The Growing Admissibility of Expert Testimony by Clinical Social Workers on Competence to Stand Trial

Psychiatric, psychological, and legal observers have noted persistent shortcomings in the quality of evaluations for competence to stand trial since at least 1965 (Vann, 1965). Recent reviews by Nicholson and Norwood (2000) and Wettstein (2005) of multiple studies (10 and 19, respectively) that assessed the quality of criminal forensic evaluations found "the practice of forensic psychological assessment falls far short of its promise" (Nicholson & Norwood, 2000, p. 40) and that "much work remains to be accomplished in improving the quality of forensic evaluations of evaluators with or without specific forensic training and experience" (Wettstein, 2005, p. 172). Remedies proposed include increased training, specialization, certification, and credentialing of forensic evaluators, although a recent study by Frost, Camara, and Earl (2006) found that as of 2005 only 16 states required or encouraged additional training before evaluators could testify, and only 10 had a forensic certification program. Enlarging the pool of potential forensic evaluators would expand those eligible for specialized training, could reduce shortages of evaluators, and would address conflicts of interest for evaluators employed in the public sector and between evaluators and treaters in the same facility--both noted as ongoing problems (Frost et al., 2006). Social workers, the nation's largest category of licensed clinical mental health professionals, are natural candidates for inclusion in an expanded pool of forensic evaluators--especially to evaluate competence to stand trial. Although forensic evaluation statutes in all but six states now allow psychologists and psychiatrists to be forensic evaluators, only seven states explicitly allow other mental health professionals to conduct forensic evaluations--and then often only of certain evaluations or in certain types of cases (Frost et al., 2006). Despite this moderate statutory and regulatory expansion of professionals eligible to conduct forensic evaluations (Frost et al., 2006), trial courts---even without explicit statutory or regulatory authority--are expanding the pool of those who can give expert testimony on competence issues to include clinical social workers based on judges' inherent power to qualify persons as expert witnesses (State v. Reese, 1989; State v. Gans, 1983; State v. Scala, 1985; People v. R. R., 2005; People v. Villanueva, 1988; State v. Torres, 2001; State v. Mackey, 1982; United States v. McCarthy, 1995). Competence questions, the most frequently arising forensic mental health issue in criminal cases, produce an estimated 50,000 to 60,000 evaluations annually (Bonnie & Grisso, 2000; Rogers, Grandjean, Tillbrook, Vitacco, & Sewell, 2001). Social workers in mental health organizations and general hospital psychiatric services have outnumbered combined psychiatrists and psychologists in these facilities since 1990 (National Mental Health Statistics, 1998). Despite the clinical burden competence evaluations impose, the statutes and administrative regulations of only eight states--Connecticut [Conn. Gen. Star. Ann. [section] 54-56d(d) (2006) (as a clinical team member)]; Louisiana [La. Stat. Ann., Code Crim. Pro. Art. 644; Art. 646 (2006) (as a clinical team member)]; Nevada [Nev. Rev. Stat. [section] 178.415 (2006) (for misdemeanors only)]; North Carolina [N.C. Gen. Stat. Ann. [section] 15A-1002; N.C. Admin. Code tit. 10A, r. 27G.0104 (2006)]; South Carolina [S.C. Code 1976 [section][section] 44-23-410; 44-23-10 (2005); S.C. Admin. Code Sec. 87-1 (2005)];Tennessee [Tenn. Code Ann. [section] 33-7-301;Tenn. Comp. R. & Reg. Ch. 0940-3-3.07 (2005)]; Utah [Utah Code Ann. 1953 [section][section] 77-15-5; 62A-15-602(3), 62A15-606 (2005)]; and Washington [West's Rev. Code Wash. 10.77.060.; 10.77.010 (2005)])--explicitly permit appointment of clinical social workers to conduct competence-to-stand-trial evaluations, whereas all 46 states that specify who can perform evaluations allow appointment of any licensed psychiatrist or (in all but one) any licensed psychologist. …