NYSCriminalProcedureLaws,Statutes,andEvalua9ons

Presentedby

VirginiaBarberRioja,Ph.D

Whatwewillcovertoday:•  Competency to Stand Trial

•  Background •  Relevant Supreme Court Cases •  NYS CPL § 730 definiCon •  730 Legal Process •  730 Mental Health EvaluaCon process •  Competency RestoraCon •  Post-restoraCon •  The Revolving Door of Competency •  Maintenance of RestoraCon •  Role of Social Worker

•  Criminal Responsibility •  Background

•  Legal Standards •  NY Penal Law § 40.15 •  Post-defense hospitalizaCon CPL § 330.20 •  EvaluaCon Process

•  Other Relevant Mental Health Laws •  MHL § 9.43. Emergency Admissions •  CPL § 390.30 Presentence InvesCgaCon

WhatisCompetency?

CompetencyIntroduc9on

• Defendant’s capacity to meaningfully par.cipate and make decisions during the criminal jusCce process •  Acknowledgement of charges •  Meaningfully understand the proceedings that determine his/her guilt •  Ability to defend him/herself during proceedings

• Relevant at any stage of the process • Competency to proceed, competency to stand trial, fitness to process

CompetencyWhyisitimportant?

Dignity Reliability Autonomy(Bonnie,1992)

CSTsta9s9csintheUS•  50,000 to 60,000 Competency to Stand Trial (“CST”) evaluaCons ordered annually in the USA (Bonnie

& Grisso, 2000)

•  206% increase from 2005 to 2014 in Colorado (Colorado Department of Human Services, 2015)

•  273% increase from 2010 to 2015 in LA County (Sewall, 2016)

•  25% of CST evaluaCons result in incompetency (Pirelli, Goediener & Zapf, 2011)

OriginsofCST

• Deep roots in English common law • Historically, courts determined individuals to be “mute by malice” or

“mute by visitaCon of God” when defendants refused to enter a pleas (e.g. deaf, mute, or suffering from a psychiatric illness) •  Torture

• RecogniCon of incompetency (Melton et al., 2007)

•  United States v. Lawrence, 1835 •  Youtsey v. United States, 1899

CourtCases&CompetencyPrecedenceDusky vs United States (1966)

Drope vs Missouri (1975) Pate vs Robinson (1966)

Godinez vs Moran (1993)

Duskyv.UnitedStates(1966)

• Milton Dusky •  33-year-old man with Schizophrenia •  Charged with assisCng in a kidnapping and rape of an underage female •  Cursory competency exam •  Sentenced to 45 years

•  Formal standard for competency (U.S. Supreme Court in 1960) •  “sufficient present ability to consult with his lawyer with a reasonable degree

of raConal understanding” •  “a raConal as well as factual understanding of the proceedings against him”

Dropev.Missouri(1975)

•  James Drope •  Shot himself and was hospitalized during the trial

• Competency can be raised at any point •  “Even when a defendant is competent at the commencement of his trial, a trial

court must always be alert to circumstances suggesCng a change that would render the accused unable to meet the standards of competence to stand trial.”

Patev.Robinson(1966)

•  Pate vs Robinson •  No competency hearing •  Convicted of murder amer a trial at which his counsel asserted that he was

incompetent to stand trial and insane at the Cme of the murder

• Who can raise the issue of competency? •  By court personnel (judge, defense, prosecuCon) •  When legiCmate concerns about defendant’s competency

Godinezv.Moran(1993)

• Godinez vs Moran •  Charged with murder •  Fired aeorney, waived right to counsel, plead guilty •  Appealed à argued not sufficiently competent to waive his right to counsel

• Competency to stand trial same standard as pleading guilty or waiving counsel

RegulatedbyCPL§730(NewYorkState)Incapacitated Person

“a defendant who as a result of a mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense”

730LegalProcess

CPL§730“Mentaldiseaseordefect”• Mere ignorance of the law or a bad decision is not enough • Mental disorder is necessary but not sufficient •  Symptoms must interfere with ‘capacity to understand the proceedings

against him or to assist in his own defense” • No parCcular diagnoses or symptoms

CPL§730CommonQualifyingCondiCons

Schizophreniaspectrumandotherpsycho9cdisorders

BipolarDisorders

DepressiveDisorders

Neurodevelopmentaldisorders

Neurocogni9vedisorders

730Process(NYState)

Arraignment

RetainedinDOCcustody

BookedintoDOCcustody

PleaAgreement

Sentencing

Trial

Sentencing

Releasedatarraignment

Community

PleaAgreement

Sentencing

Trial

Sentencing

CPL730examcanbeorderedbyjudgeatanypointfromarraignmenttosentencing

730LegalProcessIni9a9on&Examina9on•  IniCaCon

•  Must be ordered if the court has any indicaCon that the defendant may be unfit •  Defense aeorney or prosecutor bring up the issue; judge orders the exam

•  ExaminaCon •  Conducted by two “qualified” examiners (psychiatrist or psychologist) •  An opinion is reached by both examiners (3rd examiner necessary if

disagreement arises with first two) •  Defense aeorney has a right to be present, prosecutor does not

730LegalProcessSubmi]ngtheEvalua9on•  Examiners prepare reports that are returned to court •  Judge and lawyers can:

•  Accept the finding (“confirmed” if all parCes agree) •  An aeorney can move to “contravert”

•  First court date is frequently adjourned •  Creates second court appearance to accept or set a hearing date

• An independent expert may be involved • Any party can request a hearing be held on the issue of capacity,

regardless of the findings in the reports

730LegalProcessWhycontestafindingofunfitness?

Prosecu9on

• Mistrustofthementalhealthsystem

• Mistrustofthecourtexaminers

• Beliefthatacomplainanthas“noprotec9on”ifthecaseisdismissed

Defendants

•  Individualdoesnotbelievehe/sheisill

•  Individualdoesnotwanttogotoahospital

FitnessprocessisNONADVERSARIAL(King&Kelly,2015)

730CompetencyRequestedbyAforney

Pa9entEvaluatedbytwoExaminers

Pa9ent“Fit”

Pa9ent“Unfit”

MisdemeanorFelony

SenttoForensicStatehospitaltobe

“restoredtofitness”

ChargesDropped

SenttoCivilhospital

CriminalCaseCon9nues

ReturnedtoNYCjailfollowingrestora9on

730 Legal Process Visualizing each step

730LegalProcess“Fit”or“Unfit”•  If the defendant is found “fit”, the case proceeds as usual •  If found “unfit” on a FELONY, person is commieed for “restoraCon” to:

•  the NYS Office of Mental Health (OMH) [Kirby Forensic Psychiatric Center, Mid-Hudson Forensic Psychiatric Center] or •  the Office for Persons with Developmental DisabiliCes (OPWDD)

•  If found “unfit” on a MISDEMEANOR, case is dismissed

730LegalProcessIfunfitonMISDEAMEANOR• CPL 730 Final order of observaCon:

•  Person transported to a civil psychiatric center for evaluaCon •  RiGer v. Surles (1988)

•  all persons commieed under a final order of observaCon be given the same rights as persons commieed under NY MHL ArCcle 9

•  ArCcle 9 regulates hospitalizaCon of individuals with mental illness

•  PaCents must be evaluated within 72 hours of admission •  Commitment must be civilly, converted to voluntary status, or released

730LegalProcessIfUnfitonaFELONY• CPL 730.40 Temporary Order of ObservaCon:

•  Customarily unindicted felonies •  Valid for 90 days unless the case is indicted in the process •  If the DA does not obtain an indictment against the paCent within 6 months of

expiraCon of temporary order, charges are dismissed and DA has 6 months to indict

• CPL 730.50 Orders of Commitment •  Pertains to indicted felonies •  Valid for one year •  PaCent may conCnue to be retained for up to 2/3 of the maximum sentence

the paCent would have received

730MentalHealth(“MH”)Evalua9onProcess

730MHEvalua9onProcessRefresher-whatisbeingevaluated?•  NYS definiCon

•  “Incapacitated person” means a defendant who as a result of a mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense”

•  Dusky vs United States •  “a raConal as well as factual understanding of the proceedings against him” •  “sufficient present ability to consult with his lawyer with a reasonable degree of raConal

understanding”

730MHEvalua9onProcessLegallyrelevantpsychologicalabiliCes

Understanding

AppreciaCng

AssisCng

DecisionMaking(Kruh&Grisso,2009;Zapf&Roesch,2009)

730MHEvalua9onProcessComponents• Review of records • ConversaCon with defense counsel (may or may not be present) • NoCficaCon of the purpose and limits of confidenCality • Background informaCon (proporConal to relevance) • Clinical status (current mental status) •  Focus not as much on diagnoses but on symptoms that interfere with

competency •  Psychological tesCng: not required, but may be useful (parCcularly for

intellectual/cogniCve disability) •  Forensic assessment instruments (competency assessment instruments)

730MHEvalua9onProcessApproachestocompetencyevaluaCons

Ideographically•  Semi-structuredintervieworself-reportmeasure•  AllowstheMHprofessionaltoadaptthemeasuretomeetspecificdemandsoftheindividual

•  Requiresprofessionaljudgement•  Interviewmaybedifferentfromoneexaminertoanother

Nomothe9cally•  Structuredcompetencyinstruments•  Standardizedadministra9ononapredeterminedsetoffunc9onalabili9es•  Scoresarecomparedwithotherindividuals

(Poythress&Zapf,2009)

730MHEvalua9onProcessCompetencyAssessmentInstruments

CompetencyScreeningTest(CST)

CompetencyAssessmentInstrument(CAI)

FitnessInterviewTest-Revised(FIT-R)

TheEvalua9onofCompetencytoStandTrial-Revised

MacArthurCompetenceAssessmentTool-CriminalAdjudica9on(MacCAT-CA)

CompetencyAssessmenttoStandTrialforDefendantswithMentalRetarda9on(CAST-MR)

730MHEvalua9onProcessCompetency-specificinterviewcontent

Rou9neQues9ons

• Charges• Allega9ons• Roles• Defenseaforney• Prosecutor•  Judge•  Jury

ComplexQues9ons

• Howdoesapleabargainwork?

• Whataretheconsequences?• Whatarethedefendant’s?

CaseSpecificQues9ons

• Whatkindofevidencewillbepresentedattrial?

• Whatkindofdefensemightthedefendantputforth?

• Whataretheconsequencesofbeingfoundguiltyattrialversustakingapleabargain?

• Whatarethedefendant’sexpecta9ons?

• Requestforanaforneychange(usuallyaqer1or2previousrequests)

• Reques9ngtoself-represent

Case#1

730MHEvalua9onProcessFactorsinfluencingclinicianopinions• Clinical factors

•  Psychosis •  CogniCve disorders

•  Social/demographic factors •  Age •  Employment •  Marital Status (Pirelli et al., 2011)

730MHEvalua9onProcessReporCng:BestPracCces•  Focus on the referral quesCons • Avoid revealing incriminaCng informaCon, • Avoid revealing the defendant’s legal strategy • Avoid revealing specific informaCon about the defendant’s

communicaCon with defense aeorney (United States . Miller, 2005)

730MHEvalua9onProcessMalingering&Denial

Malingering• Firstexamservesasathreshold• RikersRecordsaretypicallyrequested• Typicallyseenmorethanonce• Tes9ngmaybeindicated• Adefendantcanbefoundunfitevenwhenmalingeringisonthedifferen9al• Adefendantcanbefoundunfitandmalingering

Denial• Adefendantwhorefusestocometocourt• Adefendantwhorefusesanevalua9on• AdefendantwhorefusestotakeapleaANDrefusestodiscussgoingtotrial• Adefendantwhoexpressescon9ngentsuicidalintentonaprisonsentence• Adefendantwhoexpressesangeratthedefenseaforneyfornotallowingthedefendanttotes9fyatthegrandjury,ornotgivingthedefendantcopiesofmo9onssubmifed

• Mayneedtorelyonrecords• “Inpa9entevalua9on”canbeordered

Case#2

CompetencyRestora9on

CompetencyRestora9onApproachestotreatment•  Voluntary/involuntary

• Most defendants can be restored to competency within 3-6 months (Pinals, 2005)

•  MedicaCon is the single most common form of treatment restoraCon •  Therapy •  Legal educaCon

•  Limited empirical research that compares treatment approaches •  Court-related educaCon/legal rights educaCon approach considered to be effecCve

•  OutpaCent RestoraCon •  NYS CPL law was modified in 2012 to include outpaCent restoraCon •  Applied when defendant does not meet criteria for hospitalizaCon and found unfit

CompetencyRestora9onFactorsdrivingsuccess•  Factors associated with successful restoraCon

•  Younger age •  Diagnoses of mood disorder (not psychoCc disorder) •  More serious charges

•  Factors associated with unsuccessful restoraCon •  Older age •  PsychoCc disorders •  Prior hospitalizaCons and findings of incompetency •  NeurocogniCve disorders (i.e. intellectual disabiliCes) •  Prior incarceraCons and misdemeanor charges

(Coldwell&Gianaseni,2011,Mossman,2007;Zapf&Roesch,2011)

CompetencyRestora9onUnabletoberestored•  Jackson v Indiana (1972)

•  Illiterate, mute and deaf •  Determined to have severe intellectual disabiliCes

•  Treatment Cmeline •  Defendants should not be ordered into restoraCon treatment for a period

longer than the sentence they would have served if they were convicted for their charges

•  “Jackson Relief” •  In NYS, if the court finds that the defendant cannot be restored, the defendant

is allowed to be treated as a civil paCent •  Does not result in dismissal of the indictment

Post-Restora9onandCompetencyReviews

PostRestora9on

• Once OMH or OPWDD determines that the accused is fit, a competency report (conducted at Kirby or Mid-Hudson Psychiatric centers) is returned to court • Competency evaluaCon conducted at the hospital, NOT by the same

clinician providing treatment

• Defendant returns to the local jail and case proceeds • Omen, paCent will enter plea to treatment in lieu of incarceraCon given

proliferaCon of ATIs and Mental Health Courts • Remember, competency standard to plea is same as to stand trial!

Post730ProcessPsychologicalEffects•  The unknown is stressful

•  PaCents are transferred to a hospital without knowing when or where •  PaCents do not always know why they are being transferred •  Defendants someCmes do NOT want to go to a hospital

• Nothing moves forward unCl the 730 is completed (can take months for compleCon) •  No accepCng of plea bargains •  No accepCng of an alternaCve to incarceraCon program •  Cannot request a new aeorney

• Most importantly: not having your case resolved is one of the most stressful things! 730’s prevent felony cases from being resolved (Gray, 2016)

RevolvingDoorofCompetencyCaseStudy#3

30-year-oldman

• HistoryofSchizophrenia• Arrestedonafemptedmurder

• Pa9enthaslimitedinsight• AqeradmissiontoRikers,thepa9entbecomesnoncompliantwithmedica9on

Foundunfitinacourtclinic

• AdmifedtoKirbyorMid-HudsonForensicPsychiatricCenterforrestora9on

• Pa9enttakentocourtfortreatmentoverobjec9onbeforetherestora9onprocesscanbegin

• TOOisgranted• An9psycho9cmedica9onandgroupafendancerequired(includingrestora9ongroups)

Foundfitandre-admifedtoRikers

• Becomesnon-compliantwithhismedica9on;decompensa9onoccurs

• Lawyerorders730exam• Pa9entfoundunfitandsentforrestora9on

RestoredandreturnedtoRikers

• Non-compliant&decompensa9on

• New730examordered• AdmifedtoBellevueHospitalgiventhelevelofacuityofhisillness.

• Par9allyrestoredbeforeadmissiontoastatehospital

MaintenanceofRestora9on

MaintainingRestora9onAssistanceforPaCents• Maintaining medicaCon compliance • Maintaining contact with legal team • Understanding informaCon provided by legal team • Managing anxiety around appearing in court or making decisions

related to court cases

• Managing feelings/interpersonal challenges with legal team • NavigaCng plea deals & alternaCve to incarceraCon opCons

Gray,2016

MaintainingRestora9onRiker’sislandCorrecConalFacility• CorrecConal Health Services •  PACE (Program for Accelerated Clinical EffecCveness)

•  730 Unit - high risk paCents returning from MidHudson or Kirby

•  PACE mobile team

SocialWorkersRoles in the 730 Process

SocialWorkersRolesinthe730process•  IniCal phase/post-arrest

•  SWs are beeer equipped than lawyers to idenCfy symptoms of mental illness ”screen for competency” and raise to lawyer, which in turns may raise the issue to the courts

• Once 730 has been ordered •  Gather psychosocial history, collateral sources of informaCon, prior hospital

records •  Can be helpful to the 730 examiners

• RestoraCon process •  Explore alternaCve to incarceraCon opCons with aeorney

SocialWorkersRolesinthe730process•  Post-restoraCon

•  Assist client with maintenance of competency •  Liaise with defense aeorney and courts •  Help client with managing anxiety •  Encourage medicaCon treatment compliance •  ConCnue legal educaCon

•  In a treatment role •  SWs provide treatment for the purpose of restoraCon in hospitals •  At Rikers Island, SWs provide treatment for restoraCon maintenance purposes

in the 730 PACE unit or the 730 mobile team

Case#4

CriminalResponsibility:NonGuiltybyReasonofInsanity(NGRI)In NYS: Non Responsible for Criminal Conduct by Reason of Mental Disease or Defect

NYS CPL § 330.20

CriminalResponsibilityBackground• Criminal responsibility (culpability) requires

•  actus reus (wrongful act) •  mens rea (guilty mind - free will and intent to do harm)

•  “Insanity” is a legal term, not a clinical one •  Unlike competency, insanity is concerned with mental state at the Cme of the offense (past vs

present) •  Courts determine standards and criteria for insanity defence •  Varies across jurisdicCons (4 states have abolished the insanity defence: Idaho, Kansas, Montana,

and Utah)

CriminalResponsibilityLegalStandardsforInsanity•  M’Naghten Rule (dates back to 1843) (Approximately half of the states as ALI, 1985)

•  Defendant was suffering for a “defect of reason, from a disease of the mind”. •  Defendant didn’t know what he was doing or •  …didn’t know it was wrong

•  IrresisCble Impulse Test •  Accused could not control his or her acCons (voliConal aspect) •  Difficult to develop criteria

•  The “Durham” rule (Durham v. US, 1954) •  Product standard: “unlawful act was the product of mental disease or defect” •  Problem of using a DSM diagnosis; moved the legal definiCon closer to psychiatric concepts) •  In 1972, the same court rescinded the Durham standard, and adopted the ALI

•  American Law InsCtute (ALI) (1955) (21 states) •  “as a result of mental illness lacks substanCal capacity either to appreciate wrongfulness of his

conduct (cogniCve aspect), or to conform his conduct to the requirements of the law (voliConal aspect)”

CriminalResponsibilityLegalStandardinNYSPenalLaw§40.15

•  In NYS typically defense and prosecuCon hire experts •  Prosecutor may agree on a non-responsible plea vs. trial “in any prosecu.on for an offense, it is an affirma.ve defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the .me of such conduct, as a result of mental disease or defect, he/she lacked substan.al capacity to know or appreciate either: 1) The nature and consequences of such conduct; or 2) That such conduct was wrong”

CriminalResponsibilityEvaluaConProcess•  Interview with the defendant • Review of collateral sources of informaCon

•  About medical/mental health history •  About facts surrounding the alleged offense

• NoCficaCon

CriminalResponsibility:Evalua9onProcess•  Background InformaCon •  Mental health history •  Substance use history (relaConship with MH symptoms) •  Criminal history •  Current mental status •  Offense-related informaCon

•  Police and third party reports •  Defendant’s version

•  Psychological tesCng: •  Relevant to the forensic issues •  DiagnosCc clarificaCon, symptom validity, malingering

•  Rogers Criminal Responsibility Assessment Scales (RCRAS): rarely used

Case#5

Post-defenseHospitaliza9onCPL§330.20•  Individuals found not responsible are admieed to state forensic

psychiatric hospitals (Kirby and Mid-Hudson Forensic Psychiatric Centers) and progress through a conCnuum of services which include: •  secure facility care •  non-secure adult psychiatric center •  community-based care

Post-defenseCPL§330.20

•  Nature and extent of confinement or supervision is determined by the track designaCon corresponding to the paCent’s mental condiCon:

•  Periodic retenCon hearings (renewable five-year order of condiCons)

•  Not rare for individuals to end up being in a secured facility for longer than the sentence they would have received through a regular guilty plea

Track1

Personhasa“dangerousmentaldisorder”(securedfacility).Requiresriskassessment!

Track2

Persondoesnothaveadangerousmentaldisorder,butis“mentallyill”(nonsecurefacilitywithanorderofcondi9ons)

Track3

PersondoesnothaveamentaldisorderandisnotmentallyillReleasedfromOMHcustody,withanorderofcondiBons

OtherRelevantMH-RelatedLaws

EmergencyAdmissionsforImmediateObservaConMentalHygieneLaw§9.43

•  Two subsecCons – (a) and (b) •  Sub (b) applies only in criminal court •  Sub (a) applies in any court of general jurisdicCon (includes criminal and

supreme courts)

•  Judge makes finding that person may have a dangerous mental illness that requires hospitalizaCon •  Sheriff or police take subject of 9.43 order to local hospital with a

psych ER •  Psych ER has 72 hours to hold subject of order for evaluaCon

ScopeofPre-sentenceInvesCgaConandReportCPL§390.30

•  Whenever informa.on is available with respect to the defendant's . . . mental condi.on, the pre-sentence inves.ga.on must include the gathering of such informa.on . . . the court may order that the defendant undergo a thorough physical or mental examina.on in a designated facility and may further order that the defendant remain in such facility for such purpose for a period not exceeding thirty days.

• Common for Social Workers to conduct these evaluaCons in court clinics

References•  Bonnie, R. J. (1992). The competence of criminal defendants: A theoreCcal reformulaCon. Behavioral Sciences and the Law, 10, 291–316. doi:

10.1002/ bsl.2370100303

•  Bonnie, R. J., & Grisso, T. (2000). AdjudicaCve competence and youthful offenders. In T. Grisso & R. G.Schwartz (Eds.), Youth on trial: A developmental perspec.ve on juvenile jus.ce (pp. 73–103). Chicago, IL: University of Chicago Press.

•  Colwell, L. H., & Gianesini, J. (2011). Demographic, criminogenic, and psychiatric factors that predict competency restoraCon. Journal of the American Academy of Psychiatry and the Law, 39, 297–306.

•  Gray,S. (2016). PACE training competency.

•  King, C. & Kelly, D. Mental health and criminal jusCce: Statutory Issues. PresentaCon for the CUCS Academy for JusCce Informed PracCce

•  Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evalua.ons for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press.

•  Mossman, D. (2007). PredicCng restorability of incompetent criminal defendants. Journal of the American Academy of Psychiatry and the Law, 35, 34–43.

•  Packer, I. K. (2009). EvaluaCon of Criminal Responsibility. In Best PracCces in Forensic Mental Health Assessment. Oxford. University Press. New York.

•  Pinals, D. A. (2005). Where two roads meet: RestoraCon of competence to stand trial from a clinical perspecCve. New England Journal on Criminal and Civil Confinement, 31, 81–108.

•  Pirelli, G., Goediener, W. H., & Zapf, P. A. (2011). A meta-analyCc review of comparaCve competency to stand trial research. Psychology, Public Policy, and Law, 17, 1–53. doi:10.1037/a0021713

•  Zapf, P. A., & Roesch, R. (2011). Future direcCons in the restoraCon of competence to stand trial. Current Direc.ons in Psychological Science, 20, 43–47. doi:10.1177/0963721410396798