How Basic is Basic Enough? An Assessment of Legal Knowledge in the General Population in Australia

Knowledge and Opinions of Fitness to Stand Trial Elements in Australia

• Grant Alan Blake; Centre for Forensic Behavioural Science, Swinburne University of Technology, Alphington, Australia

• James Ogloff; Centre for Forensic Behavioural Science, Swinburne University of Technology, Alphington, Australia; Psychological Services and Research, Victorian Institute of Forensic Mental Health (Forensicare), Melbourne, Australia

• Rachael Fullam; Centre for Forensic Behavioural Science, Swinburne University of Technology, Alphington, Australia

Fitness to stand trial (equivalent to competency to stand trial) requires that defendants have a basic understanding of the purpose of the trial and the trial procedures. Little is known, however, about what constitutes a basic factual understanding of the matters. This study developed a legal knowledge survey in which participants were asked to define legal concepts and respond to legal scenarios. They then rated the importance of each component of the fitness to stand trial test to achieving a fair trial. Participants (N = 393; females 69.7%) aged between 18 and 66-years (M = 31.26-years, SD = 11.48-years) from each Australian state and territory completed the online survey. Legal knowledge was high (86.5% correct) and there was no difference between participants on any clinical (e.g., current or past mental illness, neurological conditions), criminological (e.g., criminal history), or demographic variable (e.g., gender, employment, education), except age (curvilinear R2 =.12). Participants under 30-years old used significantly more Americanisms on difficult items compared with participants over 30-years old. On average, participants rated almost every component of the legal test as “extremely important” to a fair trial. The legal knowledge survey had good psychometric properties (Cronbach’s a .86, interrater reliability K > .80 on most variables, single solution factor analysis). Overall, the results support the presumption underpinning the Australian test for fitness, which is that people possess a basic factual understanding of a trial and trial procedures. Further research should focus on testing knowledge in special populations (e.g., mental illness, dementia, intellectual disability).

Fitness to stand trial; competency to stand trial; medico-legal; psycho-legal Presser

“Fitness to stand trial refers to a defendant’s mental ability to assist in their defense. The legal construct exists to ensure that people with a mental illness or cognitive impairment receive a fair trial to uphold the integrity of the legal system…A broad range of necessary capacities are established in the legal and empirical literature…of which a basic factual understanding is a primary construct…Correct determinations of fitness to stand trial are essential…The standard, or threshold, for fitness to stand trial is generally low in Australia…All that is required is a basic ability to understand the purpose of a trial and the elements thereof, and to be able to follow the trial…To date, no Australian research has quantified the extent to which people understand these concepts…The peer-reviewed literature consistently states that the first and most critical step in developing a forensic psychological test is to ensure it is thoroughly grounded in an evidence-based theory of the specific construct (Grisso, 2014)…Although fitness to stand trial is ultimately a legal construct, it exists for public interest and…the general public’s perspective is often missing from this academic discourse. It is therefore of scientific and public interest to better understand how the general public perceive the test for fitness, such as how important each component of Presser [standard] is to achieve a fair trial…” (p. 241-243).

“Participants were recruited from one of three convenience samples…The online survey was developed following a literature review on the requisite legal abilities for fitness to stand trial in Australia, and with consideration of potential covariates that may affect legal knowledge…The results indicated a high level of legal knowledge and that the fitness to stand trial elements, for the most part, are perceived to be extremely important to achieve a fair trial. Possessing sufficient legal knowledge did not differ for people with or without current mental health symptoms. It similarly did not differ for people with a history of head injuries, between Australian states and territories, by gender, or educational history…Conversely, legal knowledge was significantly lower for the never married and those employed in unskilled labor, although not to a degree that would imply any practical significance…” (p.244-251).

“Perhaps the most important finding from this research was that, excluding age, legal knowledge did not differ significantly on any demographic, clinical, or criminological variable…Individuals with severe symptoms were probably unlikely to participate in the present study because it required volition, attention, and mental organization…Similarly, while there was a statistically significant inverse correlation between legal knowledge and socio-economic status, the association was weak…Age was the only demographic variable that influenced legal knowledge in this study, with a small effect size…Interestingly, younger participants were more likely to use Americanisms, such as referring to an attorney in replacement of solicitors and barristers, and describing plea bargaining when asked to define pleas. The findings suggest that legal naivete is more common in younger people, and that naivete may be compensated for by exposure to American film and television…It is positive that legal knowledge was very high and that only a very small number of participants averaged less than essentially correct knowledge…There was also no difference between the mean knowledge scores of lawyers and non-lawyers. This suggests that…the general community, at least as represented by this sample, could answer the fitness survey questions correctly. They therefore demonstrated that the fitness to stand trial elements, as measured by this study, do not set too high a standard for factual understanding…” (p. 251).

“…The implication for legal practitioners and clinicians is that the presence of mental health issues alone should not be considered a reason for referral, as a “real and substantial” question about the accused’s fitness to stand trial must exist (Eastman v. The Queen, 2000). Thus, the threshold for referral should be concerns about legal capacity because of a mental condition, rather than the mere presence of a mental condition...[These findings have] implications for how fitness is remediated in legally naïve defendants, young defendants, or defendants with cognitive disorders. Some fitness remediation strategies have involved the use of video mock trials and videos of court procedure to educate defendants on court procedure…Problematically, despite several decades of research into unfitness and remediation strategies, there is still almost no published data about the success of the various remediation methods” (p. 251).

“There is a surprising convergence between these findings and fitness precedent. Australian courts have repeatedly emphasized the importance of counsel working to remediate a defendant’s weaknesses by modifying the modes of communication…Common remediation strategies include taking regular breaks to debrief, providing written summaries of the day’s proceedings, sharing court transcripts, or using formal and informal support people to explain concepts…” (p. 252).

“Although the definition of fitness differs between each Australian state and territory based on legislation and precedent, seven standards were established in the common law standard of R v. Presser (1958), to which all jurisdictions adhere, to a varying extent. The Australian standards are: 1) The ability to understand the nature of the charges; 2) The ability to enter a plea; 3) The ability to challenge a juror; 4) The ability to understand the general nature of the proceedings; 5) The ability to understand the substantial impact of evidence that may be used against the defendant; 6) The ability to follow proceedings; and 7) The ability to communicate with their lawyer…” (p. 242).  “The five most difficult factual understanding items, which were failed in 17-30% of cases, were understanding the right to challenge a juror, defining the mental health defense, knowing the number of jurors, defining enter a plea, and defining fitness…Participants were also asked to rate the importance of the fitness to stand trial elements. Three quarters (i.e., 15/20) of the legal abilities were rated ‘extremely important’ to a fair trial…Consistent across the least and most important factors is that the defendant’s counsel is responsible for the defense, and that irrespective of their relationship, the defendant and their counsel must be able to communicate basic facts and their perspectives…” (p.252).

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