CHAPTER 3: FORENSIC ASSESSMENT IN CRIMINAL DOMAINS

Psychologists and other mental health professionals are often called upon by the courts to assist in the determination of various legal issues. Although the final determination of any legal issue rests with the legal decision maker ( judge or jury), psychologists assist the court by providing information obtained through the assessment of the person for whom the court must make a determination. The legal issues to be decided by the courts may be either civil (e.g., involuntary hospitalization, personal injury, child custody) or criminal (e.g., adjudicative competency, criminal responsibility) in nature. This chapter focuses on the role of the psychologist in the assessment of criminal forensic issues; the next chapter focuses on assessment of civil forensic issues. Issues relating to juveniles or juvenile court will be discussed in Chapter 7.

3.1 Criminal Competencies

Introduction

Dating back to at least the 17th century, courts have recognized that it would be wrong to proceed through the criminal process if an accused person is unfit (incompetent). In addition to protecting the rights of the individual to participate meaningfully in the process, the fitness/competency doctrine also serves to protect the dignity and integrity of the court proceedings. Allowing an unfit individual to be tried and found criminally responsible would offend the dignity and integrity of criminal law court proceedings, and the public would see the court as unfair.

Questions concerning an accused person’s fitness (adjudicative competency; competency to proceed) may arise at any of the following stages of the criminal justice process: when the crime is committed, when an interrogation is conducted, when/if an accused person makes incriminating statements or confesses, when/if an accused person elects to represent him/herself at trial, at trial, and at sentencing (competency to be sentenced). Issues of competence do not always arise, however, because courts assume competence, and it is up to the side raising the issue to establish that competence should be assessed.1 Accordingly, in the criminal justice system, competence assessments are done to decide incompetence, not competence. The legal tests for incompetence proceed by identifying the abilities required of a competent person in the circumstances and deciding if those abilities are absent or seriously impaired in a particular person. As discussed in more detail below, the test is a “limited cognitive capacity test”; individuals must demonstrate profound deficiencies in the requisite abilities before they will be found unfit (incompetent) to proceed through that stage of the criminal justice process.

Overview of Fitness to Stand Trial

A finding that a person is incompetent to proceed through one stage of the criminal justice system requires proof of a mental disorder in two situations: an assessment of criminal responsibility and an assessment of fitness to stand trial.2 The presence of a mental disorder is necessary but not sufficient to prove incompetence.

In addition to the presence of a mental disorder, it must be established that the person suffers from particular deficits that are described below. In other evaluations—for instance, of competency to waive the right to silence or competency to waive the right to counsel—the presence of a mental disorder is not necessary to establish incompetence. Certainly, the presence of a mental disorder may provide evidence that a person is incompetent to proceed through that stage of the process, but it will not establish incompetence nor is it a necessary element of the assessment.

In this chapter we focus on fitness to stand trial and criminal responsibility, and we are concerned with legal competence, not psychological competence. A legal determination of competence is made by the court. It will consider whether certain legal abilities are impaired, sometimes as a consequence of a mental dis- order, to the extent that the person is unfit to proceed through that stage of the criminal justice process. Not all impairments, no matter how profound, will lead to a finding of legal incompetence.

Harmony of Competencies

In R. v. Whittle (1994), the Supreme Court of Canada held that there should be a harmony of competencies. That is, there should not be myriad standards of competence that apply at different stages of the criminal process; a single standard should apply across evaluations. Whittle, who suffered from schizophrenia, was arrested for unpaid fines. At the time of his arrest, he was hearing voices in his head telling him to unburden himself. After waiving his right to counsel and his right to remain silent, he made several incriminating statements that led to charges of robbery and murder. At trial he was found fit to stand trial but his statements were not admitted as they were deemed not voluntary. He was acquitted. The acquittal was appealed to the Ontario Court of Appeal and a new trial was ordered. The Court of Appeal decision was appealed to the Supreme Court of Canada, where the justices held that,

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind. (para 51)

In R. v. Swain (1991), the Supreme Court of Canada applied the limited cognitive capacity test to evaluations of a person’s competence to represent himself or herself at trial: individuals who are fit to stand trial must also be fit to conduct their own defence. Later, in R. v. M.A.W. (2008), the Ontario Court of Appeal extended this principle to the voluntariness of a guilty plea: “Courts apply the limited cognitive capacity standard to determine an accused’s fitness to stand trial, as well as to assess the voluntariness of an accused’s decision whether to exercise the right to silence and the right to counsel. Applying this same test to the voluntariness of a guilty plea would achieve a desirable degree of uniformity” (para 28).

As you will see, the limited cognitive capacity test for competence to stand trial serves as a kind of proxy for some other competencies: if the accused is fit to stand trial, the accused is also fit to engage in other stages in the crim- inal process. It would be wrong, however, to conflate the level of competence required (i.e., limited cognitive capacity) with the particular deficits that must be proven (e.g., ability to communicate with your lawyer in evaluations of fitness to stand trial; ability to understand the consequences in assessments of competence to waive the right to silence). The particular deficits that must be established vary across competencies, but the level of competence required to meet the legal threshold is common—limited cognitive capacity.

Fitness to Stand Trial

Perhaps the most commonly cited case with respect to fitness to stand trial is the American case Dusky v. United States (1960). Dusky established the standard for competency to stand trial in the United States and has been widely cited as a source of precedent and case law. Each state has its own standard for fitness to stand trial, but Dusky forms the basis for each of these state standards as well as for the federal standard for competence in the United States.  In Canada, a person is presumed to be fit to stand trial unless it can be shown, on balance of probabilities, that that individual is not fit to stand trial. Section 2 of the Criminal Code defines “unfit to stand trial” as follows:

Unable on account of metal disorder to conduct a defence at any stage of the proceeding before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to: (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel.

“[he] can communicate with counsel to the extent that he can speak to counsel, and do so in an articulate manner; however, it is abundantly clear from the opinion of the psychiatrists before me and from the conduct of the accused person during various appearances that have led up to this hearing and at this hearing, and in his evidence given before me, that his delusions are so pervasive and irrational that he is, unlike the accused in R. v. Trecroce, not merely capable of disagreeing with counsel whom he might instruct as to how the case should be conducted, but unable to perceive his own best interests and how those interests should be addressed in the conduct of a trial. I am content that the accused person in this case is not capable to rationally instruct counsel, or rationally conduct a case or rationally communicate with counsel because of this mental disorder” (para. 26).

it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (M’Naghten’s Case, 1843, p. 722)

The M’Naghten test remains the standard in Canada. As you learned at the beginning of this chapter, the starting point is competence. All accused are assumed to be free of mental disorder unless otherwise proven, on balance of probabilities, by the party who raised the issue. The Criminal Code states that “[n]o person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” (s. 16). Take note of the fact that a mental disorder is a necessary condition for a finding of NCRMD, but it is not sufficient. The mental disorder must cause very particular deficits.

To “appreciate the nature and quality” involves more than knowing what you are doing; it must include a minimal understanding of the consequences of the action. In Cooper v. the Queen (1979) the accused was convicted of murder—he choked his victim, causing her death. The Supreme Court of Canada held that, due to the accused’s mental illness, he knew that he was choking the victim, but he did not know that the act could lead to her death. To be morally culpable, the accused must have some minimal understanding of the nature and quality of the act—in this case, that choking could lead to death. The appellant was convicted at trial but the Supreme Court of Canada overturned the conviction and ordered a new trial.

The meaning of “wrong” in the NCRMD criteria includes either legally wrong or morally wrong. In R. v. Chaulk (1990), a 15-year-old and a 16-year-old were charged with the murder of a homeowner whose home they broke into. The youths were suffering from a form of psychosis that led them to believe that they had the power to rule the world and that this killing was necessary to achieve this end. The youths knew the act was legally wrong, but they failed to understand that it was morally wrong. They believed they should rule the world and this was the only way to accomplish that goal. The trial judge held that the insanity defence (NCRMD) was not open to the accused because they understood that the act was legally wrong. The Supreme Court of Canada overturned the trial decision and ordered a new trial. It held that “wrong” means either the accused did not under- stand the act was legally wrong, or did not understand the act was morally wrong.

This does not mean that the accused must appreciate the legal consequences of the act. In R. v. Abbey (1982), the accused imported drugs into Canada. He knew that it was wrong but was delusional and believed he was immune from prosecution. At trial he successfully raised the insanity defence; however, that decision was overturned at the Supreme Court of Canada, which held that the defence cannot be used if the accused believed he was immune from prosecution, even if that belief comes from a disease of the mind.

Who can raise the issue of the accused’s mental state at the time of the offence? Recall Case Study 3.1. In R. v. Taylor (1992), the verdict of not guilty by reason of insanity (as it was called in 1992) was overturned because the Crown raised the issue of the accused’s mental state at the time of the offence. In R. v. Swain (1991) the Supreme Court of Canada held that the Crown could raise the issue of the accused’s criminal responsibility in only a few particular circumstances: after a guilty verdict has been rendered, and if accused individuals raise the issue of their mental state for any purpose during trial. The court held that it would be unfair to allow the Crown to raise the issue of sanity for two reasons. First, it could influence how the trier of fact evaluates the evidence. Second, it is contrary to accused individuals’ right to fundamental justice to control their own defence.

Public Perceptions of the Insanity Defence

Much of the research on perceptions of the “insanity defence” has been done in the United States, and it provides the most relevant data available. Although the name of the defence is different (i.e., not guilty by reason of insanity), the essen- tial elements of the defence are similar.

Public perceptions of the insanity defence are that it is frequently used, frequently successful, and serves as a “loophole” guilty people use to go free (Hans, 1986). However, empirical research on whether these public perceptions are accurate reveals that the public overestimates both the use and success of the insanity defence and underestimates the length of confinement of insanity acquittees (Silver, Cirincione, & Steadman, 1994).

Although the exact rates of use and success vary by jurisdiction, as a general statement, the insanity defence is rarely used and is even more rarely successful. Silver and colleagues (1994) compared public perceptions of the insanity defence with empirical data on its actual use and found that the public estimates the use of the insanity defence to be 37 percent (or 37 times per 100 felony indictments), whereas the actual use is 0.9 percent (less than once per 100 felony indictments), representing a public estimate that is 41 times greater than its actual use. Similarly, with respect to estimates regarding the success of the insanity defence, these authors report that the public estimates the success rate to be 44 percent (or 44 acquittals per 100 insanity pleas) whereas the actual rate of success of 26 percent. As Silver et al. conclude, “This means that for every 1,000 felony cases, the public would estimate 370 insanity pleas of which 44% (163) would be estimated as successful. In fact, there are only nine insanity pleas for every 1000 felony cases of which 26% (about 2) are successful. The public’s estimate of the number of insanity acquittals is 81 times the actual number” (pp. 67–68).

Silver et al. (1994) also examined the distribution of charges for persons pleading insanity to determine whether the public’s perception—that the majority of accused pleading insanity are murderers—was accurate. These researchers reported that approximately 14 percent of accused individuals pleading insanity were charged with murder, whereas about 54 percent were charged with other violent offences and 32 percent were charged with nonviolent offences. Again, public perceptions of accused individuals pleading insanity greatly overestimate the proportion of accused charged with murder.

With respect to public perceptions regarding what happens to “successful” insanity acquittees, the public estimates that approximately half of these individuals are hospitalized, but Silver et al. (1994) report that, in reality, about 85 percent are hospitalized. Similarly, these authors report that the public overestimates the pro- portion of insanity acquittees who “go free” upon acquittal, with a public estimate of 26 percent going free compared to the actual rate of 15 percent. The authors also indicate that if conditional release and outpatient treatment are excluded from the definition of “going free,” the actual rate drops to a mere 1 percent.

When Silver et al. (1994) compared public estimates of the length of confine- ment of insanity acquittees to actual lengths of confinement, they found, again, that the public underestimates the actual length of confinement. The public estimates an average length of confinement of just under two years (21.8 months) versus an actual average length of confinement of over two and a half years (32.5 months) for all persons (regardless of charge), and almost six and a half years (76.4 months) for those charged with murder.

In Canada, the insanity defence (NCRMD) is rarely successful (Livingston, Wilson, Tien, & Bond, 2003). Research examining the impact of Bill C-30, which was introduced in 1992 to change the provisions for the evaluation and treatment of accused raising the issue of insanity or fitness in Canada (and which was thought to make the insanity plea more attractive to accused because of its emphasis on the community management of these individuals, as well as its proposed caps on the length of confinement for acquittees), indicates that the number of cases remanded for evaluation did indeed increase. Between 2002 and 2004 there was a 102 percent increase in the total number of admissions across Canada (Latimer & Lawrence, 2006). This was not due to an increase in the number of court cases, but to a real increase in the percentage of remanded cases, as the rate was 1.2 per 1,000 court cases in 1994/95 and 1.8 per 1,000 cases in 2003/04. It is expected that this trend will continue, as shown in Figure 3.3.

However, while the number of accused raising the insanity issue has increased, rates of acquittal have remained relatively constant (Arboleda-Florez, Nussbaum, Ohayon, & Roesch, 2000). It appears that the insanity defence is used even more rarely outside North America. In Ireland, for example, Gibbons, Mulryan, and O’Connor (1997) reported an average of one insanity acquittal per year since 1910, and indicate that this defence is used only for the most serious of offences (95 percent of acquittees had been charged with violent offences, 72 percent of which were infanticide or homicide) and is successful in only about 2 to 3 percent of homicides.

Assessment of Criminal Responsibility

As discussed previously, the determination of fitness to stand trial is based on the accused’s mental state at the present time. Criminal responsibility, however, takes into consideration the accused’s mental state at the time of the alleged offence. Thus, in this type of evaluation, the psychologist or other mental health professional is attempting to assess the accused’s mental state at some earlier point in time— so this is a retrospective evaluation. Similar to evaluations of fitness to stand trial and other forensic issues, the evaluation of criminal responsibility or mental state at the time of the offence usually involves an interview with the accused and a review of relevant records (including any available mental health records), as well as the police report. Interviews may be conducted with individuals who know the accused well or who were with the accused at or around the time of the offence, and any relevant psychological tests or forensic assessment instruments can be administered. Evaluations of mental state at the time of the offence may take place on either an inpatient or an outpatient basis, depending on the rules of the jurisdiction in which the evaluation takes place.

Although several forensic assessment instruments have been developed for use in assessments of fitness to stand trial, there has only been one published instrument developed for use in assessments of criminal responsibility—Rogers Criminal Responsibility Assessment Scales (R-CRAS; Rogers, 1984). The R-CRAS was developed as a way to standardize the collection of information for evaluations of criminal responsibility using a U.S. standard known as the American Law Institute (1962) standard, but it can also be adapted for use with M’Naghten standards.

An accused who presents an insanity defence at trial will present evidence of mental impairment at the time of the offence, usually in the form of a written report by a psychologist or other mental health professional who has carried out an evaluation of the accused’s mental state at the time of the offence. If an accused raises the issue of mental state by using an insanity defence at trial (or by declaring the intention to pursue an insanity defence), the prosecution then has the right to have an evaluation of that accused’s mental state at the time of the offence conducted by an expert of its choosing. If the case proceeds to trial (recall that the vast majority of cases are resolved by a guilty plea or a plea bargain), experts for both sides (Crown and defence) may testify about the accused’s mental state, and the decision regarding whether the accused is to be held accountable for the actions in question rests with the legal decision maker in the case—the jury or, if there is no jury, the judge.

Researchers have examined the process by which insanity pleas make it to court and whether insanity pleas are heard by judge or jury. Janofsky, Dunn, Roskes, Briskin, and Lunstrum (1996) examined the outcomes for all insanity pleas raised over a one-year period in Baltimore City’s district and circuit courts and found that almost 96 percent of the pleas did not make it to court. The vast majority of accused withdrew their insanity plea immediately after undergoing an insanity evaluation, while others either had their charges dropped before trial or were found unfit to proceed to trial. Only about 4 percent of the initial insanity pleas made it to court. In all these cases, the insanity pleas were not contested by either the prosecution or the defence, and the accused were found not criminally responsible.

Cirincione (1996) examined the processing of insanity pleas and determined that the vast majority of insanity cases were handled through either plea bargain (42.9 percent) or bench trial (42.7 percent), with relatively few (14.4 percent) handled via jury trial. The success of the insanity defence varied considerably by type of adjudication. Only about 16 percent of jury trials and 11 percent of plea bargains resulted in an insanity acquittal, compared to almost 55 percent of bench trials. In interpreting these results, Cirincione speculated that jury trials are more commonly used in contentious cases (involving severe crimes and less mental disorder), whereas bench trials are more likely when the prosecution does not contest the insanity claim or when the judge is more likely to be convinced by the defence’s arguments.

Characteristics of Insanity Defence Acquittees

Although there are always exceptions to any rule, a relatively consistent picture of the model insanity acquittee has emerged. Research examining the demographic characteristics of insanity acquittees in the United States(Cirincione, Steadman,& McGreevy, 1995) and Canada (Roesch et al., 1997) indicates that the typical insanity acquittee is male, between the ages of 20 and 29, single, unemployed, minimally educated, and diagnosed with a major mental illness; has had prior contact with the criminal justice and mental health systems; and is acquitted for a violent offence (see also Lymburner & Roesch, 1999).

In terms of the types of mental illness that insanity acquittees suffer from, research has consistently demonstrated that the majority of insanity acquit- tees are diagnosed with psychotic disorders. In the United States, Wack (1993) reported that 62 percent of insanity acquittees in New York were diagnosed with a psychotic disorder, whereas Bloom and Williams (1994) reported that 60 percent of insanity acquittees in Oregon were diagnosed with schizophrenia (a major mental disorder with prominent psychotic features). The situation is similar in Canada, with Roesch et al. (1997) reporting that over 50 percent of insanity acquittees in British Columbia and Hodgins (1993) reporting that 63 percent of insanity acquittees in Quebec were diagnosed with schizophrenia.

Treatment of Insanity Defence Acquittees

If a court finds that an accused is NCRMD, it may choose one of three dispo- sitions: an absolute discharge, a conditional discharge (i.e., the accused may live in the community but with conditions), or detention in hospital (with or without conditions). Alternatively, and very frequently, the court may refer the decision to the review board of the appropriate province or territory. Any disposition, other than an absolute discharge, must be reviewed by a review board each year until it determines that the accused is not a significant threat to the safety of the public and discharges the accused absolutely.

The majority of individuals found NCRMD are initially detained in psy- chiatric hospitals or forensic institutions for a period of confinement and treat- ment of their mental disorder. The length of the period of confinement varies considerably by jurisdiction. In addition, there does not appear to be a consistent pattern across jurisdictions in terms of whether insanity acquittees are held for longer or shorter periods than individuals convicted of the same type of crime— in some jurisdictions, insanity acquittees are held, on average, longer than convicted individuals; in other jurisdictions the reverse is true, while in others there is no difference.

3.3 Risk Assessment

The question of whether an accused is a risk to commit a future offence may arise at many points in the criminal justice system, although it most often comes up at either sentencing or release. Mental health professionals are increasingly being called upon by the criminal justice system to conduct assessments of an accused’s level of risk to commit a violent offence, a sexual offence, or some other type of criminal behaviour. Treatment options for the accused are partially determined by relevant risk factors for each individual. While the assessment of an individ- ual’s future risk may occur at any time, these assessments usually occur in one of two contexts: just before sentencing, when an individual’s level of risk may affect the type of sentence that is imposed and the type of treatment programming that is offered; and just before release, when they inform the court about strategies for reducing an offender’s level of risk, which may in turn affect the release decision or the conditions imposed upon that release. Risk assessment occurs in both the civil (e.g., risk for violence toward oneself or others) and criminal (e.g., risk for future sexual violence) arenas; however, the focus in this chapter is on the criminal arena. We begin this section by describing the various points at which a risk assess- ment may be conducted.

Points at Which Risk Assessment Might Occur

Bail

Section 11(e) of the Canadian Charter of Rights and Freedoms states, “Any person charged with an offence has the right not to be denied reasonable bail without just cause.” Just cause exists if, for example, the accused poses a risk if released into the community. Accordingly, people in the criminal justice system must assess risk when an individual is brought before them to request bail. Often, these decisions are made quickly and without benefit of expert psychological evidence; however, the person making the decision to release does undertake a risk assessment.

Sentencing

Most offences carry maximum sentences but not minimum sentences, so judges have a great deal of discretion in terms of the length of sentence. The individual’s risk of offending in the future, as well as the possibility of managing this risk, are important factors to consider when deciding the most appropriate sentence in the circumstances.

Dangerous Offender Hearings

Section 753 (1) (a) of the Criminal Code states that a person may be designated a “dangerous offender” (and may be sentenced to detention in a penitentiary for an indeterminate period) if “the offence for which the offender has been convicted is a serious personal injury offence . . . and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons.” Section 752 of the Criminal Code defines a “serious personal injury offence” as “an indictable offence, other than high treason, treason, first-degree murder or second-degree murder, involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or an offence or attempt to commit an offence [that is a sexual assault].”

Long-Term Offender Hearing

Section 753.1(1) of the Criminal Code allows for a designation of “long-term offender” (which orders that “the offender be subject to long-term supervision for a period that does not exceed 10 years” following the period of incarceration) when it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted, there is a substantial risk that the offender will reoffend, and there is a reasonable possibility of eventual control of the risk in the community. When you consider dangerous offender legislation and long-term offender legislation, you should note that an important distinction is the potential management of future risk.

Remand Assessments

A remand facility is a provincial institution that detains individuals who are serving a sentence of less than two years, were given a federal sentence and are remaining in remand until their appeal period expires, have outstanding charges or are awaiting transfer to another facility, or are detained for other administrative or legal reasons (e.g., immigration holds). In a remand facility, brief assessments are done with a particular focus on identifying major mental illnesses and/or the need for short-term urgent intervention.

Intake Assessment

Upon arrival at a federal institution (where people are held for sentences of two years of more), all offenders are immediately assessed for suicide risk, risk of harm to others, and other issues (e.g., health care needs). The purpose of intake assessment is to determine the level of security needed, the type and intensity of treatment, and the likelihood of recidivism.

Probation/Parole

Generally, probation refers to conditional release from a provincial sentence, and parole describes conditional release from a federal sentence. A period of probation may be passed as the entire provincial sentence or as part of a provincial sentence. An important consideration when assessing probation is the risk that the offender will reoffend if released into the community. Unless there is a minimum sentence (e.g., first-degree murder), offenders are eligible to apply for parole after serving only one-third of their sentence, and it may be granted if the offender can convince the parole board that release is appropriate. Except in cases where there is a minimum sentence, offenders must be released after serving two-thirds of their sentence—this is called statutory release—unless the Crown can establish that the offender should not be released. When a parole hearing is conducted, an assessment of future risk is essential if the parole board is to make its decision.

Not Criminally Responsible on Account of Mental Disorder (NCRMD)

Individuals who have been found to be NCRMD and detained in a psychiatric institution may be assessed and released only if, among other things, they no longer pose a significant threat to the safety of the public. These individuals are evaluated for their risk of violence to others and to themselves on a regular basis while institutionalized, and they can only be released if a risk assessment indicates that they are not a significant threat to themselves or to the public.

Approaches to Risk Assessment

There are three different approaches to risk assessment. The first is known as clinical decision making or unstructured clinical judgment. This approach is ideographic (that is, it focuses on the specific individual rather than on groups of individuals) and qualitative (it relies on subjective judgments) in nature. Thus, clinicians who are conducting violence risk assessments in this manner will use their best clinical judgment to gauge the likelihood that the examinee will be violent in the future. The risk markers that are taken into consideration vary by clinician, as does the weighting of each of the relevant factors for each specific case.

In contrast to the clinical decision-making approach is actuarial decision making. The actuarial approach is nomothetic (based on research involving large groups of people) and quantitative (statistical) in nature. Thus, clinicians who conduct violence risk assessments in this manner will use a formal, algorithmic, objective approach to make a decision regarding the likelihood that the examinee will be violent in the future. Clinicians must incorporate their professional experience by using a formulaic approach that takes into consideration specific risk markers, each given a specific weight. When directly compared with decisions made using unstructured clinical judgment, actuarial decisions have been found to be considerably more accurate.

The third approach to risk assessment, structured professional judgment, involves a melding of the clinical and actuarial approaches. In this approach, a specific array of risk markers is considered, thus ensuring that all clinicians take into consideration the same set of risk factors for each examinee. In addition, clinicians are able to introduce their professional experience to temper or augment the actuarial prediction. Thus, the ztructured professional judgment approach to violence risk assessment ensures the consideration of a relatively comprehensive set of risk factors for every examinee and allows for additional, individual factors to be considered as a supplement to the structured assessment. It has long been recognized that the actuarial approach is superior to unstructured clinical judgment; however, a meta-analysis comparing the actuarial and structured professional judgment approaches indicated no distinct superiority for either actuarial or SPJ model (Guy, 2008). The author concluded that both models performed at comparably good levels of predictive accuracy, but that additional relevant factors should be considered when selecting an approach for clinical practice.

Violence Risk Factors

Numerous risk factors have been identified as being related to an increased risk for violence. These risk factors include both static (stable, unchangeable) and dynamic (changeable) factors, as shown in Table 3.1.

These risk factors have formed the basis of a number of risk assessment instruments. Although many risk factors are important to consider across many contexts, the risk assessment instruments have, generally, been developed for a specific purpose. That is, some instruments have been developed to assist in the evaluation of risk for violence, while others focus specifically on intimate partner violence or sexual violence.

Risk assessment instruments fall into one of two categories—those that are actuarial and those that were developed to assist in structured professional judgments of risk for violence. Instruments such as the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 2005) and the Violence Prediction Scheme (VPS; Webster, Harris, Rice, Cormier, & Quinsey, 1994) are actuarial, whereas the HCR-20 (Webster, Douglas, Eaves, & Hart, 1997), the Spousal Assault Risk Assessment Guide (SARA; Kropp, Hart, Webster, & Eaves, 1998), and the Sexual Violence Risk-20 (SVR-20; Boer, Hart, Kropp, & Webster, 1997) were developed to assist in structured professional evaluations of risk (see Insight 3.2 for a description of risk assessment instruments).

Psychopathy is a personality type that encompasses both behavioural and affective (emotional) components. Individuals who exhibit psychopathy are, among other things, glib, grandiose, callous, remorseless, reckless, manipulative, impulsive, dishonest, parasitic, and unable to experience the normal range and depth of emotional experience. Psychopathy plays an important role in risk assessment, because the available research has consistently demonstrated a significant relationship between psy- chopathy and violence. That is, individuals with psychopathic personality styles are more likely to engage in general criminal behaviour and violent behaviour than their nonpsychopathic counterparts. Moderate to major associations between psychopathy and violence have been found (Hemphill, Hare, & Wong, 1998; Salekin, Rogers, & Sewell, 1996). As Douglas and Webster (1999) have concluded, “Psychopaths, in comparison with nonpsychopaths, are at an increased risk for acting violently and for doing so more quickly and in more diverse ways and across various settings, whether they are mentally disordered, sex offenders, young offenders, or just ’regular’ nonmentally ill offenders” (p. 204). Given the robustness of the relationship between psychopathy and violence, it is important to take this personality type into consideration in every risk assessment.

Violence Risk Assessment

Violence risk assessment attempts to take into consideration many different fac- tors, including (a) the nature of the violence or the types of violence that may occur; (b) the severity or seriousness of the violence; (c) the frequency of the violence, or how often violence might occur; (d) the imminence of violence, or how soon it might occur; and (e) the likelihood or probability that violence will occur. Evaluators are often called upon by the courts to assess an individual’s risk for violence, whether for sentencing or release purposes, and therefore must attempt to delineate each of these factors.

An informative and useful risk assessment will provide the court with information on the probability that the examinee will commit a particular type of violence within a particular time frame and under certain conditions. Thus, risk management is a crucial component of risk assessment. Risk management refers to the strategy of attempting to reduce the probability that an individual will be violent by describing the conditions under which that individual’s risk for violence may increase and those under which it may decrease. Thus, to manage an individual’s risk, one must know the conditions that may serve to increase and/or decrease the probability of violence so that these conditions can be monitored and/or adjusted accordingly. For instance, the use of alcohol or drugs may serve to increase an individual’s risk for violence; therefore, an appropriate risk management strategy would include treatment for substance abuse and careful monitoring to ensure that the individual abstains.

Sentencing and release decisions by the courts can then be made based on the information provided in a risk assessment, and specific sentencing and/or release conditions may be implemented in an attempt to manage the individual’s risk for future violence.

As in other types of criminal forensic evaluations, an interview with the offender as well as a review of all available records and interviews with other individuals who know the offender well are involved in an assessment of an offender’s risk for future violence. In addition, most risk assessments also entail the use of one or more of the specific forensic assessment instruments that have been developed to assist in making a determination about an offender’s level of risk.

3.4 Psychopathy and Malingering

There are two overarching issues that must be assessed, either formally or informally, by the examiner in any forensic evaluation: psychopathy and malingering (faking).

Psychopathy

Psychopathy is a constellation of affective, interpersonal, and behavioural characteristics. It arises as a clinical issue in the full range of criminal forensic assessments, with specific repercussions in the assessment of risk for violence (as discussed earlier). Psychopathy is an important concept in forensic evaluations, as the constellation of personality traits involved in psychopathy often has a significant impact on how individuals understand and function within their environment. Forensic evaluators must always consider the concept of psychopathy in any evaluation context, at least informally if not formally.

The modern concept of psychopathy was introduced by Hervey Cleckley in his classic text The Mask of Sanity (1941). Cleckley described the person with psychopathy as lacking emotional responsiveness, having no sense of shame, being superficially charming and manipulative, showing irresponsible behaviour, and being inadequately motivated. Many researchers, but especially Robert Hare and his colleagues, have continued to develop the concept of psychopathy throughout the last three decades and have been instrumental in describing how it is distinct from (and similar to) the concept of antisocial personality disorder (APD). Generally speaking, psychopathy is a broader concept than APD and encompasses an interpersonal/affective component in addition to the mainly behavioural component of APD.

Several instruments have been developed to assess the characteristics associated with psychopathy; however, there is none as well known as Hare’s Psychopathy Checklist–Revised (PCL-R: Hare, 1991, 2003). The PCL-R consists of 20 items that are rated on the basis of file information and an interview with the examinee. Scores on the PCL-R range from 0 to 40, with a cutoff of 30 commonly used to denote psychopathy. In addition to the PCL-R, a screening version (PCL:SV; Hart, Cox, & Hare, 1995) and a youth version (PCL:YV; Forth, Kosson, & Hare, 2003) have been developed.

Malingering

Malingering is the feigned production or exaggeration of psychological or physical symptoms to achieve some external incentive. It must be ruled out in every legal context. The American Psychiatric Association (2000) defines malingering as “the intentional production of false or grossly exaggerated physical or psycho- logical symptoms, motivated by external incentives such as . . . evading criminal prosecution” (p. 739). Further, malingering is to be “strongly suspected” in a “medicolegal context” (p. 739), which, of course, includes all criminal forensic evaluations.

The validity of psychological assessment instruments hinges on examinees being honest and forthright in their effort and responses, and the same is true for most forensic assessment instruments. In order for results to be valid, examinees must be honest and sincere in their effort and responses. The formal evaluation of malingering might include the use of a forensic assessment instrument developed specifically for the purposes of detection of malingering. In contrast, an informal evaluation of malingering might involve only a very close scrutiny of self-reported information and various collateral sources of information, without any specific testing targeted toward the issue of malingering.

There are two areas where an individual might attempt to malinger: the display of psychiatric symptoms or of cognitive impairment. Malingering psychiatric symptoms would involve pretending to be experiencing symptoms of a mental disorder; malingering cognitive impairment would involve pretending to be experiencing memory or other mental impairment. Several assessment instruments have been developed to help in evaluating the likelihood that an individual is malingering either psychiatric symptomatology or cognitive impairment. The Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, 1992) and the Miller Forensic Assessment of Symptoms Test (M-FAST; Miller, 1995) are two instruments that have been developed for the assessment of malingering of psychiatric impairment, whereas the Test of Memory Malingering (TOMM; Tombaugh, 1996) and the Validity Indicator Profile (VIP; Frederick, 1997) are two that have been developed to evaluate malingering of cognitive impairment. Regardless of whether the evaluation of malingering is formal or informal, the forensic examiner must make some assessment of this issue in every case. The results of this assessment will be useful to the evaluator in determining how much weight to put on the accused’s self-reports and testing results.

3.5 Summary

Psychologists and other mental health professionals assist the criminal courts in understanding issues relevant to psychology and the legal system. The courts call upon psychologists to conduct a wide variety of assessments, both formal (using assessment tools) and informal. By far the most common type of criminal forensic assessment is an assessment of fitness/competency to stand trial, which focuses on the present abilities of the accused. Only about 30 percent of accused who have had their fitness questioned are actually found unfit to proceed.

Another common type of evaluation that psychologists are called upon to conduct is an assessment of an accused’s criminal responsibility or mental state at the time of the offence (insanity). Unlike fitness to stand trial, this type of evaluation focuses on the accused’s mental state at an earlier point in time (the time of the offence); therefore, it is retrospective. Public perceptions of the insanity defence are that it is used often and is frequently successful. In reality, this defence is rarely used and is even more rarely successful.

Psychologists are also called upon to conduct evaluations of an offender’s risk to commit future violence. In this type of assessment, risk factors for violence are identified and evaluated in order to determine the offender’s level of risk and the most appropriate means of reducing or managing future risk.

Each type of evaluation involves an interview with the accused as well as the collection of additional and varied sources of information about the accused. Specialized forensic assessment instruments may also be used to help the evaluator develop an opinion regarding the accused’s fitness to stand trial, criminal responsibility, or future risk for violence.

Key Terms

actuarial decision making

adjudicative competency

antisocial personality disorder (APD)

competency to be executed

competency to be sentenced

competency to proceed

competency to waive the right to counsel (proceed pro se)

criminal law

criminal responsibility

fitness (or competency) to stand trial

M’Naghten standard

malingering

not criminally responsible on account of mental disorder (NCRMD)

psychopathy

risk management

structured professional judgment

unstructured clinical judgment

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Suggested Readings and Websites

Hart, S. D., & Logan, C. (2011). Formulation of violence risk using evidence-based assessments: The structured professional judgment approach. Chichester, UK: Wiley-Blackwell.

Forensic Psychiatry.ca: www.forensicpsychiatry.ca.

Government of Canada Justice Laws: www.laws-lois.justice.gc.ca.

Litwack, T., Zapf, P. A., Groscup, J. L., & Hart, S. D. (2006). Violence risk assess- ment: Research, legal, and clinical considerations. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (3rd ed., pp. 487–533). New York: Wiley.

Mental Competency Best Practices Model, www.mentalcompetency.org. The Historical Clinical Risk Management-20 Version 3, http://hcr-20.com.

Zapf, P. A., Golding, S. L., & Roesch, R. (2006). Criminal responsibility and the insanity defense. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (3rd ed., pp. 332–363). New York: Wiley.

Zapf, P. A., & Roesch, R. (2006). Competency to stand trial: A guide for evalua- tors. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (3rd ed., pp. 305–331). New York: Wiley.