A Legal Professionals Guide to evaluating competency to proceed and likelihood of successful attainment with juvenilesIvan Kruh, Ph.D.Forensic & Clinical Psychology – Ossining, NY Juvenile Competency Training ConferenceOctober 18, 2013
Oxford University Press Series • Thomas Grisso, PhD
Competency to Stand Trial • Criminal defendants must be able to meaningfully participate in the case against them. • Yield defense decisions reflecting defendant’s wishes • Promote accurate and just adjudications • Retain the integrity and dignity of the court process • Protects: • The defendant being tried • The state’s pursuit of fair and reliable adjudications • Traditional Threats: • Acute Psychosis or Mania • Cognitive Disability (especially Mental Retardation)
Competency to Stand Trial USSC • Dusky v. United States (1960): • …the test must be whether [the defendant] 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 • Godinez v. Moran (1993): • [All c]riminal defendants – not merely those who plead guilty – may be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial.
Competence to Proceed – Utah Law • Juvenile Court Act (Chapter 6) • 78A-6-105(30). Definitions. “Not competent to proceed” means that a minor, due to a mental disorder, intellectual disability, or related condition as defined, lacks the ability to (a) understand the nature of the proceedings against them or of the potential disposition for the offense charged; or (b) consult with counsel and participate in the proceedings against them with a reasonable degree of rational understanding.
Competency to ProceedAs a Forensic Concept • Four-factor general model summarizes most models • Factual Understanding • Basic, concrete knowledge of the legal process • Rational Appreciation • Accurate “beliefs” about what is understood about court • Assisting Counsel • Ability to participate with and meaningfully aid defense counsel in developing and presenting the defense • Legal Decision Making • Ability to consider legal alternatives and reach adequately contemplated legal choices
Competency to ProceedFactual Understanding • Basic, concrete knowledge of the legal process • Understands they are accused of a crime • Understands what the alleged crime is • Understands the court will decide guilt and innocence • Understands the trial could result in punishment • Understands what punishments are possible • Understands the various ways one may plead • Understands the roles of various participants at a trial • Understands the basic process of a trial
Competency to ProceedRational Appreciation • Accurate “beliefs” about what is factually understood about court • Is able to manipulate the information that is factually understood • Is able to contemplate the implications and significance of what is understood • Is able to rationally apply that knowledge in one’s actual case-related situations
Competency to ProceedAssisting Counsel • Ability to participate with and meaningfully aid the defense attorney in developing and presenting the defense • Is able to understand and adequately respond to counsel’s questions during pre-trial consultations in a manner that provides relevant information for mounting a defense • Is able to provide a coherent account of the facts of the alleged crime • Is able to identify potential sources of relevant evidence and witnesses • Is able to identify reasons for confronting opposing witnesses • Is able to manage the stresses and demands of trial process • Is able to follow and comprehend the testimony of other witnesses so to be able to alert counsel to any distortions of the facts • Is able to provide testimony with relevance, coherence, and independence of judgment.
Competency to ProceedLegal Decision-Making • Ability to consider process and weigh legal alternatives, and ability to reach and communicate adequately contemplated legal choices • Is able to rationally decide how to plead • Is able to rationally decide about going to trial • Is able to rationally decide about accepting a plea offer • Is able to rationally decide about testifying • Is able to rationally decide about calling certain witnesses • Is able to rationally decide about pursuing certain defenses
Competency to Proceed – Utah Law • Juvenile Court Act (Chapter 6) • 78A-6-1301(7). Juvenile Competency. In conducting the evaluation and in the report determining if a minor is competent to proceed as defined in Subsection 78A-6-105(30) the examiner shall consider the impact of a mental disorder, intellectual disability or related disorder on a minor’s capacity to: (a) comprehend and appreciate the charges or allegations; (b) disclose to counsel pertinent facts, events, or states of mind; (c) comprehend and appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the minor; (d) engage in reasoned choice of legal strategies and options; (e) understand the adversarial nature of the proceedings; (f) manifest appropriate courtroom behavior; and (g) testify relevantly, if applicable.
Competence to Proceed& Juveniles • During the era of “rehabilitative” juvenile justice, incompetence irrelevant • Reforms of the 1960s and 1970s • Kent v. US (1966) • In re Gault (1967) • In re Winship(1970) • McKeiver v. Pennsylvania (1971) • Breed v. Jones (1975) • Reforms of the 1980s and 1990s • Response to public outcry against juvenile violence. • Deterioration of rehabilitative ideal. • Deterioration of special protections. • Growth of retribution traditionally reserved for adult system. • In modern juvenile justice, respondents face more serious sanctions and are afforded due process rights • Competence becomes relevant
Differentiating Competent & Not Competent Youth Factors that differentiate across studies: • Age • Under 12 – Very High Risk • 13-15 – Elevated Risk • 15 and above – Similar to Adults • Intelligence • Mentally Retarded – Very High Risk • Borderline IQ – Elevated Risk • Low Average and Above – Similar to Adults • Academic Functioning • Special education placement and poor Achievement Test scores • Grades and Retention not related • Mental Health Problems • Findings less consistent
Differentiating Competent & Not Competent Youth Factors that do not differentiate: • Experience with Legal System • Race • Gender • Socioeconomic Status • Nature of Instant Charges • Court of Jurisdiction (Juvenile vs. Criminal)
Red Flags for Problems with Juvenile Competency • Youth seems: • Easily Confused • Detached and/or Indifferent • Severely Depressed • Hostile and/or aggressive • Inattentive and/or Distracted • Oppositional and/or Defiant • Immature and/or Infantile • Youth demonstrates: • Poor Memory • Difficulty communicating information • Difficulty understanding attorney • Disorganized speech • Peculiar statements • Responding to internal stimuli • Chaotic and/or bizarre behavior
Situational Red Flags for Problems with Juvenile Competency • Limited contact with &/or trust of attorney • Alleged fact pattern is complex • Evidence against the youth is unclear • Hearings are likely to be lengthy • Hearings are likely to involve many witnesses • Case likely to require use of a complex defense • Testimony by youth is likely to be necessary • Plea bargaining is likely
Evaluations of Competence to Proceed Conceptualizing the Process
Competency To Proceed Evaluation Model(Grisso, 2003) • The Functional Question • What competency-related deficits exist? • The Causal Question • What are the causes of the deficits? • The Contextual Question • How will the deficits impact this examinee in their case? • The Conclusory Question • Are the deficits adequately impairing to meet the legal test?(Is the examinee not competent?) • The Remedial (Attainment) Question • Can the deficits be remediated within the legal time-frame? How?
The Functional Question • What competence-related deficits exist? • Summary of abilities and deficits • Purely descriptive: • What the respondent actually knows, understands, believes, and can do • Identifies consistencies and inconsistencies
The Causal Question • What are the causes of the deficits? • Forming and testing hypotheses • Connection between identified deficits and examinee’s clinical/developmental problems • Potential causes of deficits include: • Clinical causes (i.e., symptoms of mental disorders) • Developmental causes (i.e., developmental delay or immaturity) • “Nonclinical” causes, (i.e., feigning/motivation, evaluation conditions, visual/auditory deficits that interfere with reception of information, lack of experience and acquired information) • Typically not considered a reason for a finding of incompetence
The Contextual Question • How will the deficits impact this examinee in their case? • Having a deficit does not equal being incompetent • Primary contextual factor: • Specific demands of the respondent’s case • Secondary contextual factor: • Caretaker influence
The Conclusory Question • Are the deficits adequately impairing to meet the legal test? (Is the examinee incompetent?) • Must begin with a presumption of competence • Are the deficits significant enough to warrant an incompetency finding?
The Remediation (Attainment) Question • Can the deficits be remedied within the legal time-frame? How? • Interventions to alleviate problems causing the deficits • Classic model = medication to reduce clinical symptoms • Unmedicated Psychotic Disorder • Unmedicated child with severe ADHD • Less useful with many disorders • Pervasive Developmental Disorders • Language Disorders • Most common intervention used with youth = EDUCATION
The “Ultimate Issue” Issue • Ultimate Issue = the court’s legal question • Is the youth competent to proceed? • Is there a substantial probability that the minor may attain competency in the foreseeable future? • Ultimate Issue Issue = unresolved debate about whether forensic clinicians should answer it.
Evaluations of Competence to Proceed The Evaluation Process
Overview of Data Collection • Target relevant domains • Historical/Developmental Context • Current Mental Status • Current Case-Related Functioning • Obtain reliable information by emphasizing: • manualized and structured checklists/interviews • corroboration for obtained data • psychological tests (when applicable and feasible) • multiple interviews (when applicable and feasible) • Use a flexible approach
Data Collection • Third-Party Information Sources (Records & Interviews) • Teachers & School Officials • Mental Health & Medical Providers • Social Service Representatives • Probation Officers & Detention Officials • Defense Attorney • Caregivers • Psychosocial History • Symptom Observations to inform diagnosis • Observations relevant to competence • Potential influence upon competence • Recommendations for data sources (Records & Interviews)
Data Collection • Interview of Youth • Clinical and Developmental Interview • Notification of Rights • Psychosocial History • Symptom History/Diagnostic Information • Current Mental Status • Competence Interview • Direct Observation of Relevant Functioning • Clinical and Developmental Interview • Functional Interview of Competence Abilities • Structured Interviewing • Case-Specific Interviewing
Data Collection • Structured Interview of Competency Abilities • Tools Designed for Adults • Some have been studied with juveniles: • Fitness Interview Test – Revised (FIT-R) • MacArthur Competency Assessment Tool – Criminal Adjudication (Mac-CAT-CA) • Some have been recommended for use with juveniles: • Competency Assessment Screening Tool for Mentally Retarded Defendants (CAST-MR) • Problems with using with juveniles: • Some content inapplicable to juvenile court • Not designed to address developmental impediments • Appreciation • Reasoning • Ability to Learn
Data Collection • Structured Interview of Competency Abilities • Juvenile Adjudicative Competence Interview (JACI) • Past Experiences with Court • Framing and Context • Nature and Purpose of the Trial • Understanding & Appreciation Items + Flexible Capacity Checks • Roles of Participants • Understanding & Appreciation Items + Flexible Capacity Checks • Assisting Counsel • Understanding & Appreciation Items + Flexible Capacity Checks • Reasoning and Decision Making • Reasoning Items • Participating at the Juvenile Court Hearing • Behavioral Observations
Data Collection • Psychological Testing (as relevant and needed) • Of Youth • Completed by Caregivers (or others) • Intellectual Functioning (esp. Abstraction Skills) • Memory & Learning Abilities • Attentional Abilities • Current Mental Health Problems / Symptoms • Developmental Functioning / Level • Response Style
Data Analysis & Forming Opinions • The Functional Question • What competence-related deficits exist? • The Causal Question • What is the cause(s) of the deficits? • The Contextual Question • How will the deficits impact this examinee in their case? • The Conclusory Question • Are the deficits adequately impairing to meet the legal test?(Is the examinee incompetent?) • The Remedial (Attainment) Question • Can the deficits be remediated within the legal time-frame? How?
Evaluations of Competency to Proceed Assessing Likelihood of Successful Attainment
Pursuing Attainment Requires Likelihood of Success • Jackson v. Indiana 406 U.S. 715 (1972): • “…a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial 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. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceedings that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.”
Competency to Proceed – Utah Law • Juvenile Court Act (Chapter 6) • 78A-6-1303(8). Disposition on finding of incompetency to proceed – Subsequent hearings – Notice to Prosecuting Attorneys If at any time during the attainment period the court finds that there is not a substantial probability that the minor will attain competency in the foreseeable future, the court shall terminate the competency proceeding, dismiss the delinquency charges without prejudice, and release the minor from any custody order related to the pending delinquency proceeding, unless the prosecutor informs the court that commitment proceedings pursuant to Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be initiated…
Types of Attainment Interventions • Pharmacological • The “Psychotic Adult” Model • Goal: Remission of symptoms causing deficits • Less Straightforward with Childhood Disorders • Psychotherapeutic • Less Common Model with Adults • Goal: Remission of symptoms causing deficits • May augment or replace pharmacology • There is a literature – should be consulted • However: Target in literature is not competence
Types of Attainment Interventions • Educational • The “Mentally Retarded” Adult Model • Goal: Teaching of skills to alleviate deficits • Widely Applicable with Youth • Types of Educational Curricula: • Traditional Training Curricula • Didactic Psychoeducation • Criticized for focus on memorization of facts • 21st Century Training Curricula • Multi-Modal and Active-Learning Techniques • Systematic and Explicit Instruction • Focus on Development of Specific Skills Abstraction ~ Communication ~ Social Skills
Clinical LiteratureJuvenile Competency Remediation • Certain sources of deficits decrease the likelihood of successful attainment: • Disorders That Are Less Responsive to Treatment • Intellectual Disabilities • Autism • Disorders That Require Long-Term Interventions • Posttraumatic Stress Disorder • Receptive & Expressive Language Disorder • Delayed Development • Young Age Grisso, 2005 Otto et al., 2006 Schouten, 2003
Clinical LiteratureJuvenile Competency Remediation • Certain types of deficits decrease the likelihood of successful attainment: • Factual Understanding deficits generally more remediable • Appreciation, Assisting, and Decision-Making deficits generally less remediable Grisso, 2005; 2013 Peterson-Badali & Abramovitch, 1993 Viljoen & Grisso, 2007 Viljoen & Roesch, 2007
Empirical LiteratureJuvenile Competency Remediation • Studies of time-frames • Very brief interventions are rarely successful Cooper, 1997 Viljoen, Odgers, Grisso, & Tillbrook, 2007 • Four-Month to Six-Month Period seems Essential: • Most youth ordered for attainment successfully attained by 6 months • If did not attain by 6 months, likelihood of success drops markedly McGaha et al., 2001 Warren et al., 2009
Empirical LiteratureJuvenile Competency Remediation • ~ 70% Returned to Court Competent • Success may depend on: • Source of deficits: • Mental Illness 85-90% • Intellectual Disability 50-55% • Both 50-65% • Age: • Younger Adolescents 60-75% • Middle Adolescents 75-80% • Older Adolescents 65-70% McGaha, Otto, McClaren & Petrila, 2001 Warren, DuVal, Komarovskaya, Chauhan, Buffington-Vollum & Ryan, 2009
Breaking Down the Remedial (Attainment) Question • What are the specific functional deficits? • Factual Understanding • Rational Appreciation • Assisting Counsel • Legal Decision Making • What are the sources of those deficits? • A treatable mental disorder • Weak cognitive skills (normal &/or pathological) • Weak psychosocial skills (normal &/or pathological) • What types of interventions are most likely to help each deficit? • Psychiatric Interventions • Psychotherapeutic interventions • Educational Interventions • How long is intervention expected to require for each deficit? • How did youth respond to training efforts during the evaluation? • How has youth responded to similar interventions in the past? • What does empirical and clinical literature suggest?
Attainment Opinions • Opinions based on clinical judgment • Legal professionals must know • Evaluators must remember • Opinions only as good as the reasoning/rationale • Multiple deficits may require multiple estimates • Prediction can quickly become complex • Evaluator opinions are best understood as reasonable, but limited, guidance • “I don’t know” may not be a cop out. • Legal determination Evaluator opinion • Substantial Likelihood vs. Probability of Success
Appropriate Attainment Setting • Detention • Only if youth’s risk to community or potential to abscond warrants it • Psychiatric Hospitalization • Only if treatment of clinical issue typically warrants it • Some Unique Scenarios • Vast Majority of Youth Treatable in Community
Services When Attainment Not Successful • Civil Commitment • Title 62A, Chapter 5, Services for People with Disabilities • Title 62A, Chapter 15, Substance Abuse and Mental Health Act • Child/Person/Family In Need of Supervision • A minor who is a habitual truant from school • Referral to Mental Health System
The “Development Dilemma” • What should be done with youth who need to “grow up” to become competent? • Courts torn on how to handle • Some courts allow dismissal of charges • Some with prejudice • Some without prejudice • Some courts continue for extended period, allow the youth to grow up, and revisit after • Unique complexity of these issues in Utah
Why Are The Experts Dueling? 1. Differences in Answers to Evaluation Questions. 2. Differences in Quality of Evaluation. 3. Different Interpretations of Legal Ambiguities