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Article Excerpt
Psychiatric, psychological, and legal observers have noted persistent shortcomings in the quality of evaluations for competence to stand trial since at least 1965 (Vann, 1965). Recent reviews by Nicholson and Norwood (2000) and Wettstein (2005) of multiple studies (10 and 19, respectively) that assessed the quality of criminal forensic evaluations found "the practice of forensic psychological assessment falls far short of its promise" (Nicholson & Norwood, 2000, p. 40) and that "much work remains to be accomplished in improving the quality of forensic evaluations of evaluators with or without specific forensic training and experience" (Wettstein, 2005, p. 172). Remedies proposed include increased training, specialization, certification, and credentialing of forensic evaluators, although a recent study by Frost, Camara, and Earl (2006) found that as of 2005 only 16 states required or encouraged additional training before evaluators could testify, and only 10 had a forensic certification program. Enlarging the pool of potential forensic evaluators would expand those eligible for specialized training, could reduce shortages of evaluators, and would address conflicts of interest for evaluators employed in the public sector and between evaluators and treaters in the same facility--both noted as ongoing problems (Frost et al., 2006). Social workers, the nation's largest category of licensed clinical mental health professionals, are natural candidates for inclusion in an expanded pool of forensic evaluators--especially to evaluate competence to stand trial.
Although forensic evaluation statutes in all but six states now allow psychologists and psychiatrists to be forensic evaluators, only seven states explicitly allow other mental health professionals to conduct forensic evaluations--and then often only of certain evaluations or in certain types of cases (Frost et al., 2006). Despite this moderate statutory and regulatory expansion of professionals eligible to conduct forensic evaluations (Frost et al., 2006), trial courts---even without explicit statutory or regulatory authority--are expanding the pool of those who can give expert testimony on competence issues to include clinical social workers based on judges' inherent power to qualify persons as expert witnesses (State v. Reese, 1989; State v. Gans, 1983; State v. Scala, 1985; People v. R. R., 2005; People v. Villanueva, 1988; State v. Torres, 2001; State v. Mackey, 1982; United States v. McCarthy, 1995).
Competence questions, the most frequently arising forensic mental health issue in criminal cases, produce an estimated 50,000 to 60,000 evaluations annually (Bonnie & Grisso, 2000; Rogers, Grandjean, Tillbrook, Vitacco, & Sewell, 2001). Social workers in mental health organizations and general hospital psychiatric services have outnumbered combined psychiatrists and psychologists in these facilities since 1990 (National Mental Health Statistics, 1998). Despite the clinical burden competence evaluations impose, the statutes and administrative regulations of only eight states--Connecticut [Conn. Gen. Star. Ann. [section] 54-56d(d) (2006) (as a clinical team member)]; Louisiana [La. Stat. Ann., Code Crim. Pro. Art. 644; Art. 646 (2006) (as a clinical team member)]; Nevada [Nev. Rev. Stat. [section] 178.415 (2006) (for misdemeanors only)]; North Carolina [N.C. Gen. Stat. Ann. [section] 15A-1002; N.C. Admin. Code tit. 10A, r. 27G.0104 (2006)]; South Carolina [S.C. Code 1976 [section][section] 44-23-410; 44-23-10 (2005); S.C. Admin. Code Sec. 87-1 (2005)];Tennessee [Tenn. Code Ann. [section] 33-7-301;Tenn. Comp. R. & Reg. Ch. 0940-3-3.07 (2005)]; Utah [Utah Code Ann. 1953 [section][section] 77-15-5; 62A-15-602(3), 62A15-606 (2005)]; and Washington [West's Rev. Code Wash. 10.77.060.; 10.77.010 (2005)])--explicitly permit appointment of clinical social workers to conduct competence-to-stand-trial evaluations, whereas all 46 states that specify who can perform evaluations allow appointment of any licensed psychiatrist or (in all but one) any licensed psychologist. (Frost et al., 2006). As competence evaluation has dramatically changed over the past three decades from an inpatient, long-term, more subjective and somewhat idiosyncratic process conducted largely by psychiatrists to a short-term, more frequently outpatient assessment by a wider range of mental health professionals using more explicitly defined approaches (Roesch, Zapf, Golding, & Skeem, 1999), including specialized competence assessment instruments (Warren, Rosenfeld, Fitch, & Hawk, 1997; Zapf & Viljoen, 2003), clinical social workers--properly trained as forensic specialists--should have greater ability to testify as expert witnesses on competence.
Four factors support this conclusion. First, greater legal acceptance of clinical social workers in forensic work generally and in diagnosis of mental disorders has reduced barriers--at least for many judges--to qualifying them as experts on competence. Second, the significant improvements in competence assessment over the past three decades, including clearer and more comprehensive conceptualization, increased availability of competence assessment instruments and greater systemization of forensic evaluation in general, should translate into a process that can be more effectively taught, tested, and improved. Third, no existing data suggest clinical social workers would be less reliable than other mental health professionals in making clinical judgments. Data on the validity of forensic evaluations is limited, but does not indicate differences by the specialty of the evaluator. Finally, none of the many deficiencies Wettstein (2005) recently identified in forensic evaluations relate to medical knowledge or expertise. These include lack of evaluator psycholegal training and expertise, lack of evaluator impartiality, overreliance on evaluee self-reports, inadequate assessment of evaluee response bias, inadequate collateral information, failure to use valid assessment instruments appropriately, failure to support clinical diagnoses, failure to link opinions to psychopathology or psychological tests, and inadequate support for, explanation of, or limitation on, opinions. Clinical social workers are a vast group of clinical mental health professionals who, with proper training, could correct or avoid these issues equally as well as properly trained clinical psychologists or psychiatrists, at far less cost.
The most significant issue in qualifying experts on competence should not be the nature of their professional designation but the degree to which they have had specialized training, experience, and credentialing in competence evaluation (Frost et al., 2006). This article reviews cases qualifying social workers as expert witnesses on competence to stand trial, compares the education and credentialing of social workers to that of other mental health professions, and reviews research comparing the reliability and validity of diagnosis across mental health disciplines. It concludes that properly trained clinical social workers should be qualified to testify as experts on competence to stand trial.
ADMISSION OF EXPERT TESTIMONY
Two bodies of law effectively govern who can testify as an expert on competence to stand trial: the law of evidence and the law of competence. Evidence law directly controls who can testify and about what subjects and gives substantial latitude in qualifying experts to the trial judge, whose rulings on the matter are reversible only for an abuse of discretion (General Electric Co. v. Joiner, 1997). The...
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