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Attorneys’ perspectives on their clients’ abilities to plead guilty

A substantial minority of attorneys may have faced a professional quandary in terms of doubting a client’s competence to plead but choosing not to raise the issue—a conflict for which little professional guidance exists. This is the bottom line of a recently published article in Psychology, Public Policy and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy and Law | 2018, Vol. 24, No. 2, 171-179

Attorney Perspectives on Juvenile and Adult Clients’ Competence to Plead Guilty

Authors

Amanda NeMoyer, Drexel University
Sharon Kelley, Drexel University
Heather Zelle, University of Virginia
Naomi E. S. Goldstein, Drexel University

Abstract

An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney— believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

Keywords

guilty pleas, admissions, competence, attorney perspectives, competence to plead

Summary of the Research

“The Supreme Court has historically adopted a laissez-faire approach to plea bargains, lauding them for their conservation of judicial resources and declining to scrutinize the practices that have developed around them. In addition, the Supreme Court has handed down few holdings specific to plea bargains because they are commonly believed to occur within the “shadow of the trial,” such that defendants engage in a rational decision making process and accept plea deals based on the strength of existing evidence. Thus, the Supreme Court has often rotely applied the Dusky standard of adjudicative competence (i.e., factual and rational understanding and ability to assist counsel) as the appropriate standard for questions surrounding adult competence to plead guilty. No national standard for juvenile adjudicative competence exists: some jurisdictions apply the Dusky standard used in criminal court, other jurisdictions apply a modified version of the Dusky standard, and one state (Oklahoma) has declined to apply any competence standards to defendants in juvenile court. Competence to plead guilty is therefore generally considered to include factual understanding, rational understanding, and ability to assist counsel” (p. 171-172).

“Defendants who plead guilty waive a multitude of rights—a total of 40 according to Redlich and Bonventre (2015). As a result, the waiver of rights standard (i.e., that a waiver be knowing, intelligent, and voluntary) also applies when a defendant seeks to plead guilty. As Justice Thomas articulated in Godinez: The focus of a competence inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the defendant is uncoerced.

In sum, then, there are several requisites for a valid guilty plea, each of which could be a point of concern for a defense attorney. The process for bringing a potential case of incompetence to the court’s attention mirrors the process for other competencies—both in theory and in practical application. Because of the importance of proceeding only with competent defendants, any of the three actors (prosecutor, defense attorney, judge) may serve as gatekeeper and raise questions about competence to plead guilty. Nevertheless, this role typically falls to the defense attorney, who has relatively more interaction with the defendant and is duty bound to discuss pleas with his or her clients. Given the weight of responsibility associated with this gatekeeper role, it is critical to understand defense attorneys’ experiences related to questioning clients’ competence to plead guilty. Nevertheless, little is known about which considerations are of greatest concern to attorneys, whether attorneys view certain client characteristics as likely related to deficits of certain requisites, or other perspectives attorneys might have regarding application of the standards to their clients” (p. 172).

“Despite evidence suggesting that a considerable number of juvenile and adult clients demonstrate deficits that implicate the ability to plead guilty, no empirical studies have examined defense attorneys’ perspectives on their clients’ abilities to plead guilty. The few existing inquiries into defense attorneys’ experiences with competence to plead guilty have typically been speculative in nature, with conclusions drawn from a small number of individual defense attorney interviews rather than a systematic survey. Further, no researchers have examined the proportion of lawyers who have faced this issue, nor have researchers examined the underlying reasons for why attorneys have or have not raised the issue. To fill these gaps and add more quantitative data to literature in this area, the current study surveyed defense attorneys about their experiences questioning clients’ competence to plead guilty— both for juvenile clients in juvenile court and for adult clients in criminal court” (p. 173).

“Results indicate that a considerable majority of attorneys have raised questions about their juvenile and adult clients’ competence at the pleading stage. It is interesting to note that although a greater proportion of attorneys endorsed [factors that had] ‘ever’ [contributed to] having raised this issue for their adult clients, attorneys who had raised this issue before tended to report having done so more frequently for juvenile clients than for adult clients. It may be that, in general, attorneys are more inclined to raise this issue for adult clients given the increased severity of direct and collateral consequences for pleading guilty in criminal court as compared with juvenile court (e.g., prison sentence vs. juvenile probation). However, once attorneys decide that they will raise this issue for juvenile clients, they might raise it more often because of the frequency with which cognitive deficits and other challenges related to developmental immaturity contribute to questions related to the ability to competently proceed at the plea stage. Of course, the fact that attorneys with criminal court experience reported representing more adult clients (as compared with the number of juvenile clients represented by attorneys with juvenile court experience) may have contributed to the difference in whether they had ‘ever’ raised this issue for their adult clients; however, the fact that attorneys reported raising this issue more frequently for juvenile clients despite representing fewer juvenile clients overall seems to strengthen the suggestion that this issue is particularly relevant for clients in juvenile court.” (p. 177).

“Further, the focus on the ability to assist prong of the competence standard—of all the available components of the competence and waiver standards—may be the product of practical necessity. That is to say, attorneys in the preplea context are likely to find themselves more reliant on their clients than in later stages because they have not yet had the opportunity to review materials or develop a defense strategy. This reliance could be further increased in “closed-file” jurisdictions, where prosecutors are not required to provide as much preplea discovery. Thus, of all the prongs, the ability to assist prong is more pressing at this stage than the need for a client to understand the consequences of a plea bargain (which the attorney will likely address as plea bargaining progresses) or the need for a waiver to be knowing (which will be addressed later by the court via a plea colloquy)” (p. 177).

“Finally, our hypothesis that attorneys would report not raising the issue to avoid negative consequences for their clients was arguably supported—length of detention/incarceration and obtaining a better plea were among the most often cited reasons; however, concern about timely resolution of a case and maintaining relationships in the court (which might have an indirect negative effect on a client) were not frequently reported. It is worth highlighting that the clear ‘lead’ reason for not raising the issue in the case of both adult and juvenile clients was attorneys’ belief that, despite their perceptions of clients’ deficits, their clients would not be found to fall below the low threshold of the competence standard. Further suggesting the salience of this issue, 18% of participants who voluntarily responded to a final, open-ended request for additional information reported a belief that the competence threshold is far too low as currently defined” (p. 177-178).

Translating Research into Practice

“It appears that attorneys are raising this issue for juvenile clients based on a wider variety of reasons than they are for adult clients, for whom mental illness appears to be the major motivating factor. This trend might suggest that attorneys working with juvenile clients, in particular, could benefit from additional training focused on identifying the appropriate reasons to raise this issue and how to do so in a successful manner” (p. 177).

“It is generally accepted that the decision to plead guilty is in the purview of the client, which would seem to require, by extension, that an attorney raise the issue of competence when in doubt—a decision to plead guilty can hardly be the meaningful client choice countenanced by legal ethics and guidelines if it is made by a client who is incapable of making informed decisions. Yet, defense attorneys are also aware of the many external forces at play in the justice system and the paradoxical negative outcomes that might flow from their attempts to prevent a client from making this decision while incompetent. This diametric tension seems to defy resolution, leading even the recently revised ABA (2016) Criminal Justice Standards on Mental Health to simply leave the problem at the feet of defense attorneys: “If the defense attorney has a good faith doubt concerning the defendant’s competence to make decisions within the defendant’s sphere of control . . . , the defense attorney may make a motion to determine the defendant’s competence” (Standard 7–5.2, emphasis added). This dilemma underscores the need for additional guidance for defense attorneys as well as system-wide changes that reduce the tension in the first place” (p. 178).

“The sheer volume of cases that are processed via plea bargaining should already be enough to spur meaningful scrutiny of how the plea process works, and data regarding the proportion of defense attorneys who have faced internal questions about their clients’ competence without raising the issue add to that pressure. These findings—and the results of future research in this area—ought to prompt serious dialogue about and examination of the extent to which justice systems are (not) effecting due process via their uncritical reliance on an expedient, but largely unregulated, procedure” (p. 178).

Other Interesting Tidbits for Researchers and Clinicians

“The current study was merely an early step in identifying potential issues related to attorneys’ decisions to raise—or not raise—questions about their clients’ competence to plead guilty and was limited in several ways. First, the data were gathered by a self-report survey and, therefore, were likely affected by issues such as participant self-selection and cognitive bias. For example, few attorneys endorsed maintaining relationships with the court as a reason for not raising competence to plead guilty; it may be that this reporting reflects reality, but it also may be that social desirability effects deterred participants from endorsing some of these reasons. In addition, the item options were not randomly ordered, which may mean that the frequency with which they were endorsed was affected by where they were located within each option list. As noted in the Methods section, we chose not to inquire about how many times attorneys doubted clients’ competence but did not raise the issue. An estimate of how frequently this professional quandary arises would further strengthen the call for clearer guidelines and potential system reform, but we felt the current survey design was not the best approach for obtaining accurate information on that point. Finally, because the study focused solely on juvenile clients in juvenile court and adult clients in criminal court, we did not examine juvenile clients who are tried in criminal court. Because this group can face more severe sanctions than defendants in juvenile court while still demonstrating cognitive and developmental immaturity, questions of competence to plead guilty may arise more frequently for these clients. Future research should address this omission” (p. 178).

“Future studies should also examine judges’ perspectives on the issue, with attention to both standards that apply at the pleading stage (i.e., competence to plead, rights waiver validity). Attorneys might also be asked more explicitly about both standards, as well, given that the current study included rights waiver standard prongs as item options but phrased all questions in terms of competence to plead guilty. It would be informative to know whether attorneys and/or judges see the two standards as complementary or effectively the same—or perhaps they may even view one or the other as rather ineffectual or redundant. To build upon the current study, future research should also collect more qualitative data that will allow for a more nuanced understanding of the reasoning and tensions at play when defense attorneys are faced with clients who may be incompetent to plead guilty” (p. 178).

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Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

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Cognitive Processing Style May Represent a Threat to Making Competent Plea Decisions

A person’s cognitive processing style may affect his or her decision to accept a plea bargaining more so than his or her values. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2017, Advance Online Publication

Logical but Incompetent Plea Decisions: A New Approach to Plea Bargaining Grounded in Cognitive Theory

Authors

Rebecca K. Helm Cornell University
Valerie F. Reyna Cornell University

Abstract

Although much research considers the cognitive processes involved in legal decision making of jurors and judges, decisions to accept or reject plea bargains have received far less attention. We examine decisions in plea scenarios to test predictions of Fuzzy-Trace Theory regarding how cognitive processing style (specifically, greater reliance on gist or verbatim representations) affects plea decisions and how this could lead to suboptimal decision making, especially among defendants who are young adults. Results support Fuzzy-Trace Theory’s predictions by showing that the type of mental representation relied on by an individual (gist or verbatim) predicts plea bargain decisions—with those relying on gist being more influenced by categorical meaning-based distinctions, such as being guilty versus innocent or getting a felony versus misdemeanor. Importantly, results suggest that differences between the 2 groups are not caused by a difference in values but by the fact that individuals relying on verbatim representations are making decisions that do not reflect their underlying values, due to a “hyper-rational” reasoning process. These results reveal a new threat to competent plea decisions—a logical reasoning process that is arguably not fully competent—which has implications for the current plea bargaining system.

Keywords

competence, plea bargaining, criminal adjudication, fuzzy-trace theory, decision making

Summary of the Research

“Plea bargaining—a process in which a person accused of a crime pleads guilty to a lesser crime in order to receive a lesser punishment—is a widespread practice in the American criminal justice system. In 2014, 97.1% of federal criminal cases that were resolved were settled through pleas, with only 2.9% being adjudicated in bench or jury trials. Despite the prevalence of plea bargaining, it remains a largely “unregulated industry” in the sense that prosecutors have a wide latitude in setting the terms of pleas, with little judicial regulation. The law requires that guilty pleas must be made knowingly, intelligently, and voluntarily (e.g., Brady v. United States, 1970), but there has been relatively little research about the factors that make a plea knowing or intelligent” (p. 1).

“As well as requiring that a defendant actually makes a knowing, intelligent, and voluntary decision, the law regulates whether an individual has the ability to make such a decision using competency standards. Certain defendants are not competent to make plea bargains under the adjudicative competency standard. This standard is based on the Supreme Court decision in Dusky v. United States (1960). In Dusky, competence to proceed was defined by the court as the defendant’s ability to consult rationally with an attorney to aid in his own defense and to have a rational and factual understanding of the charges against him. Previous work has examined the concept of adjudicative competence and outlined specific abilities that the law is concerned with, classifying them into three psycholegal constructs— understanding (basic comprehension of the purpose and nature of the trial process), reasoning (capacity to provide relevant information to counsel and to process information), and appreciation (ability to apply information to one’s own situation in a manner that is neither distorted nor irrational) … In this study, we use Fuzzy-Trace Theory (FTT), a psychological theory of memory and decision making, to examine ways in which some people may lack the capacity to make competent plea decisions in criminal trials despite having understanding, reasoning, and appreciation in the traditional legal senses” (p. 1).

“Empirical research has confirmed that risk preferences and probabilities of conviction influence defendants. However, research has also shown that this is not all that is important to defendants when making plea decisions. Other factors may be important to defendants when deciding whether to plead guilty, such as their factual guilt or innocence, the charge offered by the prosecutor (e.g., felony or misdemeanor), and short-term benefits from pleading guilty. Plea decision making is, therefore, complex and requires that defendants appropriately apply their values (meaning what they consider to be important) to weigh these different considerations and make decisions that truly reflect their values” (p. 2).

“When defendants are presented with information about a plea deal, the way that they remember and reason about that information is likely to shape the decisions that they make. According to FTT, people encode information in two types of memory representations—verbatim and gist. Verbatim memory is memory for precise surface details; for example, memory representations of exact words, numbers, or pictures. Gist memory is memory for essential meaning, the “substance” of information irrespective of exact words, numbers, or pictures. When making decisions, individuals retrieving and relying on gist representations process information in a fuzzy and impressionistic way (known as gist processing). Individuals retrieving and relying on verbatim representations process information in a more precise analytical way (known as verbatim processing). FTT predicts that certain groups (e.g., the young and inexperienced, and those with high levels of autistic traits) will rely more on verbatim representations of information than gist representations, and that verbatim processing can result in suboptimal decision making. Individuals who rely on verbatim processing may lack the ability to make informed plea decisions due to developmentally inferior cognitive processing that can lead to unhealthy risk taking and decision making that does not reflect values” (p. 2).

“In the context of plea bargaining, FTT predicts that defendants relying on verbatim processing are more likely to conduct a superficial trade-off of risks and rewards. This trade-off would be likely to be influenced by the probability of conviction and the magnitude of potential outcomes, as opposed to the importance of categorical meaning-based distinctions such as the distinction between a felony and a misdemeanor or between guilt and innocence.

Decisions in which the outcome of pleading guilty is a misdemeanor conviction and the outcome if convicted at trial is a felony are decisions in which there is a categorical difference between outcomes. From a gist perspective, a felony conviction is not just worse than a misdemeanor in some quantifiable way— one felony is not equivalent to, say, two or three misdemeanors. A felony has a qualitatively as well as quantitatively different effect on a person’s life. This means that the distinction is likely to influence those relying on gist more than those relying on verbatim processing, specifically in cases involving small risks (e.g., when the probability of conviction at trial is low). For defendants relying on gist, the possibility of a felony conviction should supersede more fine-grained considerations of magnitudes of risk and reward, whereas for individuals relying on verbatim processing, it would just be another aspect of a risk/reward calculation” (p. 2-3).

“In this study, we use a risky-choice framing task to probe which participants rely more on gist processing and which participants rely more on verbatim processing, and relate this to decisions in hypothetical plea situations. We investigate two classes of questions. First, how does reliance on gist and verbatim processing influence plea decisions? Second, does reliance on verbatim processing produce decisions that reflect values?” (p. 3).

“Participants were 410 adults recruited from the participant pool at Cornell University (n = 210) and from Amazon Mechanical Turk (n = 200)… In order to investigate whether the individuals in our sample were individuals who may have to make plea decisions we analyzed responses to questions about engagement in crime. Overall in our sample, 209 participants had committed at least one of the crimes that we asked them about (drinking and driving, driving without a license, stealing cars and going for joy rides, taking drugs and underage drinking) or had been convicted of a crime in the past (164 in our Cornell sample, and 45 in our Mechanical Turk sample). Thirty-three participants said that either they or a close family member (meaning a parent or sibling) had made a real plea decision in the past (7 from our Cornell sample and 26 from our Mechanical Turk sample)” (p. 4).

“[W]e tested the influence of probability of conviction, sentence-length distinction (facing a shorter sentence at plea than the sentence if convicted at trial), conviction-charge distinction (facing a misdemeanor at plea compared to a felony if convicted at trial), and guilt/innocence on plea decisions. We predicted that individuals relying more on verbatim processing would be less influenced by guilt/innocence, less influenced by the distinction between a misdemeanor and felony when the probability of conviction was low, and more influenced by superficial differences in sentence length. We found support for two of these predictions. As predicted by FTT, individuals thought to be relying most on verbatim processing were less influenced by guilt or innocence or by the distinction between a misdemeanor and felony when the probability of conviction was low” (p. 10).

Translating Research into Practice

“If confirmed by future research, the findings of this study could have important implications for the criminal justice system, particularly as a disproportionate amount of crime is committed by young adults, who may still be transitioning from verbatim processing to gist processing (Bureau of Justice Statistics, 2016). Results suggest that plea decisions are influenced by cognitive processing style; in particular, reliance on gist or verbatim mental representations. This is important for the criminal justice system because it suggests that plea decisions in certain groups may be driven by a predisposition to rely on fine-grained quantitative distinctions, rather than qualitative, categorical distinctions, and bottom-line meaning. This means that certain individuals—specifically those with a strong disposition toward verbatim processing and especially those who are also sensitive to reward amounts—may not be driven by their values when making plea decisions. For such individuals, incentives could become coercive. This is problematic regardless of age but also due to developmental trends in cognitive processing styles” (p. 11-12).

“This lack of connection between values and plea choices is a particular threat for adolescents and young adults who are known to rely less on gist processing than older adults, indicated by less frequent standard framing, but who are sometimes asked to make plea decisions that will affect them for the rest of their lives. Adolescents and young adults are making decisions at a stage in their development that predisposes them to rely on verbatim detail rather than meaning-based processing that takes into account qualitative dimensions and values. Importantly, our results suggest that those relying on verbatim processing take into account whether they are guilty or innocent less often when making plea decisions, even when they state that this is important to them” (p. 12).

“[T]his research should inform the standard that is used to determine whether an individual is competent to plea bargain. Current standards rely on traditional ideas about cognitive competence, relying on understanding (a basic comprehension of the purpose and nature of the trial process), reasoning (the capacity to provide relevant information to counsel and to process information), and appreciation (the ability to apply information to one’s own situation in a manner that is neither distorted nor irrational). This research suggests that a more expansive view of competence should be considered, building on these constructs but going beyond them. People relying on verbatim processing are likely to “understand” the legal process in the sense that they can parrot back instructions, be able reason in a traditional sense (balancing risks against rewards), and recognize the explicit risks and rewards that apply to their situation. However, they may not deeply appreciate the noncompensatory impact of a felony conviction or the death penalty. Moreover, due to their cognitive processing they may not cue principles that are important to them when making the decision (e.g., a desire to not plead guilty to a crime they did not commit or a desire to avoid risking a felony). This means that people with a greater level of reliance on verbatim processing may be able to apply legal information and knowledge of risks and rewards to their decisions, but may be less able to apply relevant values. Such a cognitive disposition is temporary in many cases because of developmental immaturity. In any case, such reasoners could be argued to be “logical, but incompetent,” in the sense that they make decisions that do not adequately reflect their values, violating a fundamental precept of informed decision making” (p. 12).

Other Interesting Tidbits for Researchers and Clinicians

“These results regarding categorical differences, such as those between misdemeanors and felonies, may have implications for when the death penalty is a potential outcome at trial. This is because verbatim processors would be more likely to neglect categorical distinctions (such as between life in prison and a risk of death if convicted), even when this does not reflect their values. Although it seems extreme to fail to appropriately weigh a risk of death, research has shown adolescents (thought to rely on more verbatim processing) trade off risk and reward when making life or death decisions, such as whether to risk HIV infection” (p. 10).

“These results support FTT’s predictions that groups predisposed to rely on verbatim representations are less likely to be affected by the categorical distinction between guilt and innocence when making plea decisions due to their cognitive processing style, not due to their values per se. This finding can provide insight into previous findings in the plea bargaining literature. For example, it has been shown that adolescents plead guilty to crimes that they did not commit more often than adults do. Combined with prior research showing that reliance on gist develops from adolescence to adulthood, the current research suggests that adolescents’ greater reliance on verbatim processing would lead them to neglect meaning-based, qualitative concepts, such as guilt or innocence, in their decision making. Note that this study did not specifically show that reliance on verbatim processing leads to pleading guilty more to crimes that were not committed, but it did show that individuals relying on verbatim processing are less likely to be influenced by whether they are guilty or innocent when deciding whether to plead guilty” (p. 11).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Reed

Amanda L. Reed is a first year student in John Jay College of Criminal Justice’s clinical psychology doctoral program. She is the Lab Coordinator for the Forensic Training Academy. Amanda received her Bachelor’s degree in psychology from Wellesley College and a Master’s degree in Forensic Psychology from John Jay College of Criminal Justice. Her research interests include evaluator bias and training in forensic evaluation.

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Evaluators Do Not Always Uphold Culturally Competent Practice Guidelines

Self-reported culturally competent practices among evaluators suggest that evaluators do not always uphold practice guidelines. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2016, Vol. 15, No. 4, 312-322

Forensic Evaluators’ Self-Reported Engagement in Culturally Competent Practices

Authors

Lauren Kois Department of Psychology, John Jay College of Criminal Justice and the Graduate Center, City University of New York, New York, New York, USA
Preeti Chauhan Department of Psychology, John Jay College of Criminal Justice and the Graduate Center, City University of New York, New York, New York, USA

Abstract

Cultural competence is a rising concern within the sub-specialty of forensic evaluation and will grow in need as the population diversifies. We surveyed 100 forensic evaluators to explore issues related to cultural competence. Overall, evaluators differed demographically from those they evaluate. Self reported culturally competent practices varied, suggesting that evaluators do not always uphold practice guidelines. Evaluators’ training variety was associated with an increased likelihood to address communication difficulties with evaluatees. Evaluators who saw more racially and linguistically diverse evaluatees were more likely to participate in culturally sensitive case formulation practices. We conclude with implications for practice at the individual and institutional levels and directions for research.

Keywords

Forensic mental health; evaluator; assessment; culture; competence

Summary of the Research

“Recent estimates indicate that about 41% of jail inmates are Asian, Black, or Hispanic; that 22% of federal inmates are foreign-born; and that immigration proceedings constitute 46% of all federal arrests. Considering these numbers in combination with projected population trends, it is likely that forensic evaluators will conduct evaluations of diverse evaluatees with increasing frequency” (p. 312).

“The Specialty Guidelines for Forensic Psychologists and forensic evaluation scholars have highlighted the need for cultural competence in forensic contexts and have provided a number of suggestions for practice. Still, compared to the broader cultural competence literature, research and discussion regarding multicultural considerations within the forensic context is scarce. Further, the forensic evaluator/evaluatee relationship (i.e., nontherapeutic) is a unique one, and we cannot assume that all practices recommended for general assessment and psychotherapy extend to forensic evaluations. Nonetheless, a combination of general cultural competence and forensic-specific guidelines can provide a “roadmap” of five domains (communication, clinical interview and collateral information, assessment, case formulation, and bounds of competence) that evaluators may consider when conducting forensic evaluations with diverse populations” (p. 312-313).

“Theory, research, and specialty guidelines identify a number of steps for conducting culturally competent forensic evaluations. However, there has been no formal investigation to determine if and how forensic evaluators apply these practices that are intended to develop or demonstrate cultural competence. We conducted a survey of forensic mental health evaluators to explore this issue. Through this project, we aimed to document evaluator and evaluatee characteristics, quantify evaluators’ cultural competence training and self-reported practices, and explore which evaluator and evaluate characteristics are associated with these practices” (p. 314).

Results from this survey indicated that evaluators reported engaging in communication practices (i.e., focused on verbal and nonverbal communication, considered linguistic concerns, and coordinated interpretation services) usually or always. Evaluators reported engaging in clinical interview and collateral information practices (i.e., discussing immigration status, gathering third party information from family and friends, and discussing religious/spiritual beliefs) half the time to usually. Most evaluators denoted that they usually or always consider level of acculturation and psychometric properties of assessments with evaluees from similar groups. When preparing cases and answering referral questions, evaluators reported considering the evaluee’s cultural context usually to always. Additionally, evaluators reported that they recognize bounds of competence (i.e., discussion with experience colleagues and referencing literature on belief, values and traditions) half the time to usually. 

“Variety of training experiences was associated with asking evaluatees’ level of comfort in talking with evaluators. Consideration of how evaluatees’ perceptions of evaluators’ racial, ethnic, or cultural backgrounds and how it may influence response style was associated with evaluatees’ Race and Language DIs. Evaluatees’ language DIs were also associated with consideration of cultural context when forming diagnoses. No other associations were significant at our conservative p level of <.006” (p. 318).

“Evaluators varied in their reported methods of practice. In general, evaluators usually or always adhered to practice guidelines in the domains of assessment, followed by communication and case formulation practices. Still, over half of the practices we assessed exhibited the full range of potential responses, with some evaluators indicating that they never engaged in 14 of the 25 practices included in our survey. This suggests that at least some evaluators do not consistently practice according to APA guidelines. On average, evaluators least often endorsed practices related to the clinical interview and collateral information and bounds of competence domains” (p. 319).

Translating Research into Practice

“Evaluators who engage in a variety of diversity-related training opportunities were more likely to ask evaluatees’ their level of comfort in speaking with them. It may be that a variety of training opportunities helps to enhance evaluators’ approach to this communication practice. Alternatively, evaluators who seek a diverse range of training opportunities may be more open to exploring evaluatees’ comfort with evaluations in general. All evaluators had attended a diversity-themed training, and so we could not explore practice differences between those who had or had not. Instead, we explored the relationship between workplace training and evaluators’ reported practices. Workplace training was not significantly associated with any practice variables. It may be that evaluators seek training opportunities that enhance their practice outside of the workplace. This is especially the case for those in private practice, whose employment setting does not necessarily “provide” training under the umbrella of a larger mental health organization. It may be that overall number of trainings, frequency of trainings, and trainings that followed APA practice guidelines may better capture evaluators’ training experiences and help to clarify links between training and practice”  (p. 319).

“Evaluators are at a loss when quality training is scarce. Of concern, almost three-fourths of evaluators reported lack of training opportunities as a barrier to cultural competence in the workplace, and nearly half cited funding limitations as problematic. Work by other researchers suggests that increased access to resources is related to increased self-perceived cultural competence. We recommend that employment sites and conference organizations allot adequate time and resources to training in line with APA practice guidelines for both practical and ethical reasons” (p. 320).

“We find it critical that evaluators stay abreast of discussion surrounding cultural competence and recommend that they do so via the aforementioned workplace training, APA resources, and research databases. This task will grow in importance as researchers generate new findings and cultural dynamics evolve over time” (p. 320).

Other Interesting Tidbits for Researchers and Clinicians

“We must strongly emphasize that our study explored self-reported practices, which may not provide an accurate picture of the frequency with which these culturally competent practices are actually employed. As found in Constantine and Ladany’s (2000) study of psychology professionals and trainees, self-reported cultural competence may not translate to true culturally competent

practice abilities. Then again, research has demonstrated that clinicians’ self-report of culturally competent practices can be associated with increased patient satisfaction and sharing of information, indicating that self-report may reflect clinical practice in at least some circumstances” (p. 319).

“Future research should explore which practices elucidate important cultural considerations during forensic evaluations. Once these practice benchmarks are established, researchers may utilize preand post-training assessments—ideally measured through observation, rather than self-report survey—to identify effective training methods for developing and maintaining cultural competence” (p. 320).

“It is also important to note that our findings do not provide a better understanding of intrinsic and/or extrinsic motivations behind evaluators’ self-perceptions and pursuit of culturally competent practice. Researchers have found that evaluator characteristics, such as diversity orientation and social desirability, may contribute to self-reported cultural competence. Incorporating these additional evaluator characteristics into future research may be informative. As the linguistic landscape diversifies, researchers should explore the nuances of working with interpreters.  Development and validation of assessments with diverse populations is also a pertinent direction for future work” (p. 320-321).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current graduate student in the Forensic Psychology Masters program at John Jay College of Criminal Justice in New York. Her professional interests include forensic assessments, specifically, criminal matter evaluations. Amanda plans to continue her studies in a doctoral program after completion of her Masters degree.

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CONCEPT Offers Fall Training course on Competence to Stand Trial

Best Practices in the Evaluation of Competence to Stand Trial

Dr. Patricia Zapf

October 4 – December 12, 2015

30 hours over 10 weeks (includes 10 hours of consultation)

 

One of the primary foundations of criminal law is that all defendants have a right to a fair trial. Towards this end, upwards of 60,000 evaluations of competency to stand trial are conducted annually in the USA. Research has shown that the opinion of the evaluator in these evaluations is accepted by the courts upwards of 95% of the time. Thus, it is imperative that these evaluations be conducted using best practices. Two important sources have recently been recognized as setting the foundation for best practices in competency evaluation. This training program provides a strong foundation for any mental health professional involved in or wishing to become involved in the evaluation of adjudicative competence.

This training program covers the legal foundations for adjudicative competence, including new developments in the conceptualization of the Dusky standard, as well as practical and theoretical issues in competency evaluation. Competency assessment instruments are reviewed in depth as are report writing and expert testimony.

The trainee is taken through the foundations for competency evaluation, the specific abilities to be evaluated, how to formulate a case conceptualization and ultimate opinion regarding a defendant’s adjudicative competence, how to communicate opinions about competence in the written report and through expert testimony. In addition, participants will engage in one hour of weekly small group consultation with the instructor to discuss current clinical cases and other clinical implementation issues.


Patricia Zapf

About the Instructor

Patricia A. Zapf obtained her PhD in Clinical Forensic psychology from Simon Fraser University in Canada and currently holds the position of Professor in the Department of Psychology at John Jay College of Criminal Justice, The City University of New York. She is the Editor of the American Psychology-Law Society book series; Associate Editor of Law and Human Behavior; and is on the Editorial Boards of 5 journals in psychology and law. Dr. Zapf is on the Board of Directors for the International Association of Forensic Mental Health Services and currently serves as President-Elect for the American Psychology-Law Society (AP-LS; Division 41, APA).

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Common in Practice, Neglected in Research: The Impact of Dual CST and MSO Evaluations

DarkBlue-Forensic-Training-AcademyWith joint evaluations of CST and MSO, defendants are more likely to be deemed insane and less likely to be deemed incompetent. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

 

Featured Article | Psychology, Public Policy, and Law | 2015, Vol. 21, No. 1, 50-59

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The Significance of Combining Evaluations of Competency to Stand Trial and Sanity at the Time of the Offense

 Authors:

Preeti Chauhan, John Jay College and the Graduate Center, City University of New York
Janet Warren, University of Virginia
Lauren Kois, John Jay College and the Graduate Center, City University of New York
James Wellbeloved-Stone, University of Virginia

Abstract

Joint evaluations of competency to stand trial (CST) and mental state at the time of the offense (MSO) are common practice and implicitly assumed to be unrelated to evaluators’ psycholegal opinions. To investigate this assumption, the authors used a sample of 5,731 forensic evaluations conducted over a 17-year span to determine (a) the prevalence of joint versus CST-only and MSO-only evaluations; (b) their association with evaluators’ opinions regarding defendants’ competency and/or sanity; and (c) whether referral source, defendant-specific and evaluation characteristics, and psycholegal criteria interact with joint versus referral-specific evaluations in determining evaluators’ opinions. Results indicate that a joint evaluation structure occurred in 54% of the evaluations. Opinions of incompetency were significantly more likely in CST-only relative to joint evaluations. Conversely, opinions of insanity were significantly more likely in joint relative to MSO-only evaluations. Within the joint evaluations, competent and sane was the most frequent opinion. In CST-only evaluations, opinions of incompetency were associated with defendants’ medication noncompliance at the time of the offense, being charged with a nonviolent offense, and the evaluator receiving defendants’ criminal records. These variables were not associated with an incompetency opinion in joint evaluations. In joint evaluations, the absence of prior conviction was related to an opinion of incompetency; this was not the case for CST-only evaluations. The predictors of insanity did not interact with evaluation structure. These findings suggest that the evaluation structure is more important than commonly assumed for forensic practice and may help to inform the clinical practices of evaluators

Keywords: forensic assessment, competency to stand trial, mental state at the time of the offense, insanity, joint evaluations.

Summary of the Research

According to previous research, about one-third of competency to stand trial (CST) and mental state at the time of the offense (MSO) are conducted simultaneously. This article “explores the issue of joint versus referral-specific evaluations to more fully understand if this common practice is irrelevant, as assumed, or if it hides differences in opinion formation that could be of significance to the defendant and the decision making of the courts.” The researchers assumed they would find no differences in opinions of joint or referral-specific evaluations.

“Using 5,731 forensic evaluations conducted from 1990 to 2007, [the authors] examined the frequency of joint evaluations, their relationship to psycholegal opinions, and whether an interaction occurred between predictor variables and opinions of competency and sanity in joint versus referral-specific evaluations. First, [they] examined how often joint versus CST-only or MSO-only evaluations occur and whether the evaluation structure is related to an opinion of competency and sanity. Next, [they] assessed the amount of overlap between competency and sanity opinions in joint evaluations. Last, [they] investigated whether referral source, defendant-specific and evaluation characteristics, and types of psycholegal impairment influenced opinions of incompetency or insanity by evaluation structure (i.e., joint or referral-specific evaluations).” The researchers found a dual use of CST and MSO occurred in 54% of evaluations.

For a majority of evaluations, “the evaluator received the warrant (84.9%), official offense information (76.7%), reason for the evaluation (87.4%), psychological and medical records (62.7%), and the defendant’s statement (66.1%). However, only a small percentage received witnesses’ statements (36.3%), and about half received the defendant’s criminal record (46.5%). Only a small percentage of evaluations involved psychological testing (16.4%). In terms of time spent, the average evaluation was 7.77 hr with 2.47 hr spent on the interview, 1.77 hr spent on information gathering, and 3.49 hr on report writing.”

Overall, the researchers’ expectation that no differences would be found between CST-only and joint assessment was unfounded. “Defendants [were] less likely to be found incompetent in the context of a joint evaluation as compared with a CST-only assessment and more likely to be found insane in the context of a joint evaluation as contrasted to a MSO-only evaluation.” The majority of the defendants (87.8%) in the sample that had dual evaluations were deemed both competent to stand trial and sane. In joint evaluations, individuals were less likely to be deemed competent if they did not have a prior criminal conviction. Offense type, medication compliance, and receiving criminal records were not significant factors in regards to competency opinions in joint evaluations.

Translating Research into Practice

The authors highlight ethical concerns surrounding consent when the individual is deemed incompetent, indicating that consent for the sanity evaluation might too easily be swept under the umbrella of court-sanctioned evaluation to stand trial. CST opinions are more likely than MSO to be in line with the court’s final decision regarding an individual. Depending on the laws and practices in an evaluators jurisdiction, evaluators should still make efforts to ensure consent is given in legal and ethical terms. For some situations, “evaluators should not proceed with an evaluation of MSO if the defendant is incompetent, but these data suggest that they often do. Indeed, in about 87% of the cases, evaluators offered an opinion of MSO even though the defendant was incompetent.” It is important, however, to tease apart the issue of (in)competence to stand trial and (in)competence to consent to the evaluation process so care should be taken to make this distinction in those cases where the evaluator holds the opinion that the defendant is incompetent to stand trial.

In joint evaluations where the evaluator deemed the individual incompetent, “evaluators spent less time writing the report and on the overall evaluation. In contrast, in the CST-only evaluations, defendants were more often opined incompetent if they were charged with a nonviolent offense, were non-compliant with their medication at the time of the offense, and if the evaluator did not have access to criminal records. These relationships were not present for joint evaluations. Taken broadly, these differences underscore the importance of the evaluation structure in competency opinions. Notably, these differences across evaluation contexts did not include the primary clinical variables, suggesting that criminogenic and process variables are central to these differences in evaluation structure. Further, the CST-only evaluations seem to primarily capture the chronically mentally ill defendants who have been prescribed medication but are non-compliant in taking it and who are charged with minor and nonviolent offenses.” This statement should underscore for evaluators the importance of retaining objectivity and attention to detail. It also articulates the challenge and necessity for evaluators to gather complete information for the individuals they evaluate.

“Within [this] data set, joint evaluations were less likely to lead to an opinion supportive of incompetency but more likely to lead to an opinion supportive of insanity. These findings should alert researchers to the significance of this structural component of forensic evaluation, which could mask important differences in competency or sanity evaluation outcomes.”

Other Interesting Tidbits for Researchers and Clinicians

The authors suggested that the intentions of attorneys play a role in the evaluation outcome. “Attorneys who refer defendants for joint, relative to CST-only, evaluations may be primarily looking for mitigating factors to assist in plea bargaining. Conversely, attorneys who referred defendants for CST-only evaluations may be expressing true concerns about the defendant’s capacity to proceed to trial.”

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Special Contributor

Contributions to this post were made by Andrea Patrick.PatrickAndrea

Andrea Patrick is a first year masters student studying Forensic Psychology at John Jay College of Criminal Justice. In the future, she hopes to be directly working with forensic populations providing risk assessments and clinical evaluations.