competency and insanity evals.ppt - in.gov · 1 competency and insanity evaluations: the role of...

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Competency and Insanity Evaluations: The Role of the Mental Health Professional

Daniel A. Martell, Ph.D., A.B.P.P.Newport Beach, CA

Park Dietz & Associates, Inc.949.723.2211

www.ParkDietzAssociates.com

FORENSIC ASSESSMENT OF BEHAVIOR

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Psychologists and Psychiatrists

Differences in Training

Differences in Methods

Competency to Stand Trial

Two Pronged Test Cognitive Prong: Understand the nature of the

proceedings conducted.

Cooperation Prong: Be able to assist in the preparation and presentation of his/her defense.

NOTE: [Must also be mentally competent to enter a plea of guilty to an offense.]

A rational as well as factual understanding of the proceedings

What are the Charges?

Who are the people in Court, and what are their roles?

What are the possible outcomes?

Relevant Mental Domains?

Cognitive Capacity

Academic Achievement

Mental Status / Psychiatric Disorder

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Sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding

Capacity for lucid interpersonal cooperation and communication.

Relevant Mental Domains?

Mental Status / Psychiatric Disorder

Cognitive capacity

Aphasia

Memory and amnesia

Wilson v. US391 F 2d 460 (1968)

Amnesia and Competency to Stand Trial

The defendant Wilson suffered severe head injury after crime; had true “organic amnesia.”

Found: Amnesia is not a bar to CST per se, but requires the judge to determine if amnesia would bar a fair trial.

Wilson v. US391 F 2d 460 (1968)

Set out standards to be evaluated:

(1) whether the defendant has any ability to participate in hisdefense;

(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 adefense; and

(5) the strength of the government’s case.

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When Can Trial Competency Be Raised?

At any time before the final submission of any criminal case to the court or the jury trying the case.

I.C. 35-36-3-1, IN ST 35-36-3-1

Competency To Stand Trial:Evaluation Process

Multi-data source model of information gathering.

Acquiring information about the defendant's history from corroborative sources in addition to personal report is optimal.

This information should ideally include medical records.

The evaluation should include standardized tests of current functioning, including multiple measures of test result validity.

Lastly, the evaluation should include a personal interview regarding the defendant's views on his or her current legal situation.

What Happens After?

Within ninety (90) days the superintendent of the state institution or the director or medical director of the third party contractor, shall certify to the proper court whether the defendant has a substantial probability of attaining the ability to understand the proceedings and assist in the preparation of the defendant’s defense within the foreseeable future.

(b) If a substantial probability does not exist, the state institution or the third party contractor shall initiate regular commitment proceedings under IC 12-26.

If a substantial probability does exist, the state institution (as defined in IC 12-7-2-184) or third party contractor shall retain the defendant:

(1) until the defendant attains the ability to understand the proceedings and assist in the preparation of the defendant’s defense and is returned to the proper court for trial; or

(2) for six (6) months.

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What Happens Next?

If a defendant who was found to have had a substantial probability of attaining the ability to understand the proceedings and assist in the preparation of the defendant’s defense has not attained that ability within six (6) months:

the state institution (as defined in IC 12-7-2-184) or the third party contractor shall institute regular commitment proceedings under IC 12-26.

Treatment for Competency Restoration

Purpose

What is done?

Medications/therapy/both?

Restoration Group Therapy

Assessing Potential for Competency Restoration

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Jackson v. Indiana406 U.S. 715 (1972)

Issue: Potential for Restoration of Competency

Theon Jackson was a deaf-mute who could not read, write or communicate in other ways.

He was charged with two counts of petty theft.


Competency evaluations and testimony by the evaluating doctors showed that Jackson’s intelligence was too low for him to understand the nature of the charges against him, even if he were able to develop the ability to communicate, and that the prognosis for restoration of competency was "rather dim" even if he were not a deaf mute.


Despite testimony that the state of Indiana had no facilities to treat Jackson's problems, Jackson was committed to a psychiatric hospital for treatment.

Jackson argued that his commitment was equal to a "life sentence" even though he had not been convicted of a crime.

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Supreme Court Findings:

Indiana's indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process.

Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future.

If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime or release the defendant.

Data on Jackson Committee’s

Those with organic brain dysfunction were the most likely to remain permanently incompetent.

KFPC Study

500 consecutive admissions from the NYC area from mid-1980’s to mid-1990’s

26 “Jackson” cases identified

5.2% total prevalence

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Data on Jackson Committee’s

Those with organic brain dysfunction were the most likely to remain permanently incompetent.


Supreme Court Findings:

Indiana's indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process.

Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future.

If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime or release the defendant.

The Insanity Defense

Not responsible if as result of mental disease or defect, they were unable to appreciate the wrongfulness of conduct at the time of the offense.

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Mental Disease or Defect

“Mental disease or defect” means a severely abnormal mental condition that grossly and demonstrably impairs a person’s perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

I.C. 35-41-3-6, IN ST 35-41-3-6

IN Definition of Mentally Ill

“Mentally ill” means having a psychiatric disorder which substantially disturbs a person’s thinking, feeling, or behavior and impairs the person’s ability to function; “mentally ill” also includes having any mental retardation.

I.C. 35-36-1-1, IN ST 35-36-1-1

Who Can Examine?

The court shall appoint two (2) or three (3) competent disinterested psychiatrists, psychologists endorsed by the state psychology board as health service providers in psychology, or physicians, at least one (1) of whom must be a psychiatrist, to examine the defendant and to testify at the trial.

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Forensic vs. Clinical Examiners

An important distinction

Forensic training is critical

A psychiatric diagnosis does not equal incompetency or insanity.

Wrongfulness

A diagnosis of mental illness is not in itself a defense to a crime;

The illness must be so severe as to render the defendant unable to appreciate the wrongfulness of the criminal conduct. Schmid v. State, 804 N.E. 2d 174 (Ind. Ct. App. 2004)

Lack of Cooperation

If a defendant does not adequately communicate, participate, and cooperate with the medical witnesses after being ordered to do so by the court, the defendant may not present the testimony of any other medical witness:

(1) with whom the defendant adequately communicated, participated, and cooperated; and(2) whose opinion is based upon examinations of the defendant;

unless the defendant shows by a preponderance of the evidence that the defendant’s failure to communicate, participate, or cooperate was caused by the defendant’s mental illness.

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Insanity Outcomes

In all cases in which the defense of insanity is interposed, the jury (or the court if tried by it) shall find whether the defendant is:

(1) guilty;(2) not guilty;(3) not responsible by reason of insanity at

the time of the crime; or(4) guilty but mentally ill at the time of the

crime.

After a Finding of Insanity

A commitment hearing shall be conducted at the earliest opportunity

The defendant shall be detained in custody until the completion of the hearing.

The court may take judicial notice of evidence introduced during the trial of the defendant and may call the physicians appointed by the court to testify concerning whether the defendant is currently mentally ill and dangerous or currently mentally ill and gravely disabled, as those terms are defined by IC 12-7-2-96and IC 12-7-2-130(1).

GBMI

Whenever a defendant is found guilty but mentally ill at the time of the crime or enters a plea to that effect that is accepted by the court, the court shall sentence the defendant in the same manner as a defendant found guilty of the offense.

I.C. 35-36-2-5, IN ST 35-36-2-5

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GBMI

Before sentencing the defendant under subsection (a), the court shall require the defendant to be evaluated by a physician who practices psychiatric medicine, a licensed psychologist, or a community mental health center (as defined in IC 12-7-2-38).

However, the court may waive this requirement if the evaluation is contained in the record of the defendant’s trial or plea agreement hearing.

GBMI

If a defendant who is found guilty but mentally ill, the defendant shall be further evaluated and then treated in such a manner as is psychiatrically indicated for the defendant’s mental illness. Treatment may be provided by:

(1) the department of correction; or

(2) the division of mental health and addiction after transfer under IC 11-10-4.

(d) If a defendant who is found guilty but mentally ill at the time of the crime is placed on probation, the court may, in accordance with IC 35-38-2-2.3, require that the defendant undergo treatment.

Early Intervention

What can detectives do to help when they realize defendant acting crazy?

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DMSI Item Examples

Source: Park Dietz, “Documenting a Suspect’s State of Mind,” FBI Law Enforcement Bulletin, November 2012, 13-18.

DMSI Item Examples

) Do you know where you are? (Where?)

2) Do you know who I am? (Who?)

3) Do you know why I’ve been talking to you? (Why?)

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DMSI Item Examples

4) Do you understand that you have just confessed to a crime?

5) Do you understand that your confession will be used against you in court?

6) Did you confess voluntarily?

DMSI Item Examples

18) When you did the crime, did you know it was wrong? (How did you know this?)

19) When you did the crime, did you know it was against the law? (How did you know this?)

20) Did you expect to get away with it?

DMSI Item Examples

21) Did you think you might be caught? (Why did you think that?)

22) What did you do to protect yourself from getting caught?

23) Have there been times you wanted to do something like this but decided against it? (If so, why didn’t you do it then? How was this time different?)

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Recording the Examination

VideotapeEver provide to prosecutor or defense?

Why important?

Audiotape

Process of Assessment

What information is important – what should prosecutors give the evaluator? Information from family and friends? Entire case file

Pictures Case reports Witness interviews Statements by defendant Indictment Range of Outcomes

Opinion Comes From What?

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The Process of Forensic Psychiatric Assessment

Suggest avenues of investigation Record review Inspection of physical evidence Crime scene visits Victim and witness interviews Examination Biomedical testing, if indicated Psychological and neuropsychological

testing, if indicated

Recommended Examination Techniques

Preparation Videotape and audiotape Informed consent Life history Uninterrupted account of the offense Clarifying questions Confrontation Offer feedback

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Common Examination Errors

Failure to review police reports and scene evidence in advance

Failure to record on tape Talking too much Multiple choice questions Questions and tests that teach symptom

patterns Suggestive and leading questions

MAJOR FORMS OF PSYCHOPATHOLOGY

Legal Categories

Mental disease or defect Other mental disorders

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Essential Features of Mental Disease or Defect

Psychosis

Delusions

Hallucinations

Thought Disorder

Mental Retardation

Other Serious Brain Dysfunction

Mental Diseases and Defects

Schizophrenia (> 6 months)

Schizophreniform disorder (1-6 months)

Brief psychotic disorder (1 day – 1 month)

Schizoaffective disorder

Shared psychotic disorder (folie a deux)

Delusional disorder

Mental Diseases and Defects

Mania

Psychotic depression

Delirium

Dementia

Mental retardation

Serious brain dysfunction

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Other Mental Disorders

Personality disorders

Paraphilias

Substance-related disorders (esp. cocaine and methamphetamine psychoses)

Anxiety disorders (esp. PTSD and OCD)

Dissociative disorders (esp. DID)

Impulse-control disorders

Factitious disorders

Fabricated Mental Defenses

Cultural insanity

Poor parenting

Dysfunctional family life

Alcoholic blackout

Malingered amnesia

Malingered psychosis

Trivial head injury

“I was upset”

PSYCHOPATHOLOGY AND CRIMINAL BEHAVIOR

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Patterns in the Relationship Between Mental Disorder and

Crime Crime in response to psychotic

symptoms

Crime to gratify compulsive desires

Crime reflecting personality disorder

Coincidental crime and mental disorder

True or feigned mental disorder in response to crime

The Process of Psychiatric Assessment

The Mental Status Examination

Domains Assessed: Appearance Attitude Behavior Mood and affect Speech Thought process Thought content Perception Cognition Insight and judgment

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DSM Diagnosis

Diagnostic and Statistical Manual of Mental Disorders (DSM5)

International Classification of Diseases(ICD-9)

These manuals are your friends for cross-examination

Psychological Testing

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Types of Psychological Testing

The Good: “Objective” Psychodiagnostic Testing Neuropsychological Testing Malingering Testing

The Bad: “Projective” Psychodiagnostic Testing

Projective Psychodiagnostic Testing

Rorschach Inkblots

Thematic Apperception Test

Kinetic Drawings

Sentence Completion

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Rorschach Inkblots

Developed in 1921 by Hermann Rorschach

Swiss Psychiatrist

10 Cards: - 5 Black and White (Monochromatic)- 5 Color (Chromatic)

Rorschach Inkblots

Rorschach Inkblots

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Rorschach Inkblots

Rorschach Inkblots

Rorschach Inkblots

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Rorschach Problems

Various Scoring Systems Created Chaos

Lack of Reliability and Validity

Exner Comprehensive System/Rorschach Performance Assessment System

Overpathologizes Normal Subjects

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Kinetic Drawings

Sentence Completion

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So What’s Any Good?

“Objective” Psychodiagnostic Testing

Minnesota Multiphasic Personality Inventory-2

Personality Assessment Inventory

Millon Clinical Multiaxial Inventory – III

Symptom Check List-90-R

Quality of Life Inventory

MMPI-2

MMPI-2

567 True-False Questions Built-In “Lie Detector” Scales

Fake-Good Fake-Bad

Clinical Psychopathology Scales Depression and Anxiety Hysteria and Hypochondriasis PTSD Psychosis

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Detection of Malingering

Malingering Psychopathology MMPI-2 PAI MCMI-III SIRS

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MMPI-2 Validity Scales

MMPI-2 Validity Scales

“L” Scale = “Lie” or holier than thou scale “F” Scale = Infrequency scale “K” Scale = Defensiveness Scale “F(p)” Scale = Positive Malingering Scale Ds Scale = Neurotic Dissimulation FBS = Fake Bad Scale

MMPI-2 Fake Bad Scale

First published by Dr. Paul Lees-Haley in 1991

Now incorporated in the computerized reports from Pearson Assessments, Inc.

Superior to all other validity scales when used in civil litigation

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MMPI-2 FBS

“The FBS catches more subtle forms of non-credible symptom reporting. For example, the FBS can be helpful in cases where someone with a mild or non-existent brain injury is trying to appear seriously dysfunctional or disabled but not psychotic.”

Paul Lees-Haley

MMPI-2 FBS

Empirical research has established the utility of the scale in identifying potentially exaggerated claims of disability, primarily in the context of forensic neuropsychological evaluations.

Raw scores above 22 should raise concerns about the validity of self-reported symptoms.

Raw scores above 28 should raise very significant concerns about the validity of self-reported symptoms, particularly with individuals for whom relevant physical injury or medical problems have been ruled out.

-Pearson Assessments

Structured Interview of Reported Symptoms

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Validity Indicator Profile

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Test of Memory Malingering

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Risks of Serial Examinations

What happens when defendant is evaluated by multiple doctors?

i. How is testing affected?

ii. What can defendants learn?

Forensic Reports

Identifying informationNature of the interviewSources of informationSocial historyEducational historyEmployment historyMilitary history

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Forensic Reports

Legal history Psychiatric history Substance abuse history Medical history Current medications Current psychiatric status Mental status examination Diagnostic impression Competence / Insanity assessment Summary Recommendations

What do conflicting reports tell us?

Bias and “Allegiance Effects”

Malingering Effects

Lack of forensic training and/or experience

Honest differences of opinion

Hiring Your Own Expert

Should prosecutors go to the expense of hiring their own/another expert?

Advantages/disadvantages

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Cross-Examination Tips

Proper Credentials Forensic Training and Experience Proper Testing Conditions Appropriate Mainstream Tests Accurate Administration and Scoring Proper Norms Applied Forensic Opinion Based in Data

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Thank You!

Daniel A. Martell, Ph.D., A.B.P.P.

PARK DIETZ & ASSOCIATES, INC.2906 LafayetteNewport Beach, CA 92663

Ph: 949 723 2211Fax: 949 723 2212Email: [email protected]: www.parkdietzassociates.com

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