Presentation on theme: "A LEGAL PROFESSIONALS GUIDE TO EVALUATING COMPETENCY TO PROCEED AND LIKELIHOOD OF SUCCESSFUL ATTAINMENT WITH JUVENILES IVAN KRUH, PH.D. FORENSIC & CLINICAL."— Presentation transcript:
A LEGAL PROFESSIONALS GUIDE TO EVALUATING COMPETENCY TO PROCEED AND LIKELIHOOD OF SUCCESSFUL ATTAINMENT WITH JUVENILES IVAN KRUH, PH.D. FORENSIC & CLINICAL PSYCHOLOGY – OSSINING, NY Juvenile Competency Training Conference October 18, 2013
Oxford University Press Series Thomas Grisso, PhD
Competency to Proceed
Competency to Stand Trial Criminal defendants must be able to meaningfully participate in the case against them. Yield defense decisions reflecting defendants wishes Promote accurate and just adjudications Retain the integrity and dignity of the court process Protects: The defendant being tried The states 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 Proceed As 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 Proceed Factual 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 Proceed Rational 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 ones actual case-related situations
Competency to Proceed Assisting 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 counsels 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 Proceed Legal 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 (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 minors 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.
Competency to Proceed & Juveniles
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 – 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)
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 examinees 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 respondents 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 courts 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. AgainstFor Answering is the domain of the judge because the answer is a legal, social, moral matter – not clinical The court is aware any opinion is only advisory. Some laws forbid these opinionsMany laws allow and many judges demand these opinions Current science is not precise enough to answer these questions Science has advanced so that reasonable answers can be given
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 (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 21 st Century Training Curricula Multi-Modal and Active-Learning Techniques Systematic and Explicit Instruction Focus on Development of Specific Skills Abstraction ~ Communication ~ Social Skills
Clinical Literature Juvenile 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 Literature Juvenile 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 Literature Juvenile 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 Literature Juvenile Competency Remediation ~ 70% Returned to Court Competent Success may depend on: Source of deficits: Mental Illness85-90% Intellectual Disability 50-55% Both50-65% Age: Younger Adolescents 60-75% Middle Adolescents75-80% Older Adolescents65-70% 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 dont know may not be a cop out. Legal determination Evaluator opinion Substantial Likelihood vs. Probability of Success
Appropriate Attainment Setting Detention Only if youths 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
Basic Contents of a Good Report and Questions to Ask to Assess This Includes identifying and referral information States legal questions to be addressed Did the examiner correctly understand the relevant law? Did the examiner correctly translate these to psychological issues? Identifies sources relied upon Did the examiner fail to consider any relevant data? Contains Valid and Reliable Facts Did the examiner adequately corroborate the data? Did the examiner employ appropriate and valid techniques, tests, and instruments to obtain the data?
Basic Contents of a Good Report and Questions to Ask to Assess This Describes the capacities relevant to the Competency to Proceed Did the examiner describe psychological capacities relevant to Competency to Proceed? Creates a connection between these capacities and Competency to Proceed Did the examiner offer a logical connection between the psychological capacities and opinions about Competency to Proceed?
Basic Contents of a Good Report and Questions to Ask to Assess This Offers concluding opinions Did the examiner offer an Ultimate Issue opinion? If so, is the underlying rationale for this opinion made evident? Is it consistent with the facts? Did the examiner avoid an Ultimate Issue opinion? If so, is the underlying rationale for forming an opinion made evident? Is it consistent with the facts? Offers limits of the opinions Did the examiner explain his/her uncertainties about the concluding opinions? Did the examiner offer alternative explanations for the findings and the reasons they were rejected?
Legal Ambiguity Are the same degree of competency abilities required in juvenile court as in criminal court? The Competent Adult standard The Competent Adolescent standard The Fundamental Understanding & Communication standard The Age-Peer standard The Flexible Bar standard
Should There Be A Lower Bar or Flexible Bar In Juvenile Court? Yes: Juvenile dispositions less severe than criminal court Juvenile dispositions include rehabilitative services Juvenile Justice Systems still promote rehabilitative ideals No: Severity of dispositions is a relative term Juvenile Court should not substitute for an adequate social welfare/mental health system Criminal court bar is already very low
Relevant Research Judges, attorneys, and clinicians appear to use a Flexible Bar approach (Jones, 2004) Given vignettes varying functioning and charges More likely found incompetent with more serious charges The type of bar impacts % of youth found incompetent (Viljoen, Zapf, & Roesch, 2007) Administered competency screening instrument to youth (% Incmptnt)14-15 (% Incmptnt)16-17 (% Incmptnt) Adult- Norm88%73%45% Adolescent-Norm20%6%2% Basic Und. & Cmnctn.80%59%33%
Legal Ambiguity Should the predicate requirement include a broader array of mental disorders in juvenile court than criminal court? Anxiety and Mood disorders Less Severe Cognitive Impairment Developmental Disorders Soft Neuropsychological Deficits
Childhood Disorders and Competence Studies have shown that other disorders may predict poor competency functioning in juveniles (Baerger et al., 2003; Ficke et al., 2005; Kruh et al., 2006; McGaha et al., 2001; Redlich et al., 2003; Viljoen & Roesch, 2005; Viljoen et al., 2005; Warren et al., 2003) Substance Abuse Disorders Learning Disorders Behavior Disorders Attention-Deficit/Hyperactivity Disorder Borderline Intellectual Functioning Some clinical disorders with obvious links not yet studied Pervasive Developmental Disorders Communication Disorders
Legal Ambiguity Should developmental immaturity be considered in juvenile competency determinations? Younger children at higher risk to be not competent (Grisso, 1997) : Knowing, learning, and applying legal information Appreciating attorneys are advocates, even if guilty Communicating in the face of authority pressures Taking the perspective of others as to adequately explain Reasoning and decision-making about legal issues Research supports age-based deficits
The MacArthur Study: (Grisso, Steinberg, Woolard, Cauffman, Scott, Lexcen, Reppucci, & Schwartz, 2003) Compared 927 adolescents and 446 adults on: MacArthur Competence Assessment Tool – Criminal Adjudication (MacCAT-CA) MacArthur Judgment Evaluation (MacJen) MacCAT: Youth 15 and younger performed more poorly Youth 15 and younger more likely to demonstrate level of impairment consistent with adults found incompetent 1/3 of all youth were significantly impaired 1/5 of all youth were significantly impaired MacJen: Youth 15 and under more likely to make decisions based on compliance with authority, focus on short-term consequences, and other more superficial reasons.
The MacArthur Study Overall Impairment in COMPETENCE TO PROCEED (i.e., one or more scales)
Legal Responses Judges are more likely to find youth incompetent when they (Cox et al., 2012) : Are younger Have features of psychosocial immaturity Few states make clear if immaturity-based incompetency is legally recognized (ODonnell & Gross, 2012) : 6 states allow 17 states do not allow
Adolescent Development & Competence to Proceed
Adolescent Development: Basic Domains Physical Development Neurological Development Emotional Development Cognitive Development Psychosocial Development
Adolescent Development: Cognitive Development Verbal Fluency Information Processing Skills Knowledge Base/Experience Organization of Information Short- and Long-Term Memory Sustained Attentional Capacity Abstraction Skills Grasp the meaning of events Appreciate more complex concepts (e.g., a legal right) Apply learned information or past situations to new situations, Imagine consequences one has never encountered before (hypothetical situations) Reasoning and Problem Solving
Adolescent Development: Psychosocial Development (Scott-Reppucci-Woolard & Steinberg-Cauffman Models) Autonomy/Conformity & Compliance Perceptions and Attitudes about Risk Temperance Perspective Taking Interpersonal Temporal
Adolescent Development: General Features Development is idiosyncratic Development is domain-specific Development is non-linear Development is progressive Development is interactional
Adolescent Development The Term Immaturity Refers to incomplete or delayed development Incomplete Development: Immature compared to adults Delayed Development: Immature compared to age-peers Describes specific abilities or characteristics, not an overall condition of the youth Depends on actual functioning, not simply on age Can be expressed in degrees
Development & Psychopathology Diagnosis is different with youth Unique disorders Unique presentations of common disorders Diagnostic clarity is rarer Setting-specific problems Symptom overlap across disorders High comorbidity rates Interactions with normal development Developmental Psychopathology ( Dante Cicchetti) Symptoms = Exaggerations of normal development Symptoms interact with development in complex ways Psychopathology is dimensional
Development-Based Threats to Competence to Proceed Understanding Less exposure than adults Challenged by abstract concepts (e.g., rights) Appreciation Superficial understanding yields erroneous applications Demands beyond their own experience (e.g., role of defense) Assisting Counsel Information processing and organization weaknesses Social skill weaknessesAttentional weaknesses Legal Decision Making Psychosocial deficits yield poor decisions
The Role of Legal Professionals in Enhancing Juvenile Competency
What can legal professionals do? Obtain training Youth Development Unique Challenges of Juvenile Defendants Developmentally-sensitive Communication In attorney consultations: Provide instruction Create a trusting relationship in which the youth is comfortable asking questions or noting confusion Enhance client involvement in trial preparation Demonstrate loyalty to client Engage in role playing
What can legal professionals do? In the courtroom: Slow things down Use simplified language Present testimony and arguments in simplified ways Include procedural steps that can help a participant structure and track what is happening Assess youths understanding on ongoing basis Provide summaries of what is occurring Have youth paraphrase legal concepts and processes Allow more time for decision-making in court Time to re-explain options and consequences
What can legal professionals do? Resources: Buss, E. (1996). Youre my what? The problem of childrens misperceptions of their lawyers roles. Fordham Law Review, 64, Buss, E. (2000). The role of lawyers in promoting juveniles competence as defendants. In T. Grisso & R.G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp ). Chicago: University of Chicago Press. Walker, A.G. (1994). Handbook on questioning children: A lingusitic perspective. Washington, DC: American Bar Association.
Contact Information Ivan Kruh, PhD Forensic & Clinical Psychology P.O. Box 1754 Ossining, NY PH: (845)
Legal Ambiguity In what ways should interested adults play a role in the competency determination? Parents Are they always interested adults? Specialized Guardians ad litem Can provide emotional support, assist in communications with attorney, help ensure adequate legal representation. Cant offer legal advice or make legal decisions
Relevant Research Survey of parent/child dyads during adjudication (Woolard, 2006) Many misconceptions: Believe defense can talk openly with parents about case 50% of parents 35% of youth Believe parent makes final decisions about the case 75% of parents Most younger juveniles; fewer older juveniles Observations of adult support persons during police interrogations (Medford, Gudjonsson & Pearse, 2003) : Passively observe Are unsupportive (incriminate the youth; challenge their account)