Dr. Patricia Zapf Provides a Forensic Psychologist’s Perspective on Preparing Experts Testifying on Competency

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Dr. Patricia Zapf Provides a Forensic Psychologist’s Perspective on Preparing Experts Testifying on Competency

Dr. Patricia A. Zapf, Ph.D., a Professor in the Department of Psychology at John Jay College of Criminal Justice brought to bear her many years of experience researching and performing competency examinations on individuals.  She has worked on a variety of cases, some as serious as Jose Padilla the one-time considered enemy combatant by George W. Bush.

Dr. Zapf discussed the absolute minimum requirements that an expert should meet in order to perform a quality competency examination.  The most important of which (and unfortunately an ever guiding principle) is that the expert should understand both competency laws and the laws in which the defendant is accused.

Dr. Zapf described that competency comes down to decision making and communicating with defense counsel.  The focus should no longer be on whether the defendant understands what the job of a judge or defense lawyer is.  Rather the focus should be on determining the defendant’s functional abilities.  Or, if the defendant really understands what he is being charged with and is able to think through different decisions he can make for different outcomes in the case.  The evaluation must be case specific as it is different to be competent for an open-and-shut case of misdemeanor assault, than a murder conspiracy charge involving multiple defenses.

The expert should first have an understanding what goes into the defense of a case, and then determine if the defendant can make decisions related to the defense.  Statistics from Dr. Zapf’s abundant research on this issue include two different studies that determined either 0% or at best 12% of all reports reviewed delineated the congruence between the defendant’s capabilities and his/her case context.  The failure to do this in all cases or in all but 12% of the cases does not conform to the American Association Practice Guidelines for the Forensic Psychiatric Evaluation of Competence to Stand Trial.

The criminal justice system as a whole needs to push for more comprehensive evaluations to save time, to save money, and for the sake of humanity.



Iris Eytan is a Partner at Reilly Pozner LLP. She practices Criminal Defense with an emphasis in mental health defenses.