psychological support for the concept of psycholegal competencies

International Journal of Law and Psychiatry

27 (2004) 223–232

Psychological support for the concept of psycholegal competencies

E.M. Coles*

Associate Professor (retired), Department of Psychology, Simon Fraser University,

8888 University Drive, Burnaby, BC, Canada V5A 1S6

1. Introduction

The law is a distinct, discursive structure, with its own subject matter, methods of study and practice,

and its own rhetorical genre. However, insofar as the law deals with human behaviour, it, by definition,

deals with psychological concepts. It is therefore not surprising to find that there has been considerable

psychological interest in many aspects of the law and the way certain behaviours are conceptualised

therein, to the point of giving rise to a distinct subdiscipline.

‘‘Psychology and law’’ has become a de facto area of study. As yet poorly defined, it has been said

to have three aspects: the practice of psychology in legal settings, the effects of the law on the practice

of psychology, and the application of psychological research and scholarly inquiry to legal issues

(Hess, 1999). Because the first two clearly and explicitly relate to professional practice, it is the third

on which any claims of scientific status for the new ‘‘discipline’’ must rest. Unfortunately, the

psychological research and scholarly inquiry that has been applied to legal issues has not always been

sound.

With its reliance on expert testimony that has been provided in an adversarial context and subsequent

enshrined in case-law and legal precedents, the law has embraced distinctions that, on occasion, have not

only been inconsistent with established psychological knowledge, but have sometimes even been

inconsistent with common sense. For example, Coles (2000), Coles and Armstrong (1998), Coles and

Jang (1990, 1996), and Jang and Coles (1995) have taken issue with the extent to which the legal

concept of automatistic behaviour is inconsistent with psychological knowledge, and Gold (1981) has

commented on the unjustified analysis that has given rise to the distinction between general and specific

intent in the law’s consideration of the effects of alcohol.

Legal distinctions with regard to mental functions which are inconsistent with established

psychological knowledge could be attributable to the natural tendency of psychological knowledge

to develop faster than the judiciary can incorporate it into legal statutes and practice. However,

some may also be attributable to faulty contributions on the part of legal analysts, criminologists,

and expert witnesses. It is the purpose of this article to look at the psychological literature to see

0160-2527/$ - see front matter D 2004 Elsevier Inc. All rights reserved.

doi:10.1016/j.ijlp.2004.03.006

* Tel.: +44-604-939-1435; fax: +44-604-931-4340.

E-mail address: [email protected] (E.M. Coles).

E.M. Coles / International Journal of Law and Psychiatry 27 (2004) 223–232224

how the knowledge of psychology regarding competency (referred to in Canada as ‘‘fitness’’)

supports one particular suggestion regarding the legal concept of competency, namely, that the

individual is not to be assessed as simply competent or incompetent, but as possessing a variety of

competencies.

Central to the argument to be advanced is the Kumho Tire v. Carmichael (1999) clarification of the

criteria for the admission of expert testimony that were laid down in Daubert v. Merrell Dow

Pharmaceuticals (1993). In Kumho Tire v. Carmichael, it was stated that it is the word ‘‘knowledge,’’

not words, such as ‘‘scientific,’’ that may modify it, which establishes the standard of evidentiary

reliability.

There are many uses of the verb ‘‘to know.’’ However, as stated by Ayer (1956, p. 35), ‘‘the necessary

and sufficient conditions for knowing that something is the case are first that what one is said to know be

true, secondly that one be sure of it, and thirdly that one has a right to be sure.’’ We thus find Kumho

(Kumho Tire v. Carmichael, 1999) stating that expert witnesses have been granted ‘‘testimonial latitude

unavailable to other expert witnesses on the assumption that the expert’s opinion will have a reliable

basis in the knowledge and experience of his discipline’’ (emphasis added). In other words, the courts

assume that when an expert witness presents his knowledge in the form of an opinion, that knowledge is

shared by a significant number of others in his/her discipline, and forms part of the knowledge base of

the discipline.

2. Psychology and law

Heilbrun, Rogers, and Otto (2002) have suggested that three different types of assessment procedures

are used in forensic evaluations: procedures which are directly relevant to constructs that are embodied by

the law, such as competency and criminal responsibility; procedures which address clinical constructs that

are relevant to the behaviour of people standing trial, such as those used to assess malingering,

recidivism, and the risk of violence; and standard clinical assessment procedures. With regard to the

first category, psychologists have attempted to develop assessment instruments that will provide an

objective quantification of legal concepts. This can be seen in the concept of competency, where

psychologists, in particular, have been attempting to influence legal procedure through the development

of definitions and assessment procedures. Unfortunately, some of these procedures are not only

unsupported by the knowledge base of the discipline, they are logically inappropriate (see Coles &

Pos, 1985; Veiel & Coles, 1999 for a critique). One example of this is the concept of ‘‘psycholegal’’

competencies.

A major text in law and psychology has identified 13 different legal concepts of competency:

competency to consent to research, competency to manage one’s own affairs, competency to make a

contract, competency to make a will, competency to make treatment decisions, competency to stand trial,

competency to waive counsel, competency to refuse an insanity defence, competency to testify,

competency to confess, competency to plead guilty, competency to be sentenced, and competency to

be executed (Melton, Petrila, Poythress, & Slobogin, 1987). However, a problem arises when these

different legal competencies are assumed to reflect, and to be dependent on, different, contextually

defined, psychological abilities, referred to as ‘‘psycholegal abilities,’’ with the assumption that ‘‘The

specific psychological abilities required of a defendant are the most important aspect of assessing

fitness’’ (Roesch, Zapf, Golding, & Skeem, 1999, p. 329).

E.M. Coles / International Journal of Law and Psychiatry 27 (2004) 223–232 225

Roesch et al. (1999) clearly identify this problem when they state that:

‘‘The importance of contextual determination of specific psycholegal abilities has been repeatedly

demonstrated by empirical findings that assessed competencies in one area of functioning are rarely

homogeneous with competencies in other areas of functioning’’ (Bonnie, 1992; Golding & Roesch,

1988; Grisso, Appelbaum, Mulvey, & Fletcher, 1995a; Skeem, Golding, Cohn, & Berge, 1997).

Recent Supreme Court decisions in both the United States and Canada, however, have confused this

issue by finding that the standard by which competency is to be judged is not context specific. In R. v.

Whittle (1994), the Supreme Court of Canada ruled that there is to be only standard for competency

regardless of the specific abilities to be performed by an accused. The Court concluded that there is no

difference in the essential abilities needed among making active choices about waiving counsel, making

decisions at trial, confessing, or pleading guilty. The Court ruled that different standards of competency

should not be applied for different aspects of criminal proceedings and that the test to be used is one of

‘limited cognitive capacity’ (p. 567) in each of these circumstances.

In Godinez v. Moran (1993), the U.S. Supreme Court held similarly that the standard for the various

types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be

considered the same’’ (Roesch et al., 1999, pp. 329–330).

Unfortunately, the references Roesch et al. (1999) make in support of the importance of contextual

determination of specific psycholegal abilities were either not empirical findings or, if they were, were

not empirical findings that assessed competencies in one area of functioning and demonstrated the lack

of homogeneity with competencies in other areas of functioning.

Far from being an empirical study, Bonnie (1992) presents, as the title of his article indicates, ‘‘a

theoretical reformulation,’’ that is ‘‘derived from a theoretical analysis of the purposes of the pertinent

legal rules’’ (p. 291 and, again, at pp. 294–295). In addition, the article is concerned with a single

competency, competence to stand trial. Grisso et al. (1995a) similarly deal with a single competency.

They report the development and psychometric properties—specifically, such reliability measures as

scoring reliability, internal consistency, intertest correlation, and test–retest correlations—of three

measures of competence to consent to treatment. Such studies consequently do not present, as claimed

by Roesch et al. (1999), ‘‘empirical findings that assessed competencies in one area of functioning are

rarely homogeneous with competencies in other areas of functioning.’’ Furthermore, in a subsequent

article, Grisso, Appelbaum, Mulvey, and Fletcher (1995b, p. 170) explicitly deny measuring legal

competencies per se, stating that they are attempting to ‘‘provide meaningful representations of the

decisional abilities the courts have considered when making competency [to consent to treatment]

determinations.’’ Skeem et al. (1997) were also not concerned with the comparison of one competency

with another, but with one particular competency, competency to stand trial. In addition, they were

specifically concerned with the expressed reasons for expert opinions, rather than the opinions

themselves. They reviewed 100 randomly selected reports to determine whether the reports reflected

basic assessment and documentation procedures that are in accord with legal, ethical, and professional

standards. Finally, their own work that they cite (Golding & Roesch, 1988) does not demonstrate by

empirical findings that assessed competencies in one area of functioning are rarely homogeneous with

competencies in other areas of functioning. This is a review article which, in the author’s own words,

‘‘focuses on historical and contemporary development of competency adjudication laws and procedures

in Anglo-Saxon law.’’


The use of invalid data is not unique to Roesch et al. (1999). Other examples have been identified by

Coles and Pos (1986), Wertheimer (1951), and Wolins (1962), in addition to Gillie’s (1976) ‘‘expose’’ of

the British psychologist, Professor Sir Cyril Burt. Furthermore, it does not necessarily invalidate the

point being made. Indeed, despite the inappropriateness of Roesch et al.’s references, the belief that the

legal concept of competency masks ‘‘the contextual determination of specific psychological abilities’’

(Roesch et al., 1999, p. 329, emphasis added), which are ‘‘the essential abilities needed’’ (Roesch et al.,

1999, p. 329) in the different legal contexts, has been expressed in a number of other articles.

The first step in the development of all psychological assessment instruments is—or should be—

clarification of that which is to be measured, what is referred to as ‘‘construct explication’’ (Murphy &

Davidshofer, 2001, p. 156). Consequently, rather than search the literature of psychology and the law for

studies that might support Roesch et al.’s (1999) argument, it is the psychological literature per se that

will be examined, to see how the knowledge of psychology regarding competency relates to the issue.

3. The psychology of competence

There is an extensive psychological literature on competence. It is to be found in the domains of

mental health and motivational psychology, in educational psychology, and in the psychology of

measurement where it is often implicit in the consideration of aptitudes and abilities.

One of the leading authorities on the psychology of competence, White (1959), presented a unitary

concept when he defined competence as ‘‘an organism’s capacity to interact effectively with its

environment’’ (p. 297), but opened the door to the possibility of several different competencies when

he noted its relationship to learning, stating that ‘‘In organisms capable of but little learning, this capacity

might be considered an innate attribute, but in the mammals and especially man, with their highly plastic

nervous systems, fitness to interact with the environment is slowly attained through prolonged feats of

learning.’’ Thus, depending on what is learned, and the extent to which the generalization of learning in

one environmental situation to other situations is limited—that is, on the specificity of learning—it could

be argued that, under White’s theory, it is possible for an organism to acquire the capacity to interact

effectively with certain aspects of its environment, but not others.

A similar point of view to White’s (1959) was put forward a little over a decade later by Wiggins,

Renner, Clore, and Rose (1971), who explicitly addressed the issue of the capacity to deal effectively

with certain aspects of the environment, but not others. Under the heading ‘‘Competence: the

psychometric-trait viewpoint,’’ they stated that ‘‘The trait construct of competence provides an

organising framework from which to view a variety of achievement-related behaviors as manifestations

of a single underlying trait’’ (Wiggins et al., 1971, p. 443, emphasis added). They went on to say ‘‘[t]hat

competence is indeed a general trait is suggested by the longitudinal studies of Terman and associates . . .in which intellectually gifted individuals were found to excel, not only in a variety of vocational fields,

but in the areas of adjustment, health, and leadership as well.’’ However, they concluded by stating that

‘‘It would be inaccurate, however, to construe competence as a completely general trait. The areas in

which competence may be achieved are too varied to be encompassed by a single underlying ability or

potential for competence.’’

There is a certain amount of ambiguity in Wiggins et al.’s (1971) reference to ‘‘a single underlying

ability or potential’’. Is it referring to the fact that there are multiple abilities for competence? Or it is

referring to the fact that an underlying ability or potential, on its own, cannot account for competence in


all areas? Since Wiggins et al. (1977) refer to Terman et al.’s study of intellectually gifted individuals, an

answer to these questions may be found in the psychological literature on intelligence.

Despite its long history, there is little consensus on the definition and conceptualisation of

intelligence. One popular model, which has stood the test of time, is provided by Spearman’s (1904,

1927) two-factor theory. According to this theory, all intellectual activities share a single factor,

designated g for general intelligence; but they also have a specific factor, s, which is essentially unique

to the activity or process involved. The specific processes, however, are not contextually defined. They

are activity defined, and carry with them the assumption that they are dependent on specific, underlying,

neurological processes. There is thus reference to the verbal factor which, when highly represented in the

results of an intelligence test, justifies the designation of such a test as a test of verbal intelligence, and

the performance thereon indicative of dominant lobe brain functioning. There are similar references to

nonverbal, performance and perceptual–motor tests, with the implicit attribution of the individual’s

behaviour to certain underlying brain structures. More recent theories of intelligence, such as Gardner’s

(1983, 1993) theory of multiple intelligence, imply a similar neurological basis to the different abilities

that are identified. The burgeoning area of neuropsychology is dependent on this concept of cerebral

localization of psychological processes.

It is clear from a review of the psychological literature—the documented knowledge of the science of

psychology—that psychological abilities are never contextually defined. There are differences in

conceptualisation, and recognition of the fragmentation of even a time-honoured concept, such as

intelligence, but the fundamental conceptualisation is in terms of neurologically based abilities. For

example, reading ability—and the impairment thereof known as dyslexia—is never contextually defined.

There is no reference in the psychological literature to such specific dyslexias as ‘‘signpost dyslexia,’’

‘‘textbook dyslexia,’’ or ‘‘newspaper dyslexia.’’

Psychological abilities are typically defined in terms of psychological and/or neurological function-

ing. In referring to ‘‘academic competencies,’’ ‘‘legal competencies,’’ ‘‘medical competencies,’’

‘‘political competencies,’’ as well as ‘‘psycholegal competencies,’’ reference is being made to the

abilities/skills that are necessary to function effectively in specific environmental contexts. However,

they are not mutually exclusive categories, in the way that verbal and nonverbal abilities are mutually

exclusive. While the extent of the generality of the ability may be a matter for empirical investigation,

such contextually defined competencies are most easily reconciled with established psychological

knowledge by being conceptualised as a general ability plus learning, or familiarity with the situation

through experience.

4. The legal construct of competency

The courts in both the United States and Canada have ruled that there is only one standard for

competency. However, judicial reference to ‘‘standard’’ conflates differentiation, or type of competency,

and quantity/strength, or degree of competency. The fact that there are these two distinct aspects to

competency is often overlooked, and when they are recognised, one or the other is considered to be of

minor significance. For example, Roesch et al. (1999) stated that ‘‘The problem is not whether or not the

standards for various psycholegal competencies are higher, different, or the same, but rather, more

fundamentally, whether or not the defendant has been examined with respect to these issues in the first

place.’’ (Roesch et al., 1999, p. 330.) Both aspects should nevertheless be considered.


Roesch et al. (1999) clearly put a great deal of weight on the differentiation aspect of legal

competency, on the existence of different competencies. As noted above, the psychological literature

does not support the idea of different, neurologically based abilities to deal with such different aspects of

the legal situation, such as standing trial, waiving certain defenses, and refusing treatment. It does,

however, support the idea of different, experientially based skills in dealing with different aspects of the

legal situation. In other words, the psychological literature supports the idea of a basic or general,

neurologically based ability to cope which is augmented by knowledge of, and familiarity with, the

particular situations that must be coped with. Furthermore, to the extent that coping with a particular

environmental situation is dependent on more than one ability or psychological process—for example,

ability to understand, and ability to communicate—that, also, is supported by the psychological

literature.

The other important aspect is the degree of competency. The situations with which an individual has

to cope vary in complexity. It is therefore reasonable to assume that they will require different levels of

ability to deal with them. Thus, contrary to Roesch et al. (1999), the problem is, indeed, whether or not

the standards for various, contextually defined, legal competencies are higher, different, or the same.

And the logical answer is that they should be higher and different—that is, that they should vary in both

degree and type—reflecting individual differences in both the strength of the general, neurologically

determined ability to cope, similar to the way in which the concept of intelligence has traditionally been

considered to reflect individual differences, and individual differences in the underlying neurologically

determined ability that is actually required for coping, such as memory, and the abilities to understand

and communicate.

Related to the idea of neurologically based competences is mental disorder; what is often overlooked

in the academic literature on competency is that incompetency is to be attributed to mental disorder (see

Roesch, Jackson et al., 1984; Roesch, Webster et al., 1984). For example, s.2 of the Canadian Criminal

Code states that unfitness—the lack of competency—to stand trial ‘‘means unable on account of mental

disorder. . ..’’ This is very important from the point of view of remediation. The lack of competency, to

be significant, must be attributable to a psychological disability, and not to ignorance. While inability to

acquire knowledge may be a symptom of a mental disorder, inability to acquire knowledge is not a

mental disorder per se. Furthermore, unlike most mental disorders and/or their symptoms, the lack of

knowledge does not respond to medication. A lack of knowledge is remedied by learning; and, as with

individuals who are unable to participate in the trial process because of a language difference, the

remedy is nonpsychiatric, and can be obtained via an adjournment rather than a judicial finding of

incompetency. Conversely, for those individuals who have been appropriately declared incompetent by

virtue of a mental disorder, programmes to restore competency that rely on education are inappropriate.

Persons who have been declared incompetent to stand trial by virtue of a mental disorder require

psychiatric treatment to restore competency, not a modular educational programme on the purpose and

process of court proceedings. A modular educational programme may be necessary, but such a need, on

its own, would justify an adjournment, not a judicial finding of incompetence.

5. Expert testimony

In several U.S. states—that is, Illinois, Florida, and Utah—the courts require expert testimony to

address the variables underlying competency, and not competency itself. Indeed, in People v. Harris


(1983) a psychiatrist’s report was rejected because it failed to do this, offering, instead, an opinion on the

ultimate issue.

This decision is essentially consistent with existing psychological knowledge, which would suggest

that competence to participate in different aspects of the trial process is determined by different levels of

certain basic psychological ‘‘traits,’’ such as intelligence, and ability to understand—with the actual level

depending on the complexity of the courtroom issues involved—combined with specific knowledge

relating to those issues.

The fundamental difference between competency to manage one’s own affairs and competency to

waive counsel may be most parsimoniously regarded as a function of the extent to which the individual

is familiar with, and/or has knowledge of, the contextual variables in the different situations; with the

required level of intelligence and/or ability to understand being determined by the complexity of the

situations.

Bonnie (1992) has argued for two ‘‘related but separable constructs,’’ competence to assist counsel,

and decisional competence. To the extent that one is more dependent than the other on the ability to

communicate, and on memory, his argument would appear to be consistent with psychological

knowledge. More importantly, he has pointed out that a full assessment of competence to assist counsel

necessitates an assessment of the competence of counsel to be assisted. Whether or not an accused

person can assist counsel will be partially dependent on the type of assistance required, and counsel’s

ability to understand the assistance given, that is, on counsel’s ability to communicate with his/her client.

This was acknowledged by Bonnie when, after stating that ‘‘‘competence to assist counsel’ must be

sufficiently linked to the particular defendant’s situation to take into account the complexity of the

charges and the attorney’s actual need for information’’ (p. 302), and that ‘‘the attorney is best suited to

know whether the defendant’s impairments compromise defense of the case’’ (p. 303), he stated that

‘‘[I]ssues relating to adequacy of attorney performance often masquerade as issues of client compe-

tence’’ (p. 304).

The psychological complexity of the legal concept of competency is illustrated by Grisso et al.

(1995b). In an article subsequent to the one cited by Roesch et al. (1999), Grisso et al. (p. 170), as noted

above, explicitly deny measuring legal competencies per se. The decisional abilities they identify are

understanding treatment decisions, perception of disorder, and thinking rationally about disorder.

Unfortunately, influenced by academics in the area of law and psychology, whose explication of legal

constructs rarely goes beyond the legal precedents and literature relating to decisions of the court, even

clinicians, both psychiatric and psychological, have a tendency to either consider only the diagnosis of

mental disorder, or address the ultimate legal issue. Despite references to psychological attributes and

processes, such as ‘‘decisional abilities,’’ basic psychological knowledge rarely contributes to the

analysis by academics in the area of law and psychology, and consequently rarely informs the testimony

of expert witnesses.

6. Summary and conclusions

The legal concept of competency is an example of what Pap (1953) has called an open concept. Such

a concept acquires its meaning from a theoretical network of variables and constructs within which it is

embedded. The variables and constructs considered in the explication of competency have been

predominantly those that are readily apparent in the legal context within which competency is an issue.


Thus, consistent with Roesch et al.’s (1999) reference to the ‘‘contextual determination of specific

psycholegal abilities,’’ we find Bonnie (1992, p. 292) stating that

Efforts have been made to develop structured protocols for assessing the psychological capacities

thought to be relevant to the ultimate legal judgment, but they have been only modestly successful

because the concept of competence is so ill-defined; it has aptly been characterized as an ‘open

construct’ with little determinate content independent of the context in which the competence issue is

raised.

The lay meaning of competence is neither complex nor obscure. It means ability to perform a task in

accordance with a specified standard, and is usually qualified by indicating the task involved. Thus, it

may be said that people are competent to look after themselves, competent to drive a car, etc. In this

respect, the recognition of a variety of legal concepts of competence would appear to be consistent with

lay usage. However, the ability to perform a task is a product of one or more psychological aptitudes or

potentials, and acquired knowledge.

To identify different abilities in terms of the context within which they are exercised, coining such

terms as ‘‘psycholegal abilities,’’ despite the ‘‘psycho’’ prefix, is at variance with current psychological

knowledge and understanding. The term psycholegal ability conflates the psychological concept of

ability as potential, with the concept of ability as capacity or performance.

Law and psychology package the concept of capacity in different ways. The law is concerned with

decisions, and defines these decisions in terms of the contexts within which they are made. Psychology

is concerned with abilities, and it is a mistake to try to match those abilities to the legal, contextually

defined decisions.

The psychological conceptualisation of competence is consistent with U.S. and Canadian court

decisions that there is only one competency standard, insofar as all the different legal competencies are

dependent on certain psychological processes or potentials. Furthermore, it would be consistent with the

equating of those psychological processes with cognitive intelligence. The implications of this are

twofold. First, tests of legal competency that focus on knowledge are irrelevant: the focus should be on

the general ability to understand and the general ability to communicate. Second, treatment programmes

for accused persons who have been found to be incompetent, which focus on education to deal with a

lack of knowledge, are examples of psychology searching for a dime under a street lamp: that is not

where the dime is lost, but it does make for an easier search!

The assessment of competency requires more than a test, the results of which can be represented by a

single number, or even a profile; it requires a complex algorithm. For competence to stand trial, many of

the elements of that algorithm cannot be measured in advance of the trial—the communications skills of

counsel, for example, and the tolerance of the judge. Furthermore, even if they could be measured, the

interaction of the various elements is unknown. As a result, the best that psychology has to offer the

courts in the assessment of competency/fitness is an opinion regarding the presence/absence of mental

disorder and, if present, the effect its symptoms are likely to have on the requirements for competency/

fitness which the courts have spelt out. It is then up to the other participants in the trial—the judge and,

indirectly, counsel—to determine the issue. Psychology cannot do it for them, neither legally nor

scientifically, and certainly not practically. Insofar as legal standards for competency/fitness require

effective communication, a complete psychological assessment of competency would require assessment

not only of the accused person but of all other parties to the communication. It is unlikely that counsel


would consent to such an assessment, and even more unlikely that the presiding judge would agree to the

assault on the dignity of the court that this assessment would constitute.

Many courts ascribe this limited role to expert witnesses. Unfortunately, there are other courts in

which both lawyers and judges are willing to defer to expert opinions which, in the case of fitness/

competency to stand trial, are often poorly informed.

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psychological support for the concept of psycholegal competencies

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