Beyond Competence and sanity: The influence of Pretrial Evaluation on Case Disposition
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Beyond Competence and
sanity: The influence of Pretrial
Evaluation on Case Disposition
Janet I. Warren, DSW, Barry Rosenfeld, PhD, and W. Lawrence Fitch, JD
A preliminary investigationof the impact of pretrial evaluations of trial competence
and legal insanity, and the variables that mediate case outcomes is reported.
Twenty-four percent of defendants evaluated as incompetent to stand trial were
found competent by the court or were tried without the question of competence
being adjudicated. Charges were dropped in more than half of the cases in which
an evaluator considered a defendant incompetent, most frequently in cases involving
misdemeanor charges and/or the clinician considered it unlikely that the defendant
could be restored to competence. One third of defendants considered to meet
criteria for legal insanity subsequently were acquitted NGRI; more than half did not
present an insanity defense and were ultimately convicted or plea bargained a guilty
verdict. The defendants considered to meet the criteria for legal insanity were more
likely than their mentally ill but not insane counterparts to have treatment ordered
in lieu of incarceration. The defendant's age and race and the evaluator's profes-
sional discipline were unrelated to case outcome.
The professional literature is replete with 1989;2 Callahan, Steadman, McGreevy
studies cataloging the characteristics of & Robbins, 199 1;3 Steadman, Keitner,
criminal defendants adjudicated incom- Braff & Arvanites, 1983).4 Typically
petent to stand trial or not guilty by these studies have aimed to identify
reason of insanity. Nicholson and defendant characteristics (e.g., demo-
Kugler (1 99 1)' recently reviewed 30 graphic, psychiatric) and offense char-
studies published or presented over the acteristics (e.g., seriousness of offense)
past 25 years comparing competent and that correlate with competence or sanity
incompetent defendants. A smaller but determinations (competent or incom-
growing number of studies have exam- petent, sane or insane). None, however,
ined insanity acquittees (Boehnert, has focused on what may be a far more
significant question: how these charac-
Dr. Warren is clinical associate professor of Psychiatric teristics of defendants and offenses relate
Medicine, General Medical Faculty, University of Vir-
ginia;Dr. Rosenfeld is with the New York City Supreme to ultimate case disposition.
Court Forensic Clinic; and Mr. Fitch is the Director of At least since the United States Su-
Forensic Services, Mental Hygiene Administration of
Maryland. Address correspondence to Janet I. Warren, preme Court's decision in Jackson v.
DSW, Institute of Law, Psychiatry and Public Policy, Indiana (1972),' barring extended hos-
Box 100, Blue Ridge Hospital, Charlottsville, VA.
22908. pital confinement as the ultimate dis-
379Warren et a/. position of cases involving defendants nally, recent data suggest that of those found incompetent to stand trial, it has defendants who do plead insanity, only been the law's clear presumption that about one quarter are ultimately acquit- defendants found incompetent would be ted on this basis (Callahan et al., 199 l;3 restored to competency and brought to Janofsky, Vandewalle, & Rappeport, trial. Under Jackson, defendants found 1989).8 Yet few would suggest that, in to be incompetent to stand trial and the absence of an insanity acquittal, likely to remain so for "the foreseeable findings of major mental abnormality future" might be permanently diverted have no bearing on case outcome. In- from the criminal justice system, but deed, it has been our observation in findings of unrestorable incompetence Virginia that despite the low frequency are uncommon (Carbonell, Heilbrun, & of acquittals by reason of insanity in this Friedman, 1992).6 Thus, a finding of state (approximately 25 acquittals per incompetence to stand trial rarely rep- year), findings of mental abnormality resents the ultimate disposition in a resulting from pretrial evaluations of criminal case. Nonetheless, a clinical as- criminal defendants often have consid- sessment of incompetence may have a erable impact on case outcome. significant impact on how a case ulti- This study is a preliminary examina- mately is resolved. tion of the impact of clinical assessment Just as rates of incompetence adjudi- and defendant and offense characteris- cation provide an incomplete measure tics on ultimate case disposition. Three of the significance of competence eval- samples of defendants referred for pre- uation findings, rates of acquittal by rea- trial evaluation in Virginia are consid- son of insanity represent only one aspect ered: 1) defendants considered by their of the overall impact of sanity evaluation evaluators to be incompetent to stand data on case outcome. Because the legal trial; 2) defendants considered by their tests of insanity used in most states are evaluators to satisfy criteria for an insan- narrowly drawn, only a fraction of de- ity defense; and 3) defendants consid- fendants who may have been mentally ered by their evaluators to be suffering disordered at the time of an offense re- from major mental abnormality at the ceive a forensic evaluation resulting in time of the offense but not satisfying the an opinion supporting an insanity de- criteria for an insanity defense. fense(Warren, Fitch, Deitz, & Rosenfeld, 1991).' Moreover, because the law in Legal Background many states allows for the indefinite In Virginia, a defendant is incompe- confinement of insanity acquittees- tent to stand trial if he or she "lacks confinement for periods that may be substantial capacity to understand the considerably longer than would be likely proceedings against him or to assist his upon conviction-some defendants attorney in his own defense" (Code of may forgo presentation of a viable insan- Virginia, Section 19.2- 169.I).' On a ity defense as a matter of strategy. Fi- finding of trial incompetence, the court 380 Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994
Beyond Competence and Sanity
is obliged to order treatment to restore sector evaluators throughout the state.
the defendant to competence. The court The forms call for information about the
must reconsider the defendant's com- defendant, the evaluator, the offense
petence no less frequently than every six charged, including the evaluator's
months. If at any point it appears that diagnostic findings and opinion on the
the defendant is not likely to become psycho-legal question presented ( e g ,
competent in the foreseeable future, he competence to stand trial, sanity at the
or she must be released from treatment time of the offense).
or be civilly committed. No defendant Of the 2,772 forensic information
may be held in treatment to restore com- forms submitted between July 1, 1985,
petence for longer than five years or the and June 30, 1989, competence to stand
maximum sentence for the offense trial was a referral question in 1986
charged, whichever is shorter. cases, and sanity at the time of the of-
Under Virginia law a defendant may fense was a referral question in 1632
be found not guilty by reason of insanity cases. Criminal defendants were consid-
if at the time of the offense, because of ered to be incompetent by evaluating
a mental disease or defect, he or she did clinicians in 3 12 of the 1986 cases in
not understand the nature, character, which the question of competence was
and consequences of the act, was unable raised (1 6%).
to distinguish right from wrong, (Price Because the forensic information
v. Commonwealth, 1984)" or was driven forms did not elicit the names of refer-
by an irresistible impulse to commit ring attorneys, a two-step process was
the act (Thompson v. Commonwealth, necessary to determine how evaluation
1952).11Under Virginia law, legal insan- results influenced case outcome. The au-
ity is characterized as a disorder that thors first contacted each of the clini-
engenders a "substantial impairment of cians authoring a report supporting a
capacity to understand or appreciate his finding of incompetence, requesting the
criminal conduct" (Snider v. Smyth, name and address of the attorney refer-
1960, p. 303).12 ring the case. Two-page questionnaires
were subsequently mailed to the attor-
Method neys who had represented defendants in
Since 1985, the University of Virgin- the sample. Of the 3 12 cases in which a
ia's Institute of Law, Psychiatry, and finding of incompetence was reported,
Public Policy, working under a contract approximately 200 clinicians (two-thirds
with the Virginia Department of Mental of those contacted) provided the name
Health, Mental Retardation, and Sub- and address of the referring attorney (the
stance Abuse Services, has collected data exact proportion of clinicians and attor-
on pretrial forensic evaluations ordered neys responding at each stage of data
by Virginia courts in criminal cases. collection was unavailable), and roughly
Data are derived from "forensic infor- half of these attorneys completed the
mation forms" completed by public- mailed questionnaire, yielding a final
Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994 38 1Warren et a/.
sample of 100 cases in which defendants with those cases in which either clini-
were evaluated as incompetent to stand cians or attorneys failed to respond. No
trial. Questionnaires yielded informa- significant differences between these two
tion about plea negotiation, expert tes- groups ( p < .05) were revealed on any
timony, the outcome of competency variable measured (offense, diagnosis,
hearings, trial verdict, sentence, and source of referral, etc.), indicating that
mental health treatment. the sample was roughly representative of
Of the 1632 defendants whose sanity the types of cases referred for evaluation
at the time of the offense was the subject in Virginia.
of evaluation, 523 (32%) were diagnosed Subsequent data analyses indicated
as having a mental disease or defect. that the evaluators' findings influenced
Only 146, however, were believed to the disposition of cases in a number of
meet Virginia criteria for legal insanity different ways. Forensic evaluations
(9% of the sample, 28 percent of the were used to support: 1) dismissal of
cases in which defendants were diag- charges prior to trial; 2) plea negotiation;
nosed with a mental disease or defect). 3) adjudication of incompetence (that in
A two-step process was also used to ob- many cases resulted in a subsequent dis-
tain disposition data for cases in which missal of charges); 4) acquittal by reason
defendants were considered to meet cri- of insanity; and 5) arguments in mitiga-
teria for legal insanity. However, in or- tion a). sentencing or for mental health
der to generate a subset of the 377 cases treatment in lieu of incarceration.
in which defendants were believed to be
mentally ill but did not meet Virginia Competence to Stand Trial
criteria for insanity, alternating cases The impact of clinical findings sug-
were chosen for incorporation into the gesting incompetence to stand trial was
sample. As noted above, approximately examined for 100 cases. As can be seen
two-thirds of the clinicians contacted in Figure 1, in six cases (6%) charges
(190 and 146) provided the necessary against the defendant were dismissed
information, and roughly one-half of the outright, without any adjudication of the
attorneys completed the questionnaires.
The final sample included 46 cases in
which defendants were believed to meet I .di-
. COMPETENT
.
1.24%
criteria for legal insanity, and 64 cases
in which the defendants were considered
mentally ill but sane. Frequency anal-
yses were used to assess differences be-
tween groups on the various clinical and
demographic variables.
Results
Preliminary analyses contrasted cases Figure 1. Disposition of defendants evaluated as
in which outcome data was obtained incompetent to stand trial.
382 Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994Beyond Competence and Sanity
questions of competence or restorability. fendant was charged. Indeed, the only
The evaluator's findings were utilized in variables that significantly differentiated
negotiating the dismissal of charges in defendants adjudicated competent (de-
all six of these cases. In 24 cases (24%), spite an evaluator's opinion to the con-
either the defendant was found compe- trary) from those adjudicated incompe-
tent notwithstanding the evaluator's tent were the defendant's diagnosis and
opinion to the contrary (and was subse- the fact that a second evaluation was
quently tried), or the case proceeded to performed. All 1 1 defendants diagnosed
trial without an adjudication of the de- with an organic mental disorder were
fendant's competence.* In 70 cases adjudicated incompetent to stand, trial,
(70%), the defendant was adjudicated while only about 60 percent of defend-
incompetent (in accord with the evalu- ants receiving other diagnoses were so
ator's opinion) and the case was contin- adjudicated ((1, n = 79) = 4.8, p < .05).
ued while the defendant received treat- Where a second evaluation was obtained
ment to restore his or her competence. by the court, the defendant was also
Of these 70 cases, the charges ultimately significantly more likely to be found
were dismissed in 49 cases (70%), competent to stand trial ((1, n = 100) =
whereas in 2 1 cases (30%), the defendant 4.1, p < .05), even where the second
was restored to competency and tried. opinion was in agreement with the first
The first stage of analysis aimed at (that the defendant was incompetent).
identifying variables that distinguished It should not be assumed, however,
the 24 cases in which the defendant was that in cases in which the defendant was
not adjudicated incompetent to stand adjudicated competent despite an eval-
trial despite the evaluator's opinion that uation suggesting otherwise, the evalua-
he or she was incompetent. Interest- tor's findings were necessarily without
ingly, many of the variables studied bore influence. Even in these cases, clinical
no significant relationship to the court's findings were often used by defense
adjudication of the defendant's compe- counsel to argue for a more favorable
tence, including the age and race of the outcome for the defendant. In 19 of 24
defendant, the professional discipline of cases in which the defendant was found
the evaluator (i.e. psychiatrist versus competent and tried, clinical findings
psychologist), the source of the referral were used in the plea-bargaining process
(e.g., court, defense attorney, prosecu- (evaluators's findings were also used to
tor), and the offense with which the de- support plea-negotiation in 63 percent
of cases in which the defendant was
*Cases that proceeded to trial without a formal adju- found incompetent, 32 of 49 cases in
dication of the competence question (despite the law's
requirement that such an adjudication be made post- which charges were dismissed, and 12 of
evaluation) were considered analogous to those in 21 cases in which the defendant was
which the court found a defendant competent. By pro-
ceeding to trial, the courts in these cases in effect restored). In eight cases, the defendant
resolved the question in favor of competence, and these
cases are treated accordingly in the discussion that was tried and convicted but still had
follows. treatment ordered as a condition of the
Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994 383Warren et a/.
sentence (42% of those defendants who opinion on the question of the defend-
were ultimately convicted). ant's legal sanity, however, clinical find-
A second stage of analysis focused on ings regarding the defendant's mental
differentiating those defendants whose state at the time of the offense were used
charges were dismissed (n = 55) from by defense attorneys in 100 of the 110
those who ultimately were brought to cases.
trial (n = 45). Again, several factors bore Clinical findings were used in 45 of
no relationship to whether or not the the 46 cases in which a defendant was
case ultimately went to trial, including considered by the evaluator to have the
the age and race of the defendant, the basis for an insanity defense. Charges
professional discipline of the examiner, were dismissed in 10 of these cases
the source of the referral, and the diag- (22%), and 36 cases proceeded to trial.
nosis ascribed to the defendant. How- Fifteen of these 36 defendants pled not
ever, in cases in which the clinician op- guilty by reason of insanity (NGRI), and
ined that it was unlikely that the defend- 12 were ultimately acquitted on this ba-
ant could be restored to competence, sis (33% of those evaluated as "insane"
charges were more often dropped, ((I, n and tried; 80 percent of those so evalu-
= 94) = 7.3, p < .01). The seriousness ated and presenting an insanity defense).
of the offense charged was also related As shown by Figure 2, only one defend-
to dismissal of charges, with misde- ant from this sample of 36 was found
meanor charges being dismissed at a simply not guilty after trial (as opposed
greater rate than felony charges ((I, n = to NGRI), whereas 23 (64%) either pled
100) = 4.9, p < .05). Finally, when a to or were otherwise found guilty. Of the
second evaluation was obtained, the de- 23 convicted defendants (including
fendant was significantly more likely to those who pled guilty as part of a plea
be brought to trial ((1, n = 100) = 1 1.O, bargain), 5 were sentenced to some time
p < .oo 1). in jail or prison (22%), 14 had treatment
ordered by the court as an alternative to
Mental State at the Time of incarceration (6 1 %), and 4 defendants
the Offense received other dispositions (probation,
Dispositional data were elicited for community diversion, fines, etc.).
110 cases in which an evaluation was Among the 64 cases in which the de-
conducted with regard to the defendant's fendant was considered by the evaluator
"sanity" at the time of the offense, 46 to have a major mental disorder but not
cases (42%) in which the defendant was to meet Virginia criteria for an insanity
considered by the evaluator to meet Vir- defense, the evaluator's findings were
ginia criteria for an insanity defense and used in 55 cases, and an insanity defense
64 cases (58%) in which the defendant was offered in 6 cases. Charges were
was considered to have a major mental dismissed in 19 of these 64 cases (30%)
disorder but did not qualify as legally and 45 cases proceeded to trial (70%).
"insane." Regardless of the evaluator's One of these 45 defendants was ulti-
384 Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994Beyond Competence and Sanity
I NQRI
Figure 2. Dispositionof defendants considered to meet criteria for legal insanity versus those considered mentally
ill at the time of the offense but not considered legally insane.
mately found not guilty by reason of Defendants who were considered by
insanity (1.5%); three were found simply the evaluator to be legally insane, but
not guilty (5%); and 41 either pled to or who were convicted nonetheless, were
were otherwise found guilty (64%). Nine significantly more likely than their coun-
of the 41 (22%) convicted defendants terparts who were not considered legally
who were considered to have a major insane to have treatment ordered as part
mental disorder (but not to be legally of the case disposition and less likely to
insane) had treatment ordered in lieu have a jail sentence imposed ((2, n = 63)
of incarceration; eighteen defendants = 14.2, p < .001). Not surprisingly, de-
(44%)had at least a partial jail sentence fendants considered legally insane also
imposed; two (5%) were both incarcer- were significantly more likely to be
ated and ordered into mental health found NGRI ((I, n = 1 10) = 13.2, p <
treatment; and 14 (34%) received dis- .001). Again, no relationship was ob-
positions other that incarceration (pro- served between the defendant's race or
bation, community diversion, fines, age or the evaluator's professional disci-
etc.). pline and case outcome.
Clinical findings were used in roughly Defendants who had more than one
the same way whether or not the evalu- evaluation of their sanity at the time of
ator considered the defendant to satisfy offense were significantly more likely to
the criteria for an insanity defense. At- have a jail sentence imposed than de-
torneys used these findings in plea ne- fendants evaluated only once ((1, n =
gotiations in 48 cases (29 cases in which 64) = 7.9, p < .005). Sixteen of 22 de-
the defendant was considered insane and fendants who had a second evaluation
19 cases in which the defendant was ordered by the court (73%) were sen-
not); testimony was offered at trial in 1 1 tenced to some time in jail or prison
cases (seven and four cases, respec- following conviction, whereas only 15 of
tively); and testimony was offered at sen- 42 defendants who had only one evalu-
tencing in 14 cases (six and eight cases, ation (36%) were similarly sentenced.
respectively). Because of the apparent relationship
Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994 385Warren et a/.
between second evaluations and case lack of statistical power associated with
outcome, an effort was made to ascer- small sample sizes.
tain the factors that related to whether a Despite these limitations, however,
second evaluation was ordered. These the pattern of findings that emerge lends
analyses also revealed no relationship support to the validity of these analyses.
between race, age, or diagnosis of the Similar patterns of significant and non-
defendant and the court's request for a significant results were found in several
second evaluation. Seriousness of of- different areas of analysis (e.g., findings
fense, however, made a significant dif- of competence, dismissal of charges, case
ference. Defendants charged with mis- outcome). Although further research
demeanor offenses were significantly less with larger sample sizes and multivariate
likely to have a second evaluation or- (e.g., log-linear) statistical models would
dered than those charged with felony help to clarify the complex relationship
offenses ((1, n = 100) = 4.1, p < .05). between mental health evaluations and
Only one-third of defendants charged the criminal justice system, a number of
with misdemeanor offense (17 of 50), findings reported here warrant notice.
but 27 of 50 defendants charged with One such finding is the large propor-
felony offenses (55%), had a second fo- tion of cases in which defendants consid-
rensic evaluation ordered. ered incompetent by evaluators were ul-
timately brought to trial, either without
Discussion a judicial hearing as to their competence,
Several methodological limitations or who were considered competent by
must be acknowledged that qualify the judges despite a clinical opinion to the
generalizability of these preliminary contrary. It is possible that this finding
findings, most notably the statistical reflects "incorrect" clinical opinions, al-
methods used to analyze these data. Be- though the sampling method used was
cause of the complex manner in which more likely to generate a sample biased
clinical findings are used in a criminal towards "correct" clinical opinions,
case, coupled with modest sample sizes since attorneys dissatisfied with a foren-
in this study, missing data on several sic opinion that was not accepted by the
variables (e.g., diagnosis), and a lack of courts might be less likely to respond to
outcome data on "control" groups such a questionnaire. Therefore, while the
as defendants considered competent to sampling methods may be vulnerable to
stand trial and/or not mentally ill, mul- a positive bias (lawyers being more likely
tivariate data analysis techniques to respond to mailed questionnaires
could not be used. Therefore, with the when a positive outcome resulted from
relatively large number of statistical the forensic evaluation) the study may
tests conducted, the possibility exists actually underestimate the true propor-
that some significant findings are due tion of cases in which a defendant con-
to chance. Conversely, some non- sidered incompetent to stand trial was
significant findings are likely due to the tried without a competency hearing or
386 Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994Beyond Competence and Sanity was found by a judge to be competent authority among mental health clini- to stand trial. cians despite their divergent academic A more probable explanation for the backgrounds. large number of defendants evaluated as Not unexpectedly, seriousness of the incompetent and found by the court to offense appeared to mediate case dis- be otherwise may result from a desire on position in several important ways. the part of the judicial system to dispose Charges were often dismissed for defend- of cases in the most expedient manner ants evaluated as incompetent to stand possible, having already accomplished trial or mentally disordered at the time the desired goal of involving the mental of the offense, with minor charges being health system through forensic evalua- dismissed at a greater rate than more tion and/or mandated treatment as part serious charges. In cases that involved of a plea bargain. This explanation is more serious offenses, a second forensic consistent with the "criminalization" evaluation was often ordered when one hypothesis in which the criminal justice evaluator found the defendant either in- system has increasingly been used as a competent or mentally ill. Even when means of dealing with mentally ill indi- both evaluators agreed that the defend- viduals (Teplin, 1983). l 3 ant was incompetent to stand trial, these In reviewing the pattern of findings cases usually still proceeded to trial generated by these data, many of the either immediately or after a period dur- variables that the authors anticipated ing which the defendant was treated and would have an impact on case outcome restored to competence. These findings (e.g., race and age of the defendant, highlight the importance of attorneys professional discipline of the evaluator) requesting evaluations in cases involving failed to show significance in any of minor charges, as it is in these cases that these analyses. Considerable controversy mental health information appears most has been generated by findings that succinctly to impact on case outcome. black defendants are treated differently As is discussed elsewhere (Warren et al., in the criminal justice system than white 199 however, this finding also sup- defendants. Thus, the fact that no differ- ports theories of the "criminalization" ential outcomes were found in this study of the mentally disordered and suggests with respect to the influence of forensic that the ready availability of forensic evaluations on case outcome is interest- evaluation services may actually pro- ing and heartening. The professional dis- mote this phenomenon. cipline of the evaluating clinician, a fac- Morris (1982)14 and others have ar- tor that some might assume would be gued for years that the constructs of associated with level of ability to con- competency to stand trial and legal in- duct evaluations or influence the trier of sanity provide an ineffective means of fact, also was not associated with case identifying offenders who require psy- outcome in any analysis. This finding chiatric treatment or other special ac- suggests a comparable level of perceived commodation because of mental abnor- Bull Am Acad Psychiatry Law, Vol. 22, No. 3, 1994 387
Warren et a/.
mality. And it is true, as our data and References
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