Fitness to Stand Trial and Criminal Responsibility

1. Fitness to Stand Trial and Criminal Responsibility Psych 268 Professor Ronald Roesch roesch@sfu.ca

2. Fitness to Stand Trial versus Criminal Responsibility • Fitness to Stand Trial pertains to the mental state of the accused a the time of trial or at some specific point in the proceedings • The Insanity Defence in Canada is now referred to as Not Criminally Responsible on Account of Mental Disorder. It is a defence that pertains to the accused’s mental state at the time of the offence

3. Fitness to Stand Trial • Unable on account of mental 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: • Understand the nature or object of the proceedings • Understand the possible consequences of the proceedings, or • Communicate with counsel

4. R. v. Prichard (1836) • Key case for the fitness standard Three issues were identified: • Whether the defendant is mute of malice • Whether the defendant can plead to the indictment • Whether the defendant has sufficient cognitive capacity to understand proceedings 9-5

5. Group for the Advancement of Psychiatry Four underlying principles, including: (1) to safeguard the accuracy of any criminal adjudication; (2) to guarantee a fair trial; (3) to preserve the dignity and integrity of the legal process; and (4) to be certain that the defendant, if found guilty, knows why he or she is being punished.

6. Other Names for Fitness to Stand Trial • Competence to stand trial (U.S.) • Fitness to plead (U.K) • Adjudicative competence • New term which is becoming more common • Refers to broader set of legal capacities (e.g., pleading, acting as own lawyer)

7. Canadian Case: Emerson Bonnar • New Brunswick, 1964: • 19 years old, arrested for purse snatching • Found unfit and confined in a mental hospital for 16 years. • Quote from psychiatrist: • I cannot see that incarceration in a jail would be of any value. "This boy has numerous delusions. It is quite possible that he could have been suffering under a delusion of insanity.” • If Bonnar had been convicted (indeed he had entered a plea of guilty which was set aside when he was declared unfit) he would have gotten probation or a very short prison sentence.

8. Rules Concerning Fitness Assessment • Who may request an assessment? • The court • The accused • The prosecution • If the accused puts mental state in issue • If Crown has reasonable grounds

9. Role of Psychologists • Unlike US, Canadian psychologists were not allowed to conduct competency evaluations. • Developed FIT-R, which was used by psychiatrists but psychologists couldn’t use it in Canada, until recently. • I and others testified before parliamentary committee summarizing research. • Law recently changed to allow possibility of psychologists conducting evaluations.

10. Primary Assessment Questions – Fitness to Stand Trial • Does the defendant have impaired legal capacities? • Are impaired legal capacities due to a mental disorder? • If answers to 1-2 are yes, then: Is the defendant likely to be restored to fitness with treatment?

11. Rules Concerning Fitness Assessment • Remand may not exceed 5 days unless… • the accused and the crown agree to a longer period, not to exceed 30 days • the court is convinced that there are compelling circumstances, it may authorize remand for up to 60 days • No assessment order may direct that psychiatric treatment be carried out. Treatment during remand period only with consent of accused. • Of all criminal cases, less than 5% are remanded for fitness evaluation. • Of those remanded, only about 20% are unfit.

12. Rules Concerning Fitness Assessment Assessments should be conducted outside of custody unless... • the court is convinced that detention is necessary; or • the accused is charged with specified offences, detention is presumed unless the accused can show why she should not be detained • Evaluations can take place in a jail, an outpatient clinic, or an inpatient facility.

13. R. v. Taylor (1992) The accused need only be able to communicate the relevant facts to his lawyer so that the lawyer can properly present the case to the court The accused need not have the ability to act in his own interest

14. Misuses • Roesch and Golding (1980) found that attorneys used competency evaluations to determine whether there might be a basis for an insanity defense or to get information that might be useful in plea bargaining or sentencing. • Some attorneys may use the competency evaluation as a means of delaying trial. • It may also be the case that competency referrals may be used as a mechanism to get defendants out of jail and into a mental health facility.

15. Some General Points • Most defendants evaluated for fitness are found to be fit. Fewer than 25% unfit. • Psychosis is not equivalent to unfitness. • Treatment used to be solely in hospitals and defendants held for long periods. • Currently, treatment is shorter, usually less than six months and defendants are returned to court for trial.

16. Contextual nature of competence • Mere presence of severe psychopathology is only a threshold issue • It must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome.

17. Psychosis not enough! • Nicholson and Kugler (1991) reviewed 30 studies and concluded that defendants with psychotic disorders were more likely to be incompetent. • They found 51% of defendants with a diagnosis of psychosis to be incompetent, compared to only 10% without this diagnosis. • This study serves to emphasize that while psychosis is associated with a finding of incompetence, an almost equal number of defendants with a diagnosis of psychosis are considered to be competent.

18. Specific Demands of a Trial • An elaborate fraud case likely would require far more cognitive ability than a simple case of vandalism. Similarly, the degree of active participation in a case depends largely on defense strategy. For instance, if there is overwhelming independent evidence of an accused's actions, he/she may only need to understand the charges and be able to discuss rationally options for plea bargaining. (Rogers & Mitchell, 1991, p. 97)

19. Assessing Fitness to Stand Trial One of my dissertation studies looked at the feasibility of shorter evaluations. • Found that most could be evaluated in a brief one hour interview. Recommended shift to community evaluations and less reliance on central facility. Continued research on competency in Canada and developed the Fitness Interview Test in early 1980s, and revised it in late 1990s. US version published in 2006.

20. Section I--Understand the Nature or Object of the Proceedings: Factual Knowledge of Criminal Procedure 1. Understanding of arrest process 2. Understanding of the nature and severity of current charges 3. Understanding the role of key players 4. Understanding of legal processes 5. Understanding of pleas 6. Understanding of court procedure

21. 2. Understanding of the nature and severity of current charges • This item calls for an assessment of the accused's concrete understanding of the charges against him/her and, to a lesser extent, the seriousness of the charges. A literal knowledge of the specific charge is adequate. • What are you charged with? • What did the police arrest you for? • How serious is that charge? • Is it a major or minor offence? • Do you think that people might be afraid of you because of what you are charged with?

22. Section II--Understand the Possible Consequences of the Proceedings: Appreciation of Personal Involvement in and Importance of the Proceedings 1. Appreciation of range and nature of possible penalties 2. Appraisal of available legal defences 3. Appraisal of likely outcome

23. Section III--Communicate with Counsel: Ability to Participate in Defense 1. Capacity to communicate facts to lawyer 2. Capacity to relate to lawyer 3. Capacity to plan legal strategy 4. Capacity to engage in own defence 5. Capacity to challenge prosecution witnesses 6. Capacity to testify relevantly 7. Capacity to manage courtroom behaviour

24. 12. Capacity to plan legal strategy This item calls for an assessment of the degree to which the accused can understand and cooperate with his/her counsel in planning a strategy for the defence that is consistent with the reality of his/her circumstances. • If your lawyer can get the Crown counsel [prosecutor] to accept a plea bargain wherein you plead guilty to a less serious charge in return for the Crown dropping a more serious charge, would you agree to it? Why/why not? • If your lawyer decides that you should not testify, would you go along with him/her? • What will you do if you disagree with your lawyer about how to handle your case? • Should you talk with a lawyer before pleading guilty?

25. Zapf & Roesch (1996; 1998) • The majority of defendants remanded to an inpatient institution for an evaluation of competence remained there for an average of 23 days (on a 5-day provision) • Many defendants (1/3rd) were held for 30 days or more • The majority of these defendants were considered to be fit by the courts

26. Comparison of decisions about Fitness based on the FIT-R and the Remand Assessment Institution Decision FIT UNFIT FIT-RFIT106 0 Decision UNFIT 30 9 Note: Agreement on 115/145 (79%), with no false negative errors.

27. Characteristics of Incompetent Defendants (Roesch & Zapf, 1996) • Less likely to be • charged with violent crime or have substance use disorders Most commonly: • male • single • unemployed • living alone • history of contact with justice and mental health systems • diagnosis of major mental disorder

28. Disposition Order May Be Fit to Stand Trial • proceed to trial Unfit to Stand Trial • set aside plea; trial is postponed • dismiss jury (if applicable)

29. Dispositions after a finding of unfit to stand trial • Court may make an order or may refer it to a review board for disposition • Fitness must be reviewed every year • Crown must establish that it has a prima facie case every 2 years • Accused may request a hearing at any time and the court MAY order the hearing • Options are conditional discharge or hospitalization • R. v. Demers (2004) SCC

30. If Found Unfit… • Typically hospitalization • May treat against will: • Goal is to restore fitness • Most effective treatment is to use a combination of drug therapy and training to address the particular deficits (Siegel & Elwork, 1990)

31. American Bar Association onCompetency to be Executed A convict is incompetent to be executed if, as a result of mental illness or mental retardation: • the convict cannot understand the nature of the pending proceedings, what he or she was tried for, the reason for the punishment, or the nature of the punishment.... • [or] lacks sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or lacks the ability to convey such information to counsel or to the court.

33. Presumptions in Canada’s Legal System Elements that must be present for criminal guilt: 1) Actus Reus= wrongful deed 2)Mens Rea= criminal intent Must be found beyond a reasonable doubt for a guilty verdict to be reached

34. Daniel M'Naghten was a woodworker who believed he was the target of a conspiracy involving the pope and British Prime Minister Robert Peel. • In 1843, M'Naghten traveled to 10 Downing Street to ambush Peel, but mistakenly shot and killed Peel's secretary. • During the ensuing trial, several psychiatrists testified M'Naghten was delusional. A jury agreed, declaring him not guilty by reason of insanity.

35. M’Naghten Standard A person is presumed sane unless it can be: clearly proven that, at the time of the committing of the act, the party accused was laboring 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."

36. M’Naghten Standard Cognitive Test Three substantive elements of the standard: a) "a defect of reason, from disease of the mind" b) the defendant did not "know" the "nature and quality of the act he was doing" c) whether the defendant knew "what he was doing was wrong"

37. Not Criminally Responsible on Account of Mental Disorder • No 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 knowing that it was wrong.   • Every person is presumed not to suffer from mental disorder...until the contrary is proven by the balance of probabilities. • The burden of proof is on the party that raises the issue.

38. Raising the Issue of Insanity • Few defendants use the insanity defence as rate is less than 1% of all criminal cases. • Approximately 25% succeed • In Canada, only two situations in which the Crown may raise insanity: • Following a guilty verdict • If the defence states the defendant has a mental illness 9-17

39. Winko v. British Columbia Supreme Court of Canada: People who commit criminal acts under the influence of mental illnesses should not be held criminally responsible for their acts or omissions in the same way that sane responsible people are. No person should be conceited of a crime if he or she was legally insane at the time of the offence...Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong.

40. Public Perceptions Reality • Actual use 0.9% • 26% acquitted • 9 insanity please per 1,000 felony cases; only 2 are successful • 14% murder; 54% violent offenses • Confined for >2.5 years (6.5 for murder) Perceptions • Frequently used (37%) • Frequently successful (44% acquitted) • Serves as “loophole” • Majority are murderers • Confined for <2 years

41. Louis Riel, 1885 • Riel on trial for treason. Leader of resistance movement by Métis and First Nations people. • Riel delivered two long speeches during his trial, defending his own actions and affirming the rights of the Métis people. He rejected his lawyer's attempt to argue that he was not guilty by reason of insanity, asserting: “Life, without the dignity of an intelligent being, is not worth having.” Found guilty and executed by hanging.

42. Vince Li In 2008 Mr. Li boarded a greyhound bus. About 90 minutes later, Mr. Li suddenly produced a large hunting knife and began stabbing his sleeping seat mate in the neck and chest. He brutalizez his victim by decapitating him and displaying his severed head to the other passengers who had gathered outside. Li continued to dismember the corpse and perform acts of cannibalism. Assessments suggested that Mr. Li was suffering from schizophrenia, whose symptoms can include hallucinations, delusions and paranoia. Evaluators testified that the voice of God had led Mr. Li to believe, under a paranoid delusion, that the deceased victim was a threat to his own life, both before and after the deceased victim’s death. He was found NCRMD. His disposition order required him to be detained in a locked ward of a psychiatric hospital in Manitoba.

43. John Hinckley (acquitted, 1982) • In 1981, John Hinckley Jr. shot U.S. President Ronald Reagan, a secret service agent, a Washington police officer, and Reagan's press secretary, James Brady. • Hinckley claimed that he was trying to impress the actress Jodie Foster, with whom he was infatuated. • In what was arguably the most influential insanity-defense case of the century, a jury acquitted him of 13 assault, murder, and weapons counts, finding him not guilty by reason of insanity. He was committed to St. Elizabeth's Hospital for the criminally insane in Washington, D.C.

44. Andrea Yates (NGRI, 2006) • Killed her five young children on June 20, 2001 by drowning them in the bathtub in her house. • Convicted of first degree murder in 2002 and sentenced to life in prison with parole possible after 40 years. • Yates' conviction was later overturned on appeal. On July 26, 2006, a Texas jury ruled Yates to be not guilty by reason of insanity.

45. R. v. Swain (1992) • Supreme Court of Canada held that the automatic confinement of insanity acquittees in secure custody for an indefinite period was a violation of Section 9 of the Charter (principle of fundamental justice). • Ordered the government to enact legislation that will protect the insanity acquittee against arbitrary and indefinite confinement. This resulted in Bill C-30.

46. A Further Change • Winko v. British Columbia (1999) • Supreme court stated that a defendant who is NCRMD should only be detained if they pose a threat to society • No threat to society they should receive an absolute discharge 9-16

47. Assessment of Criminal Responsibility • Retrospective evaluation • May include: • Interview, record review, collateral interviews, FAIs/psychological tests • Inpatient or outpatient basis

48. Assessment of Criminal Responsibility

49. Characteristics of NGRI Acquitees • majority psychotic disorders, with schizophrenia most common • prior contact with justice & mental health systems • acquitted for violent offense • male • 20 – 29 • single • unemployed • minimally educated • diagnosed with major mental illness

50. Disposition of those found NCRMD There are three possible dispositions: • An absolute discharge (only where the accused is not a “significant” threat to the safety of the public) • A conditional discharge (sometimes very restrictive) • A detention order in Hospital with appropriate conditions (cannot include forced treatment)