Forensic mental health evaluations in Colorado juvenile criminal cases can be a helpful tool and can be used to examine culpability, to prepare for transfer, and/or to aid with the resolution of the case.
Competency Evaluations for JuvenilesForensic competency evaluations are used to determine if the juvenile has all of the necessary capacities to participate in her defense, including tasks like assisting counsel, entering a plea, taking the stand, and choosing a jury.
Competency also relates to the juvenile’s capacity to make a knowing and voluntary confession to police. A competency evaluation should not include information regarding the juvenile’s version of the alleged offense. The criminal defense lawyer should consider requesting the assistance of a mental health expert in preparing his defense.
How a Juvenile Mental Health Evaluation can Affect the CaseIt may initially seem that getting as much information as possible about a juvenile’s mental health or competency would be helpful, but one needs to keep in mind that there are risks to doing so.
Some evaluations or mental health diagnoses lead courts to lean toward more restrictive placement than is reasonable given the offense. A mental health expert may find that the juvenile is a danger to herself or others and recommend that she be incarcerated or placed in a residential program. In a competency evaluation, the expert may determine that the juvenile is incompetent due to a mental illness and recommend psychiatric institutionalization that can last much longer than any disposition based on the offense.
During a mental health or competency evaluation, the juvenile might reveal incriminating facts about the present offense or other incidents. If the prosecutor becomes aware of this information, he could use it to bolster his case and/or weaken the criminal defense lawyer’s.
In less serious cases, raising mental health or competency issues can expose the juvenile to much lengthier periods of court involvement when she might otherwise have been placed on a short period of probation. This concern does not mean that the lawyer should always discount mental health and competency issues in less serious cases, rather the lawyer should be prepared to advocate for less restrictive alternatives to the court if the lawyer is compelled to raise such issues.
Raising mental health or competency issues may also increase scrutiny of the juvenile’s family. If the court learns that the family has failed to arrange treatment for or cannot cope with a child’s diagnosed mental health condition, there is a risk that the juvenile will end up institutionalized or in abuse/neglect proceedings.
Legal Issues a Juvenile Mental Health Evaluation May AddressDespite all of the risks, both procedural and evidentiary, evaluations can lead to the juvenile’s best defense in a number of different juvenile court contexts.
Colorado Juvenile Mental Health EvaluationsA mental health evaluation will provide the court with an assessment of the juvenile’s mental health and should describe her strengths, immaturity, disabilities (including mental and emotional functioning), and recovery from trauma.
The Colorado juvenile criminal defense lawyer should consider the advantages of proffering this related information to the court when….
The Juvenile is Facing Transfer to Adult CourtGenerally, the critical issue in a discretionary transfer hearing is whether the court finds that the r juvenile is amenable to treatment. A mental health evaluation that includes a developmental assessment may be the strongest way to argue that the juvenile can be rehabilitated and has not previously received adequate services to address significant disabilities, trauma or delayed development. In addition to having positive facts about the juvenile, this evaluation and testimony supporting the defense lawyer’s claim that he is amenable can be the strongest evidence the lawyer can offer.
If Culpability is at IssueA mental health evaluation can support a claim that the juvenile did not have the intent required to commit the petitioned offense. Even if the juvenile’s mental state at the time of the offense does not rise to the level of a defense, it may be solid grounds for mitigation at disposition.
The Lawyer Believes That her Case Should be DivertedIf the juvenile’s mental health or simple immaturity led to his court involvement, a juvenile criminal defense lawyer may decide to file a motion to dismiss and argue that the juvenile’s primary issue is her mental illness or limitation. An evaluation that measures the juvenile’s development, including intellectual and emotional functioning, can support a claim that voluntary community-based programming will address the issues that led her to court.
For example, imagine the a juvenile that is mentally disabled. She is charged with indecent exposure because she flashed her breasts on her way home from school; she thinks the event was really funny.
The expert’s evaluation showing that the juvenile has developmental delays and cognitive limitations supports the defense lawyer ‘s motion for dismissal.
The Colorado Juvenile Criminal Defense Lawyer are Preparing for DispositionIn instances when the criminal defense lawyer knows that the lawyer’s recommendation for sentencing will be contested, an evaluation that highlights the juvenile’s strengths and testimony that speaks to effective services to meet the juvenile’s needs can influence the judge to find that the lawyer’s recommendation is the most reliable.
Colorado Juvenile Court Competency EvaluationsCompetency evaluations analyze whether the juvenile has the capacity and/or abilities to proceed/assist in her own defense or to knowingly and voluntarily waive her Miranda rights. Raising competency and requesting a competency evaluation may help in the preparation of her defense when:
The Juvenile may not be Capable of Assisting in His DefenseIf the defense lawyer is wondering whether he has the capacity to assist in his own defense, the juvenile criminal defense lawyer may want to have him evaluated for adjudicative competence.
The Juvenile Does Not Understand What it Means to Enter a PleaIf the juvenile criminal defense lawyer questions whether the juvenile has the ability to knowingly waive his trial rights and/or understand what he is admitting to in a plea,
The Juvenile did not Understand him Right not to Give a Statement to the PoliceWhen interrogation is involved, the juvenile criminal defense lawyer should explore whether the juvenile knowingly, voluntarily, and intelligently waived his Miranda rights.
There are tests that a mental health expert can administer specifically designed to determine if a child’s Miranda waiver was valid. A finding that a juvenile’s waiver of Miranda was not valid will provide the judge with a basis to suppress the statements that he gave to the police.
Methods Used In Juvenile Mental Health EvaluationsThe goal in getting an expert’s evaluation of the juvenile is to assist the criminal defense lawyer in preparing a juvenile’s defense and to assist the court in its decision-making. When looking at the mental juvenile, it can be difficult to determine which method of evaluation will provide the most helpful information to answer the legal question(s) at hand.
There are hundreds of types of evaluations, assessments, and tests that can be used in juvenile court. Depending on the context, the juvenile criminal defense lawyer will decide, or advocate for, which method of evaluation seems most appropriate and which evaluator (with the appropriate training and credentials) should conduct it.
Juvenile’s Developmental FrameworkTraditional competency and mental health evaluations often do not provide a thorough assessment of the disabilities, trauma and immaturity that contributed to the juvenile’s actions at the time of the alleged offense or him ability to participate in decision-making about his case.
Whether the legal question at hand is competency, culpability, amenability, or another issue, the lawyer should request that the evaluation be conducted within the framework of a developmental assessment..
To determine the juvenile’s:
A developmental assessment reveals how immaturity, disabilities, and trauma are woven together. These highly descriptive reports help the court understand a juvenile’s behavior and individual needs.
Developmental assessments consist of:
If competency is at issue, the developmental assessment can provide a framework for an assessment of the juvenile’s comprehension of Miranda rights or include easily understood hypotheticals to evaluate him capacity to assist counsel. Neuropsychological, educational and other testing, which require additional hours beyond what is described above, may also be utilized to complete the developmental picture of the juvenile.
While developmental assessments provide a wealth of information, they also merit caution.There is a danger that the evaluator will obtain harmful details or elicit statements that could be used against the juvenile. In the course of a developmental assessment, the juvenile may be asked several times to describe the alleged offense in detail. The evaluator may ask the juvenile about any discrepancies between him descriptions and the statements of others.
In writing, the evaluator should be directed to avoid discussing the alleged offense if it is not necessary for the evaluation (e.g. when the question is the juvenile’s competency to waive him Miranda rights)
Evaluators familiar with developmental assessments will observe the juvenile’s decision making based on how she responds to hypotheticals. The evaluator may also ask him to recount significant interpersonal choices made recently. Descriptions of his decision making will be sought from family and other care givers to gain information and closely observe the differences between the way the juvenile is described by others and his behavior in the interviews.
Experienced evaluators will pay careful attention to the juvenile’s functioning prior to the offense and methodically consider, through record review and questioning individuals who know the juvenile, information which corroborates or contradicts characteristics observed during the interviews.
Accurate assessment requires the evaluator to recognize that the juvenile’s reaction to the offense, separation from family, potential post-arrest sobriety, and fears about the future significantly affect him current functioning.
Determining The Juvenile’s NeedsBased on the full assessment of how the juvenile is progressing, a developmental assessment will generally list the juvenile’s needs specifically and describe what services it will take to meet those needs.
The evaluator should not to include this information in writing if it is not warranted. For example, it is not necessary to include service needs in a determination of whether the juvenile had the requisite mental state (mens rea) to commit the offense. If a treatment recommendation will strengthen the defense, then working with the evaluator to convene a family meeting will offer a valuable way to assess the juvenile’s likely response to treatment.
Clinical Mental Health EvaluationsThe descriptions that follow provide basic information about the major methods of evaluations the juvenile criminal defense lawyer will see in juvenile court.
Diagnostic evaluations (from the DSM-IV-TR)Diagnostic evaluations should provide a picture of the Colorado juvenile criminal defense lawyer juvenile’s emotional adjustment and functioning. Diagnoses (e.g., of posttraumatic stress disorder, bipolar disorder, etc.) are derived from the Diagnostic and Statistical Manual of Mental Disorders 4th Edition Revised (DSM-IV-TR).
Mental health professionals — psychologists, psychiatrists, neuro- psychologists, and social workers with specialized licensing — are trained to assess symptoms and offer a diagnosis that fits into the DSM-IV-TR construct. In the DSM-IV-TR, each disorder is accompanied by a set of diagnostic criteria and explanations of specific features and symptoms, including the disorder’s prevalence in certain communities and its age-, culture-, and gender-specific features.
Common diagnoses in juvenile court include conduct disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder (ADHD). A diagnostic evaluation will often include
information about psychological testing used to determine a diagnosis. The diagnosis in and of itself tells the defense lawyer very little unless the evaluator thoroughly describes the tests he administered, the interviews he conducted, the reports he reviewed, and the responses he heard from the juvenile.
DSM-IV-TR Diagnoses Are Given Across Five AxesThe idea behind a multiaxial diagnosis is that each axis provides the Colorado juvenile criminal defense lawyer with a different piece of information. The information is separated into axes to facilitate a comprehensive evaluation rather than an undue focus on the presenting problem.
Axis I provides information on various disorders and conditions that may be the focus of treatment, e.g., anxiety disorders, mood disorders, or eating disorders.
Axis II is for disorders that represent more enduring patterns of behavior, e.g., personality disorders and/or mental retardation.
Axis III lists medical conditions that may or may not be related to the disorders in Axis I or Axis II, e.g., hyperthyroidism or enuresis (bed wetting).
Axis IV is for psycho-social and environmental problems that are impacting the functioning of the juvenile.
Axis V provides a number that indicates the Colorado juvenile criminal defense lawyer r juvenile’s current
Global Assessment of Functioning (GAF)The GAF is a 100- point tool used to rate the overall psychological, social and occupational functioning of people over 18 years of age. (It excludes physical and environmental impairment.) A children’s scale was developed by Dr. David Shaffer and colleagues at Columbia University and should be used with juveniles.
An Example Diagnosis:
Explanation: The above diagnosis would mean that the juvenile has had a persistent mood disturbance with frequent periods of depressive mood (dysthymic disorder) for at least a year (two years is required for adults). The child is mildly mentally retarded, which means that she has some cognitive deficits. The child has no apparent medical conditions and the loss of his mother is a significant stressor that likely contributes to him depression. The C-GAS indicates that the juvenile is perceived to have moderate ability to function at the current time.
Psychological EvaluationsA psychological evaluation, conducted by a psychologist, will describe the juvenile’s mental and emotional functioning. More important than the tests they will administer is the descriptive information about the findings and the juvenile.
Although test results lead the psychologist to his conclusion, the narrative is critical because a good evaluator (who has been well instructed as to the requirements for an evaluation) will discuss the juvenile’s strengths. The report should use plain language and explain why the psychologist issued the opinion given. No matter the question presented, the evaluator should offer conclusions based on testing, clinical interviews, and report reviews.
The Colorado juvenile criminal defense lawyer may want the evaluator limit the analysis to a narrow issue; but in most cases he will probably:
Psychological evaluations almost always include some battery of tests and/or assessments.
In a transfer evaluation, the psychologist may choose to conduct a developmental assessment that includes an intelligence test and a variety of other scales to determine if the child is amenable to treatment. Psychological tests measure a variety of factors that should relate to the questions presented, such as levels of depression or anxiety, intellectual functioning, interpersonal sensitivity, recovery from trauma, development, and communication skills.
A thorough neuropsychological examination, conducted by a neuro-psychologist (a doctor with specialized training in both mental health and brain functioning), will offer all of the information in a psychological or diagnostic evaluation, as well as an analysis of the juvenile’s brain functioning and impairment. Neuropsychological tests must be interpreted in conjunction with other clinical information to be useful and are not always appropriate for juveniles with cognitive deficits.
A carefully conducted neuropsychological evaluation can, however, help explain cognitive and behavioral disorders in terms of actual brain functioning. Consider requesting one if the lawyer suspects that the juvenile has suffered a head injury or has brain damage from any source, including prenatal exposure to drugs or alcohol.
Neuropsychological evaluations should include clinical interviews and reviews of the juvenile’s records, as well as provide measurable data about him cognitive abilities or deficits. As with psychological testing, there are various types of neurological assessment tools that can be used to assess cognitive impairment and functioning.
A psychiatric evaluation, conducted by a psychiatrist, should offer information about the juvenile’s history and development, as well as information about medication management. In many instances in juvenile court, however, psychiatric evaluations are very brief (lasting less than an hour) and are used to determine if a juvenile needs to be hospitalized or whether she would benefit from medication.
If the lawyer knows that the juvenile is on psychotropic medication or that she has been prescribed psychotropics in the past, the lawyer may need a psychiatric evaluation for him defense.
The Colorado juvenile criminal defense lawyer will have to work very closely with the psychiatrist in juvenile court to get a thorough evaluation.
Comprehensive psychiatric evaluations should, like other evaluations, include information about emotional, behavioral, or developmental progress/limitations; list all records reviewed, interviews conducted, and tests administered; and describe the presenting issue, the question at hand, and a clear history of the child.
If the juvenile criminal defense lawyer or the court chooses to pursue a psychiatric evaluation, the lawyer should work closely with the psychiatrist to ensure the evaluation and report include the details and descriptive information that will support the juvenile.
Psycho-social EvaluationsPsycho-social evaluations tell the juvenile’s story. A psycho-social evaluation can be conducted by any mental health professional, including a clinical social worker (whose services may be the least expensive), and should include a thorough review of records and a number of clinical interviews. If done properly, they include a great deal of information about the juvenile’s history and current status in the community: where he has lived, him family background, him educational progress, any medical or mental health issues, abuse or neglect, any court record, community activities, participation in religious activities, job history, sports, and any other forms of community involvement.
A psychosocial evaluation can be especially useful for dispositional recommendations and transfer analysis and will provide the court with a thorough and more strength-based picture of the juvenile at any phase of the proceedings (even as early as detention review). It differs from all of the evaluations described above because it usually does not include a formal diagnosis, battery of tests, description of medications, or analysis of brain functions. However, when the evaluations described previously are conducted within the developmental framework, they should include all of the information found in a psycho-social evaluation.
Competency EvaluationsThe above clinical evaluations may help answer questions raised when determining the competency of the juvenile. However, an evaluation focused specifically on competency will explore whether the juvenile has the capacity to either:
Competency evaluations require different analyses than general mental health exams because of established legal standards and specialized evaluations. Moreover, competency evaluations for a juvenile differ from those of adults because they should include a developmental assessment.
Developmental immaturity can affect the juvenile’s ability to appreciate and participate in the legal process. For example, the juvenile may be able to tell the defense lawyer that the role of the judge is to make decisions, but if the lawyer questions him further the lawyer may discover that he does not know what decisions he actually makes.
Some evaluators will issue an opinion regarding the juvenile’s competency; other will simply offer the information the court needs to decide whether the juvenile is competent.
Competence to Proceed/Enter a PleaAlthough no national standard exists for juvenile competency, lower courts have made it clear that a juvenile has a due process right to be competent to proceed in court.
A defendant is competent to stand trial if he possesses:
To safeguard the constitutional privilege against self-incrimination, a set of rights for people subject to interrogation was established in Miranda v. Arizona, 384 U.S. 436 (1966). Any waiver of the rights set out in the Miranda decision must be “knowing, voluntary, and intelligent.”
The court must consider the totality of the circumstances when deciding if a waiver of rights is valid. Essentially, “while the mere fact of being a juvenile does not invalidate a waiver, juveniles as a class are at greater risk than adults of having deficiencies in the intellectual or emotional characteristics required to satisfy the standard for valid waiver.”
In the juvenile criminal defense lawyer’s initial and other interviews with the juvenile, the lawyer should take note of any behavioral characteristic or language limitation that does not seem age appropriate and so raises questions about him abilities. The challenge comes in determining when a competency evaluation will provide the information the juvenile criminal defense lawyer need to assert the lawyer’s strongest defense.
Some additional cues that competency may be an issue worth exploring:
The evaluation should be conducted within the developmental framework that looks at disabilities, trauma and immaturity in order to answer the legally relevant question at hand use the following sample list of questions tailored to the juvenile.
The evaluator should be asked to determine:
1. Does this person have problems processing information?
2. Does this person have symptoms and history of fetal substance exposure?
3. Does this person have the symptoms of ADD/ADHD?
4. Does this person have low intelligence?
5. Was this person traumatized? (Has he/she suffered from physical abuse, sexual abuse, exposure to violence, loss of important individuals, and/or significant personal failures?)
6. Does this person have immature thinking?
7. Does this person have an immature identity?
8. Does this person have immature moral reasoning?
Mental health evaluations that are used in the context of transfer or disposition hearings toaddress mental state or for a motion to dismiss, should provide information that will assist the court in making the necessary decisions. Competency evaluations should provide the court with information about the Colorado juvenile criminal defense lawyer r juvenile’s mental, emotional, intellectual, and developmental capacities to proceed, enter a plea, or understand/waive him Miranda rights.
You can download this guide, which was published by the Federal Office of Juvenile Justice and Delinquency Prevention, in its entirety at THIS LINK
It provides basic descriptions of assessment tools and tests, including average length of time to administer each test, the age range for which each test is appropriate, whether each test is validated by research and what information or issues each test measures.
Please Call UsH. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.
In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277
If you have questions about Colorado Juvenile Mental Health Evaluations in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.