Assessing juveniles’ competence to stand trial

By Martin Zehr, Ph.D., J.D.
March 14, 2014

Assessing juveniles’ competence to stand trialIn criminal proceedings, forensic psychologists must at times address the competency of juvenile defendants to stand trial.

As with adult defendants, an inquiry regarding competence to stand trial starts with the criteria set forth by the U.S. Supreme Court in Dusky v. United States (1960). The core questions to be addressed involve (1) the defendant’s “present ability to consult with his lawyer with a reasonable degree of rational understanding” and (2) whether the defendant has a “rational as well as factual understanding of proceedings against him.”

These standards do not easily lend themselves to formal psychological assessment, but courts making such legal determinations have long relied on consultation with psychologists to resolve these questions.

The first prong of this inquiry includes cognitive as well as behavioral elements. From a cognitive perspective, the “ability to consult with his lawyer with a reasonable degree of rational understanding” implies a certain, but unspecified, level of general intellectual functioning sufficient for effective expressive and receptive communication at a plain language level.

If the juvenile defendant lacks a minimal understanding of the nature and implications of pending criminal proceedings, the psychologist-evaluator can indicate whether there is assessment-based evidence to support a conclusion that the juvenile is capable of acquiring a sufficient basic legal knowledge to understand and participate in his case with the assistance of counsel.

What is not required is a specific minimal IQ or level of vocabulary, although measures of either, in conjunction with observations of the defendant’s general comprehension and ability to express himself, will be relied on by courts making competency determinations.

“Ability to consult” also incorporates a behavioral component, i.e., the implicit question of the defendant’s ability to comport his behavior to the requirements of courtroom decorum, which may be critical, especially if the defendant is a younger juvenile. Failure to meet minimal standards for any of these elements is not the end of the inquiry.

If “present ability” is determined insufficient for participation, most courts have the authority to order the temporary transfer of defendants to facilities for restoration to competency when the prospect of remediation of knowledge or ability is determined to be adequate to warrant this intervention.

The “rational as well as factual understanding” requirement includes the defendant’s comprehension of the pending charges, the purported factual basis of the allegations underlying the charges and important components of the criminal justice system, e.g., the roles of counsel, judge, witnesses and jury, as well as processes, including presentation of evidence and plea bargaining.

“Rational” understanding also includes an adequate comprehension of the seriousness of the pending charges and a realistic appraisal of short-term and long-term consequences associated with any of the possible outcomes of the criminal proceedings. For the juvenile defendant these consequences can include exclusion from critical career and educational opportunities not contemplated by the young adult who has limited real world experience.

When working with adolescents where questions of maturation come into play, the psychologist must address questions that may not be routine in competency assessments for adult defendants. Key among these are the juvenile defendant’s grasp of the element of risk inherent in criminal proceedings and the associated ability to adopt a future orientation in weighing the risks associated with trial and plea bargaining.

Especially with younger juveniles, the facility for appreciating the implications of matters such as pleas, penalties and waiver of rights may be problematic. This problem is often compounded by the concomitant lack of an ability to understand the concept of a long-distant personal future and the possible consequences of decisions and actions taken in the course of the immediate involvement in the criminal justice system.

Thus, the consequence of an adjudication (in most jurisdictions, the equivalent of a conviction for adults) for such matters as employment prospects as an adult may not, without assistance, come to the awareness of a juvenile defendant.

These developmental concerns are compounded by the state of the criminal justice system in this country generally, in which over-burdened public defenders, with insufficient time and resources, have the responsibility of defending juveniles who, by definition, have less familiarity with the workings of the criminal justice system than the average adult defendant. The majority of juvenile defendants, like their adult counterparts, are indigent and, therefore, reliant on the often minimal representation available through appointed counsel.

The field of criminal competence assessment with juveniles is a natural outgrowth of the general interest in civil and criminal legal competencies and has attracted increased attention of scholars and practitioners. For those who practice in this area of forensic assessment, I strongly recommend Thomas Grisso’s Evaluating Juveniles’ Adjudicative Competence: A Guide for Clinical Practice, a comprehensive primer addressing the theoretical and practical aspects of this forensic subspecialty.

Psychologists can avail themselves of resources with a focus on particular jurisdictions, e.g., publications like Juvenile Crime and Consequences in Kansas (2011), a guide published by Kansas Legal Services under a grant from the MacArthur Foundation.

Strictly speaking, psychologists conducting juvenile competency evaluations are not advocates, since their involvement is at least indirectly the result of a court order, and competency determinations in criminal as well as civil legal matters are always the prerogative of the court.

The psychologist-evaluator can provide assistance to the defendant to have real access to his/her rights in criminal proceedings, by making the court aware of the psychological status of the defendant and accommodations that can be implemented to increase the probability that the defendant has a fair, participatory day in court, with a full realization of the potential impact of the proceedings.

Except in extreme cases involving severely impaired or flagrantly psychotic defendants, courts are reluctant to find defendants permanently lacking competence to stand trial, and the psychologist in consulting with the court and counsel may be expected to state the preconditions for restoration to competency, raising ethical concerns in some instances.

This area of forensic assessment provides a unique set of challenges and potential rewards to the practitioner.

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