Forensic Scholars Today
What are the most frequent criminal competency evaluations forensic psychologists conduct?
What is the process for conducting such an evaluation? What does the population of individuals look like
who undergo these evaluations? All of these questions contain core elements that are helpful in the
evaluation and adjudication of a defendant’s competence.
The origins of competency to stand trial can be traced to Babylonian Talmud and early Judeo-
Christian texts (Nussbaum, Hancock, Turner, Arrowood & Melodick, 2008) along with English common
law that emerged at some point prior to the 14th century (Otto, 2006). A defendant’s right to a fair trial is
one of the core principles of the United States’ criminal justice system, which strives to provide all
defendants with objective and dignified proceedings (Pirelli, Gottdiener, & Zapf, 2011). This requires that
all defendants maintain a basic level of competence to proceed (Murrie & Zelle, 2015). Within the context
of adversarial proceedings, competence refers to a defendant’s present ability to meaningfully participate
in his or her defense and comprehend the trial process. Competency to stand trial (CST) is a doctrine of
jurisprudence that allows for the postponement of criminal proceedings should a defendant be unable to
participate in his or her defense on account of mental disorder or intellectual disability. Issues of
competency may be raised at any point during the proceedings and, if a bona fide doubt exists regarding
competency, the issue must be formally considered, thus requiring a forensic evaluation. Approximately
60,000 defendants are evaluated for trial competency annually, making this the most common forensic
issue evaluated (Morris & DeYoung, 2012; Pirelli, Gottdiener, & Zapf, 2011). Current research indicates
that this number has been steadily increasing over time (Zapf, Roesch, & Pirelli, 2014). Base rates of
incompetency vary by jurisdiction and setting, but approximately 20% of referred defendants are opined
incompetent to stand trial (IST). The low base rate of defendants adjudicated IST has been highlighted in
defining the standards of practice in the competency arena (Pirelli, Gottdiener, & Zapf, 2011).
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Competence is a legal construct, which does not have a distinct or easily identifiable
psychological correlate. The U.S. law regarding trial competency was established in Dusky v. United
States (1960) and currently all states use some variant of the Dusky standard, with the exact definition
varying by jurisdiction. Forensic evaluators are tasked with describing the degree of congruence or
incongruence between the relevant jurisdictional competency standard and the defendant’s current
abilities. To complete this task, forensic evaluators must maintain a combination of advanced clinical skills
coupled with knowledge about the legal system, competency standards, and their interpretation, as a
finding of IST cannot be rendered without sufficient consideration of specific facts regarding the
defendant’s current legal case (Murrie & Zelle, 2015; Zapf, Roesch, & Pirelli, 2014). Mental health issues,
such as the presence or absence of psychosis, play a prominent role in competency determinations
(Kalbeitzer & Benedetti, 2009; Ryba and Zapf, 2011). Historically, competency was equated with
psychosis; however, research has since provided evidence that the presence of psychosis itself is not
sufficient for a defendant to be adjudicated incompetent (Zapf et al., 2014). CST evaluations assess basic
cognitive processes in relation to the defendant’s present psycholegal abilities such as understanding
relevant information, appreciating the situation and its consequences, the ability to use logical thinking
and reasoning, being motivated to assist counsel, and the ability to effectively formulate as well as
communicate decisions (Murrie & Zelle, 2015).
Procedural Issues
It is common practice that when the issue of competency is raised, a forensic evaluation is
subsequently conducted. These evaluations are court-ordered the majority of the time and may take place
in numerous locations such as jails, community-based outpatient centers, or mental health centers
(Vitacco, Rogers, Gabel & Munizza, 2007). Once an evaluator completes a competency evaluation, a
written report is submitted to the court. If the defense and prosecution attorneys do not accept the opinion
of the evaluator, a brief hearing may be held wherein the evaluator is asked to testify; however, this is
rarely the case. The ultimate decision regarding a defendant’s competence rests with the court, which is
not bound by the evaluator’s opinion. Most courts, however, accept the opinion or recommendation of the
evaluator, resulting in very high levels of examiner-judge agreement (Zapf et al., 2014).
Financial Considerations
Financial costs associated with competency to stand trial evaluations are vast and increasing
every year. In fact, competency to stand trial evaluations and subsequent treatment and adjudication
require more financial resources than any other venture in forensic psychology (Zapf, Skeem & Golding,
2005). To illustrate this point further, in the 1980s, Winick (1985) calculated that CST assessments and
subsequent treatment cost over $185 million in the United States per year. In the 1990s, Winick (1996)
estimated that the cost of CST assessments and subsequent treatment in the United States was likely
$370-$555 million per year. In the decades since Winick’s estimates (1985, 1996), the annual cost of CST
assessments and subsequent treatment has likely ballooned (Pirelli, Gottdiener, & Zapf, 2011).
Assessing Competence
Assessments of competency to stand trial concentrate on several issues including mental and
physical health, comprehension of legal proceedings, and capacity to communicate with legal counsel
(Chauhan, Warren, Kois & Wellbeloved-Stone, 2015). Research indicates that forensic evaluators show
high levels of agreement on the ultimate issue of a defendant’s competence; however, high levels of
reliability do not ensure that valid decisions are being made. Multiple evaluators could agree that the
presence of psychosis automatically signifies that a defendant is incompetent, yet previous research has
underscored that this is an invalid conclusion (Zapf et al., 2014). It is important that evaluators
appropriately assess a defendant’s mental status in relation to the functional abilities that are relevant to
the particular defendant’s legal case. Mental status and formal psychiatric diagnoses are important
competency considerations but, independent from the facts of the legal case, they are not sufficient for
rendering an opinion regarding competence (Zapf et al., 2014). A defendant’s mental disorder must
interfere with relevant, functional abilities in such a way that he or she is left unable to effectively
participate in the trial proceedings in order to be opined IST. Evaluators are obligated to address the
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appropriate range of psycholegal abilities and to effectively tie psychopathological observations to their
conclusions regarding competence.
There is no “gold standard” instrument for measuring a defendant’s competency (Murrie & Zelle,
2015). This, paired with the level of ambiguity in the definition of competency, further complicates the
evaluation process. Prior to 1960, there was not a standardized method for assessing competency. Over
the past 40 years, no fewer than 12 competency assessment instruments have been developed to
address a defendant’s psycholegal abilities (Pirelli et al., 2011). These instruments range from informal
checklists to structured instruments with criterion-based scoring and have minimized the need for lengthy
inpatient evaluations. CST assessment tools have been deemed useful as they address a defendant’s
competence-related abilities directly with respect to the legal standard (Zapf & Roesch, 2009). Although
not designed to assess competency to stand trial, several instruments developed to measure specific
psychological constructs including intelligence (e.g., Wechsler Adult Intelligence Scales) and
psychopathology (Minnesota Multiphasic Personality Inventory) are commonly used in competency
evaluations (Pirelli, Gottdiener, & Zapf, 2011). An overview of competency tools is beyond the scope of
this brief article; however, interested readers are referred to additional sources (Pirelli et al., 2011; Zapf &
Roesch, 2009; Zapf, Roesch, & Pirelli, 2014).
Referred Population
The most common variables that have been identified as correlates with competency status are
ethnicity, sex, employment, marital status, type of current criminal charge, criminal history, and history of
psychiatric hospitalization. In comparison to defendants who were opined competent, incompetent
defendants are typically older, predominantly non-white, unmarried, and have a higher rate of
unemployment. Psychiatric variables typically show the most significant differences between those
adjudicated competent and those adjudicated incompetent. Defendants who are deemed IST are more
likely to have previous psychiatric hospitalizations and current diagnoses on the psychotic spectrum than
defendants found CST (Pirelli et al., 2011).
Guidelines for Evaluators
It is good practice for the evaluator to speak with both the defense and prosecution attorneys to
have the best understanding of why the issue of competence was raised. Evaluators are further advised
to obtain all evidence being offered and the dispositional alternatives that are being considered for the
defendant. Evaluators should be aware of the aspects of practice within the evaluating jurisdiction and be
thoroughly acquainted with the legal literature to provide the most thorough evaluation.
Biographies
Amanda Beltrani is a graduate student in the Forensic Psychology master’s 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 master’s degree.
Patricia A. Zapf obtained her Ph.D. 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 five journals in psychology and law. Dr. Zapf is on the Board of Directors for the
International Association of Forensic Mental Health Services and is the Past President for the American
Psychology-Law Society (AP-LS; Division 41, APA). She has published eight books and manuals and
more than 85 articles and chapters, mainly on the assessment and conceptualization of criminal
competencies. Dr. Zapf was appointed Fellow of the American Psychological Association and
Distinguished Member of the American Psychology-Law Society in 2006 for outstanding contributions to
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the field of law and psychology for her work in competency evaluation. In addition to her research, she
serves as consultant to various criminal justice and policy organizations and has a private practice in
forensic assessment. She has conducted more than 2,500 forensic evaluations in both the United States
and Canada and has served as an witness in a number of cases, including the competency hearing of
Jose Padilla. Dr. Zapf is the author of Best Practices in Forensic Mental Health Assessment: Evaluation of
Competency to Stand Trial; editor of Forensic Assessments in Criminal and Civil Law: A Handbook for
Lawyers; and Editor-in-Chief of the recently published APA Handbook of Forensic Psychology. She
served on National Judicial College’s Mental Competency—Best Practices Model panel of experts and
travels throughout the United States and internationally to train legal and mental health professionals on
best practices in forensic evaluation.
Jerrod Brown, M.A., M.S., M.S., M.S., is the Treatment Director for Pathways Counseling Center, Inc.
Pathways provides programs and services benefiting individuals impacted by mental illness and
addictions. Jerrod is also the founder and CEO of the American Institute for the Advancement of Forensic
Studies (AIAFS) and lead developer and program director of an online graduate degree program
in Forensic Mental Health from Concordia University, St. Paul, Minnesota. Jerrod is currently pursuing his
doctoral degree in psychology.
References
Chauhan, P., Warren, J., Kois, L., & Wellbeloved-Stone, J. (2015). The significance of combining
evaluations of competency to stand trial and sanity at the time of the offense. Psychology, public
policy, and law, 21(1), 50.
Kalbeitzer, R., & Benedetti, R. (2009). Assessment of competency to stand trial in individuals with Mental
Retardation. Journal of Forensic Psychology Practice, 9(3), 237-248.
Morris, D. R., & DeYoung, N. J. (2012). Psycholegal abilities and restoration of competence to stand trial.
Behavioral Sciences and the Law, 30, 710–728.
Murrie, D. C., & Zelle, H. (2015). Criminal competencies. In B. L. Cutler, P. A. Zapf, B. L. Cutler, P. A.
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stand trial: A conceptual overview, review of existing instruments, and cross-validation of the
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research. Psychology, Public Policy, And Law, 17(1), 1-53. doi:10.1037/a0021713
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