Competency and Brain Injury: An Interview with Robert Denney, PsyD Beth Hearne, ResCare Premier Page 1 of 7

About the Author: Robert L. Denney, PsyD
Dr. Denney received his doctorate in clinical psychology from the Forest Institute of Professional Psychology in 1991 where he is now an associate professor. His primary affiliation is with the United States Medical Center for Federal Prisoners in Springfield, Missouri. Dr. Denney is board certified in forensic psychology by the American Board of Professional Psychology and in neuropsychology by the American Board of Professional Psychology and the American Board of Professional Neuropsychology. He has published scientific literature on such subjects as neuropsychological evaluation of criminal defendants and malingering of memory disorders. He has also lectured throughout the U.S. on neurolitigation, brain injury, malingering, and admissibility of scientific evidence. Opinions expressed here are those of the author and do not necessarily represent opinions of the Federal Bureau of Prisons or Department of Justice.

What does competency mean?

Competency has to be defined in terms of its context. A common use of the term competency is when someone says, ‘I need to go see a physician or some other professional and I want them to be competent.’ That definition implies an advanced level of skill, somebody that we can really trust to be able to do the task that we want done. But in legal terms, in civil, as well as criminal settings, competency is a much different concept; the threshold is not as high. Competency is, in essence, the basic ability to understand the nature and consequences of a particular legal proceeding and make appropriate decisions as the proceeding unfolds.

What are the specific competencies in the criminal justice process?

From the time a person is first stopped by a law enforcement officer until the time they, in the worst case scenario, are executed, competency is an important factor. There are different legal standards for what specifically constitutes competency at each point in the process; however, they are all based on the same core principle.

What are the constitutional foundations for ‘competency to confess’ in regard to the mental or cognitive functioning of a criminal defendant?

The 5th Amendment of the U.S. Constitution is huge in this regard because it says, “No person shall be deprived of life, liberty, or property, without due process of law.” Due process of law means going through a series of steps that will, in and of itself, protect that citizen’s rights. This is a core tenant of American society. It is very, very clear in the criminal justice system that a judge has to be involved, formal charges have to be reviewed, and in many instances, a full trial occurs to decide whether somebody is guilty or not guilty. There are due process safe guards throughout criminal proceedings, at every step along the way.

Another foundation is found within the 6th Amendment. In all criminal prosecutions, the accused “shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” and they must “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him,” and very importantly this: “to have the Assistance of Counsel.” Individuals have a right to counsel but implied in this clause is they have the right to effective counsel. On the other side of the coin, inherent in this right is the freedom to waive the right to due process. An example would be somebody who chooses to plead guilty rather than go through a full trial. Yes, they have the right to a full trial, even in front of a jury, but they may choose to plead guilty and waive that right to due process in that regard. It’s not throwing out all of due process, but they are waiving one particular aspect of it. In some instances, individuals will choose to forego representation by a lawyer and actually represent themselves in their legal case. Whether or not it is a wise choice for the person is another matter, but the competency to make that decision is very basic. As with other competency related decisions, it is important for the person to understand the significance of what he or she is doing and the potential consequences. It may not be the best choice for them, maybe it’s frank bad judgment, but they still have the right to do it, if they are otherwise considered competent by the judge.

Another foundation lies in the 8th Amendment. It is relevant for us in the mental health arena because of the cruel and unusual punishment clause. It basically says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Criminal defendants have a right to be free from what is considered cruel and unusual punishment. What defines cruel and unusual punishment has varied over the years and it is, of course, established by legal precedent, typically laid down by the U.S. Supreme court. For example, given revisions in the state laws recently, as well as a general change in viewpoint in the country, we’ve seen changes in regard to the issue of executing those who have mental retardation. In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court said it is not considered constitutionally appropriate to execute a mentally retarded individual regardless of how serious, terrible, or heinous the crime. This is a good example of how the law changes - in many respects it is like a living, breathing process evolving from statutory rules laid down by elected officials and case law set by judges and appellate courts.

As you mentioned, the Supreme Court has altered their opinion on executing someone with mental retardation. How might that decision apply to someone with a brain injury?

It does not specifically apply, but it certainly does not mean that it does not apply. I think the specific issue will probably be litigated in the future. I believe there has been some movement in that regard, and there have been two U.S. Supreme Court cases recently that get close to the issue. One dealt with the presence of an ‘organically based learning disability’ and low IQ as information the jury can use to potentially mitigate against applying the death penalty. The other case raised the issue of a ‘uniquely severe permanent handicap.’ The handicap was related to low IQ, but more importantly, the wording broadens the potential considerations for not imposing the death penalty if that condition appeared to contribute to the crime. Neither of these cases have the impact of an across the board prohibition against executing mentally retarded individuals that the Atkins v. Virginia decision set in place.

From ResCare Premier. Used with permission. Third-party use prohibited. www.rescarepremiertexas.com.

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