The purpose of a forensic evaluation is to answer a legal question. It is not meant to diagnose and treat an examinee, and no doctor-patient relationship is established in this context. Forensic evaluators should be neutral with respect to the outcome of the case. Once an evaluator forms an opinion, he/she advocates for the opinion, but not for one side or the other.
Competency to proceed is the most common mental health referral for defendants in state criminal courts. Requiring a competent defendant ensures the Court’s adjudications are reliable and dignified and protects a defendant’s 14th and 6th Amendment rights. Defendants are presumed competent, but this can be questioned by the defense, prosecution, or by the judge at any point during the criminal proceedings. The judge must then determine that the defendant is competent before the the case can proceed. The Court will often request an evaluation by a mental health professional to inform decisions about competency. Attorneys may also consult their own mental health experts to evaluate the defendant.
The US Supreme Court defined a minimum standard for a defendant to be competency to proceed as “sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him (Dusky v. United States). Louisiana Code of Criminal Procedure Article 641 specifies that incompetence must be due to a mental disease or defect i.e., “Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” In State v. Bennett (1977), the LA Supreme Court ruled that an expert opinion based on a mental status examination that did not consider the defendant’s functional abilities was not sufficient for determining competence to proceed. The Court listed 13 functional abilities that should be considered in determining a defendant’s competency to proceed that are commonly referred to as the “Bennett Criteria.”
Most defendants referred for a competency evaluation are found competent. Defendants who are not found competent tend to have severe mental illnesses, developmental disabilities, or neurocognitive disorders. Defendants who are incompetent due to a mental illness may be restored to competency with treatment. Incompetent defendants facing serious felony charges may be ordered to the state psychiatric hospital for treatment. Most of them will eventually be restored to competency.
Clinicians are familiar with diagnostic assessment, which involves classifying individuals based on signs and symptoms or traits that are present. Risk assessment, however, is different. It involves making a prediction about something that has not happened yet and may never happen.
Actuarial risk assessments are based on empirical studies of the characteristics (i.e., risk factors) associated with future violence. These risk factors are combined into an actuarial scale in a way that maximizes the predictive accuracy. research permits an optimum selection of items based on incremental validity; that is, the most powerful predictors are selected first, and then items are added only when they improve prediction. The resulting scores correspond to an estimated probability of future violence. Thus we can make probabilistic risk statement like “75% of individuals in this risk category are expected to be arrested for a new violent offense over 5 years.”
Information about individual risk level relative to other similarly-situated individuals is particularly informative for decisions about how to allocate limited resources. These are the kind of decisions frequently facing criminal courts. This method is consistent with risk assessment in other fields like insurance ratings and weather forecasting.
Violence risk assessments are typically requested to inform decisions about placement or sentencing for defendants adjudicated Not Guilty by Reason of Insanity, defendants convicted of sexual offenses, or defendants convicted of capital offenses. In light of the bail reform movement, violence risk assessments are more frequently included in the pretrial process as part of programs meant to replace monetary bond policies. In Louisiana, for example, the recently passed Gwen’s law (pertaining to cases of domestic violence) specifically refers to using risk assessment information to make decisions about pretrial detention.
The insanity defense has long been a controversial issue. Many people don’t realize that it is rarely successful at trial. Many people also don’t realize that acquittal by reason of insanity is typically followed by an indefinite inpatient commitment in the case of serious felony charges. Once an insanity acquittee is discharged from the hospital, which is done by a judge, he is still subject to the terms of a conditional release, which can be extended if necessary. Commitment is limited by Foucha v. Louisiana which specifies a defendant acquitted by reason of insanity must be released if he is no longer mentally ill and dangerous.
Louisiana defines insanity in terms of a defendant’s capacity to determine the rightfulness or wrongfulness of his actions. Most individuals with a mental illness, even a severe mental illness, know the difference between right and wrong.
Individuals facing impending legal proceedings may be motivated to appear mentally ill or well-adjusted in order to influence the outcome of a case. Psychologists use specialized methods to detect invalid test performance and exaggerated or falisified reports of mental illness symptoms. Malingering assessment is standard in forensic evaluations and should be considered as a potential explanation of impairment.
Independent Medical Examinations (IMEs) are requested by parties seeking an opinion about an examinee’s diagnosis, injury, functional abilities, treatment, and compensation. IMEs include an evaluation of the examinee and review of medical records.
According to LA Code of Evidence Art. 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1) the expert has scientific, technical, or other specialized knowledge that will help the trier of fact understand the evidence or to determine a fact in issue 2) the testimony is based on sufficient facts or data, 3) the testimony is the product of reliable principles and methods, and 4) the expert has reliably applied the principles and methods to the facts of the case.
A consultant can assist with witness preparation, cross-examination, strategy, research, and review of opposing experts’ work.
Expert review of medical records, psychological testing, prior evaluations, historical documents, etc. to assis in developing and refining case theories, determining merit, identifying points for cross-examination, etc.
In a personal injury case involving emotional distress or psychological injury, a psychological evaluation may be needed to determine whether there is a compensable injury, the extent of the injury, and whether the injury is the result of a dereliction of duty by the defendant.