Grant H. Morris

“Is Competency to Stand Trial Assessed Competently?” University of San Diego law school professor Grant H. Morris asked in the title of his Nov. 10 Mark A. Nordenberg Lecture in Law and Psychiatry.

The answer appears to be “No,” according to recent research by Morris and two forensic psychologists—“at least in cases in which the issue is somewhat complicated: cases involving defendants who appear to think rationally but behave irrationally, or vice versa,” Morris said.

Morris and his colleagues mailed questionnaires to board-certified forensic psychiatrists who are members of the American Academy of Psychiatry and Law and to forensic psychology diplomates of the American Board of Forensic Psychology. Some 273 psychiatrists and psychologists completed the questionnaires, which asked them to review two hypothetical case studies (one based on the real-life case of a man arrested for stalking Stephen Spielberg, claiming the director had implanted microchips in his brain that were delivering painful shocks whenever he behaved in a manner Spielberg did not approve of).

The questionnaire asked mental-health professionals to judge whether the two case-history defendants were competent to stand trial based on three different cognitive and behavioral standards. Responses strongly indicated that the psychiatrists and psychologists overlooked the differing competency standards and based their decisions on clinical, rather than legal, considerations.

“In other words,” Morris explained, “they equated a finding of incompetence with the severity of the defendant’s mental disorder, rather than how that disorder incapacitates the defendant from achieving the level of competence required by the law’s standard.

“If judges rely on the expertise of forensic evaluators to determine a defendant’s competence—and they surely do—then it’s appropriate to ask whether those evaluators have such expertise,” said Morris. “Are forensic psychiatrists and forensic psychologists competent to assess competence? If the finding of competence or incompetence does not depend upon a scientific evaluation of the facts and an application of a legal standard to those facts, but rather on an evaluation process that lacks reliability, then the message is clear: We are truly flipping coins in the courtroom.”

Morris proposed three reforms in determining defendants’ competence to stand trial:

• Eliminate the so-called “rational manner” standard, which assumes that defendants are competent to stand trial if they can assist their attorneys, or conduct their own defenses, in a rational manner. Eight states, comprising about 25 percent of the U.S. population, use the standard, which was introduced into American criminal law in 1847.

“However appropriate that standard may have been for decision-making at that time—at a time when James Polk was president—it is inappropriate today,” Morris said. “The standard is ambiguous. Some courts have construed it to be a behavioral standard that focuses only on a defendant’s capacity to act rationally, to behave appropriately in the courtroom or in interactions with defense counsel. Other courts have construed it to be a cognitive standard.”

But it is wrong to assume that defendants who conduct themselves rationally are also thinking rationally and truly understand court proceedings, Morris argued.

• State legislatures and appellate courts should refine the “rational understanding” standard enshrined in Dusky vs. the United States, a brief (234-word) 1960 U.S. Supreme Court opinion holding that a defendant is competent to stand trial if he or she has “sufficient present ability” to consult with an attorney with a “reasonable degree” of rational understanding, plus a rational as well as factual understanding of the proceedings.

“Although ‘rational understanding’ is preferable to the ‘rational manner’ standard, it, too, is woefully deficient—vague, confusing, ambiguous, lacking in specificity and detail,” said Morris. “What do we mean by a ‘sufficient present ability’ to consult with an attorney? What exactly is a ‘reasonable degree’ of rational understanding? Neither courts nor legislatures have provided answers to those questions.”

The bottom line, according to Morris, is that courts and legislatures have left it to mental-health professionals to develop their own competence-assessment tests to apply the Dusky standard of competence. And, more often than not, mental-health professionals base their competency decisions on interviews with defendants rather than on the results of psychological tests.

• Judges, lawyers, and mental-health evaluators should understand and accept their respective roles in the competency-assessment process.

“For example,” Morris said, “trial court judges are responsible for deciding whether the defendant is competent to stand trial. That’s their decision. They should not relinquish their responsibility to psychiatrists and psychologists. Psychiatrists and psychologists are expert in assessing whether the defendant has a diagnosable mental disorder or whether the defendant is simply malingering. They can explain how that mental disorder affects, or may affect, his understanding of issues and decision-making capacity. But they are not expert in deciding whether the defendant has a sufficient ability to consult with his attorney or has a reasonable degree of rational understanding. Those are legal policy judgments that are appropriately made by the judge.”

Morris said the American Bar Association should urge defense attorneys to attend their clients’ competency evaluations or at least “engage in a meaningful dialogue” with consulting mental-health professionals before evaluations are performed.

As for psychiatrists and psychologists who advise on defendants’ competency, those professionals “must learn to differentiate clinical issues from forensic issues,” said Morris. “Numerous comments from the respondents to our study clearly indicated that decisions on competency were determined by clinical considerations—Does the client have a serious mental illness? Was he psychotic? Will he benefit from treatment?—not by the legal standards that supposedly would be applied through the assessment.”

Morris concluded: “Unless judges, lawyers, and forensic evaluators understand and accept their roles in the competency process, the elusive goal of that process—to assure that the defendant receives a fair trial—will not be achieved.”

The annual Nordenberg Lectures are sponsored by Pitt’s School of Law and Center for Bioethics and Health Law.