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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 allowing the state to participate in a gatekeeping function of this sort that is meant to be under the court's purview. It violates the notions of fundamental fairness to the accused."
Witnesses and committee members discussed the practical consequences of imposing a mandatory hearing whenever information suggesting incompetency is made known. Counsel and others said the change would likely increase hearings, pull resources from DBHDD, and could paradoxically lengthen defendants' stays in custody rather than speed case resolution. "You're shifting where the money's being spent instead of spending it at DBHDD to increase their resources to address this issue," defense counsel said, adding that the requirement could chill lawyers from raising competency concerns for fear of creating evidentiary exposure that might harm the client.
Committee members probed the current statutory text and process. Defense counsel referenced statutory lines in the draft, saying the language at "line 44" currently allows courts discretion to order evaluations if a defendant files a motion, whereas the new language in section 1 would require hearings "if information is made known" and thus create a mandatory hearing trigger. Members asked whether the subcommittee language the panel adopted the prior week would avoid mandating hearings; the counsel said the subcommittee language had been intended to preserve court discretion and allow ex parte consideration in many cases.
Several members asked for technical clarifications. The chair suggested the parties (sponsors, prosecutors and defense counsel) meet offline to merge competing substitutes and return to the committee with agreed language. The chair then suspended testimony and directed that the bill be taken up again after the parties confer.
No formal committee vote occurred on this item at the hearing; committee leadership asked staff to arrange off-the-record meetings and to bring merged substitute language back to the committee for further debate.
