COMPETENCY

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 by Karen Skolnick Moyer and Marina Nakic, The Journal of the American Academy of Psychiatry and the Law Online (2016)

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

Perlin, Michael. (2009). ‘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.