2013 Bulletin

of individuals with ���organic��� disorders were found incompetent to stand trial versus only 18% of the total sample (Cochrane, Grisso, & Frederick, 2001). Presumably, cognitive deficits related to the ���organic��� disorders impacted the defendants��� ability to understand the legal proceedings or to consult with their attorney. Intelligence, attention, memory, and social intelligence have been associated with incompetence (Nestor, Daggett, Haycock, & Price, 1999). A recent meta-analysis indicated that individuals who were incompetent to stand trial had Wechsler test (e.g., WAIS-R, WASI, WAIS-III) full scale IQ scores that were 6 points lower than those who were competent, with small to medium effect sizes (Pirelli, et al., 2011). If a defendant has been found incompetent to stand trial based on cognitive rather than psychiatric factors, a neuropsychological evaluation can identifying these underlying issues impacting a defendant���s competence help predict the likelihood of restorability. Intellectual disability, impairments in attention, memory and language that can impact restoration efforts should be documented (Marcopulos, et al., 2008). Information about a defendant���s functioning in these areas can be particularly important given that the majority of defendants who are deemed incompetent to stand trial have psychotic disorders, in which many of these deficits have been found (Pirelli, et al., 2011; Reichenberg, et al., 2009; & Zanelli, et al., 2010). Neuropsychologists can also provide information regarding the validity of cognitive impairments in judging whether a defendant is feigning (Wynkoop & Denney, 1999). Malingering is common in forensic populations and should be directly assessed in all forensic evaluations . Rates of malingering range from 8% to as high as 70% (Ardolf, Denney, & Houston, 2007; Cornell & Hawk, 1989; Lewis, Simcox, & Berry, 2002; Mittenberg et al., 2002). Vitacco, Rogers, Gabel & Munizza (2007) found 21% of their sample of 100 males undergoing CST evaluation in a forensic hospital were probable malingerers based on the Structured Inventory of Reported Symptoms (SIRS), a measure of feigned psychopathology. However, it is worth emphasizing that a person may not dissimulate on measures of psychiatric symptom validity, but, in an attempt to feign cognitive symptoms, may perform below expectations on neuropsychological testing or cognitive effort measures. As such, neuropsychologists are uniquely suited to assess malingering of cognitive, in addition to, psychiatric symptoms. For example, it has been estimated that up to 30% of defendants often claim no memory for the events surrounding the instant offense/ accusations (e.g., Taylor & Kopelman, 1984; Cima, Nijman, Merckelbach, Kremer & Hollnack, 2004). Although memory for the offense is not necessary for trial competence, assessment of performance validity may be useful to help determine whether actual amnesia is likely. For instance, neuropsychologists with expertise in epilepsy (or traumatic brain injury, dementia, etc.) may be better able to inform the court about whether an individual defendant���s particular seizure (head injury, cognitive decline, etc.) history is consistent with a report of amnesia during an event. Neuropsychological assessment can help discern when defendants report cognitive difficulties that are unexpected given their history, or their current functioning. It can be illustrative, for example, when a defendant claims not to understand legal concepts but neuropsychological data reveal intact cognitive performance across all domains, including intellectual ability. Finally, as already noted, neuropsychological evaluation can be helpful in assessing whether a defendant is unrestorably incompetent (Mossman, 2007). In Jackson v. Indiana (406 U.S. 715; 1972), the United States Supreme Court ruled that states may not indefinitely confine criminal defendants solely on the basis of incompetence to stand trial. It remained unclear whether states could indefinitely maintain criminal charges against incompetent defendants until 2008 when the Indiana Supreme Court (Indiana v. Davis; 898 N.E.2d. 281) unanimously ruled that imposing criminal charges for a permanently incompetent defendant, when pretrial confinement would extend beyond the maximum period of any sentence the trial court could hand down, violated the Due Process Clause of the Fourteenth Amendment. These rulings highlight the importance of effective and efficient determination of unrestorability. The base rate of unrestorable incompetence among persons with schizophrenia is higher than other mental illnesses (Warren, Fitch, Dietz, & Rosenfeld, 1991) and it has been found that the defendants least likely to be restored had lengthy histories of active psychosis and were more likely to possess stable cognitive deficits, such as intellectual disability (Mossman, 2007). Neuropsychologists can help the courts understand the expected sequelae from brain injury and ascertain the presence/absence of cognitive impairment in severe psychiatric disorders (Tussey & Marcopulos, 2012). They can opine whether the defendant has reversible cognitive impairment and can be restored, versus a progressive dementia and is unlikely to be restored (Heck & Herrick, 2007). Conclusions The unique knowledge of brain-behavior relationships, along with the frequent ability to quantify deficits via testing, supports the role of a neuropsychologist in these important psycholegal evaluations. However, it is very important that neuropsychologists entering the legal arena familiarize themselves with legal standards, current practice guidelines, and receive specialty training in forensic work (Denney, 2012; Denney & Wynkoop, 2000; Denney & Sullivan, 2008; Committee on the Revision of the Specialty Guidelines for Forensic Psychology, 2011). Although not a direct one-to-one relationship, the principles of forensic mental health assessment can be applied to neuropsychology in a criminal forensic setting (Heilbrun, et al., 2003). Sufficient training and experience in this field is necessary, particularly given that forensic opinions have a significant impact and there are many opportunities for error. Bulletin vol. 27 no. 1 | 21

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