Direct observation of defendant-attorney interactions in assessing abilities to assist.

Abstract

According to the United States Supreme Court ruling in Dusky v. United States (1960), to be competent to proceed, criminal defendants must factually and rationally understand the charges against them and be able to assist and consult in their own defense. Our focus is on possible impaired ability to assist and consult. Although a substantial portion of psycholegal research has been dedicated to validly and reliably assessing a criminal defendant’s competency, one area that has been largely unexplored is observation of attorney-defendant interactions. External validity of this observation is arguably more valuable than clinical interviewing and standardized testing, alone or in conjunction. We propose that direct observation is a meaningful approach to assessing ability to assist and consult counsel. In addition, we offer suggestions for clinical practice, discuss potential limitations, and present recommendations for future research.

Now see this? Forensic evaluator opinions regarding direct observation when evaluating competency to proceed.

“…Raised previously (e.g., Pizzi, 1977), Cox et al (2019) discussed possible concerns that a defendant may self-incriminate during the observation period. However, participants in the present study generally did not report strong concerns regarding direct observation and, of those participants who did endorse concerns, less than one quarter identified defendant self-incrimination as a major issue.…”

“…Given the unique challenges inherent to assessing a defendants’ ability to assist and consult with counsel, Cox et al (2019) outlined the process of direct observation in CTP evaluations, along with its potential benefits and challenges. Results from the current practitioner survey indicated approximately three-quarters of forensic evaluators would be interested in engaging in direct observation if the opportunity presented itself; however, a notable minority indicated they would not.…”

“…While those who have participated in direct observation typically indicated it informed their CTP opinion, participants also generally agreed that they are able to collect all necessary information to form CTP opinions without direct observation (i.e., based on individual interviews with the defendant and attorney). As discussed by Cox et al (2019), direct observation should only be considered as an additional data point along with assessment data, collateral information, and individual interviews with the defendant and attorney, as opposed to the primary source of one’s CTP opinion. Similar to Cox et al, the present findings suggest direct observation may not provide incremental data in all cases and evaluator discretion is necessary to determine how to weigh information gleaned from this methodological approach.…”

“…Another related methodological approach to obtain data about a defendant’s ability to assist and consult is that suggested by Cox et al (2019). They proposed that direct observation of the interaction between the defendant and counsel may provide meaningful insight as to the quality of the working relationship and the extent to which this relationship is impaired on account of defendant capabilities, which may not be captured by individual interviews or assessment instruments alone.…”

“…Despite potential benefits of direct observation, Cox et al (2019) acknowledged several potential obstacles to this method, including differential access depending on the retaining party, concerns regarding attorney–client privilege and self-incrimination, attorney push back, and financial barriers. Importantly, Cox and colleagues also acknowledged the research suggesting third-party observations may impact the quality and content of psychological evaluations, particularly within a forensic context (e.g., Otto & Krauss, 2009; Shealy et al, 2008).…”