Bar Journal - June 1, 2003
Juvenile Competence to Stand Trial: Overview and Contemporary Issues
By: Eric G. Mart, Ph.D.
In recent years, the competence of juveniles to stand trial has become an increasingly common and contentious issue for New Hampshire courts. While no exact figures are available on the frequency of this issue being raised in juvenile proceedings, post-Columbine concerns about youth violence, zero-tolerance policies in schools, and a trend toward police departments taking bullying and peer violence more seriously have increased the number of younger children being brought before the court. This, in turn, has increased the number of requests for assessments of these juvenilesí competence to stand trial.
The purpose of this article is four-fold. The first section provides an overview of applicable laws and statutes that govern the determination of juvenile competence to stand trial, both nationally and in New Hampshire. The second section reviews the scientific literature related to juvenile competence to stand trial. The third section describes assessment methodology, and the concluding section makes suggestions for improving our approach to the assessment of juvenile competence to stand trial.
THE LEGAL CONTEXT
The practice of dealing with juvenile criminals in a separate court system from that of adults is a recent development. The first juvenile courts appeared in this country around the end of the 19th century. Under common law, infancy (defined as ending either at seven or ten, depending on the jurisdiction) was an absolute defense against criminal charges. For those between the ages of seven through 14, the ability to form criminal intent was a rebuttable presumption. Thereafter, youths received no different treatment under the law than adults, and there was no special concern about the possibility of rehabilitation or treatment as we understand these ideas today.
The development of special courts to deal with juveniles was guided by the principle of parens patriae. Under this doctrine, the state was seen as having a duty to protect dependent or incapacitated individuals and their property. Juveniles were included as such persons under this doctrine due to a changing conception of the nature of childhood and youth. The coming of industrialization to western Europe and the United States necessitated a longer period of education and relative dependence of older children on their parents. In addition, insights gleaned from the work of psychologists and educators led to an understanding of adolescence as a separate developmental period in which cognition and emotional maturity were not yet fully developed. As a result, the newly developed juvenile courts proceeded from a presumption that they were acting in the interests of the juveniles before them, rather than against them, as in the case of adult criminals. Proceedings were closed to the public and records sealed to avoid stigmatization of the delinquent, and the emphasis was on reform and rehabilitation. In addition, a new class of offenses developed which came to be known as status offenses. This class of offenses covered a wide range of behaviors which were not specifically illegal for adults, but were considered to be of concern for children. These included incorrigibility, truancy, and running away from home, and the emphasis in these cases was on the correction of these problems rather than punishment or incapacitation.
Because of the doctrine of parens patriae and the stated benevolent intent of the juvenile court, it was not considered necessary to provide the types of due process protection for youths that were guaranteed in adult criminal proceedings. However, by the 1960ís, there was a gradual disenchantment with the youth rehabilitative model. There was a national trend toward a more punitive approach toward adolescent offenders, but this was not matched by any increase in the legal protections afforded youths before the court. These issues were eventually addressed in 1967 in the case of In re Gault, 387 U.S.1 (1967) which established the right of juveniles to most, but not all, of the due process protections afforded adult criminal defendants. This case was pivotal in establishing that children were persons as defined by the Constitution and thus entitled to the protections provided by the Bill of Rights. While these protections are not extended to juveniles in exactly the same manner as they are to adults (for example, many states, including New Hampshire, do not provide juveniles the right to a jury trial), it is clear that certain fundamental rights exist.
New Hampshire does not have case law that explicitly differentiates the standards for competence for juveniles from those applicable to adults. The general standards for competence to stand trial (CST) in New Hampshire are laid out in State v. Champagne, 127 N.H. 266 (1985) which closely follows the federal standards elucidated in Dusky v. U.S., 362 U.S. 402 (1960.) These standards make it clear that in order for defendants to be considered competent to stand trial, they must have a factual and rational grasp of the issues involved, as well as sufficient present ability to consult with their attorneys with a reasonable degree of rational understanding. These standards are sufficiently broad to allow trial judges considerable latitude in making decisions about CST in particular cases. But despite the absence of case law that explicitly differentiates standards for juveniles from those of adults, there are cases that provide some indications of additional factors that should be considered in juvenile CST adjudications.
State v. Benoit, 126 N.H. 6,22-24 (1985) was not specifically about CST. The issue in the case was a juvenileís ability to make a knowing, voluntary, and intelligent waiver of his Miranda rights in making a self-incriminating statement. But, in this case, the New Hampshire Supreme Court explicitly enunciated aspects of its view of the functioning of juveniles before the court in a way that had implications for the determination of competence. The justices cited empirical research regarding the ability of juveniles to understand the issues involved in waiving their rights against self-incrimination with particular attention to Thomas Grissoís 1980 study of the capacity of juveniles to comprehend Miranda warnings. This study found that 55.3 percent of children under the age of 15 had an inadequate understanding of at least one of the four warnings, and only 20.9 percent of Grissoís sample were deemed to have an adequate grasp of the warnings overall.
In part because of concerns raised by this research, the court in Benoit adopted a "totality of circumstances" approach to the consideration of whether a juvenileís waiver of rights was knowing and voluntary. The court further indicated that while no single factor was controlling in making such decisions, appropriate factors to consider included:
- the chronological age of the juvenile;
- the apparent mental age of the juvenile;
- the educational level of the juvenile;
- the juvenileís physical condition;
- the juvenileís previous dealings with the police or court appearances;
- the extent of the explanation of rights;
- the language of the warnings given;
- the methods of interrogation;
- the length of the interrogation;
- the length of time the juvenile was in custody;
- whether the juvenile was held incommunicado;
- whether the juvenile was afforded the opportunity to consult with an adult;
- the juvenileís understanding of the offense charged;
- whether the juvenile was warned of the possibility of transfer to adult court; and
- whether the juvenile later repudiated the statement.
These factors reflect the courtís insight into the fact that juveniles are at greater risk for problems with comprehension when in custody or before the court, and make it clear that the court is aware that children and adolescents are placed at risk due to their developmental status, and lack of experience, as well as cognitive and emotional status.
The same themes and considerations come into play in the courtís ruling in Wesley B., 145 N.H. 428 (2000), where the totality of circumstances approach was specifically extended to determinations of juvenile competence. In addition, the court also makes it clear that developmental status in and of itself may render a juvenile defendant incompetent, even though youth is not a mental disease or defect. This is important, since some type of underlying mental illness or cognitive defect is a necessary component of incompetence in some jurisdictions.
JUVENILE COMPETENCY RESEARCH
In assessing juvenile competence, an important question arises: do the characteristics of juveniles and their abilities make them intrinsically unable to meaningfully comprehend the issues involved in standing trial? It has long been understood that children, by virtue of their developmental status and their neurological immaturity, do not have the same cognitive abilities as adults. The differences between adult and juvenile cognition are more pronounced in younger defendants, but modern developmental and forensic research has strongly suggested that important cognitive differences persist into late adolescence.
There has been a good deal of research which has examined juvenilesí understanding of the trial process and the roles of the participants. Much of this is reviewed in Grissoís excellent article, "The Competence of Adolescents as Trial Defendants" (1997), which treats this subject in much greater depth than this overview. The aforementioned article discusses research which suggests that by age 13, the majority of adolescents are able to answer questions about the roles of trial participants and have at least a rudimentary grasp of the trial process. Children below the age of 13 have much more difficulty understanding these issues. At the same time, there are also research findings which reveal that 15- to 17-year-olds in both public schools and juvenile detention centers scored significantly lower on a standardized instrument designed to screen competence abilities than did adult non-defendants, but significantly higher than did 12-year-olds.
However, when measures of competence to stand trial were employed which utilized more open-ended questioning, there is evidence that youths as old as 16 score well below the level achieved by adults. A study by Cooper in1997 utilized the Georgia Court Competency Test - Mississippi State Hospital (GCCT-MSH), which was designed for adult defendants. Some of the content had to be modified for use with minors, since some of the questions relate to matters which are not relevant to juvenile proceedings (the role of juries, time served and being sent to penitentiaries). Once again, the age effect seen in other studies was evident, with youths 13 and below performing more poorly than those above this age level.
Perhaps even more interesting, of the 112 youths between the ages of 13 and 16 tested with the GCCT-MSH in this study, only two scored above the cut-off used with adults. While a direct comparison between the scores of adults and juveniles in this study cannot be made because of the slightly different versions of the test which were used, this study does raise serious questions about the abilities of even older teens to understand the trial process in a meaningful way.
Another issue relevant to understanding juvenilesí grasp of issues associated with standing trial is previous experience with the juvenile justice system. It would be logical to assume that greater levels of previous experience would be associated with greater knowledge of the process, and this is often assumed to be true by courts. There are a number of studies that contradict this assumption.
A study by Cowden and McKee in 1995 (see endnotes) found that there was no difference between the scores of delinquent and non-delinquent youths on a test of information related to standing trial regardless of the number of times the delinquents in the sample had been charged or actually had been tried. On the other hand, several studies have found that there is a modest correlation between understanding of competence-related issues and prior court experience.
Consequently, the relationship between previous courtroom experience and greater competence-related abilities is unclear, but it cannot be assumed that such experience, in and of itself, can be assumed to increase understanding of trial related issues. The fact that a particular juvenile was previously tried and the issue of competency was not raised is not a reliable indicator of present CST.
In addition to age-related effects on the grasp of the process of standing trial, some consideration must be given to individual characteristics of youths before the court. For example, there are research findings that indicate that lower intellectual abilities are associated with poorer understanding of competency-related issues for both juveniles and adults (Grisso, 1981). The same pattern can be seen with juveniles with a history of learning disabilities. Grisso points out that the negative effects of a low I.Q. may be a more significant factor in juvenilesí grasp of CST issues than age, since his research indicated that the performance of 15- to 17-year-olds with mild retardation or borderline intellectual abilities was poorer than those of ten- to 12-year-olds with normal I.Q.ís.
There are many other psychological and developmental factors that have a potential impact on the abilities of youths to have or acquire a reasonable factual and rational gasp of the issues involved in standing trial. Issues such as risk-taking and appreciation of consequences, grasp of the meaning of court-related language, and response to interrogative pressure have all been raised as potential obstacles to juveniles successfully comprehending the nature of the trial process.
Recently, a large-scale research project by the MacArthur Foundation has been completed that looked at the competence of juveniles aged 11 to 18. While the abilities of normal adolescents aged 16 and above did not differ substantially from that of adults, several important trends emerged with younger subjects. Juveniles in the 11- to 13-year-old group were three times more likely than adults to have clinical levels of impairment on measures of competence to stand trial, and those 14 to 15 were twice as likely to have similar difficulties. As with the previous studies cited, the I.Q. of the adolescents in the study was a major factor in competence. More than half of the 11- to 13-year-olds and 40 percent of 14- to 15-years-olds with below-average I.Q.ís (defined as 85 or lower) were found to have significant impairments in their grasp of competence-related issues. The study did not examine the effects of mental illness on competence-related issues.
Despite this, research on these issues as applied to juvenile defendants is generally only preliminary, which is surprising considering the sheer volume of juvenile cases adjudicated every day in courts across the country. However, existing research makes several things clear. The first is that there is a high probability that most children 13 and under lack the abilities needed to stand trial. The second is that older adolescents frequently have problems with the more abstract aspects of the adjudication process, particularly if they have low I.Q.ís, learning disabilities, or emotional problems.
Because of the possibility that juvenile defendants may lack the abilities required to stand trial, it is essential that their abilities in this regard be carefully assessed whenever the possibility of incompetence is raised. The basic assessment methodologies for children and adults have much in common, but there are important differences. One of the most influential models used for assessing criminal competencies is the five-step model developed by Grisso in 2003.
The model as applied to assessment of competence is as follows:
Functional Component -This component of the evaluation is designed to describe the youthís abilities in relation to the process of standing trial. Forensic psychologists have found it useful to break down the broader Dusky factors into more detailed sets of competence-related abilities. In 1973, the McGarry group developed one of the most influential schemas of this type. The McGarry criteria are as follows:
Understanding of Charges and Potential Consequences:
- the ability to understand and appreciate the charges and their seriousness;
- the ability to understand possible dispositional consequences of guilty, not guilty and not guilty by reason of insanity; and
- the ability to realistically appraise the likely outcomes.
Understanding the Trial Process:
- the ability to understand, without significant distortion, the roles of participants in the trial process (judge, defense attorney, prosecutor, etc.);
- the ability to understand the process and potential consequences of pleading and plea bargaining; and
- the ability to grasp the general sequence of pretrial/trial events.
Capacity to Participate with Attorney in a Defense:
- the ability to adequately trust or work collaboratively with an attorney;
- the ability to disclose to an attorney reasonable coherent description of the facts pertaining to the charges as perceived by the defendant;
- the ability to reason about available options by weighing their consequences, without significant distortion; and
- Ability to realistically challenge prosecution witnesses and monitor trial events.
Potential for Courtroom Participation:
- the ability to testify coherently if testimony is needed;
- the ability to control own behavior during trial proceedings; and
- the ability to manage the stress of trial.
There are other schemas which address the underlying components of CST, but the McGarry list is the most widely-used conceptualization of competence-related abilities.
The task of the forensic psychologist in assessing the functional component in competency assessments is to utilize tests, interview data and collateral information to develop information about the juvenileís abilities in relation to these criteria. This task is similar in form to adult CST assessment, but more difficult in practice. This is due, in part, to the fact that there are few well-researched standardized competence assessment instruments for juveniles.
There are a number of adult instruments which may be adapted for use with juveniles, but the norm-referenced scores cannot be used since they were not developed for a juvenile population. The Competence Assessment Instrument (CAI)is a semi-structured interview that provides questions directly relevant to the McGarry CST criteria. Examples of these questions include "[w]ho is the only one who can call you to testify?" and "[i]f your attorney could convince the prosecutor to drop the charges of *** [i]f you pled guilty to [the lesser] charge of ****, what would you do?" The CAI has the advantage of requiring defendants to answer open-ended questions, and observe their ability to comprehend what is being asked and clearly express their response. While not designed for juveniles, the CAI is easily modified for use with that population by either adding or omitting questions. There is a qualitative scoring system that was developed with the CAI, but it is generally neglected in favor of a simple description of the subjectís responses.
Another widely used CST assessment instrument is the Competency Assessment to Stand Trial-Mental Retardation (CAST-MR). The CAST-MR differs from the CAI and most other CST instruments in that it utilizes a multiple-choice format. The defendant is read each question and, then, three possible answers are read to him.
The CAST-MR has the advantage of helping to compensate for the receptive and expressive language deficits often seen with mentally retarded defendants and has similar advantages with juveniles. At the same time, the structured approach provided by the CAST-MR can create problems since the legal standard for competence is not lower or different for mentally retarded defendants or juveniles than for adults. In addition, the instrument may lack ecological validity, which means that a defendant who may be able to indicate the correct answers on the test may not be able to answer the same questions adequately in the more unstructured environment of the actual trial. Consequently, the CAST-MR may, in some cases, lead to an over-estimation of the defendantís "real world" CST-related abilities. As with the CAI, some of the items must be omitted or modified for juveniles and the objective scoring system cannot be strictly applied.
A new and promising CST assessment instrument is the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA). This instrument represents a step forward in the assessment of CST in several ways. The MacCAT-CA consists of three sections: the understanding of charges and trial related issues; appreciation of information which may be relevant to defense and the ability to differentiate salient from non-salient information; and reasoning about relevant decisions in the instant case.
The MacCAT-CA also differs from traditional CST instruments in several other respects. It utilizes questions about a hypothetical assault case, and, in instances in which defendants do not know the answers, they are "taught" the correct answers. This allows the examiner to determine whether incorrect answers are the result of simple ignorance or caused by cognitive limitations.
The Mac CAT-CA is well-researched and normed, but as yet there are no norms for juveniles. In cases involving juveniles, the test can be utilized in order to describe the defendantís abilities and weaknesses without recourse to objective scoring.
The next step in the CST assessment process for juveniles is the causal component. This component provides the court with an explanation for any deficits observed or elicited in the functional assessment. Juveniles can have difficulties with any or all of the CST components referenced previously. The reasons may vary. Common causes of observed deficits can include low I.Q., attention deficit hyperactivity disorder, learning disabilities, neuropsychological impairment, mental illness or any combination of these. With younger children, their developmental status alone and the immaturity of their cognitive processes may be sufficient explanation for inadequate grasp of CST-related issues.
Information about these conditions can be obtained in a number of different ways. In some cases, the examining psychologist may administer I.Q., achievement and neuropsychological screening tests, mental status interviews, structured diagnostic interviews and parent/teacher behavior rating scales to gather diagnostic information. In-depth testing is usually not required given the circumscribed nature of the CST evaluation. In cases in which the juvenile defendant is involved in special education programs, this information can often be gleaned from a review of records. The possibility of purposeful under-performance or malingering must be considered, particularly with older adolescents.
The third evaluative issue to be considered in juvenile CST assessments is the interactive component. This component is designed to take into account the relationship between the juvenileís strengths and weaknesses in terms of CST and the situational requirements. For example, it is generally easier for a defendant to understand the issues involved in a single, simple assault case in which testimony will not be required than a case involving drug sales with multiple co-defendants which will require careful monitoring of the proceeding and the possibility of complex dispositional negotiations. One interactive aspect of juvenile trials in New Hampshire is that cases heard before the juvenile court are unlikely to involve complex plea bargains, time served or other more complicated issues. In addition, these cases are heard in courts with justices, prosecutors and defense attorneys who are generally experienced in dealing with younger defendants, and there is also the possibility of some modification of proceedings (frequent breaks, careful explanation of issues as they are raised) which can allow youths with marginal abilities who could not stand trial in adult court to be fairly tried in juvenile proceedings.
The next element of the juvenile CST assessment is the conclusory component. This is simply the opinion of the forensic psychologist as to whether he or she considers the defendant to be competent to stand trial. There is some controversy among psychologists about the propriety of opining about this component. Some, including Grisso, feel that the ultimate issue is the sole province of the judge and that expressing such an opinion has the potential to usurp the role of the judge as trier of fact. Others point out that the trier of fact may give the opinion of the evaluator whatever weight he or she deems appropriate, and, therefore, such testimony does not intrude on the judgeís role. It has been my experience in New Hampshire courts that judges invariably desire and expect the evaluator to present their opinion regarding the defendantís competence.
The final issue to be evaluated is the remediative component, addressing whether an incompetent defendant can be restored to competence. The answer depends on the underlying cause of observed deficits. For example, the untreated psychotic individual can often be rapidly restored to competence through brief hospitalization and medication. On the other hand, the defendant whose CST deficits are related to mental retardation or brain damage is unlikely to improve. For younger juveniles, it may be that only the passage of time and the developmental process will improve their grasp of CST-related issues, and this is often unlikely to occur in a reasonable time period. Competence training programs have been for the most part unsuccessful with juveniles.
STRIKING A BALANCE: RECOMMENDATIONS
Clearly, striking a balance between the need to deal effectively with juveniles who break the law and the due process rights of these defendants present special challenges. Judges, defense attorneys, prosecutors and police all struggle with issues related to the competence of adolescents and children before the court. While these problems are likely to continue in some form for the near future, helpful approaches exist.
First, consideration should be given to mandating that every defendant 13 or under be evaluated for CST. The base rate of incompetence for children in this age group is so high that there is a very high probability that any child before the court in this age group will be found incompetent. While it may not be appropriate to create a presumption of incompetence for this age group, it would be prudent to assess CST abilities, paying particular attention to the defendantís rational grasp of the trial process.
A similar presumption of a need for CST assessment should be made for any juvenile who has an I.Q. in the borderline range (I.Q. 70 to 80) or below, learning disabilities, neurological impairment or a history of involvement in special education. All of these factors can easily compromise CST-related abilities, even in adolescents as old as 17.
From a process standpoint, it has been this authorís experience that one of the reasons for the increase in juvenile proceedings is the failure of schools, mental health centers, and other social service organizations to provide appropriate levels of services to children in the community, forcing courts to become the social service agency of last resort. In many situations, only the juvenile court has the ability to order more intensive services such as therapeutic schools, group homes, or residential placement. There is a built-in financial incentive for schools to bring charges against children who become aggressive or disruptive in special education settings, since once the court becomes involved and orders a placement, the school bears only the cost of instruction as opposed to the total cost of instruction plus residential expenses.
This problem could be addressed by allowing courts to make some type of judgement about whether a schoolís response to long-standing behavior problems in children has been adequate, and, if not, holding schools liable for the total cost of appropriate programs.
Another possibility would be legislation that would create a class of offenses for juveniles that would not require CST for court action. At the present time, it is an open question whether CST is required for CHINS petitions to be brought in the interests of juveniles. The decision appears to be made differently in different courts. It might be possible to create legislation that would allow for the trying of incompetent juveniles as long as the remedies do not involve placement outside the home against the wishes ofthe childís parents or attorney.
Such exempt remedies could include counseling and support services for the child and/or parents, foster or group home placement, or placement in therapeutic day or residential schools. There is some precedent for this approach in adult courts in that there is no requirement for competence in cases involving violations as opposed to misdemeanors or felonies. Additionally, parents already have the right to place their children in private schools, drug treatment programs, and psychiatric hospitals without court involvement. Consequently, if parents are in agreement, similar remedies provided by the court for delinquency create no abridgement of liberty. Cases in which more punitive options are considered, such as YDC or programs designed for delinquents utilizing more aversive treatment methods, or penalties imposed without the consent of the childís parents or lawyer, would be tried with the usual requirement of CST. However, it is possible that this type of approach to juvenile competence may raise due process issues which may make this approach impractical.
Another possibility would be to follow the lead of a number of states and legislate a lower level of competence for juveniles tried before dependency courts. Those transferred to adult venues would continue to be tried under the Champagne standard.
To summarize, there has been a growing recognition that juveniles, before the court, are at much higher risk than adults for difficulty comprehending issues raised in the process of standing trial. Careful attention and appropriate assessment are required to ensure that juveniles appearing before the court adequately grasp the process and to ensure that their rights are respected.
Finally, it is possible that better a systemic response to the problems of juveniles in schools and in the community may reduce pressure on the justice system and decrease the need for competence assessment.
D.K. Cooper, Juvenilesí understanding of trial-related information: Are they competent defendants?, 15(2) Behav. Sci. & L. 167, 167-180 (1997).
V. Cowden and G. McKee, Competency to stand trial in juvenile delinquency proceedings: Cognitive maturity and the attorney-client relationship. 33 J.Fam.L. 629, 629-660 (1995).
T. Grisso, Juvenilesí waiver of rights: Legal and psychological competence (Plenum Publishers 1981).
T. Grisso, Evaluating Competencies; Forensic Assessments and Instruments (Kluver Academic/Plenum Publishers 2d ed. 1986).
T. Grisso, The competence of juveniles as trial defendants. 3 Psychol. Pub. Pol'y & L. 3, 3-32 (1997).
A.L. McGarry and Associates, Competence to stand trial and mental illness. (Harvard Medical School 1973).
Eric G. Mart, Ph.D., is a licensed psychologist in private practice in Manchester, New Hampshire. He is a diplomat of the American Board of Forensic Psychology and practices in many areas of forensic psychology, including criminal and civil competencies, child abuse and personal injury assessment.