International Journal of Law and Psychiatry, Vol. 15, pp. 113-123. 1992 Prmted in the U.S.A. All rights resewed.

0160.2527/92 $5.00 + .oa Copyright 0 1992 Pergamon Press Ltd.

The Measurement of Insanity:

Debating the Merits of the R-CRAS and its Alternatives

Richard Rogers* and Charles P. Ewing**

With the emergence of psycholegal scales, the Rogers Criminal Responsibility assessment scales (R-CRAS) was developed as the first standardized measure of criminal responsibility. Initially constructed as a research protocol in 1979, validation studies were conducted during the early 1980s’ and resulted in its publication as a clinical measure in 1984.’ The first generation of R-CRAS critiques have ranged from sharply critical3 to laudatory.4

An important question which can not and should not be ignored is simply, “What is the R-CRAS?” Much of the vigorous debate found in the literature involves whether it is a test, measure, instrument, or structured guide. Cer- tainly, it was never intended to be a test in the traditional sense,5 although it clearly has psychometric properties. Rather, the R-CRAS was constructed to standardize and organize insanity evaluations. While there are normative data available and “scores” could be generated, the risks of misuse outweigh any advantage. The everpresent danger is that clinicians and legal professionals

*Associate Professor of Psychology, University of North Texas, P.O. Box 13587, Demon, TX 76203-

3587, U.S.A. **Professor, State University of New York at Buffalo, School of Law, Buffalo, New York 14260, U.S.A.

Correspondence should be addressed to Richard Rogers at the above address.

‘R. Rogers, R. Dolmetsch & J. L. Cavanaugh, An Empirical Approach to Insanity Evaluations, J. CLIN.

PSYCHOL. 683 (1981); R. Rogers & J. L. Cavanaugh, Rogers Criminal Responsibility Assessment Scales, 160 IL. MED. J. 164 (1981); R. Rogers, W. Seman & 0. E. Wasyliw, The R-CRAS and Legul Insanity: A Cross Validation Study, 39 J. CLIN. PSYCHOL. 554 (1983); R. Rogers, 0. E. Wasyliw & J. L. Cavanaugh,

Evaluating Insanity: A Study of Construct Validity, 8 LAW HUM. BEHAV. 293 (1984).

*R. Rogers, ROGERS CRIMINAL RESPONSIBILITY ASSESSMENT SCALES AND TEST MANUAL (1984).

‘R. L. Goldstein, Dr. Rogers’ “Znsanity Detector” and the Admissibility of Novel Scientific Evidence, paper submitted for publication; G. Melton, J. Petrila, N. Poythress & C. Slobogin, PSYCHOLOGI-

CAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSION- ALS.

4J. R. Meloy, Review of Rogers Criminal Responsibility Assessment Scales, 14 BULL. AM. ACAD.

PSYCHIAT. LAW 99 (1986); S. R. Smith & R. G. Meyer, LAW, BEHAVIOR, AND MENTAL HEALTH:

POLICY AND PRACTICE.

5The R-CRAS consists of standardized clinical ratings, many of which integrate observations. From this perspective, the R-CRAS is closer to structured interviews and rating scales than traditional tests.

113

114 RICHARD ROGERS and CHARLES P. EWING

will give too much credence to a numerical score.6 Grisso has designated the R-CRAS and other psycholegal measures of “forensic assessment instru- ments,” acknowledging their differences from traditional testing in their spe- cific goal of relating clinical characteristics to legally relevant standards.’ We have chosen to employ the term “measure” as a less cumbersome term than forensic assessment instrument, and use it to designate a standardized assess- ment method for which reliability, validity, and generalizability can be demon- strated.

Criticisms of the R-CRAS have focused primarily on one of two prongs, either (a) its admissibility in insanity trials, or (b) its psychometric properties. We will discuss these criticisms separately and comment on the merits and limitations of the R-CRAS in comparison to its alternatives.

Admissibility in Insanity Trials

The R-CRAS has been criticized for its misplaced emphasis on the ultimate issue (conclusions regarding the defendant’s sanity/insanity) which is beyond the province and expertise of mental health experts.* The limiting of conclusory opinions in insanity trials has been championed by Morse9 and Bonnie” with concomitant proposals for change which were eventually enacted into Federal Law.”

The issue is far from settled. As noted by Slobogin,” competent psychiatrists and psychologists may have sufficient expertise to testify to components of insanity standard, and any ban on ultimate opinion is unlikely to limit the scope of conclusory opinions. Rogers and EwingI have closely questioned the practical effects of limiting opinion testimony, and have concluded that its net results will be to make such opinions more oblique and less accessible to cross examination.

The argument that ultimate opinions invade the “province of the jury” may

6Examples are preoccupations with IQ scores and MMPI elevations (e.g., differential interpretations on

clinical scales for T = 68 versus T = 70). See T. Grisso, EVALUATING COMPETENCIES, FORENSIC

ASSESSMENTS AND INSTRUMENTS; Grisso (p. 47) pointed out the dangers of cutoff scores which may be misinterpreted and, at worse, substituted for the psycholegal decision.

‘Ibid.

*Melton, Petrila, Poythress & Slobogin, supra note 3, 147; T. Grisso, Psychological Assessments for Legal Decisions, in D. N. Weisstub, LAW AND MENTAL HEALTH: INTERNATIONAL PERSPEC-

TIVES (VOL. 3).

‘S. J. Morse, Reforming Expert Testimony, 6 LAW HUM. BEHAV. 39 (1982); S. J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S. CAL. LAW REV. 780 (1985).

‘OR. J. Bonnie, TheMoralBasis of the Insanity Defense, 69 AM. BAR ASS. J. 194 (1983).

“American Psychiatric Association, American Psychiatric Association Statement on the Insanity Defense, 140 AM. J. PSYCHIAT. 681 (1983); American Bar Association, CRIMINAL JUSTICE AND MENTAL HEALTH STANDARDS; Fed. R. Evid. 704 (also known as the Insanity Reform Act of 1984); for a critique

of these proposals, see R. Rogers, APA’s Position on the Insanity Defense: Empiricism versus Emotionalism, 42 AM. PSYCHOL. 840 (1987).

‘%. Slobogin, The “Ultimate Zssue”Zssue, 7 BEHAV. SCI. LAW 259 (1989).

13For a detailed review of the problems intrinsic with prohibiting ultimate opinions, see R. Rogers & C. P.

Ewing, Prohibiting Ultimate Opinions: A Quick and Cosmetic Fix, 13 LAW HUM. BEHAV. 357 (1989).

MEASUREMENT OF INSANITY 115

be tested empirically. In a recent study, Rogers, Bagby, Crouch, and CutlerI addressed whether ultimate opinions exert an undue influence with 274 mock jurors from the Ontario Science Centre who reviewed an abbreviated transcript of an insanity case. The investigators found that the content (i.e., diagno- sis and impairment) significantly affected jurors’ perceptions of insanity (F [l, 2071 = 20.6, p < .OOOl; eta* = .30). While the ultimate opinion did not evidence a main effect, the interaction of content and ultimate opinion was nearly significant (p = .054). Interestingly, the interaction was opposite the hypothesized direction with a nonsignificant trend for ultimate opinions to diminish not augment the effects of expert testimony on a defendant’s insanity. This trend is surprising and difficult to explain. However, as the only available study, it does not support the undue influence argument against ultimate opin- ions.

Returning to the R-CRAS, clinicians are not obliged to render conclusory opinions. The test manual acknowledges the controversy surrounding ultimate opinion issue and offers clinicians the alternative of not rendering one.” It is interesting to observe that a basic dilemma in forensic evaluations, whether or not the R-CRAS is employed, is that the more difficult assessment tasks are often those which are more relevant to the courts.“j From this perspective, the R-CRAS offers some standardization of the assessment process, but does not simplify complex assessments of the criminal responsibility. The R-CRAS may offer systematic data for why an opinion should not be rendered.17 In review of R-CRAS studies, Rogers’* found that “no opinion” conclusions were war- ranted in 8.5% of the cases. In other words, where incomplete or conflicting data exist, clinicians should not render an ultimate opinion, irrespective of their general views on such testimony.

The second criticism levied at the R-CRAS” is that it has yet to achieve “general acceptance” within the scientific community and, therefore, should be excluded under the Frye rule.*’ This argument is based upon the following syllogism: (A) The Frye standard, which requires general acceptance by the relevant scientific community, controls the admissibility of expert testimony based upon novel scientific techniques. (B) The R-CRAS is a novel scientific measure not generally accepted by the psychiatric and psychological communi- ties. (C) Therefore, expert testimony on the issues of insanity, based in whole or part on the R-CRAS, is not admissible in a court of law.

The standard of “general acceptance” is far from clear with considerable

14R. Rogers, R. M. Bagby, M. Crouch & B. L. Cutler, Effects of Ultimate Opinions on Juror Perceptions of Insanity, 13 INTER. J. LAW PSYCHIAT. 225 (1990).

“R. Rogers, supra note 2, 32.

16R. Rogers, Ethical Dilemmas in Forensic Evaluations, 5 BEHAV. SCI. LAW 149 (1987).

“R. Rogers, supra, note 2; the test manual clearly indicates that no opinion should be offered when the clinical data are insufficient or contradictory. For an example of such a case, see R. Rogers&A. J. Cunnien,

Multiple SADS Evaluation in the Assessment of Criminal Defendants, 27 INTER. J. OFFEND. THERAPY COMPAR. CRIMIN. 143 (1983).

18R, Rogers, supra note 2, 35.

“See Goldstein, note 3.

20Frye v. United States, 293F. 1013, 1014 (D.C. Cir. 1923).

116 RICHARD ROGERS and CHARLES P. EWING

variability, not only regarding what the phrase requires, but also as to whether any given technique meets this standard. With regard to the standard itself, as one commentator has noted, Frye requires “something greater than acceptance by the [testifying] expert himself but less than by all experts in the field.“2’ Furthermore, the general acceptance of a method can not be equated with its popularity. If this were the case, then prevailing views of psychiatrists would disallow testimony in insanity cases under any circumstances.22 As with all psychological measures, a wide range of opinions may be found regarding the R-CRASS practical utility and validity. A similar diversity of opinion is found on the usefulness of projective techniques or IQ testing, both of which are routinely accepted.23

But even assuming, arquendo, the validity of proposition B, Frye is not and never has been the rule in all courts (i.e., Proposition A). Many courts have never adopted Frye, and others have explicitly rejected it. As Gianelli and Imwinkelried24 note, “the general acceptance test has been rejected by an in- creasing number of courts, and attacked by commentators, who have labelled the test ‘infamous’, ‘a sport’, ‘archaic’, and ‘antiquated on the day of its pro- nouncement”’ (pp. 13-14). More importantly, and not unexpectedly, the Frye standard has not withstood the test of time and legal practice. In the federal courts, where Frye was born and raised, lived and died, the admissibility of expert testimony has for more than a decade been governed by rules most authorities agree are markedly at odds with the Frye standard (see Federal Rules of Evidence2’).

Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that “[a]11 relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” As Gianelli and Imwinkel- ried26 have observed, “Because scientific evidence could be shown to be reliable and thus relevant under Rule 401 without regard to its general acceptance in the scientific community and because none of the exceptions enumerated in Rule 402 applies, the Federal Rules provide a standard of admissibility that is inconsistent with the Frye test.”

Moreover, Frye is inconsistent with Federal Rule of Evidence 702, the very

21R. Strong, Questions Affecting the Admissibility of Scientific Evidence, 1 UNIV. IL. LAW REFORM 6

(1970).

*‘See, for example, J. L. Cavanaugh, R. Rogers & B. Price, The Insanity Defense in Illinois, 8 BULL. AM. ACAD. PSYCHIAT. LAW 56 (1981).

‘“As evidence of “general acceptance” under the Frye rule, the fact that Rogers was selected as the first recipient of the Distinguished Contributions of Forensic Psychology Award, prfmarily for his efforts on the

R-CRAS, would suggest substantial support from the relevant scientific community (i.e., the American

Academy of Forensic Psychologists).

24P. Gianelli & E. Imwinkelried, SCIENTIFIC EVIDENCE.

“FEDERAL RULES OF EVIDENCE (Gould, 1986).

26Gianelli & Imwinkelried, supra note 20, 29-30.

MEASUREMENT OF INSANITY 117

rule which governs admissibility of expert testimony in the federal courts. Rule 702 provides that “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Numerous commentators have noted the conflict between Frye and Rule 702, which bases the admissibility of expert evidence not on general acceptance, but on relevance and helpfulness to the trier of fact.27

Whether the Federal Rules entirely supercede Frye is unclear, but courts in only five of the twelve federal circuits now apply Frye in its original form.28 Further to this point, the U.S. Supreme Court has signaled that, at least in the area of psychiatric testimony, the Frye standard is unequivocally defunct. In Barefoot v. Estelle,29 the Court affirmed the constitutionality of using a psychiatric prediction of dangerousness as a basis for sentencing a convicted murderer to die. Writing for the majority in Barefoot, in what has to be considered the obituary for Frye in the psychiatric context, Justice White wrote that:

[T]he rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. [Jlurors should not be barred from hearing the views of the State’s psychiatrists along with oppos- ing views of the defendant’s doctors. (pp. 898-899)

What Justice White emphasized in Barefoot and what is emphasized in the Federal Rules of Evidence is the relevance, helpfulness, and reliability and validity of the expert’s opinion, not whether the opinion is based upon proce- dures accepted by some hypothetical number or percentage of practitioners. No one would seriously deny that expert testimony derived in part from appli- cation of the R-CRAS is likely to be relevant to the issue of insanity and to prove helpful to the trier of fact in any given case. The value of such testimony, of course, depends to a large extent upon the reliability and validity of the R-CRAS, which we address below.

27R. J. Bretz, Scientific Evidence and the Frye Rule: The Case for a Cautious Approach, 4 COOLEY

LAW REV. 506 (1987); J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE; C. Wright & K. Graham, FEDERAL PRACTICE AND PROCEDURE.

“C. A. Knaggs, The Admissibility of Evidence and Expert Testimony based on Science, Technology, or Other Unknowledge: Is the ‘%iye” Standard Consistent with the Federal Rules of Evidence? 4 COOLEY LAW REV. 640 (1987).

29Barefoot v. Estelle, 77 L. Ed. 2d 1090, 1983. Importantly, the American Psychiatric Association argued

against the scientific acceptability of long term predictions of dangerousness, but this obvious lack of “general acceptance” was apparently not instrumental in the court’s ruling.

118 RICHARD ROGERS and CHARLES P. EWING

A Comparison of the R-CRAS and Traditional Insanity Evaluations

Scientific thought and psychological method rest upon the reliable measure- ment of specified variables and the conceptual understanding of the interrela- tionships of these variables in what is referred to as a nomological net. From the perspective of psychological measurement, fundamental issues include re- liability, validity, and generalizability. Since insanity is an open textured con- struct,30 particular attention must be paid to its construct validity.3’ Table 1 summarizes research findings for the R-CRAS in comparison to traditional evaluations. Traditional evaluations are highly variable with respect to both content and clinical method; despite their idiosyncratic nature, they form the main alternative to the R-CRAS in conducting insanity evaluations.

A critical issue in psychological research is the type of measurement. Al- though the R-CRAS has been criticized as employing an ordinal measure- ment,32 these criticisms largely miss the mark, since nearly all psychological measurement is ordinal. Even when an interval scale is imposed upon the data, it does not represent real-world applications. For example, no one would really argue that the difference of 15 IQ points would always represent the same quantum of intelligence and that the difference between IQs of 70 and 85 is remotely equivalent to the difference between IQs of 115 and 130. Much of this criticism may stem from previously noted debate regarding the status of the R-CRAS as a test, measure, or structured guide. Irrespective of that debate, the inherent difficulty with traditional assessments is that they do not rise

TABLE 1 A Comparison of the R-CRAS to Traditional Assessments

Research Method R-CRAS Traditional

Type of measurement Interrater reliability

clinical variables decision variables

Concordance of ultimate opinion

Information variance Construct validity External validity Generalizability

ordinal

Mr = .58

M kappa = .81 97%

minimum criteria discriminant model 88% with verdict profession, setting, offense, and sociodemographics

nominal

untestable untestable variable

unspecified untestable unknown unknown

-“See R. Roesch & S. Gelding, COMPETENCY TO STAND TRIAL; Rogers, Wasyliw & Cavanaugh,

supru, note 1

“See R. Hogan & R. A. Nicholson, The Meaning of Personality Test Scores, 43 AM. PSYCHOL. 621

(1988).

“See Melton, Petrila, Poythress & Slobogin, supru, note 3, 146; S. L. Gelding 81 R. Roesch, The Assess- ment of Criminal Responsibility: A Historical Approach to LI Currenf Controversy, in I. B. Wiener & A. K.

Hess (Eds.), HANDBOOK OF FORENSIC PSYCHOLOGY.

MEASUREMENT OF INSANITY 119

beyond the nominal level of measurement. In insanity evaluations it is the severity, not mere presence of symptomatology which is most relevant to the psycholegal standard.

The consistency of clinical measurement is the necessary precondition to validation; if reliability cannot be demonstrated adequately, then the measure or diagnostic effort is necessarily suspect. A reliability study of the R-CRAS33 demonstrated moderate reliability for the individual clinical characteristics (mean r = 58, range of .23 to .88). As noted by Grisso,34 three variables had poor reliability and clearly are in need of improvement. Decision variables represent clinical judgements on malingering and components of the American Law Institute (ALI) standard; the level of agreement was consistently high, 85% to 100% (mean Kappa = .81, range of .48 to 1.00). It should be noted that this design was more rigorous than most interrater reliability studies since independent evaluators, recruited from two centers, conducted their own eval- uations at different time periods; in contrast, most studies of interrater reliabil- ity simply employ two independent evaluators for the same assessment.

A limitation with traditional evaluations is the fundamental problem in es- tablishing their interrater reliability. Mental health experts have come under strong criticism for their idiosyncratic methods and inconsistent findings.“’ Without some standardization of the assessment process, which can yield de- monstrable reliability, this criticism is difficult to address.

The concordance of ultimate opinion is one measure of consistency. Of course, such an approach does not address the matter of interrater reliability, since the basis of the decision is never tested. Using ultimate opinion, the R-CRAS performs exceptionally well (97% concordance) while traditional evaluations are variable from a very good level agreement among psychologists participating in the same interview36 to modest levels of agreement among independent practitioners.37 As previously noted, the field is sharply divided over the use of ultimate opinions.

A decision was made early in the development of the R-CRAS not to attempt to establish the universe of psychological variables which are possibly pertinent to the issue of criminal responsibility (i.e., content validity). However, the R-CRAS does offer general parameters for assessment, including essential psy- chological and situational variables,38 and specifying clinical methods. The purpose of these methods is to standardize the evaluation, at least in terms of minimum requirements, and thereby reduce problems with information

“Rogers, supru, note 2, 12-13, 58.

?See T. Grisso, supru, note 6, 181.

“See S. J. Morse, supra, note 9; A. A. Stone, LAW, PSYCHIATRY, AND MORALITY.

36H. B. Stock & N. G. Poythress, Psychiatrists’ Opinion on Competency and Sanity: How Reliable? Unpublished manuscript, Center for Forensic Psychiatry, Ann Arbor.

37L. J. Raifman, Inter-rater Reliability of Psychiatrists' Evaluation of a Criminal Defendant’s Competency to Stand Trial and Legal Sanity. Paper presented at the American Psychology-Law Society meeting, Balti-

more (1979).

“See Rogers, Wasyliw & Cavanaugh, supra note 1,296.

120 RICHARD ROGERS and CHARLES P. EWING

variance.39 In addition, the R-CRAS offers explicit decision models which should assist in clinical decision making. For example, Dawes4’ found that standardized nonstatistical decision models are superior to traditional judg- ments in a variety of applied settings.

Validity within the forensic context is different than most other areas of psychological research.41 Instead of attempting to discover an otherwise un- known construct to explain behavior, psycholegal studies must address already established legal standards. Validity in the forensic context depends on consis- tent and accurate measurement of psycholegal criteria. For example, insanity does not exist except in the social construction of reality as legislated in crimi- nal law and refined through appellate decisions.

Different approaches to validity have been undertaken in the development of psycholegal measures. The R-CRAS relies on construct validity based on an adaptation of Loevinger’s mode1.42 From this perspective, a set of a priori hypotheses (insane defendants will evidence [a] relatively little malingering and dissimulation, major mental illness, either functional or organic, and [c] loss of cognitive or volitional control because of the mental disorder) to see if consistent patterns would be found among insanity evaluatees. The decision variables represented psychological definitions of legally relevant criteria.43 Overall patterns among the studies from five forensic centers supported a priori hypotheses.M

A related approach was to examine the R-CRASS factorial structure to see whether its factors were consistent with the above hypotheses. A reexami- nation of the R-CRAS45 yielded a five-factor solution (varimax rotation) which accounted for 59.1% of the variance. These factors include (a) psycho- pathology-cognitive control (28.4% of the variance) which combines psychotic symptoms with a loss of cognitive appreciation; (b) affective symptoms- behavioral control (10.2% of the variance) which combines disturbances in mood with volitional incapacity; (c) organicity (7.9% of the variance) which is comprised of mental retardation and neuropsychological impairment; (d) substance abuse indices (6.8% of the variance) which is evidenced in intoxica-

“For a general discussion of the problems with information variance in diagnostic unreliability, see C. H.

Ward, A. T. Beck & M. Mendelson, The Psychiatric Nomenclature, 7 ARCH. GEN. PSYCHIAT. 198

(1962).

@R. M. Dawes, The Robust Beauty of Improper Linear Models in Decision Making, 34 AM. PSYCHOL.

571 (1979); for his most recent work on clinical and actuarial decision making, see R. M. Dawes, P. E.

Meehl & D. Faust, Clinical versus Statistical Prediction of Human Outcomes, SCIENCE, in press.

4’See Grisso, supra n. 30, 31-61.

?See J. Loevinger, Objective Tests as Instruments of Psychological Theory, 3 PSYCHOLOG. REP. 635

(1957).

43See T. Grisso, supra, note 6.

MFor validation studies, see note 1; see also R. Rogers, W. Seman & C. C. Clark, Assessment of Criminal Responsibility: Initial Validation of the R-CRAS with the M’Naghten and GBMI Standards, 9 INTER. J.

LAW PSYCHIAT. 67 (1986); R. Rogers, CONDUCTING INSANITY EVALUATIONS, 1666171.

45Factor analysis of the R-CRAS was originally reported as a note in L. J. Fyans, Rogers Criminal Responsibility Scales, in S. R. Poole (Ed.), TEST CRITIQUES. It was based on all available R-CRAS data

(385 protocols).

MEASUREMENT OF INSANITY 121

tion and amnesia, and associated variables of unplanned and unfocused crimi- nal behavior; and (e) dissimulation (5.8% of the variance) which is comprised of malingering and reported but not observed loss of behavioral control. It would be unrealistic to expect these factors to show a perfect correspondence with elements of the insanity standard. However, the factor structure is theo- retically consistent.46 Loss of cognitive and volitional capacity is closely related to significant psychotic and affective symptoms. Organicity, substance abuse, and dissimulation form the remaining three factors. Importantly, all factor loadings are in the expected direction.

The external validity of psycholegal measures is very difficult to establish because of the absence of “ground truth.” The legal outcome of insanity trials as an external criterion is fraught with difficulties, given extralegal factors, such as the biases of judges and lawyers, the persuasiveness of the experts, and sympathy for the victims. Despite this, the verdict is the only available variable to compare the results of insanity evaluations. A serious limitation of external validation with the R-CRAS is the nonindependence of the verdict.47 Efforts were made to minimize contamination: (a) triers of fact were not given R-CRAS results either as raw data or in summary form, and (b) experts did not mention the R-CRAS in their testimony. Still, the experts who completed the R-CRAS presented their conclusions in court, which were influenced to an unknown degree by their participation in the study.48 The resulting concor- dance rate of 88% may overestimate the actual level of agreement.

Clinicians must make an informed decision whether the validation of the R-CRAS (construct and external) is a substantial improvement over traditional evaluations. The validity of traditional insanity evaluations cannot be demon- strated. The available research literature would strongly suggest that tradi- tional clinical judgments, once held in high regard, are simply unjustified in the context of complicated forensic assessments.49

The generalizability of the R-CRAS has been demonstrated with respect to sociodemographic variables (e.g., gender, race, and age), legal variables (e.g., fitness to stand trial and prior arrest history), and profession of the examiner (i.e., psychologist or psychiatrist).” The generalizability of traditional evalua-

&The link between psychotic symptoms and impaired thinking is firmly established; likewise, mood disorders are often associated with volitional deficits, particularly in the case of bipolar disorders.

47See, for example, Golding & Roesch, supru note 26.

@To our knowledge, no researcher has undertaken this important endeavor. The practical problems of mounting a totally separate insanity evaluation, including a thorough assessment of the defendant and corroborative interviews with witnesses and families, are rather daunting. Practical problems include (a) gaining consent from all parties (defendants, attorneys, and judges) to avoid subpoenas which would contaminate the data, (b) attempting to collect a representative sample, given the unknown biasing effect of having many defendants decline participation, and (c) addressing the potential confounds of simultaneous evaluations (e.g., contaminating test results). Ethical issues would include the withholding of data for research purposes which might play an important role in the outcome of the trial (e.g., in capital cases, withholding clinical evidence of insanity might literally be the difference between life and death).

“See D. Faust, Declarations versus Investigations: A Case for Special Reasoning Abilities of the Expert Witness in Psychology/Psychiatry, 13 J. PSYCHIAT. LAW 33 (1985).

“Rogers, supra note 2, 19-21.

122 RICHARD ROGERS and CHARLES P. EWING

tions is unknown.51 Furthermore, it is difficult to imagine how such validity could be adequately tested, given their unstandardized nature.

The MS0 as an Alternative

Several commentatorss2 have recommended the Mental State at the Time of the Offense Screening Evaluations3 (MSO) as an alternative to the R-CRAS. As its name would suggest the MS0 was designed as a screening measure for a range of potential legal defenses including insanity, diminished capacity, automatism, and unconscious defense.54 The MS0 consists of three parts: history of mental disorder, impairment at the time of the offense, and a current mental status examination. For the first two parts an outline is provided which is used to structure a clinical interview of approximately one hour in length.

While we applaud the initial attempts to validate the MSO, we are puzzled by Melton et al. and Golding and Roesch’s” preference for the MS0 over the R-CRAS as an approach to insanity evaluations. No attempt has been made to establish the MS03 interrater reliability or to test its generalizability. Its single validity study rests on a “consensus” approach to establishing “significant men- tal abnormality.“56 Even as a screening measure, further studies must be under- taken to address these important issues, before recommending its clinical appli- cation. The MS0 was not intended to address specifically sanity/insanity, nor to serve as anything except a screening measure.

In summary, the absence of cross validation would seem to seal the MS03 fate as a measure not to use for the assessment of insanity. More work is needed on reliability, generalizability, and validity before it is clinically adopted for nonspecific screening of criminal defendants.

Conclusions

The Frye standard is no longer the litmus test of scientific acceptability. In our view, however, it would be difficult to exclude the R-CRAS in favour of traditional assessments or the MS0 on the basis of reliability, generalizability,

“Several studies have suggested that experts in traditional assessments may be influenced by extraclinical

factors; see R. J. Homant & D. B. Kennedy, Subjective Factors in the Judgment of Insanity, 14 CRIM.

JUST. BEHAV. 38 (1987); J. C. Beckham, L. V. Annis & D. J. Gustafson, Decision Making andExaminer Bias in Forensic Expert Recommendationsfor Not Guilty by Reason of Insanity, 13 LAW. HUM. BEHAV.

79 (1989).

“See Melton, Petrila, Poythress & Slobogin, supra note 3; Golding & Roesch, supra note 28, 419-422,

recommend the MS0 with minor variations.

53C. Slobogin, G. Melton & C. Showalter, The Feasibility of a Brief Evaluation of Mental State at the Time of the Offense, 8 LAW HUM. BEHAV. 305 (1984).

S4As observed by Rogers, supra note 45, 165, it is unclear in how many cases the issue of insanity was

actually raised; however, there were only two cases which were found NGRI.

5’See note 52.

S6This methodology raises substantial questions of ecological validity since (a) mental health professionals

rarely reach forensic conclusions by consensus, (b) evaluations were typically less than one hour in length,

and (c) “significant mental abnormality” is an unwieldy construct, amalgamating several legal standards,

which is atypical of insanity referrals.

MEASUREMENT OF INSANITY 123

and validity. This statement should not be read as a declaration of compla- cency. As noted in critiques of the R-CRAS and in the earlier discussion, there are problems with the R-CRAS validation. What we have addressed here is the comparative question: Which of the available methods should be adopted in conducting insanity evaluations?

We have certainly observed in traditional insanity evaluations that experts make unwarranted claims regarding their expertise, and accuracy of their judg- ments. Regrettably, we do not believe that such experts, if they were to adopt the R-CRAS, would suddenly reform. The most effective recourse to unwar- ranted opinions, whether based on traditional or R-CRAS assessments, is vig- orous cross examination and rebuttal testimony. We have included all pub- lished critiques of the R-CRAS in the footnotes to increase their accessibility to mental health attorneys and rebuttal experts.

Expert testimony offered by forensic psychiatrists and psychologists has come under repeated attack for its lack of standardization and validity. Most recently, Faust and Ziskins7 have argued in a widely read Science article that experts have little science or expertise to offer the courts. The R-CRAS and other psycholegal measures are empirically based responses to these well-placed criticisms. It is our opinion that veneration of traditionalism, not the develop- ment of psycholegal measures, is the greatest threat to forensic practice.

5’D. Faust & .I. Ziskin, The Expert Witness in Psychology andPsychiutry, 241 SCIENCE 31 (1988).