The quality of forensic psychological assessments, reports, and testimony: acknowledging the gap between promise and practice

Evaluations of competence to stand trial are evolving amid a national "competency crisis"

Across the United States, court orders for competence to stand trial (CST) evaluations and competence restoration services have been increasing much more rapidly than states can provide these services, prompting what has been called a national "competency crisis." The challenge in providing timely competence restoration services has, in several jurisdictions, prompted a change in competence evaluations. Evaluators are more often required to address broader clinical issues-such as recommending placement or addressing the urgency of hospitalization-rather than addressing only CST. This marks an evolving practice in forensic evaluation, which moves evaluators beyond the very narrow forensic question of competence and into more traditionally clinical recommendations. We describe several state examples of changing practice in order to highlight the initial barriers, and potential benefits, to addressing additional clinical issues in competence evaluations, amid a national competence crisis.

Use of assessment instruments in forensic evaluations of criminal responsibility in Norway

OBJECTIVES

Assessment instruments are often used to enhance quality and objectivity in therapeutic and legal settings. We aimed to explore the use of instruments in Norwegian reports of forensic evaluations of criminal responsibility; specifically, whether this use was associated with diagnostic and forensic conclusions.

METHODS

Our study has an exploratory cross-sectional design. We examined 500 reports filed with the Norwegian Board of Forensic Medicine in 2009-2018 regarding defendants indicted for the most serious violent crimes. The first author coded data from all reports according to a registration form developed for this study. Two co-authors then coded a random sample of 50 reports, and inter-rater reliability measures were calculated. The first author coded 41 reports for calculation of intra-rater reliability. Descriptive statistics are presented for the use of assessment instruments, and a generalized linear mixed model (GLMM) was used to estimate associations between the use of instruments and diagnostic and forensic conclusions.

RESULTS

Instruments were used in 50.0% of reports. The Wechler's Adult Intelligence Scale (WAIS), Historical Clinical Risk-20 (HCR-20), and the Structured Clinical Interview for DSM disorders (SCID I), were used in 15.8, 13.8, and 9.0% of reports, respectively. The use of instruments increased from 36% in 2009 to 58% in 2015; then decreased to 49% in 2018. Teams of two experts wrote 98.0% of reports, and 43.4% of these teams comprised two psychiatrists. In 20.0% of reports, the diagnostic conclusion was schizophrenia, and in 8.8% it was other psychotic disorders. A conclusion of criminal irresponsibility was given in 25.8% of reports. Instruments were more often used in reports written by teams that comprised both a psychiatrist and a psychologist, compared to reports by two psychiatrists. The use of instruments was strongly associated with both diagnostic and forensic conclusions.

CONCLUSION

Instruments were used in 50% of reports on forensic evaluations of criminal responsibility in Norway, and their use increased during the study period. Use of instruments was associated with diagnostic and forensic conclusions.

Personality Assessment in Legal Contexts: Introduction to the Special Issue

This special issue addresses a major gap in the literature by providing comprehensive, credible reviews of the psychometric evidence for and legal status of some of the most commonly-used psychological and personality assessment measures used in forensic evaluations. It responds to Neal and colleagues' (2019) call for research to improve the state of and access to knowledge about psychological assessments in legal contexts, and encourages critical thinking about forensic assessment in the spirit of improvement. These articles offer clarity about the strengths and weaknesses of a number of assessment instruments to inform psychologists' preparation for expert testimony, lawyers' preparation for direct and cross-examination, judges' evidence admissibility determinations, and scholars' future research. We assembled teams of authors with different perspectives and areas of expertise to review each tool fairly, including several adversarial collaborations. Articles on the Rorschach and R-PAS, MMPI-3, PCL-R, MCMI-IV and MACI-II, PAI and PAI-A, SIRS-2, HCR-20^V3, TSI and TSI-2, and the MacCAT-CA, ECST-R, and CAST*MR are included. To increase visibility, accessibility, and impact, this issue is published as free access, meaning the articles are available to download without charge. We anticipate these articles will be widely read and useful to scholars and practitioners in both psychology and law.

Competence to stand trial and criminalization: an overview of the research

Beginning in the 1960s, a steady decline in the number of inpatient psychiatric beds has occurred across the United States, primarily as a result of stricter civil commitment criteria and a societal movement toward deinstitutionalization. Concomitant with this decrease in psychiatric beds has been a steady increase in the number of mentally ill individuals who are arrested and processed through the criminal justice system as defendants. One consequence of this has been an explosion in the number of defendants referred for evaluations of their present mental state-adjudicative competence-and subsequently found incompetent and ordered to complete a period of competency restoration. This has resulted in forensic mental health systems that are overwhelmed by the demand for services and that are unable to meet the needs of these defendants in a timely manner. In many states, lawsuits have been brought by defendants who have had their liberties restricted as a result of lengthy confinements in jail awaiting forensic services. The stress on state-wide forensic systems has become so widespread that this has reached the level of a near-national crisis. Many states and national organizations are currently attempting to study these issues and develop creative strategies for relieving this overburdening of forensic mental health systems nationwide. The purpose of this article is to review the current state of the research on competence to stand trial and to highlight those issues that might be relevant to the issue of criminalization of individuals with mental illness in the United States.

Competency to stand trial evaluations: A state-wide review of court-ordered reports

Competence to stand trial (CST) evaluations are a critical part of certain criminal proceedings, and competence-related evaluation and treatment are an increasing part of public mental health services. Whereas more research describes the defendants undergoing competence evaluations, less research has examined the actual reports detailing those competence evaluations. This study reviewed 3,644 court-ordered CST evaluation reports submitted by 126 evaluators in Virginia since Virginia initiated an oversight system allowing for comprehensive review. The base rate of incompetence opinions was 38.8%, but these rates varied significantly across evaluation type (initial versus post-restoration efforts) and evaluators (ranging from 9.1% to 76.8% incompetence rate). Results suggest generally strong compliance with state statutes guiding CST evaluations, but also highlight marked variability in forensic conclusions and reveal a few areas in which some reports fell short of statutory requirements and practice guidelines.

The use of test instruments in forensic report writing - Explorative research in Flanders

BACKGROUND

Forensic psychiatric reports have a profound impact on the life of a defendant, on society and on the mental health system. Good-quality reports are essential but are often criticized for their lack of thorough substantiation. The use of multiple methods to obtain information, test instruments (psychological and/or risk) and third-party information are recommended.

STUDY PURPOSE

To explore the use of test instruments and third-party information, as part of a multi-method approach, in forensic psychiatric evaluations. We examined 151 court-ordered expert reports in Flanders (Belgium).

RESULTS

A psychological test instrument was used in 61% of the cases, and a risk taxation instrument in 19% of the cases. Third-party information was used in 43% of the cases.

CONCLUSIONS

A multi-method approach is not common practice in forensic psychiatric evaluations. The use of validated test instruments and third-party information can be improved. The quality of forensic reports could be improved by the establishment of a forensic observation centre and the use of a standardized approach.

Effects of the Presser and legislative criteria on classifying New Zealand's fitness to stand trial court outcomes

New Zealand's legislation mandates the inclusion of several legislative criteria to assist in the determination of defendants' fitness to stand trial (FTST). However, the unlegislated Presser criteria have been described as useful to discriminate between defendants' fitness without formal research to identify them as such. The sample consisted of 252 defendants' FTST forensic assessments between 2005 and 2015 with a mean age of 30.1 years, where 87.7% were male. Defendants were primarily from Māori descent (37.3%), New Zealand European (34.1%) and Pacific Island descent (17.9%). The authors found that all Presser and legislative criteria significantly predicted whether the defendant was fit to stand trial (FST). Both the Presser and legislative criteria have excellent area under the curve (AUC) statistics. However, the Presser criteria, compared to the legislative criteria, improved specificity of court judgements. The Presser criteria may therefore assist in correct FTST court decisions, particularly for borderline-fit defendants.

Legal Representatives' Opinions regarding Psychologists Engaging in Expert Witness Services in Australian Courts and Tribunals

Legal representatives engage psychologists to provide expert witness opinions about a number of factors, including the psychological factors that may have contributed to the perpetrator's behaviour and the likelihood of reoffending. Although this evidence can affect the outcome of proceedings, little is known about how the experts who provide it are chosen or about the quality of their services. This paper explored legal representatives' reasons for engaging psychologists as expert witnesses, how they choose these experts, and their opinions about the expertise provided. Questions were also asked about the features of good and poor written and oral expert testimony. The results show that the majority of legal representatives engage psychologists who are usually chosen through referrals from colleagues and others. The legal representatives in the present sample had little awareness about the different backgrounds of experts (e.g. clinical vs forensic psychology). These results have implications for psychologists who provide expert evidence and the legal representatives who engage them.

Evaluations of Capacity to Waive Miranda Rights

Minimal information is available regarding the frequency with which practitioners conduct evaluations of capacity to waive Miranda rights or what approaches they use in doing so. Grisso's Instruments for Assessing Understanding and Appreciation of Miranda Rights are the only published instruments designed specifically to assist practitioners in these evaluations. The instruments have been criticized for limited normative data in the test manual and the minimal guidance offered for interpreting results. A survey of practitioners was conducted to determine the nature and frequency of the use of these instruments. Of 401 respondents, 91% were engaged in forensic practice, and 26% had conducted evaluations of one's capacity to waive Miranda rights. Of those conducting Miranda evaluations, 44% had used Grisso's Miranda instruments. Practitioners' responses regarding the ways the instruments are used are reported. Suggestions are offered for informed practice, and related strengths and weaknesses of the instruments are identified.

The Clinical Assessment in the Legal Field: An Empirical Study of Bias and Limitations in Forensic Expertise

According to the literature, psychological assessment in forensic contexts is one of the most controversial application areas for clinical psychology. This paper presents a review of systematic judgment errors in the forensic field. Forty-six psychological reports written by psychologists, court consultants, have been analyzed with content analysis to identify typical judgment errors related to the following areas: (a) distortions in the attribution of causality, (b) inferential errors, and (c) epistemological inconsistencies. Results indicated that systematic errors of judgment, usually referred also as "the man in the street," are widely present in the forensic evaluations of specialist consultants. Clinical and practical implications are taken into account. This article could lead to significant benefits for clinical psychologists who want to deal with this sensitive issue and are interested in improving the quality of their contribution to the justice system.

Quality of criminal responsibility reports submitted to the Hawaii judiciary

This paper is the third in a series of research reports on quality of forensic mental health evaluations submitted to the Hawaii judiciary. Previous studies examined quality of reports assessing competency to stand trial (CST) and post-acquittal conditional release, in felony defendants undergoing court-ordered examinations. Utilizing a 44-item quality coding instrument, this study examined quality of criminal responsibility reports in a sample of 150 forensic mental health evaluations conducted between 2006 and 2010 by court-appointed panels. Raters attained high levels of agreement in training and quality coding. Similar to the previous studies, overall quality of reports was mediocre, falling below the .80 quality criterion score for report elements, regardless of evaluator professional identification or employment status. Level of agreement between evaluators and judicial sanity determinations was "fair" using Cicchetti's (1994) standards for interpretation of intra-class correlations. Level of agreement was lower than previously published findings for CST reports and better than conditional release reports. Reasons for mediocre report quality and "fair" inter-rater agreement are discussed, including the fact that criminal responsibility evaluations are complex, retrospective in nature, and involve significant degrees of inference. In contrast to CST evaluations, assessment of criminal responsibility involves a mental state at the time of the offense evaluation. Threats to reliability in forensic reports are discussed. Suggestions for improvement of report quality are proffered, including standardization of procedures and report format and use of forensic assessment instruments.

Quality improvement of forensic mental health evaluations and reports of youth in the Netherlands

Quality improvement of forensic mental health evaluations and reports is needed, but little information is available on how this can be attained, and relatively little conceptual analysis has been undertaken. The STAR, a standardized evaluation instrument of the quality of forensic mental health reports of youth, is developed on the basis of concept mapping to clarify the different perspectives on usability of these reports. Psychometric data are provided, demonstrating the reliability and supporting the validity of the STAR. The Dutch forensic context is described to better understand the development and psychometric properties of this standardized instrument. Quality improvement possibilities of forensic mental health evaluations and reports are discussed.

Fitness in paradise: quality of forensic reports submitted to the Hawaii judiciary

This paper examined quality of forensic reports submitted to the Hawaii Judiciary. Hawaii utilizes a three panel system for assessing fitness to proceed, where two psychologists and one psychiatrist submit independent reports to the Court. Utilizing a survey instrument based on previous research and nationally-derived quality standards, 150 competency to stand trial (CST) reports were examined. Reports demonstrated pervasive mediocrity with respect to quality (Mean QC=68.95, SD=15.21). One quarter (N=38) of the reports scored at or above 80% of the maximum possible score. Levels of CST agreement between evaluators and evaluators and judges were high. Report quality did not differ as a function of evaluator professional identity. Full-time employed evaluators submitted a greater number of reports above the quality criterion. For those evaluators who attended the March training, reports demonstrated significantly improved quality. Suggestions for enhancing report quality are offered with a special attention to inclusion of report elements, focus on inclusion of historical elements, and clearly described rationales supporting forensic opinions. (7664 words. Competency to stand trial, inter-rater agreement).

Assessing violence risk and psychopathy in juvenile and adult offenders: a survey of clinical practices

This study surveyed 199 forensic clinicians about the practices that they use in assessing violence risk in juvenile and adult offenders. Results indicated that the use of risk assessment and psychopathy tools was common. Although clinicians reported more routine use of psychopathy measures in adult risk assessments compared with juvenile risks assessments, 79% of clinicians reported using psychopathy measures at least once in a while in juvenile risk assessments. Extremely few clinicians, however, believe that juveniles should be labeled or referred to as psychopaths. Juvenile risk reports were more likely than adult reports to routinely discuss treatment and protective factors, and provide recommendations to reevaluate risk. The implications of these findings are discussed.

Infant mental health, child maltreatment, and the law: A jurisprudent therapy analysis

Scholarly and clinical discussions of the legal issues facing infant mental health professionals typically focus on the seemingly intractable differences in philosophies, goals, and approaches inherent in the law and the mental health professions. We argue that forensically informed approaches to practice with very young children can potentially enhance many mental health and child welfare outcomes. This article describes the relatively new conceptual frameworks known as "therapeutic jurisprudence" and "jurisprudent therapy." Using these conceptual frameworks, we analyze representative problems that are typical in infant mental health practice with maltreated children through case examples drawn from their evaluations of children and families in the child protection and legal systems. Demonstrations of how such dilemmas can be approached with enhanced analytic decision-making and practice approaches are presented. We argue that applying such jurisprudent therapy approaches opens up fresh perspectives for evidence-based practices that facilitate creative, rigorous, and intellectually stimulating clinical work.

Opinion formation in evaluating the adjudicative competence and restorability of criminal defendants: a review of 8,000 evaluations

Evaluations of competence to stand trial (CST) are the most common type of criminal forensic evaluation conducted, and courts tend to defer to clinician opinions regarding a defendant's competence. Thus, it is important to study the ways in which clinicians arrive at opinions regarding adjudicative competence and the data they consider in forming their opinions. We reviewed 8,416 evaluations conducted by forensic evaluators in Virginia over a 12 year period, and examined (a) the clinical, demographic, and criminal characteristics of a defendant as related to opinions regarding competence, predicted restorability, and impairment on "prongs" of the Dusky standard, (b) process and outcome differences in evaluations conducted by psychiatrists versus psychologists and inpatient versus outpatient evaluators, and (c) the consistency of incompetence base rates over a 10 year period. Overall, clinicians opined that 19% of defendants were incompetent and considered 23% of these unlikely to be restored to competence. Not surprisingly, psychotic and organic/intellectual disorders were most strongly associated with findings of incompetence. However, there were some notable differences between evaluations by psychologists versus psychiatrists and between evaluations conducted in inpatient versus outpatient settings.

Mental competence and end-of-life decision making: death row volunteering and euthanasia

This article reports on a qualitative study of defense attorneys' perceptions of the mental competence or rationality of death row inmates' decisions to waive habeas appeals and proceed directly to execution. Interviews were conducted with twenty attorneys who have either directly represented or been closely involved with would-be volunteers. Through analytic comparison with another end-of-life decision, euthanasia, this article reports on four themes from the interviews: (a) attorneys' perceptions of the legal standard of competence, (b) their perceptions of the competency evaluation process, (c) implications of competing interpretive frames (i.e., volunteering vs. suicide), and (d) the rationality of decisions to waive appeals. Implications of research findings, particularly in terms of recent restructured models of competence, are also discussed.

Mental health assessments in juvenile justice: report on the consensus conference

OBJECTIVE

At national, state, and local levels, there is increasing recognition of the importance of identifying and responding to the mental health needs of youths in the juvenile justice system, as policymakers and practitioners struggle to find ways to address causes and correlates of juvenile crime and delinquency. The proposed guidelines for mental health assessment provide explicit information about how, why, and when to obtain mental health information on justice youths at each important juncture in processing.

METHOD

A national group of expert researchers and practitioners convened in April 2002. Experts derived six recommendations, following the expert consensus method, for conducting mental health assessments in juvenile justice settings. Experts had broad experience creating collaborations between juvenile justice, mental health, and child welfare systems and understood the policy and health implications of conducting such assessments in juvenile justice settings.

RESULTS

Consensus Conference recommendations regarding screening for emergent risk, screening and assessment of mental health service needs, comprehensive mental health assessment components, assessment before community re-entry, need for periodic reassessment, and staff training are presented.

CONCLUSION

Deriving specific recommendations that can be implemented systematically is a necessary first step toward policy changes that will optimize the standard of care for this vulnerable population.

Issues and considerations regarding the use of assessment instruments in the evaluation of competency to stand trial

Since the early 1960s, a number of instruments, reflecting a broad range of assessment methods, have been developed to assist in the evaluation of competency to stand trial. These instruments have taken various forms including checklists, self-report questionnaires, sentence-completion tasks, and interview-based instruments with and without criterion-based scoring. This article reviews these assessment instruments with a specific focus on their contribution to the competency evaluation process. Furthermore, relevant issues and considerations regarding the use of these instruments are outlined, including a comparison of screening versus assessment applications of these instruments, balancing standardized approaches with individualized assessments, the integration of instrumentally derived data with other components of a competency evaluation, and the communication of results to the fact finder. Each of these issues is discussed in relation to specific competency assessment instruments. Overall, we argue that each of the competency assessment instruments developed to date can make a contribution to the competency evaluation process and this article serves to delineate those areas in which these contributions are made.

Five year research update (1996-2000): evaluations for competence to stand trial (adjudicative competence)

This article reviews and evaluates publications during 1996-2000 with relevance for assessments of competence to stand trial (also known as adjudicative competence). The review focuses specifically on articles that provide new concepts or data supported by research or case analyses. The studies are reviewed under the following headings: (i) the systemic context of evaluations of adjudicative competence (AC); (ii) conceptual guidelines for AC evaluations; (iii) research on AC assessment methods; (iv) empirical correlates of AC judgments and psycholegal abilities; (v) quality of AC evaluations and reports; (vi) interpretation of AC evaluation data; (vii) issues in AC assessment of special populations (e.g., juveniles, persons with mental retardation, and women); and (viii) treatment to restore competence. Suggestions are offered for further research to advance the quality of clinical evaluations of adjudicative competence.

The use of the Personality Assessment Inventory (PAI) in assessing offenders

The intersection between the legal and mental health professions is sometimes marked by controversy, and the application of psychological assessments to forensic issues is no exception. However, the field of psychological assessment holds particular promise for clarifying decision making within the forensic arena, as it can bring a particularly well-established body of theory and data to bear upon clinical forensic practice. This article describes one psychometric instrument, the Personality Assessment Inventory, as an example of how particular assessment instruments can help inform this process.

The practice of forensic psychology. A look toward the future in light of the past

In a 1987 American Psychologist article, Tom Grisso summarized the state of forensic psychological assessment, noted its limitations and potential, and offered suggestions for researchers and practitioners interested in contributing to its future. Since that time, there have been many important developments in the field of forensic psychology, as well as in clinical psychology more generally, some of which were anticipated and recommended by Grisso, and some of which were not. Forensic psychology is now at a crossroads, and the specialty must make an effort to respond to current challenges if it is to aid in the administration of justice by assisting legal decision makers. The need to distinguish between and identify levels of forensic knowledge and practice, establish guidelines for practice, educate legal consumers, and devote more attention to treatment issues in forensic contexts is highlighted.

Communication between courts and expert witnesses in legal proceedings concerning child sexual abuse in Sweden: a case review

OBJECTIVE

The objective was to explore the communication between courts and expert witnesses in legal proceedings concerning child sexual abuse in Sweden.

METHOD

A cross professional research team performed a qualitative text analysis of files covering 20 court cases (court report and expert witness statement) from 4 different years (1985, 1989, 1992, and 1997).

RESULTS

Expert witnesses applied a wide variety of assessment procedures. Several patterns of communicative difficulties were identified, categorized as "mismatch," "misunderstanding," "misuse," and "missing pieces." Experts and courts sometimes used similar words (e.g., "credibility") but seemed to apply different meanings to them, indicating a lack of a mutual conceptual framework.

CONCLUSIONS

The combination of brief expert assignments and diverse assessment procedures turned out to be a specific risk factor for communicative impairment. Alternate strategies for improved communication are discussed.

Forensic and correctional applications of the personality assessment inventory

The relative utility of psychological tests for addressing legal issues is an area of considerable debate in the field. Regardless of the merits of psychological testing, it is apparent that such instruments are used widely both to address specific psycholegal issues and to evaluate offender populations more generally. One instrument gaining prominence in terms of its use in both forensic and correctional settings is the Personality Assessment Inventory (PAI; Morey, 1991), which was developed to assess various constructs relevant to clinical settings (e.g. psychopathology, response distortion, and personality traits). This paper reviews the psychometric properties of the PAI specifically in reference to its ability to assess factors relevant to forensic decision-making, as well as its utility to provide clinically relevant information about offender populations more generally.