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Maximizing the Helpfulness of Experts in Legal Determinations: Lessons from the Most Recent Juvenile Competency Statute

Written by Steph Fernandes, third year law student at The Ohio State University: Moritz College of Law

This year, Michigan joined the growing number of states that have specific statutes regarding juvenile competency.  A Representative introduced the bill in April 2011 and, by December of 2012, both houses unanimously passed the bill.  The law became effective as recently as March 28th. H.R. 4555, 96th Leg., Reg. Sess. (Mich. 2013).  As more states adopt this type of legislation, courts increasingly must apply more than precedent from case law in making their determinations.  Statutes include provisions that range from presumptions of competency based on the juvenile’s age to the duration of restoration before the charges must be dismissed because a juvenile is unfit to stand trial.  See e.g., Ohio Rev. Code Ann. § 2152.52(A)(2); Kan. Stat. Ann. § 38-2349(B) (2006).  The question becomes: do these provisions overly limit the courts’ discretion, or do the statutes provide meaningful aid to courts as they determine competency?  While no statute will be perfect, the Michigan statute seems to be of great benefit in determining juveniles’ competency to stand trial.  In particular, this most recent juvenile competency statute explicitly mandates that experts consider specific factors that will empower the judges who make the ultimate determination.

There are two prongs for determining the defendant’s competency.  The first requires the defendant have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Dusky v. United States, 362 U.S. 402, 402 (1960).  The second involves the crime and the trial.  The defendant must have “a rational as well as factual understanding of the proceedings against him.” Id.  The Supreme Court has not created any special competency standards for juveniles.  Therefore, states like Michigan begin with this test and seek to give courts a framework that can be applied to the specific concerns that arise from juveniles standing trial.

The trial court makes the final determination of competency.  However, the statute expressly mandates that a qualified forensic mental health examiner must complete the competency evaluation.  This examiner is to be a psychologist, psychiatrist, or another mental health examiner who has completed the juvenile competency training program that will be endorsed within eighteen months of the new law. Mich. Comp. Laws Ann. § 330.2060(B) (West 2013).  Additionally, the examiner must have training or experience in forensic evaluation procedures for juveniles, be familiar with the evaluation, diagnosis, and treatment of children and adolescents with emotional disturbance, mental illness, or developmental disabilities, possess a clinical understanding of child and adolescent development, and be cognizant of competence standards in Michigan. Id.  Thus, evaluators not only serve as experts to determine the competency of the juvenile in a psychological sense, but they also have adequate knowledge about the legal standard the judge will eventually apply.

Michigan’s statute further describes the information the qualified evaluator must include in her report.  The evaluator must provide details about the assessments she administered, the medical, educational, and judicial records that she reviewed, and explain any available social, clinical, developmental, and legal history. § 330.2066.  The clinical assessment itself must include a mental status examination, explore a diagnosis and functional impact of a mental illness, developmental disability, or cognitive impairment, explore any effects medications would have had on the juvenile, assess the juvenile’s intelligence, and document the juvenile’s age, maturity level, developmental stage, and ability to make decisions. Id.  Then, the statute incorporates the Supreme Court’s two-pronged test of competency, but establishes specific abilities that must be considered.  Regarding a juvenile’s factual and rational understanding of the proceedings, the evaluator should assess the defendant’s ability to identify the roles of the participants in the adversarial process, understand the seriousness of the charges, realistically appraise the prospective outcomes, and “extend thinking into the future.” Id.  When assessing the juvenile’s ability to meaningfully assist the attorney, the evaluator considers the juvenile’s ability to provide a “reasonably coherent description of facts and events pertaining to the charge”, understand the consequences of her actions and their effect on other people, her ability to coherently express herself and to behave appropriately in court, and her ability to reason logically and weigh consequences, particularly referring to pleas, waivers, and strategy. Id.  By listing these areas, the statute gives the evaluator specific qualities to assess thereby helping to reduce the inherent vagueness in the Dusky standard.

On the other hand, some scholars find these statutes disconcerting because they fear the evaluator’s psychological-based report will supplant the need for a judge’s legal determination.  Cox and Zapf explain prior research reveals judges agree with the experts’ opinions more than 90% of the time. Melissa L. Cox & Patricia A. Zapf, An Investigation of Discrepancies Between Mental Health Professionals and the Courts in Decisions about Competency, 28 Law & Psychol. Rev. 109, 115 (2004).  The scholars warn, “[m]any trial courts appear to relinquish their role as decision-maker too readily.  The courts tend to ignore the rule that experts cannot give evidence on the ultimate issue in relation to competency evaluations.” Id. at 116.  In their own study of Alabama courts, the scholars found judges agreed with the mental health professionals’ determination in all but one of the three hundred and twenty-seven surveyed cases. Id. at 125.  The writers fear judges are delegating the determination to the mental health professionals and neglecting their role as the “ultimate decision-maker.” Id. at 130.  This delegation of authority is concerning because the scholars found some of the evaluators’ reports to be incomplete and lacking definitive diagnoses and recommendations for treatment. Id.

This criticism is valid, but the Michigan statute includes provisions that serve as safeguards, ensuring that the judge receives all necessary information before making the final determination.  First, from the beginning of the evaluation, the qualified evaluator is familiar with the legal standard.  Certainly, the evaluator’s expertise is clinical, as opposed to legal, but this familiarity should help the evaluator realize the framework through which the judge will view the results.  It is anticipated that experts will then provide opinions with the legal standards in mind rather than focusing on competency solely as a psychological determination.

Second, Michigan’s statute clarifies the two Dusky prongs by mandating the assessment of particular qualities and abilities.  This specificity assists the judges in two ways: it means all judges focus on the same factors, and it ensures the evaluators include these factors in their report.  The evaluator is still permitted to rely on her expertise in creating the report and deciding issues such as if the juvenile is capable of displaying appropriate behavior in the courtroom.  Thus, the evaluator is able to give her opinion regarding a juvenile’s capabilities.  Then, the judge can make a determination based on the expert analysis provided.  The judge still possesses discretion in making the ultimate decision, but is guaranteed the expert’s opinion regarding key issues.

Michigan, as the most recent state to fashion a juvenile competency statute, presents an effective model for obtaining feedback from experts without diminishing the judge’s role as the ultimate decision-maker.  Qualified evaluators in Michigan, in addition to being trained and possessing experience regarding issues affecting competency, also have sufficient knowledge about the legal standard to help frame their analysis.  Furthermore, the statute subdivides issues under each Dusky prong.  The statute clarifies the objectives for judges and allows experts to provide their opinion without rendering the judge’s final determination superfluous.  This statute offers guidelines without unnecessarily hampering the judge’s discretion, and this model appears to capitalize on evaluators’ expertise to effectuate the most appropriate legal competency decisions.

photo revised Written by Steph Fernandes

Steph Fernandes is a third year law student at The Ohio State University Moritz College of Law.  She is passionate about working within the public interest field and hopes to work in juvenile law after graduation.