1. AMNESIA AND CRIMINAL COMPETENCIES: MAJOR ISSUES Aliyah R. Snyder Forensic Neuropsychology June 9, 2014

2. Competency and NP Competency vs. Capacity Ultimately, a question of “decision-making capacity” Capacity is an individual’s ability to make an informed decision “Competence refers to the degree of mental soundness necessary to make decisions about a specific issue or to carry out a specific act.” Legally-defined “competency” much different than general ideas about the ability to make a decision Competency is a legal construct, not medical Legal Competency decisions are very serious because they may result in loss of civil rights difficult to prove legal incompetence This may be NP’s most useful capacity in the forensic setting Resnick & Sorrentino, 2005; Moberg & Kniele, 2006

3. Legal Definitions of Competency For most state legislation: 1. disorder or disability 2. impairment in decision making or communication 3. functional impairment Possibly more useful definition: “Incompetence constitutes a status of the individual that is defined by functional deficits (due to mental illness, mental retardation or other mental conditions) judged to be sufficiently great that the person currently cannot meet the demands of a decision-making situation, weighed in light of its potential consequences.” Grisso & Applebaum (1998) modified by Moberg & Kniele (2006)

4. Criminal Competencies Competency to Consent to a Search or Seizure - Fourth Amendment (Mapp v. Ohio, Katz v. United States, Florida v. Rodriguez) Competency to Stand Trial - (Dusky v. United States) Competency to Waive Right to Competency - (United States v. Morin) Competency to Confess - (Brown v. Mississippi, Miranda v. Arizona. Colorado v. Connelly) Competency to Plead Guilty - (Seiling v. Eyman, Godinez v. Moran, Godinez, Warden v. Moran) Competency to Waive the Right to Counsel - (Godinez v. Moran, McKaskle v. Wiggins, Faretta v. California) Competency to Refuse an Insanity Defense - (Whalem v. United States, Frendak v. United States) Competency to Testify Legal Requirements for Testimonial Competence - Federal Rules of Evidence, Rule 601 Assessment of Witness Credibility - Federal Rules of Evidence, Rule 508 Competency to Be Sentenced and Executed - (Saddler v. United States) Competency at the Sentencing Proceedings (Chavez v. United States) Competency to Be Imprisoned or Executed - (Ford v. Wainwright, Penry v. Lynaugh, Panetti v. Quarterman ) Competency to Refuse Treatment - (Perry v. Louisiana) Melton, 1997

5. Assessment of Competency assessment of the following abilities decision-making cognitive components: attention, orientation, memory, general intellectual functioning, problem solving, and abstract reasoning. mood and ability to regulate emotions? determination of task demands consideration of the consequences of a decision appreciation for temporal shifts in competency Luckily, courts recognize competency as situation-specific driving and financial competency are two different questions Temporal shifts in capacity - permanent or impermanent condition?

6. The Amnesic Defendant Amnesia ≠ Incompetency General judicial distrust of amnesia claims for time of the incident For good reason: 23% of male forensic inpatients charged with serious crimes had claimed either partial or total amnesia for their crimes (Cima Nijman, & Merckelbach, 2004) Trends for those who claim: committed violent crime, concomitant psychiatric disorders, interpersonally close to the victim of the crime (Taylor & Kopelman, 1984) Most common reason for claim: alcohol/drug intoxication at time of crime Courts have taken several different approaches to considering amnesia in criminal competency Types of amnesia: Organic – TBI, stroke, epilepsy, dementia, alcohol or drug-related Functional – dissociation, fugue Melton, Ch. 6,1997; Smith & Resnick, 2007; Denney & Wynkoop, 2000

7. Dusky and Amnesia Dusky v. United States, 362 U.S. 402 (1960), United States Supreme Court case which affirmed a defendant's right to have a competency evaluation prior to trial. Basic core factors for determining competency were defined by this case. Applying Dusky to the amnesic defendant. Factors to consider: (1) whether the defendant has any ability to participate in his defense (2) whether the amnesia is temporary or permanent; (3) whether the crime and the defendant's whereabouts at the time of the crime can be reconstructed without the defendant's testimony; (4) whether access to government files would aid in preparing a defense; (5) the strength of the government's case. (US v. Andrews)

8. Cases Before 1968, competency was majorly limited by amnesia, but… Wilson v. United States (1968) Charged w/ assault and robbery, skull fractured in car accident while trying to escape (In a coma for 3 week) Initial hearing held to determine competency to stand trial Judge determined he was incompetent to stand trial due to organic amnesia and other mental abnormality, but a little over a year later, the hospital said there was no reason to keep him bc his memory could not be restored. Second hearing – competent to stand trial despite no memory of event. Wilson argued that his memory impairment interfered with his 5 th and 6 th amendment rights (fair trial and effective counsel) Amnesia not sufficient to render mentally ill because still capable of understanding court proceedings Judge recommended a “case-by-case” analysis for trying amnesic defendants was adopted to determine the extent to which the defendant had been prejudiced by memory loss

9. Wilson v. US Implications Indicia of prejudice Defendant’s exhibited ability to assist counsel Defendant’s ability to testify Defense’s success in reconstructing relevant events from extrinsic sources (including prosecutorial assistance) Extent to which government assisted the defense with reconstruction Strength of the prosecution’s case Is the government’s case strong enough to “negate all reasonable hypotheses of innocence” “Other relevant facts and circumstances” Harvard Law Review, 1968

10. Wilson v. US Implications Wilson v. US required the prosecution to assist the defense with its case more so than normally permitted, especially in pretrial discovery US v. Stubblefield expanded that and required prosecution to assist with constructing possible alibis or other defenses too. Other sources of prejudice and fall out: Greater impact by delay in proceedings for amnesic patients (Ross v. US) trying to reconstruct events Defense may be less inclined to prove any ability to reconstruct events if it may negatively impact their case lest the defendant be ruled to be competent on this basis Psychiatric eval and hospital reports are therefore much less important than in other incompetency cases.

11. Dissociative Amnesia Sudden onset and hazy/patchy memory for events at the time of the crime Usually occur in states of extreme emotional arousal and the increase of these types of claims increases with the severity of the violence Some argue that the distinction b/w organic and dissociative amnesia is arbitrary Example: Nurse assaulted and killed a patient who yelled at her for spilling the bedpan. Nurse had hx of previous amnestic episodes (and hx of childhood abuse)

12. Psychotic Amnesia Violence or crime occurs in the context of a psychotic episode for which there is no memory Legal Perspective: Psychosis, disordered thoughts or delusions may interfere with rational understanding of charges and other criminal competencies However, not sufficient for incompetency if able to participate in some or all of the legal process Automatism Defense Applies to both dissociative and psychotic amnesia Judged by whether the episode was voluntary or not Recognized in Canada, but also employed in the US to mitigate sentences Ex. Jodi Arias used this defense for stabbing her ex-boyfriend. Defense did not work.

13. Symptom Validity Testing (SVT) Useful for testing amnesia for past events Binomial theorem – two-alternative forced-choice procedures for a given ability (not just memory) If person is impaired, their performance will fall within a random range Binder, Frederick, et al. used this in criminal proceedings for a defendant claiming amnesia for a specific past event. Questions were developed (forced-choice style) around the event and his performance was significantly worse than random Concluded he was feigning amnesia. Judges have typically accepted this as a technique that meets Daubert criteria. Binder, 1990; Denney & Wynkoop, 2000; Frederick & Carter, 1993

14. United States vs. Batista Braulio Antonio Batista feigned mental illness to mitigate charges for selling crack cocaine in 2002 Initially pleaded guilty, then lawyer requested that he be evaluated for competency to stand trial. Evaluated 5 times in 2 years Dr. Barber – not competent to stand trial Dr. Ryan – agreed not competent, but noted possible malingering “Patients suffering from severe brain damage could generally answer at least six of the fifteen questions included on the test. Batista answered only two correctly, indicating malingering of memory problems.” - Government requests further testing - Dr. Simring – competent and malingering “attempted to feign mental illness by refusing to sit in a chair which he claimed was occupied by his imaginary friend, by claiming that he was in his home with his mother waiting upstairs, and by miming the retrieval of an imaginary beverage from an imaginary refrigerator,” Dr. Ryan (part II) Dr. Morgan (neuropsychologist called chosen by Batista) “significant, incontrovertible and overwhelming evidence regarding the presence of suboptimal effort and malingering in the part of the examinee... consistent with a picture of what might be phrased as ‘unsophisticated malingering.” Ultimately argued that he should not be penalized by enhanced sentencing for this charade because he was “exploring” his defense options. Court not amused

15. Discussion Questions How do you feel about the ability of NP to evaluate temporal shifts in competencies (i.e. decision-making abilities at a previous time point, etc.)? What do you think about dissociative amnesia and criminal competencies? Should there be consequences for failing to discover that the defendant is feigning mental illness? (Eliason & Chamberlain, 2008)

16. Competency and NP: What to do Need more ecologically valid NP tasks Do not exclusively rely on NP measures to answer this question, also include: Use self-reports, structured interviews and/or outside reports from family members medical records, etc. Behavioral observations Basic Components of an Evaluation: 1. Interview 2. NP testing 3. Functional ability assessment 1. through observation of bx or other measures 4. Review of legal standards (particularly important for civil and criminal competency)

17. Competency Controversies Criminal competency evals as courtroom strategy Low threshhold for requesting competency eval Means to obtain information not available through discovery Lack of established methodological and procedural guidelines for capacity evals what is the best way to evaluate everyday living in an objective manner? Few tools for this Variable criteria for establishing impairment Comparison to age-matched peers?