Forensic assessment is the evaluation of an offender’s mental health or psychological functioning in order to answer a specific question posed by the legal system. The law sometimes allows and/or mandates different responses from the system as a result of an offender’s cognitive and mental health functioning. For example, the U.S. Supreme Court has ruled that it is unconstitutional to execute a person with intellectual disability. Evaluation of an offender’s diagnosis or functioning in a situation such as this needs to completed by qualified mental health professionals, making forensic assessment one of the clearest intersections between psychology and the law. This entry details the differences between forensic assessment of offenders and general mental health assessment and introduces common types of forensic assessment.
The Forensic Assessment Context
The Referral Source
Forensic assessments seek to answer a specific question about an offender’s psychological functioning that has bearing on his or her legal case. These questions are sometimes referred to as psycholegal questions as a result. It is the fact that a question is being answered for the court system, not the fact that an offender is being evaluated, that makes an assessment a forensic assessment and most clearly distinguishes this area from general mental health practice. It is often stated that the legal system, rather than the offender, is the client of a mental health professional completing a forensic assessment. Although a mental health professional who is providing treatment for an offender may be called upon to provide and/or testify relevant treatment information, this would not be considered a forensic assessment as the therapist’s focus has been on meeting the offender’s treatment goals, not addressing the questions of the court. Therapists are generally discouraged from completing forensic assessments of their clients. This is because forensic assessments require a level of objectivity that is difficult to obtain once one has provided treatment to an offender. There are also conflicting expectations and obligations to the offender in each type of assessment that may be difficult for a therapist to reconcile as discussed later in this entry.
The Ultimate Issue Debate
While the defining feature of a forensic assessment is answering a psycholegal question, there is some conflict within the field as to how an evaluator should answer the question. Mental health professionals complete forensic assessments to assist the trier of fact in reaching a decision. The trier of fact is a judge or jury and it is their responsibility to decide the outcome of a case or what is often referred to as the ultimate issue. Determining if an offender was legally insane at the time of an offense and therefore not guilty or such a danger to the community that he or she should be removed from it are examples of ultimate legal issues.
The extent to which forensic evaluators should speak directly to ultimate issues is debated. On one side, some argue that mental health professionals are not experts in the law or afforded the right to make moral decisions about its enforcement that society gives judges or juries. For example, most jurisdictions generally define legal competency as the ability of defendants to understand charges against them and assist their lawyer in their defense. The ultimate issue before the court is whether they are able to do this to a subjectively determined reasonable level. Those who believe that forensic evaluators cannot or should not determine this level instead urge them to conduct an assessment that addresses specific areas of functioning related to this ability while not making a conclusive statement about the offender’s competency. Others see the issue quite differently. They argue that mental health professionals do indeed have specialized knowledge that allows broad conclusions to be made (though the trier of fact can still choose to accept or reject them). Moreover, it may be confusing to a jury why an evaluation would be requested and completed if not to answer the question posed.
Restrictions on ultimate issue testimony may vary across evaluation type and jurisdiction. For example, in the United States, Federal Rules of Evidence explicitly prohibit conclusions as to the mental state at the time of an offense while not barring such testimony outright in other types of cases. Case law indicates some inconsistency in the application of this rule, however, and evaluators and legal observers may find varied outcomes of objections to ultimate issue testimony in individual cases.
Other Unique Aspects of Forensic Assessment Role of the Evaluator
The task of answering specific psycholegal questions is not the only thing that distinguishes forensic assessments from general mental health assessments. The most obvious difference is that of the role taken on by the evaluator. In general mental health assessment, a mental health professional generally adopts a therapeutic stance focused on improving or enhancing an individual’s functioning or quality of life. In forensic assessment, the evaluator’s primary goal of answering a psycholegal question requires an objective stance as to the long-term outcome for the offender. Indeed, determining that an offender has the abilities needed to stand trial may ultimately result in conviction, and the result of a competency to be executed evaluation may clear someone for death. It should be noted that adopting an objective stance for the purpose of the evaluation does not mean that forensic assessments are done without respect for the offender and his or her rights. In fact, evaluators may need to be particularly skilled at developing rapport and eliciting information from offenders.
Response Style and Suspected Malingering
Self-reports are highly valued in general mental health evaluations, and the information provided by a person is generally believed to be valid. Forensic evaluators incorporate self-report information but are generally trained to collect multiple sources of data and often see self-reports as no more important than other types of information. In fact, some degree of defensiveness resulting in inaccurate portrayals of functioning is expected from offenders, and some have called for routine evaluation of possible malingering, or intentional feigning of psychiatric symptoms for secondary gain, in all forensic assessments. In forensic assessment, the concern is frequently that offenders may be motivated to avoid legal consequences for their actions by presenting themselves as affected by a mental illness.
Confidentiality and Information Sharing
The information provided in general mental health assessments is confidential, with major exceptions involving suspicion of child abuse or neglect and disclosure of information related to threats of grave harm toward self or an identified other. An offender is not typically afforded any confidentiality in forensic assessments and will need to be properly informed of this before being evaluated. As a result, many may be reluctant to participate, though they are typically court-ordered to do so.
The demands placed on the forensic evaluator are great, particularly as establishing rapport and gathering data from an offender and others in his or her life often needs to be completed quite rapidly and by deadlines set by the court system rather than the evaluator. The results of forensic assessments may be provided to the court as written report and/or oral testimony in which the evaluator is subject to questioning by both the prosecution and the defense.
Specific Forensic Assessments
Competency to Stand Trial
The Psycholegal Question
Competency to stand trial evaluations is one of the most common forms of forensic assessment. It has long been believed that a justice system that does not allow defendants to properly defend themselves would be inherently unfair. In the United States, this belief is illustrated in the Dusky standard, referring to the 1960 legal decision of Dusky v. United States. This decision formally operationalized competency to stand trial as the ability to
- consult with an attorney to a reasonable and rational degree, and
- hold a rational and factual understanding of the charges one is facing.
Deficits in one or both areas may result in a finding of incompetency to stand trial. The question that evaluators seek to answer therefore centers on an offender’s cognitive abilities as they relate to these two areas. Given that the legal system also has a mandate to bring cases to trial, an attempt to restore incompetent offenders to competent states is often made, and evaluators may also be asked to speak to the likelihood of this happening. For example, incompetency due to the acute symptoms of schizophrenia may be alleviated by appropriate medical treatment while incompetency due to an extremely low IQ associated with an intellectual disability will not.
The Assessment
The assessment of competency focuses on a defendant’s current functioning and abilities. Evaluators may assess for the presence of specific mental health disorders, but a psychiatric diagnosis alone is not enough to qualify one as incompetent. Evaluations will typically involve an interview of the offender including behavioral observations that may be relevant to his or her ability to work effectively with a lawyer. Psychological testing may be used as well. General psychological testing measures may be used to the extent they provide information bearing on the abilities needed for competency. Formal intelligence testing, for example, may be relevant to present reasoning abilities as well as restorability to competency as described earlier while broader personality measures have little utility.
Several tests have also been developed that specifically assess competency to stand trial. These are considered forensic assessment instruments as they are used only in forensic assessments to help answer specific psycholegal questions. Use of forensic assessment instruments in competency evaluations may increase the objectivity and reliability of conclusions. It is important to note that these instruments vary in their format and level of detail. Brief screening instruments are intended to rule out incompetency and avoid unnecessary full-length evaluations. Other measures aim to fully assess competency-related abilities by directly questioning legal knowledge and reasoning or exploring defendant’s answers to questions about these issues as they relate to hypothetical vignettes. Other competency measures are actually more similar to structured interview guides that allow evaluators to organize their questioning.
Controversies and Issues
Most offenders evaluated for competency to stand trial will be found competent. Thus, incompetency is a low base rate event. Low base rate events are difficult to study as adequate samples are hard to generate. They are also hard to predict as rare events are associated with high rates of false-positive conclusions. It is important to understand that competency measures are not tests that definitively detect the absence or presence of legal competency. All psychological instruments have some degree of measurement error. Thus, the error rates of tests must be considered and appropriately conveyed to the trier of fact. While assessment measures have an advantage over unstructured clinical judgment in this regard, the legal system must determine what level of error is acceptable for itself.
A related issue is the competency of minors. Age and immaturity, by themselves, may render some youthful offenders incompetent. Many believe that developmentally sensitive measures of competency must therefore be used, though few are available. Competency evaluations of juveniles using measures developed for adults should include a caveat about their applicability.
Competency to Be Executed
The Psycholegal Question
As with many areas of forensic assessment, a legal decision carved out an area of practice. In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that executing someone who is criminally insane is a form of cruel and unusual punishment and therefore unconstitutional. Insane is a legally defined term and not a very well defined one at that time. As it relates to competency to be executed, the word insane bears more similarity to competency to stand trial than being so impaired by mental illness so as to not be held responsible for one’s actions (see Criminal Responsibility section in this entry). The Supreme Court did not set a specific competency standard in Ford or the related 2007 case of Panetti v. Quarterman. Nevertheless, the decisions have been interpreted together to suggest that defendants must have both factual and rational understanding of their impending execution. In other words, offenders must know that they will be executed and understand that this is punishment for a crime they have been convicted of. For example, an offender who understands that he or she will die but harbors persecutory delusions for the reason why may be incompetent.
Specific competency standards vary across individual states as a result of the ambiguity of the Supreme Court decisions in Ford and Quarterman. In some jurisdictions, an offender must also be able to self-advocate by communicating reasons why the punishment might be unjust. It is important to note here that having the ability to do this is not the same as doing it and an offender who chooses not to utilize available appeals or legal avenues to avoid execution is not automatically incompetent if it is determined that he or she made a rational decision not to do so.
The Assessment
Evaluation of competency to be executed is quite rare, and as a result, there is limited research in this area. Although competency issues may have been raised earlier in a defendant’s case, assessment of competency to be executed should involve consideration of the defendant’s current required abilities, which may vary depending on the jurisdiction where the evaluation is completed in as noted earlier. While this remains one of the most controversial areas of forensic assessment, there is a consensus that such evaluations should include an interview with the offender and those individuals familiar with him or her (e.g., family, lawyers, prison staff, treatment providers). Checklists and interview guides have been developed by some authors, though norm-referenced assessment measures are not available.
Controversies and Issues
Additional research to guide practice in this area is needed but difficult given the limited number of evaluations that are completed. These assessments are also notable for the ethical issues they present. A finding of competency in essence clears an offender for execution. As mental health professionals, forensic evaluators may find this incompatible with ethical mandates to do no harm. There are also concerns that personal views on capital punishment may introduce bias into this form of assessment. These ethical conflicts may be strong even in jurisdictions that do not require evaluators to speak to the ultimate issue in these cases.
A finding of incompetency brings additional ethical conflicts if attempts are made to restore an offender to competency, often with the use of forced psychiatric medication. These ethical issues have resulted in organizations such as the National Commission on Correctional Health Care prohibiting correctional treatment providers from participating in competency to be executed evaluators and urging that they instead defer to independent evaluators.
Competency to Waive Miranda Rights
The Psycholegal Question
Making incriminating statements to police during an interrogation or confessing to a crime may appear to make a criminal trial more straightforward and this may prove true, unless a defendant asserts that he or she was not competent to do so. The Supreme Court case of Miranda v. Arizona (1966) clarified that police must inform suspects of their right to remain silent during questioning and to consult with a lawyer. It must also be clear that the information that the suspect provides can be used against him or her and that the interrogation can be stopped at the suspect’s request. Competent waiver of one’s Miranda rights requires that a defendant does so in a manner that is knowing, voluntary, and intelligent. In other words, one must understand that he or she has specific rights, comprehend the implications of these rights, and waive them without coercion or due to extreme distress. Decisions about the admissibility of evidence in cases of contested competent Miranda waivers are typically made by considering the totality of circumstances with multiple factors possibly relevant, including those within the individual (e.g., intelligence and history of contact with law enforcement) and the nature of the interrogation (e.g., prolonged or coercive). As a result, assessments may be quite broad in scope.
The Assessment
Unlike the other competencies reviewed in this entry, assessment of competency to waive Miranda rights is retrospective. If available, review of a recording or transcript of the waiver and subsequent interrogation is therefore quite important. Given the importance of understanding and reasoning about one’s rights, formal assessment of intelligence and academic achievement is essential in many cases. Deficits in these regards are neither necessary nor sufficient for incompetency, however, as it is possible that factors other than intellectual limitations (e.g., extreme stress or symptoms of a mental disorder) could also impair understanding or reasoning. Individuals of limited intelligence may also give competent waivers if they are appropriately informed and counseled of their rights in a manner that matches their abilities or if prior contacts with the legal system are believed to have provided adequate education about their rights.
Forensic assessment instruments have been developed to specifically assess the abilities to make competent Miranda waivers and may be used in addition to tests used to determine intelligence, mental disorders, or personality traits that may make one susceptible to undue influence or coercion.
Controversies and Issues
Juvenile offenders present with unique issues related to Miranda waivers. Jurisdictions vary in regard to whether minors may waive their rights for themselves or require parents to do so for them. While one would assume most parents have their child’s best interests in mind, incompetency by proxy may be a real issue if parents have their own intellectual or other impairments in understanding or reasoning as described earlier.
Criminal Responsibility
The Psycholegal Question
If defendants can prove that they did not commit a crime, they will be found not guilty. However, even those who admit to a crime may be found not guilty if they lack criminal intent or mens rea. This long-held legal tradition was formally operationalized, in 1843, in England and is now known as the M’Naghten standard. Briefly, the standard holds that a defendant may be found not guilty by reason of insanity if a mental problem prevents one from knowing what he or she was doing or that it was wrong. Various criticisms and adaptations of this standard have been proposed over time. A more modern iteration was made in 1962 by the American Law Institute, which suggested that people should not be held responsible for a crime if they do not understand that their actions were wrong or were unable to “conform conduct to the requirements of the law.” Thus, evaluations of criminal responsibility will require evaluating
- the possible presence of a mental illness or intellectual disability, and
- a person’s motivation, reasoning, and level of control when committing a criminal act.
Defendants found not guilty by reason of insanity are acquitted. They are generally committed to psychiatric care following their acquittal. There are other situations in which defendants may assert that their mental functioning significantly impacted their crime in ways to lessen their culpability though not to the extent to fully excuse them from it.
Diminished capacity refers to the inability to form intent or lack of specific intent required for a crime (e.g., the premeditation typically required for first-degree murder). Defendants successful in arguing diminished capacity are typically convicted of lesser offenses.
The Assessment
As mentioned earlier, an evaluation of criminal responsibility involves assessment of the presence of mental illness or developmental disabilities and possible links of such problems to the crime. Assessments will include a review of available records including police reports and a detailed interview with the defendant. Evaluators must reconstruct a person’s mental status at the time of their offenses by speaking to them and those who may have observed the crime and/or the person’s behavior close in time to it. Part of this will be a thorough review of his account of the crime. Given the potential for self-incrimination, informed consent and advisement of rights are extremely important. Psychological testing may be used to support the diagnostic process, though forensic assessment instruments focused on criminal responsibility are not prevalent.
Controversies and Issues
The retrospective nature of evaluation of criminal responsibility poses a significant challenge for evaluators. Mental health professionals are trained to diagnose mental health disorders by collecting data on past history and current symptoms. Current symptoms may actually be irrelevant to criminal responsibility for a prior act though they may add support to the presence of a diagnosis needed to establish the basis for not guilty by reason of insanity defenses. Research has made clear that memories can change over time, even in the absence of overt attempts to dissimulate or provide inaccurate information. Thus, inconsistencies between current reports and those made closer in time to the crime or in official records may need to be reconciled.
There is a misconception among the public that the insanity defense is overused and is an attempt to literally get away with murder. In reality, the defense is rarely used and even more rarely successful. Nevertheless, given the high stakes involved, the potential for malingering may be high in these cases and should be assessed.
Risk Assessment
The Psycholegal Question
The question posed in forensic risk assessment appears fairly straightforward: How dangerous is this person and what is the likelihood that he or she will reoffend? The ultimate issue a judge or jury will consider in these cases typically focuses on punishment and the level of confinement that punishment should be completed in. Risk assessments may also be completed prior to release from confinement to determine the level of supervision needed in the community. Risk of violence or reoffense is generally believed to result from a combination of static risk factors that do not change such as criminal history and dynamic risk factors that are malleable over time such as substance use. Protective factors such as strong social support may also be considered. Thus, risk assessments are also capable of identifying areas that can be targeted in treatment in which an offender may be court-ordered to participate.
The Assessment
As previously described, risk assessment involves collection of both historical and current information about an offender. A variety of risk assessment tools were developed after it was determined that mental health professionals were unable to make accurate predictions about future risk using only their professional judgment. Although interviewing of offenders and review of records to obtain objective historical information remain important parts of these evaluations, risk assessment tools are now commonly used as well to improve reliability and accuracy. These measures differ in their development and administration, however. Structured professional judgment measures serve as interview guides that assist evaluators in systematically considering risk factors that have been identified in the literature. The risk level posed by an offender is still determined by the evaluator’s overall impression of him or her. Actuarial measures also consider identified risk factors, though in these measures, risk factors have been statistically associated with reoffending and allow for comparison between the offender being assessed and a normative sample. In other words, the measure can provide a more specific and sometimes a quantitative risk level.
Controversies and Issues
Risk assessments are unique forms of forensic assessment in that they neither attempt to describe current or past functioning but predict an event that may occur in the future. There is no current assessment approach or technique that can do this with 100% certainty (and likely never will be). Science can estimate the risk of reoffense and error rate of a specific technique, but determining what actions to take at different risk levels and how much uncertainty to allow in the accuracy of a specific assessment must be subjectively determined by the trier of fact. As a result, evaluators are urged to report the limitations of their findings in their reports.
Civil Commitment of Sexual Offenders
The Psycholegal Question
In cases of civil commitment of sexual offenders, the question evaluators must answer again centers on dangerousness, specifically an individual’s risk of sexual reoffense. Of note, the ultimate issue in these cases is not decided at a criminal trial but at a civil hearing after the offender has already served a sentence for his or her crime. Although specific statutes vary across jurisdictions, these are often referred to as sexually violent predator laws in the United States and require (a) a history of sexual offense, (b) a diagnosable mental health problem or condition, and (c) a high level of risk of reoffense. Forensic mental health evaluators are typically asked to address the latter requirements by diagnosing a type of mental disorder marked by abnormal sexual interests or behavior known as a paraphilia or other mental health disorder that can be causally linked to deviant sexual behavior and by offering an assessment of an individual offender’s current level of risk of future offending. Individuals who are at high risk may be confined in treatment facilities or ordered to submit to outpatient treatment and supervision indefinitely.
The Assessment
Assessment of risk for the purpose of civil commitment proceedings is much the same as that described earlier with the addition that a diagnosis is often required by statute. Of all the types of forensic assessments reviewed in this entry, civil commitment of sexual offenders is the most recently developed, and assessments may show variability until best practices evolve. However, risk assessment measures specific to sexual offending are available and are generally used.
Controversies and Issues
The issues related to the prediction of future behavior described previously are applicable to this form of evaluation as well and perhaps amplified given the fact that offenders have already served time for their crimes. Prioritization on community safety often results in support for these laws, while some point out that they infringe upon the civil liberties of offenders by submitting them to a legal form of double jeopardy that is particularly unfair given limitations in the accuracy of risk assessment and effectiveness of sexual offender treatment. Evaluators’ attempts to address this by clearly presenting quantitative predictions of risk from actuarial instruments when available may not address this issue, as research has found that jurors may find any risk as significant risk. As currently written, sexual predator laws may reflect a problematic blurred boundary between the legal and mental health systems.
Juvenile Offenders: Amenability to Treatment and Waiver to Adult Court
The Psycholegal Question
The juvenile justice system’s approach to youthful offenders has evolved over its history. While initially established on the premise that the criminal motivation and possible rehabilitation of children and adolescents differed from adults and required specialized attention, Supreme Court cases such as Kent v. United States (1966) and In Re Gault (1967) determined that juveniles should be afforded many of the same rights as adult defendants. The law typically allows youth of a certain age or accused of certain crimes to be tried and sentenced as adults. For some serious crimes, waiver or transfer to adult court may actually be mandated by the law. In other situations, there is prosecutorial or judicial discretion. The frequency of such cases has varied depending on public sentiment regarding the seriousness of juvenile crime. When discretion is possible, a forensic assessment may be requested to assist decision makers in determining the juvenile’s dangerousness and amenability to reform with treatment in the juvenile justice system. If it believed that the juvenile cannot be safely maintained or rehabilitated within the juvenile justice system, the case may be heard in adult court opening the juvenile up to adult sentences.
The Assessment
Evaluation of amenability to treatment or waiver of juveniles may resemble general mental health assessment more than other types of forensic assessment as key questions are whether the juvenile has an identifiable mental health problem and their specific treatment needs. Identification of treatment needs is not enough, however. Another aspect of these evaluations involves assessment of dangerousness. Thus, assessments will typically involve a review of records, interviews with the juvenile and those who are familiar with him or her, and formal risk assessment.
Controversies and Issues
As mentioned earlier, assessment of risk of violence or reoffense can be enhanced with testing, but concerns about false positives are great. This may be particularly true in the case of juvenile offenders for whom a degree of illegal behavior may reflect normative developmental changes in risk taking and impulsive decision-making. Risk assessment measures used should therefore have been developed and tested with adolescents, though fewer measures are available for this group. Once in the adult system, if mandatory sentences following conviction are seen as at odds with the general juvenile court process of individual sentencing, then the decision to waive a juvenile’s case to adult court should be made by the trier of fact with all available information.
Conclusion
Forensic assessments of offenders are used to answer specific questions for the legal system. Although the questions may vary across assessment types, all forensic assessments differ from general mental health assessments in important ways that call for specialized knowledge and training. Each form of assessment also brings its own unique set of unresolved issues and controversies. Assessments that answer psycholegal questions as accurately as possible and acknowledge any weaknesses or limitations have the best chance of assisting both the legal system and the offenders who find themselves within it.
References:
- Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2001). The last competency: An examination of legal, ethical, and professional ambiguities regarding evaluations of competence for execution. Journal of Forensic Psychology Practice, 1(2), 1–25. Retrieved from https://doi.org/10.1300/J158v01n02_01
- Heilbrun, K., Grisso, T., & Goldstein, A. M. (2008). Foundations of forensic mental health assessment. New York, NY: Oxford University Press.
- Jackson, R. L., & Hess, D. T. (2007). Evaluation for civil commitment evaluation: A survey of experts. Sexual Abuse: A Journal of Research and Practice, 19(4), 425–448. Retrieved from https://doi.org/10.1177/107906320701900407
- Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press.
- Packer, I. (2009). Evaluation of criminal responsibility. New York, NY: Oxford University Press.
- Rogers, R., & Ewing, C. P. (2003). The prohibition of ultimate opinions: A misguided enterprise. Journal of Forensic Psychology Practice, 3(3), 64–75.
Court Cases:
- Dusky v. United States, 362 U.S. 402 (1960).
- Ford v. Wainright, 477 U.S. 399 (1986).
- In Re Gault, 387 U.S. 1 (1967).
- Kent v. United States, 383 U.S. 541 (1966).
- Miranda v. Arizona, 384 U.S. 436 (1966).
- Panetti v. Quarterman, 551 U.S. 930 (2007).
More About Forensic Assessment of Offenders: