Assessment of capacity to participate in court proceedings: a selective critique and some recommendations

Abstract

Crimes against people with intellectual disabilities frequently do not result in prosecutions because it is assumed that the victim would be unreliable as a witness. Similarly, crimes in which a person with an intellectual disability is the alleged perpetrator may not be prosecuted because the person may be judged to be unfit to enter a plea. These assessments of capacity to participate in Court proceedings often include an assessment of suggestibility, using the Gudjonsson Suggestibility Scale (GSS). Recent research demonstrates that the high levels of suggestibility typically shown by people with intellectual disabilities are related to poor memory for the information presented in the GSS, and that when testing is based on personally significant events, suggestibility scores fall dramatically. Three recommendations arise from this research: that memory performance should be maximized by the use of forced-choice recognition memory tests; that respondents should not be asked to rate their confidence in their answers; and that the use of the GSS with people with intellectual disabilities should be discontinued.

Keywords:

• capacity
• witness
• fitness to plead
• memory
• suggestibility
• Gudjonsson Suggestibility Scale
• intellectual disability

Acknowledgements

The contribution of Erick Neu, who brought to the author's attention the US Court judgements cited, is gratefully acknowledged.