FORENSIC EXAMINER TRAINING
Section 916.111, F.S., mandates that the Department of Children & Families provide training for psychiatrists, psychologists, and other mental health professionals on how to conduct evaluations for criminal courts. The department has contracted with the University of South Florida’s Department of Mental Health Law & Policy to provide this training through the Louis de la Parte Florida Mental Health Institute. The three-day training program focuses on competence to proceed (competence to stand trial) evaluations and mental state at the time of the offense (“sanity”) evaluations. Participants learn Florida laws and rules of criminal procedure relevant to forensic evaluation, general legal principles relevant to forensic evaluation, and assessment techniques and procedures used in competency to proceed and mental state at the time of the offense evaluations.
For information regarding this training, contact the University of South Florida’s Department of Mental Health Law & Policy at (813) 974-4672 or SC 574-4672.
Section 916.115(1)(a), F.S., states “To the extent possible, the appointed experts shall have completed forensic evaluator training approved by the department, and each shall be a psychiatrist, licensed psychologist, or physician.”
Section 916.115 (2)(g), F.S., requires experts to “…explicitly address (in their reports and testimony) each of the factors and follow the procedures set out in this chapter and in the Florida Rules of Criminal Procedure”, in order to receive payment for their services.
Section 916.115(1)(b), F.S., directs the Department of Children & Families to provide the courts with an annual list of mental health professionals who have completed the approved training as experts. In compliance with this section, the Department mails an updated list to the chief judge in each circuit annually. However, authorized court personnel may contact the Adult Forensic Mental Health Program Office at (850) 487-6285 to request a current list of approved forensic evaluators at any time.
Dr. Otto – Competency Nuts and Bolts
Dr. Randy Otto, PhD, ABPP, is a faculty member in the Department of Mental Health Law & Policy at the University of South Florida, with adjunct appointments in the departments of criminology and psychology. Dr. Otto’s research, writing, and practice focus on forensic psychological assessment and he has co-authored several texts, including Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, the fourth edition of which will appear in early 2018, and Forensic Reports and Testimony: A Guide for Psychologists and Psychiatrists (2015). Dr. Otto recently served on the American Bar Association committee that revised that organization’s Criminal Justice Mental Health Standards, and he also chaired the American Psychological Association’s Committee on Legal Issues.
Dr. Randy Otto – Competency Q&A
This video is a Q&A in regard to the following topics:
- How long should an evaluation should last?
- Is there an effect on the validity of psychological testing when 3rd parties are in the room during the administration?
- Sometimes examiners offer opinions that the examinee is “marginally competent.” Is that an acceptable opinion?
- It seems that some examiners focus on the examinee’s understanding of the legal process and spend less time considering the examinee’s ability to consult with counsel. What do you make of this?
- What is the difference between a rational understanding and factual understanding?
- How can delusional thinking affect a defendant’s competence?
- What about the issue of “parroting?” or the “veneer” or “patina” of competence? What are the implications of this for competence?
- Is it important for the examiner to discuss the facts of the case with the defendant?
- What about defendants from other countries, from other cultures? How might that impact assessment and consideration of competence to proceed?
- What about defendants with strong religious beliefs that seem to affect their case decision making? For example, a belief that God will protect them from tough penalties, or God will give the client a jury who is understanding?
- How much impairment is need to render a defendant incompetent? For example, what if the defendant is diagnosed with ADHD and has a hard time focusing on the case to the point that she wouldn’t be able to focus during trial…is that enough? What about depression/anxiety…the defendant keeps crying and she can’t stay on task during conversations with counsel…is that enough?
- Are there limits as you see it in terms of what we can expect from a defendant? Similarly, can we expect the courtroom players to change their behavior in any way to suit a defendant’s needs? I have seen multiple evals suggesting that a courtroom be “slowed.” Is that a realistic expectation?
UPDATED FORENSIC EVALUATOR LIST
LEGAL AND ETHICAL GUIDELINES
- Rule 3.201: Battered-Spouse Syndrome Defense, Page 119
- Rule 3.202: Expert Testimony of Mental Mitigation During Penalty Phase of Capital Trial; Notice and Examination by State Expert, Page 120
- Rule 3.210: Incompetence to Proceed: Procedure for Raising the Issue, Page 124
- Rule 3.211: Competence to Proceed: Scope of Examination and Report, Page 130
- Rule 3.212: Competence to Proceed: Hearing and Disposition, Page 135
- Rule 3.213: Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition, Page 142
- Rule 3.214: Incompetency to Proceed to Sentencing: Disposition, Page 145
- Rule 3.215: Effect of Adjudication of Incompetency to Proceed: Psychotropic Medication, Page 145
- Rule 3.216: Insanity at Time of Offense or Probation or Community Control Violation: Notice and Appointment of Experts, Page 147
- Rule 3.217: Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant, Page 151
- Rule 3.218: Commitment of a Defendant Found Not Guilty by Reason of Insanity, Page 152
- Rule 3.219: Conditional Release, Page 153
- Rule 3.220: Discovery, Page 155
The American Academy of Psychiatry and the Law (AAPL) is dedicated to the highest standards of practice in forensic psychiatry. Recognizing the unique aspects of this practice, which is at the interface of the professions of psychiatry and the law, the Academy presents these guidelines for the ethical practice of forensic psychiatry.
STATE FORENSIC RESOURCES
Florida’s forensic system is a network of state facilities and community services for individuals who have a mental illness and are involved with the criminal justice system. AFMH’s goal is to provide assessment, evaluation, and treatment to individuals adjudicated incompetent to proceed at any stage of a criminal proceeding or not guilty by reason of insanity. In addition to the general psychiatric treatment approaches and milieu, specialized services include:
- Psychosocial rehabilitation;
- Treatment modules such as competency, anger management, mental health awareness, medication, and relapse prevention;
- Sexually transmitted disease education and prevention;
- Substance abuse awareness and prevention;
- Vocational training;
- Occupational therapies;
- Full range of medical and dental services.
MENTAL HEALTH ASSESSMENT AND EVALUATION
Risk Factors for Delinquency and Violence and Protective Factors That Buffer Against the Risks.
This guideline is for psychiatrists and other clinicians working in a forensic role who conduct evaluations and provide opinions in legal and regulatory matters. Any clinician who agrees to perform forensic assessments in any domain is expected to have the qualifications necessary to meet the professional standards in the relevant jurisdiction and to complete the evaluation at hand.
From Group Data to Useful Probabilities: The Relevance of Actuarial Risk Assessment in Individual Instances
Mossman, Douglas. (2014). From Group Data to Useful Probabilities: The Relevance of Actuarial Risk Assessment in Individual Instances. 10.2139/ssrn.2372101.
Abstract: Probability plays a ubiquitous role in decision-making through a process in which we use data from groups of past outcomes to make inferences about new situations. Yet in recent years, many forensic mental health professionals have become persuaded that overly wide confidence intervals render actuarial risk assessment instruments virtually useless in individual assessments. If this were true, the mathematical properties of probabilistic judgments would preclude forensic clinicians from applying group-based findings about risk to individuals. As a consequence, actuarially based risk estimates might be barred from use in legal proceedings. Using a fictional scenario, I seek to show how group data have an obvious application to individual decisions. I also explain how misunderstanding the aims of risk assessment has led to mistakes about how, when, and why group data apply to individual instances. Although actuarially based statements about individuals’ risk have many pitfalls, confidence intervals pose no barrier to using actuarial tools derived from group data to improve decision-making about individual instances.
1. By subjecting petitioner to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all other persons not charged with offenses, thus condemning petitioner to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by ordinary civil commitment procedures, Indiana deprived petitioner of equal protection.
2. 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.
Held: Burch’s complaint was sufficient to state a claim under § 1983 for violation of his procedural due process rights. While Parratt and Hudson apply to deprivations of liberty, they do not preclude Burch’s claim, because predeprivation procedural safeguards might have been of value in preventing the alleged deprivation of Burch’s liberty without either valid consent or an involuntary placement hearing. Such a deprivation is not unpredictable. It is foreseeable that persons requesting treatment might be incapable of informed consent, and that state officials with the power to admit patients might take their apparent willing ness to be admitted at face value. And the deprivation will occur, if at all, at a predictable point in the admissions process — when a patient is given admission forms to sign. Nor was predeprivation process impossible here. Florida has a procedure for involuntary placement, but only the hospital staff is in a position to take notice of any misuse of the voluntary admission process and to ensure that the proper procedures are afforded both to those patients who are unwilling and to those who are unable to give consent. In addition, petitioners’ conduct was not “unauthorized” within the meaning of Parratt and Hudson, since the State had delegated to them the power and authority to deprive mental patients of their liberty and the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. Pp. 494 U. S. 124-139.
In this case, the U.S. Court of Appeals for the Eleventh Circuit upheld a trial court’s decision to issue an involuntary antipsychotic medication order to restore the defendant’s competence to stand trial using criteria established in Sell v. United States, 539 U.S. 166 (2003).
In this decision, the U.S. Court of Appeals for the Fourth Circuit held that granting a competency hearing under reasonable cause is at the discretion of the court. The Fourth Circuit affirmed the trial court’s failure to hold a competency hearing, as well as its ruling that the defendant had waived his right to appeal his sentence when he accepted a plea deal.
I Wish I Knew Then What I Know Now: Looking to the Objective Science in Evaluating Juveniles’ (In)competency
Tina M. Robinson, I Wish I Knew Then What I Know Now: Looking to the Objective Science in Evaluating Juveniles’ (In)competency, 49 Sw. L. Rev. 144 (2020).
Abstract: Tommy, a nine-year-old boy with no prior juvenile court involvement, is charged with a crime serious enough in his state to be transferred automatically to adult court. At the recommendation of a medical professional team, Tommy was deemed incompetent, and the court ordered him to an outpatient psychiatric facility to “restore” his competency. After eight one-hour sessions, Tommy learned to repeat his charges, appeared to understand their meaning, learned each of the various court personnels’ roles, described evidence that potentially could be presented in his case, and repeated potential consequences of being found guilty. Nonetheless, there was something lacking in Tommy’s responses, which became evident during the last session. First, in answer to what his job in court was, Tommy stated, “[t]o do nothing . . . no, my job is to sit there and . . . whatever the witness says I can tell my lawyer, and whatever the judge asks me I don’t have to answer it.” When asked whether there was anything else that may help his case, he answered “no.” The evaluator then asked Tommy whether he thought he should share with his lawyer specific facts that may help his case. Tommy’s answer was “[n]o, it wouldn’t be good for me to tell my lawyer, because I wouldn’t want people to know I’m scared of things . . . and [my friends] will make fun of me.” It was evident that while Tommy could regurgitate factual understandings, rational reasoning was not present. Yet some states, based on their statutes, would still deem Tommy competent.
Neuroscience and Mental Competency: Current Uses and Future Potential
John B. Meixner Jr., Neuroscience and Mental Competency: Current Uses and Future Potential, 81 L. Rev. 995 (2018).
Abstract: One major conundrum in the field of law and neuroscience is that the mental states that are most relevant to legal determinations are often mental states that occurred in the past, and can longer be assessed. Could the defendant, at the time he committed the crime, have had the cognitive capacity to satisfy the required mens rea for the crime charged? Was an individual’s tortious conduct intentional or inadvertent? Even if the field of neuroscience eventually gains the ability to provide data relevant to understanding of immediate mental states, those data will be unavailable to legal actors by the time someone is actually interested in gathering them.
The issue of mental competency in criminal cases is an exception to this general problem. Unlike most other relevant mental states in the law, competency deals with a criminal defendant’s current mental state, during the litigation itself. Does the defendant understand the nature of the charges and the proceedings? Does he have the ability to communicate with and assist his lawyer? If neuroscience has the potential to shed light on these questions, it can be very useful, because the defendant is readily available and *996 neuroscience data could potentially be gathered as soon as the issue is raised.
Scholarship in the law and neuroscience arena has exploded in the past ten years. Surprisingly, however, relatively little scholarship has been written addressing the potential for neuroscience to aid in competency evaluations. We do not have clear data as to how often neuroscience is used in competency evaluations by experts or in hearings conducted by courts. There is virtually no literature discussing how neuroscience data, at our current level of understanding, might be able to aid in determining competency. This article aims to begin to fill that gap. The article proceeds in three Parts. In Part I, I outline the U.S. law governing competency in criminal cases and describe the most common way that experts providing opinions to the court on that subject carry out competency evaluations. In Part II, I review recent empirical studies examining the use of neuroscience in courts of various jurisdictions, and focus particularly on those studies’ descriptions of the use of neuroscience in competency proceedings. I also conduct an anecdotal survey of recent cases involving neuroscience in competency decisions. In Part III, I examine several areas in which neuroscience has the potential to make a greater contribution to competency determinations. A brief conclusion follows.
‘My Brain is so Wired’: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities
Perlin, Michael L. and Lynch, Alison, ‘My Brain is so Wired’: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities (May 20, 2018). NYLS Legal Studies Research Paper No. 3016035; 27 B.U. PUB. INT. L.J. 73 (2018) . Available at SSRN: https://ssrn.com/abstract=3016035 or http://dx.doi.org/10.2139/ssrn.3016035.
Abstract: In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.
There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood.
We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony.
Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions.
Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts
Barry C. Feld, Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts, 102 Minn. L. Rev 473 (2017).
Abstract: The juvenile court lies at the intersection of youth policy and crime policy. How should the legal system respond when the kid is a criminal and the criminal is a kid? Since juvenile courts’ creation more than a century ago, they have evolved through four periods: the Progressive Era (1899–1960s), the Due Process Era (1960s–’70s), the Get Tough Era (1980s–’90s), and the contemporary Children Are Different Era (2005–Present). In each period, juvenile justice policies have reflected different views about children and crime control and appropriate ways to address youths’ misconduct. With the U.S. Supreme Court recognizing again that children are not miniature adults, we have an opportunity to enact policies for a more just and effective justice system for youth.
Dementia, Decision Making, and Capacity
Abstract: After participating in this activity, learners should be better able to:
- Assess the neuropsychological literature on decision making and the medical and legal assessment of capacity in patients with dementia.
- Identify the limitations of integrating findings from decision-making research into capacity assessments for patients with dementia.
Medical and legal professionals face the challenge of assessing capacity and competency to make medical, legal, and financial decisions in dementia patients with impaired decision making. While such assessments have classically focused on the capacity for complex reasoning and executive functions, research in decision making has revealed that motivational and metacognitive processes are also important. We first briefly review the neuropsychological literature on decision making and on the medical and legal assessment of capacity. Next, we discuss the limitations of integrating findings from decision-making research into capacity assessments, including the group-to-individual inference problem, the unclear role of neuroimaging in capacity assessments, and the lack of capacity measures that integrate important facets of decision making. Finally, we present several case examples where we attempt to demonstrate the potential benefits and important limitations of using decision-making research to aid in capacity determinations. Read the full article.
Forced Medication to Restore Competency byand
Abstract: In United States v. Ruark, 611 F. App’x 591 (11th Cir. 2015) the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s decision to medicate an inmate involuntarily with psychotropic medication for the purpose of rendering him competent to stand trial, relying on the criteria set forth in Sell v. United States, 539 U.S. 166 (2003). Read the full article.
“Determining When to Hold a Competency Hearing” by Amy M. Loree and Madelon V. Baranoski, The Journal of the American Academy of Psychiatry and the Law Online (2015)
Abstract: In United States v. Frazier, No. 13–4462, 2014 U.S. App. Lexis 11646 (4th Cir. 2014), the United States Court of Appeals for the Fourth Circuit, held that an appellant was not entitled to a competency hearing and that he had waived the right to appeal his sentence after accepting a plea in the U.S. District Court of Maryland. Read the full article.
“Too Stubborn to Ever Be Governed by Enforced Insanity”: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases
Perlin, Michael. (2010). “Too stubborn to ever be governed by enforced insanity”: Some therapeutic jurisprudence dilemmas in the representation of criminal defendants in incompetency and insanity cases. International journal of law and psychiatry. 33. 475-81. 10.1016/j.ijlp.2010.09.017.
Abstract: Little attention has been paid to the importance of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable, and is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged “ordinary common sense” (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.
‘And I Can See Through Your Brain’: Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process
Abstract: This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure – the implications of Ake v. Oklahoma (an indigent defendant’s access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant’s competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications – specifically, antipsychotic medications – on a defendant’s brain at the time that such a test is performed.Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials – landmines that go can infect the fairness of the trial process itself. If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant’s competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant’s brain at the time of the offense – but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication – we willfully blind ourselves to the possibility (perhaps “likelihood”) that the database presented to the jury is potentially fatally flawed.
On Being “Too Crazy” to Sign into a Mental Hospital: The Issue of Consent to Psychiatric Hospitalization
Hoge, S. K. (1994). On being “too crazy” to sign into a mental hospital: The issue of consent to psychiatric hospitalization. Bulletin of the American Academy of Psychiatry & the Law, 22(3), 431-450.
Abstract: This article examines the notion of informed consent to psychiatric hospitalization. While dicta in a recent U.S. Supreme Court decision, Zinermon v. Burch, has stimulated considerable interest in applying informed consent to psychiatric hospitalization decisions, there are no extant cases that define the contours of the doctrine in the hospitalization context. The potential scope of disclosure and the level of decision-making capacity sufficient for valid consent are examined. A model of consent to admission recommended by the American Psychiatric Association Task Force on Consent to Voluntary Hospitalization is critiqued.