Do Defense Attorney Referrals for Competence to Stand Trial Evaluations Depend on Whether the Client Speaks English or Spanish?

Varela, J.G., Boccaccini, M. T., Gonzalez, E. Jr., Gharagozloo, L., & Johnson, S. M. (2011). Do defense attorney referrals for competence to stand trial evaluations depend on whether the client speaks English or Spanish? Law and Human Behavior, 35, 501-511.

According to Varela, Boccaccini, Gonzalez, Gharagozloo, and Johnson (2011), approximately 60,000 competency to stand trial (CST) evaluations are held each year in the United States, making it the most common forensic mental health evaluation conducted. This evaluation determines whether the defendant has a degree of rational and factual understanding sufficient to consult with a lawyer and stand trial.  Given the marked increase in the number of Spanish speakers in the United States, a lack of Spanish-speaking attorneys, and the frequent use of interpreters in the courtroom, the authors sought to investigate whether language might affect defense attorneys’ decision to refer a client for a CST evaluation. The authors surveyed 142 criminal defense attorneys randomly selected from the membership of the Texas Bar.  Participants responded to one of four scenarios that varied by language spoken (English or Spanish) and salience of mental illness (clear or ambiguous). Each scenario described an interaction between a defense attorney and a hypothetical criminal defendant. Those involving a Spanish-speaking defendant included Spanish statements with English translations that were described as produced by an interpreter.  Results showed that attorneys rated the Spanish-speaking defendant as less mentally ill and were less likely to refer him for a CST evaluation. These findings were more pronounced when responses from a subset of Caucasian attorneys were analyzed separately. Varela, Boccaccini, Gonzalez, Gharagozloo, and Johnson (2011), proposed that this tendency to under-refer Spanish-speaking defendants for CST evaluations may be due to (1) participants’ expectations about the difficulties of securing CST for a Spanish-speaking defendant, (2)  increased ambiguity about the presence of mental illness due to use of an interpreter, (3) stereotypes about criminality that were activated in the Spanish-speaking condition, (4) a misperception that the religious and government-themed statement used to indicate mental illness were more characteristic of Spanish- than English-speakers, or (5) an “overcorrection” in which participants strove to avoid appearing racist.  It is not clear whether these scenario-based results would occur in an actual courtroom situation. If, in fact, this type of under-referral actually occurs, it would result in a larger number of Spanish-speaking than English speaking defendants being put in a position in which they are unable to competently assist in their own defense.

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