mental illness and/or dementia, on the other hand,
sometimes lose their ability to reason abstractly and to
understand legal processes.Kimberly A. Larson, Michael P. Griffin,
and J. Gregory OlleySee also Competence Assessment for Standing Trial for
Defendants With Mental Retardation (CAST*MR);
Competency, Restoration of; Competency Assessment
Instrument (CAI); Competency for Execution;
Competency Screening Test (CST); Competency to Stand
Trial; Competency to Waive Appeals; Competency to
Waive Counsel (Proceed Pro Se)Further Readings
Cunningham, M. D., & Goldstein, A. M. (2003). Sentencing
determinations in death penalty cases. In A. M. Goldstein
(Ed.),Handbook of psychology: Vol. 11. Forensic
psychology(pp. 407–436.). Hoboken, NJ: Wiley.
Dusky v. United States, 362 U.S. 402 (1960).
Melton, G. G., Petrila, J., Poythress, N. G., & Slobogin, C.
(1997). Psychological evaluations for the courts: A
handbook for mental health professionals and lawyers
(2nd ed.). New York: Guilford Press.COMPETENCY TOCONFESS
Competency to confessrefers to a suspect’s ability to
make a knowing, intelligent, and voluntary waiver of
the Mirandawarnings at the time of police question-
ing. Confessions that are given after a suspect waives
his or her Miranda rights are sometimes challenged on
the basis that the suspect was not competent to confess,
meaning that the suspect was not capable of making a
knowing, intelligent, and voluntary waiver of the
Mirandarights and therefore could not have under-
stood, appreciated, and willingly waived those rights.
A confession that is successfully challenged cannot be
used in court against the defendant. Assessment of
competency is therefore performed after the confes-
sion is given. This assessment is performed by a men-
tal health professional (often a forensic psychologist)
and takes into account the defendant’s ability at the
time of the interrogation to understand the warnings
and make intelligent use of them and the psychologi-
cal factors that could be relevant to the court in assess-
ing the voluntariness of the waiver.In the 1966 Miranda v. Arizonacase, the U.S.
Supreme Court ruled that any statement arising from
the custodial interrogation of a suspect would be pre-
sumed involuntary and thus inadmissible unless the
police provide the suspect with four warnings: (1) the
suspect has the right to remain silent, (2) any state-
ments made by the suspect can be used in court
against him or her, (3) the suspect has the right to the
presence of an attorney before and during the interro-
gation, and (4) an attorney will be provided free of
charge if the suspect does not have the ability to pay
for one. Many jurisdictions have added a fifth prong,
that these rights can be invoked at any time during the
interrogation process and that once they are invoked,
the questioning must cease until an attorney is present.
The U.S. Supreme Court in the Miranda decision
opined that these rights must be waived knowingly,
intelligently, and voluntarily. Case law has clarified
the meaning of these three prongs.
The term competency to confessis a misnomer
because it explicitly refers to one’s ability to understand
and appreciate the significance of the Miranda rights at
the time of police questioning. It also refers to the psy-
chological characteristics of a defendant that have an
impact on the voluntariness of the Mirandawaiver.
Thus, this competency differs from other competencies
(e.g., competency to stand trial, competency to consent
to treatment) in that the mental health professional must
examine the individual’s competence at some point in
the past. The court is not concerned with current or
future competency with respect to Miranda warnings;
rather, the court is concerned about whether the defen-
dant was able to make a knowing and intelligent waiver
at the time he or she was questioned by the police.
Also, not all three prongs needed to effectuate a
valid Mirandawaiver can be addressed completely by
the mental health professional. Case law clearly indi-
cates that for a waiver of rights to be deemed involun-
tary, there must be a showing of police misconduct. It
has to be shown that the police were unduly coercive
and overstepped their bounds in extracting a Miranda
waiver. It is beyond the scope of a mental health
expert’s expertise to determine whether and how that
threshold was crossed. Yet psychological expertise
can be useful to the court in determining whether a
suspect possesses psychological characteristics that
increase his or her susceptibility to the effects of
police conduct. Such characteristics include interrog-
ative suggestibility, compliance, intellectual function-
ing, anxiety, memory, and sleep deprivation. There are118 ———Competency to ConfessC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 118