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“Competency” - A Real Life Catch 22


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Is the defendant guilty? Is the defendant suffering from a mental health malady that prohibits him from understanding the nature of the crime? Is the defendant able to consult with a lawyer and fully understand the charges against them?

The Sixth Amendment to the U.S. Constitution implemented in 1791 makes it clear that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...and have Assistance of Counsel for his defense.” The U.S. code in its standard for competency states in essence, a person accused of a crime must be able to understand the nature of the charges. Does the accused have the mental capacity to consult with an attorney? Does the accused have the capacity to understand the proceedings against him or her. In the landmark Supreme Court case Duskey v. United States these standards were set forth.

If a defendant’s competency is in question the defense or prosecuting attorney or court may ask for an evaluation by a Mental Health Professional. It is then the Mental Health Professionals job to present a report to the court concerning competency. The court then has the discretion to use the information presented or not. The final decision as to competency rests with the court; the Mental Health Professional is there to offer an expert opinion.

Although there are no hard and fast procedural standards for conducting a competency evaluation the Mental Health Professional has an obligation to conduct a through evaluation taking into consideration family history, trauma history, substance abuse history, mental health history, and a host of other items concerning psychosocial development. The Mental Health Professional also needs to conduct the evaluation under current accepted standards and ethical guidelines. Psychological tests such the Minnesota Multiphasic Personality Inventory (MMPI) and the Wechsler Adult Intelligence Scale-Revised (WAIS-R) are just a couple of the standard objective testing materials that can be used to help the Mental Health Professional determine competency. Other test batteries include Luria-Nebraska Neuropsychological Investigation, which are usually is not used alone but should be used in conjunction with the above named personality and IQ tests. Some Mental Health Professionals like to use projective tests in tandem with the objective measures such as the Rorschach or the Thematic Apperception Test. I prefer to not use projective tests because defending these types of tests presents a problem in court, in my opinion.

A Mental Health Professional who conducts an appropriate evaluation can, with relative
certainty, offer an opinion as to competency, and can professionally defend that opinion while under oath. Merely offering an opinion that is not backed up by standardized testing and an in depth historical investigation is just that, an opinion.

The role of the expert is to provide the court and jury with enough evidence to appropriately weigh the evidence to help in determining guilt or innocence. These opinions are to be based on a witness “having special knowledge about which he is to testify, that knowledge generally to be such as is not possessed by the average person. This expertise may derive from either study and education or from experience and observation."

Determining competency can be difficult but it doesn't not have to be laborious. A qualified forensic mental health expert can help identify a person who is feigning his or her impairment or disorder and one who is not.



By Richard J. Stride, Psy.D., MBA, LPC, LMHC
Mental Health Expert Witness / Litigation Consultant/Ethics/Mental Health Business
ABOUT THE AUTHOR: Dr. Richard J. Stride, Psy.D.
I am licensed in Colorado and Washington states as a Licensed Mental Health Professional, as well as certified with the National Board for Certified Counselors since 1997. I am also a Certified Forensic Mental Health Evaluator, Diplomate with the National Board of Forensic Evaluators. All of my clinical practice has been provided for under these licenses and certifications, as is the expert witness testimony.

I have extensive knowledge of forensic evaluations of all types as well as effective case presentation in court. I have been qualified in court as an expert witness in mental health, child abuse, adult psychopathology, and developmental disabilities.

I am trained and qualified to administer and score objective and projective testing instruments, including but not limited to The Minnesota Mutiphase Personality Inventory (MMPI), Personality Assessment Inventory (PAI), Kaufman Brief Intelligence Test, and a host of other testing instruments.

Copyright Richard J. Stride, Psy.D., MBA, LPC, LMHC

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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