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January 24, 2008


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Hi Postcard- I think I view mental "competency" as a continuum, between "bad mood" and "totally psychotic" with most falling in the gray area in between. But all have some sort of organic component.

I thought your comment about how when the defendent brings up "compentency" it is usually a personality disorder was very telling -- game the system.


I forgot

Fetal alcohol spectrum disorders are pretty common on death row, I hear. There was a primate study showing genetic vulnerability + moderate fetal alcohol and you really get some behavioral phenotypes. Yet, the SCOTUS ruled that fetal alcohol isn't enough to be incompetent to stand trial (there's a link to the CNN article). So I guess if I were a defendant I might argue lack of equal protection -- not all defendants are treated equally.

Jeremiah Dwyer


In your first comment, you are getting at the puzzle that is created when the system blends the psychological with the legal, both theoretically, as well as practically. Psychologists generally want to consider a range of issues, usually on a continuum, while an attorney (or judge) wants a "yes or no." Ultimately, competency comes down to a yes/no answer, though in my reports, I will use language that demonstrates my degree of confidence in my finding, as well as the reasons why.

With respect to your second comment, it's important to remember that the presence of any disorder, in and of itself, is not sufficient to declare someone incompetent. A "severe mental disease or defect" is necessary, but not sufficient. I've found individuals with various psychotic disorders, mental retardation, etc, competent to stand trial, because their ability to understand the nature of the court proceedings, as well as their ability to aid their defense, were not impaired beyond a reasonable degree. With fetal alcohol syndrome, it would likely come down to the specific cognitive impairments (just like with a head injury), i.e. how cognitely impaired are they? If they can continue to track the procedings in court, have a grasp of the relevant issues, etc., then they may be competent. If not, then they wouldn't be. This would be assessed both formally (through cognitive and, if necessary, neuropsychological testing) as well as informally (their ability to provide historical information, sequence it properly, etc.

Interestingly, the SCOTUS was extremely inconsistent when they placed the restriction of the death penalty on the mentally retarded. Regardless of what one thinks about the death penalty, the standard was changed in this one specific instance, without any real consistency with how competency is defined. Since I'm not an attorney, I don't have any fancy legal arguements, and I really don't have a dog in the fight - I just assess the defendant, the court does the rest, but it is interesting.

Last, one of the most fascinating parts of my job is trying to ascertain if someone is "gaming the system." Many defendants exaggerate, if not outright feign, symptoms of mental illness (which I find to be a completely normal response for many individuals, when faced with the prospect of serving time in federal prison). However, most aren't very good at it, especially because the are cocky due to past success in gaming people who weren't looking for malingering (i.e. state hospital). In the general population, psychologists tend to take people at their word, but when secondary gain is likely, the burden of proff rises considerably...


JD -
A yes/no, binary answer must be tough to get to. I mean, here an individual cognitively knows right from wrong, but then goes and wants to self-represent, and fire his defense attorney -- a judge then has to again rule if the person is competent to represent himself. So it seems like a moving target.

Interesting that you need to figure out the fakers. Are white collar criminals better at faking? Do you find yourself giving white collar criminals more of a break?

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