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Defense counsel warns mandated competency hearings could invade privileged communications and shift DBHDD resources
Summary
At a Judiciary committee hearing, defense counsel and others warned that a proposed mandate for hearings when competency concerns are raised would risk revealing privileged defense strategy, chill counsel's duties, and shift scarce behavioral-health resources away from the Department of Behavioral Health and Developmental Disabilities (DBHDD).
During committee consideration of proposed changes to how mental-competency information is handled in criminal cases, defense counsel testified at length that a mandated hearing requirement would jeopardize privileged defense communications and raise due-process concerns.
"Trigger this mandated hearing, that alone provides the state a glimpse into our trial strategy, which is protected and privileged and ought to be," the defense counsel said, arguing the current practice of ex parte communications and discretionary court orders protects privileged material and avoids making the inquiry adversarial in most circuits. Counsel added: "There is no precedent for…
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