Constitutional and Judicial Foundations for Competency-Related Assessment in Criminal Forensic Neuropsychology

Clinical neuropsychologists wishing to consult in criminal cases have ethical requirements to familiarize themselves with this specialty prior to initiating services. This paper presents foundational knowledge for professional neuropsychological consulting in cases where competence to proceed through the criminal adjudication process is in question.

Reviewed are key foundations of knowledge for practice of clinical neuropsychology in relation to competency to stand trial or to proceed examinations. These foundations include a review of the criminal judicial system, relevant US Constitutional Amendments, and select mental health case law.

First, Fifth, Sixth, and Fourteenth Amendments to the US Constitution establish the rights of freedom of thought, due process, freedom from self-incrimination, assistance of counsel, and equal protection. As used in criminal legal proceedings, capacity generally refers to abilities (i.e., functional capabilities), while competency is a legal determination based on a set of capacities. Although competency to proceed is assumed, Dusky  v  United  States  (1960) establishes that defendants are not competent if they lack sufficient present ability to consult with their lawyers using a reasonable degree of rational and factual understanding. Case law and statutory law establish that the loss must be due to mental disease or defect.

Clinical neuropsychologists wishing to consult in criminal forensic cases have ethical requirements to become familiar with this unique consultative arena before choosing to enter. The foundational knowledge for clinical consulting within the criminal forensic context is presented to help clinical neuropsychologists begin developing authentic professional competence in the criminal forensic arena.