March 2003

Varieties of Thought Disorder in the Criminal Context

by Delton W. Young, Ph.D

There are two broad classes of cognitive impairment potentially severe enough either to comprise a mental defense or to raise questions of competence. The simplest form of such impairment is mental deficiency (retardation) — neurologically based, stable impairment in the capacity to perceive, comprehend, reason and communicate. The assessment of mental retardation (usually indexed by an IQ below 70) is relatively straightforward, with several highly regarded tests for assessment of intellectual skills and academic achievement.¹ When courts find defendants not competent to stand trial, it is most often because of such intellectual limitations. This article will focus, however, on the other class of cognitive impairment, where there are disturbances in perceiving, thinking and communicating in intellectually normal individuals.

    A substantial proportion of defendants prosecuted in criminal and juvenile ourts have histories of psychiatric disorder of one kind or another. Indeed, in recent years both juvenile and adult correctional facilities have witnessed large increases in the number of inmates suffering diagnosable mental or emotional disorders. These span nearly the full range of psychiatric conditions, including mood disorders such as depression and bipolar disorder, anxiety disorders, attention-deficit disorder, substance abuse, post-traumatic stress, developmental disorders, and even schizophrenia.

    It can be difficult for both prosecutors and defense attorneys to discern what role, if any, a defendant's psychiatric disorder may have played in the behaviors leading to criminal charges.  Whether a given mental condition might legitimately form the basis of a mental defense is complicated, first, by the challenges of applying psychiatric concepts and terminology to the language of criminal statutes. Second, there is the still-notorious unreliability of psychiatric diagnosis, with different experts rendering different diagnoses. Finally, there is the problem of inferring the defendant's mental state at the time of the offense from an evaluation conducted weeks or months after the fact. Lurking in the background of some mental defenses is the possibility that the individual is faking symptoms in an effort to escape responsibility.

    Psychiatric disorders can impose an immediate challenge, too, as the defense attorney grapples with the manifestations of the client's disorder. Troubling attributes may include impaired reasoning and communication skills, and self-defeating behaviors such as failing to appear for hearings, lack of motivation, and dishonesty. Deficiencies in communication and understanding may raise doubts about whether the client's capacities meet the Dusky standard for competence to stand trial.²

    Regardless what psychiatric disorder is diagnosed or suspected, the essential element in any defendant's condition — one that may play a major role in the prosecution and defense — is impairment in the defendant's capacity to think and perceive normally, commonly known as cognitive impairment. Any mental defense or question of competency will turn solely upon the matter of cognitive capacities. Extreme or erratic emotional forces, severe impulsivity, overwhelming passion, and even horrific experiences of violence or trauma cannot form the basis of a defense or claim of incompetence unless accompanied by demonstrable cognitive impairment.

    The generic term for impairment in cognitive processing in intellectually normal individuals is "thought disorder." Thought disorders occur in several varieties and can range in severity from clinically significant to severe and disabling. When a thought disorder entails a failure of the ability to distinguish external reality (reality testing), then the term "psychotic" is applied. Where there is such a distinct failure of reality testing, a case might be made for the defendant lacking the capacity to distinguish right from wrong or to perceive the nature and quality of his acts (insanity defense). Similarly, psychotic states might preclude the capacity to form the requisite mental state of intent as defined in the criminal statute (diminished capacity).

    The duration of psychotic states can vary considerably depending on the illness, ranging from days or weeks, to months or even years. Transient psychotic episodes refer to the phenomenon of brief periods wherein the individual's thinking is compromised to such a degree as to earn the designation "psychotic." While such episodes can occur in a variety of psychiatric disorders, they most often result from drug or alcohol intoxication in combination with other conditions (e.g., borderline personality disorder or post-traumatic stress disorder). Mental defenses can be based upon such transient states, but there are obstacles. First, it can be difficult to document the specific impairments in cognitive functioning at the time of the alleged offense when such a state occurs only under certain circumstances. Second, in Washington, if voluntary ingestion of drugs or alcohol is involved, the insanity defense may be excluded, depending upon the severity of the thought disorder in the absence of intoxication.³

    Thought disorder can be divided into two broad classes: (1) disturbances in the content of thinking and perceiving (hallucinations and delusions), and (2) disturbances in the form of thinking (formal thought disorder).

    Hallucinations and delusions are often referred to as "first-rank" symptoms of psychosis because they are strong indicators of a breakdown of reality testing. Hallucinations are perceptual disturbances wherein internal mental events (e.g., fears, wishes, fantasies) are mistaken for external reality. Auditory hallucinations are the most common symptom of psychosis, and they occur in a wide variety of psychiatric disorders — severe mood disorders (e.g., major depression, bipolar disorder), schizophrenia and others. Auditory-command hallucinations direct the individual to specific actions; hence, these are sometimes described in insanity defenses. Visual hallucinations are uncommon and, when they do occur, are often the results of neurological conditions. Other forms of hallucination (tactile, olfactory and kinesthetic) are even less prevalent and seldom play a role in criminal defense.

    Criminal deeds surely can be the product of hallucinations. The difficulty is that such mental events are entirely subjective, and no test can objectively verify specific hallucinatory content. On the other hand, thorough clinical evaluation can confirm a history and symptomatology that is consistent with a given hallucinatory content, and the defendant's behavior and speech around the time of the alleged offense can also support the defense claim of such hallucinations.

    The other kind of thought disorder involving cognitive content is delusions. Delusions are false beliefs that are rigidly held despite strong evidence to the contrary. Disconfirming information is reinterpreted by the patient to fit and sustain the delusion. In many cases, delusional thinking is obvious shortly after the defendant begins to tell his story. Delusions are often chronic, sometimes persisting for years, and they occur in several types: delusions of grandeur ("I am a Cherokee prince"); delusions of jealousy usually involving infidelity of one's sexual partner; delusions of persecution ("I am being harassed by corporate malefactors"); and other less common forms.

    Delusions can occur in many different psychiatric disorders, and the particular beliefs can range from plausible to bizarre. Because individual behavior is closely tied to one's beliefs, delusions have the power to produce behaviors that violate social and legal norms. Even when specific criminal acts clearly are the product of delusions, however, the insanity defense is commonly confronted with a crucial weak link. This is because even in the midst of delusion-driven acts, the individual often seems to retain some recognition — perhaps a weak recognition — of social norms and limits. Many flagrantly delusional patients who commit criminal acts behave as if they know they have done something wrong. They may proceed to run away, hide, disconnect phone cords, etc. — all acts that at trial may be taken as evidence of knowing the wrongfulness of the acts in question.

    The other broad class of thought disorder, formal thought disorder, involves disruption in the individual's capacity to think and reason coherently. Formal thought disorder is observed through the patient's speech and communication processes. Such disordered speech may be pressured, tangential, circumstantial; or employing loose or remote associations, idiosyncratic reasoning, or even autistic logic.

    Formal thought disorder may be observed in many different psychiatric conditions. Whether any given instance of formal thought disorder entails a clear failure of reality testing (i.e., psychotic) depends upon its severity. Severe formal thought disorder can undermine the individual's capacity to understand and to reason normally. The result can be markedly impaired capacity to read social situations and meanings, and to plan one's actions and anticipate consequences. Bizarre or even criminal behavior can result.   

When defense attorneys raise doubts about their clients' competency to stand trial, it is sometimes because of communication deficits occasioned by formal thought disorder. Formal thought disorder can be assessed through interviews and mental-status examination by documenting the disordered form of the client's reasoning and explanations. It also can be assessed through more objective, structured methods of psychological testing.⁴

    Where thought disorder plays some role in the defendant's behavior, evaluation by a forensic mental-health expert can usually document the nature, severity and history of such disorder. Proper evaluation, as always, should rely not only upon multiple sources of information, but multiple types of sources (documentation, interviews, collateral contacts, various types of psychological testing, etc.). Evaluation that is well-grounded and thorough can provide the defense with a robust formulation about the defendant's thought disorder and likely mental status at the time of the alleged offense. The more difficult task is to establish the connection between the defendant's mental status and the particular acts for which he is charged in a way that conforms to the statutory definition of the mental defense. As always, the role of the expert is not to offer an opinion on the ultimate issue (e.g., insanity), but to provide the trier of fact with clear and scientifically grounded information that is relevant to that ultimate issue. 

A past Bar News contributor, Dr. Young is a forensic psychologist with Interlake Psychiatric Associates in Bellevue. He has served on the clinical faculties at Harvard Medical School and the University of Washington Department of Psychiatry and Behavioral Sciences. He is the author of Wayward Kids: Understanding and Treating Antisocial Youth.

 NOTES

1. For individuals 16 years and older, the Wechsler Adult Intelligence Scale, 3rd Edition (WAIS-III) is the most widely respected instrument. For juveniles age six through 16, the Wechsler Intelligence Scale for Children, 3rd Edition (WISC-III) is standard.

2. Dusky v. U.S., 362 U.S. 402 (1960).

3. RCW 10.77.010(7); State v. Wicks, 98 Wn.2d 620, 657 P.2d (1983).

4. The Rorschach Inkblot Test, with its empirically validated Exner scoring system, is particularly sensitive to formal thought disorder, and is nearly impossible to either malinger symptoms that are not present or to conceal existing thought disorder.