupremeCourtenhancedthecapacitytoconsultwith
one’s attorney requirement in Dusky, stating that a defendant must be able to “assist in
preparing his defense.” Moreover, this case indicated that “a trial must always be alert to
circumstances suggesting a change that would render the accused unable to meet the
standards of competency to stand trial.” In the U.S., the Sixth Amendment established
a defendant’s right to be represented by attorneys. However, U.S. law does not require
criminaldefendantstouselawyersincriminalproceedings(Mossmanetal.,2007).InFaretta
v.California(1975),theSupremeCourtheldthattherighttoself-representationisimplicitin
the structure of the Sixth Amendment. A knowing and intelligent decision to represent
oneself is required and the defendant must be competent to waive the right to counsel.
However,legalknowledgeisnotessentialandthoseproceedingprosearecommonlyreferred
to as having “a fool for a client.” A number of courts have held that active mental illness
should not, alone, prevent someone from proceeding pro se. Nonetheless, courts have
aresponsibilitytopreservetheintegrityofjudicialprocess.InIndianav.Edwards,554U.S.
164(2008),theSupremeCourtoftheUnitedStatesruledthatthestandardforcompetencyto
standtrialwasnotconnectedtothestandardforcompetencytorepresentoneself.TheCourt
heldthatacriminaldefendantwhoiscompetenttostandtrialmayalsobefoundincompetent
to represent himself during the same trial.
Conducting the CST evaluation
Statutesorcaselawprovidethatinformationgleanedduringacompetencyevaluationcannot
beusedintheguilt/innocencephaseofacriminaltrialunlessadefendantplacestheirmental
state into evidence either at trial (e.g., sanity defense) or sentencing (Estelle v. Smith, 1981;
Golding & Roesch, 1988; Mossman et al., 2007). Whether a court can convict a defendant