CHAPTER 8

COMPETENCY TO STAND TRIAL

AND HOSPITALIZATION PROCEDURES

§ 8.01 The Due Process Competency Test

§ 8.02 Statutory Procedures - Raising Incompetency

§ 8.03 - The Psychiatric Evaluation

§ 8.04 - Hearing and Findings

§ 8.05 Commitment Proceedings

§ 8.06 - Commitments for Mental Illness

§ 8.07 - Commitment for Mental Retardation

§ 8.08 - Recommitment and Release Procedures

§ 8.01

The Due Process Competency Test

Forcing an incompetent defendant to stand trial violates due process,{1} and is also prohibited by statute.{2} In Dusky v. United States,{3} the United States Supreme Court wrote that competency involves more than a finding that "the defendant [is] oriented to time and place and [has] some recollection of events. . . ." Rather,

the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him.{4}

The inquiry focuses on a defendant's abilities at the time of the trial.{5} The defendant must be able to "assist" his counsel,{6} which means more than ability to "provid[e] accounts of the facts, names of witnesses, etc."{7}

The Vermont Supreme Court stated essentially the same test in In re Russell, which held that when competency is in doubt the trial court must

make a finding as to the [defendant's] ability to comprehend the nature of the proceedings against him and participate rationally in the decisions relating to his own defense.{8}

These standard formulas do not provide much concrete guidance for trial courts. The ABA Criminal Justice Mental Health Standards, which adopt the Dusky test,{9} recognize the problem and provide useful elaboration. "[T]he criteria to determine competency under the general Dusky formulation should be `functional,' in that they require an evaluation of a particular defendant's skills rather than a general determination of that defendant's mental condition."{10} In particular, defendants need to have: (1) "a perception of the process not distorted by mental illness or disability"; (2) "a capacity to maintain the attorney-client relationship, embracing an ability to discuss the facts of the case with counsel `without paranoid distrust'"; (3) an ability "to recall and relate factual information"; (4) an ability to testify "in personal defense if that should prove appropriate[,]" and (5) an ability to "meet the competency criteria in the setting of the particular charges," which involves consideration of "the extent of the defendant's needed participation in trial proceedings and the complexity of the case."{11}

Defense counsel's representations concerning his or her client's competency are entitled to substantial weight. "[T]he defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense."{12} By the same token counsel's satisfaction with his or her client's ability to proceed cuts against a later incompetency claim.{13}

Incompetency to stand trial need not involve mental illness or disability. Competency "is not limited to sanity, or even to mental incapacity. It is part of the larger, due process concept of a fair trial."{14} For example, a sight- or hearing-impaired defendant may be unable without special assistance to comprehend the proceedings or assist counsel. Similarly, a defendant who suffers amnesia will not be able to recall or relate events, but amnesia per se has almost never been found to render a defendant incompetent to stand trial, partly because it can be so easily faked.{15}

The requirement of competency applies to guilty plea proceedings as well as to trials, and the standard is the same,{16} although in one case where a claim of incompetency was raised in a challenge to a guilty plea conviction, the Vermont Supreme Court saw the "real issue" as whether the plea was voluntary and intelligent.{17} The Vermont Supreme Court has obliquely suggested that the competency requirement for probation revocation proceedings may be different from competency to stand trial,{18} and has obscurely implied that it may not apply at all to sentence reconsideration hearings.{19}

Who bears the burden of proof is an open question. The United States Supreme Court held in Medina v. California{20} that the defendant may constitutionally be required to shoulder the burden of showing his or her own incompetency. The pre-Medina law in this circuit was to the contrary,{21} and the Medina dissenters give good reasons for keeping the burden on the prosecution as a matter of state law.{22}

§ 8.02

Statutory Procedures - Raising Incompetency

Questions of competency can be raised by either party or by the court, sua sponte. At any time before final judgment (i.e., the imposition of sentence) when the issue is raised by a party, or when the judge thinks competency may be in doubt, the judge must hold a hearing, receive evidence, and make findings.{23} When the claim or doubt relates to a mental disease or defect, the judge must first order a psychiatric evaluation and report.{24}

Case law has carved out some exceptions to this mandatory hearing requirement. An evidentiary hearing need not be held when "(1) the initial doubt as to competency arises with the trial court itself; (2) the order for a psychiatric report is initiated by the trial court based on its own doubt; (3) the report concludes that the defendant is competent to stand trial; [and] (4) the issue of competency is not raised by either party prior to final judgment."{25} A hearing can also be dispensed with (a) when competency is first questioned by defense counsel but is then stipulated to and a psychiatric report finds the defendant competent,{26} and (b) when it is the prosecution which first raises the question and neither side pursues it.{27}

Notwithstanding these statutory holdings federal law imposes on judges a special sua sponte duty to prevent proceedings against incompetent defendants. Facts coming to a judge's attention (e.g., a defendant's demeanor or past history of mental disturbance; defense counsel's remarks) that raise a "reasonable" or "bona fide" doubt about competency, require the court to take appropriate protective action as a matter of due process.{28}

The Vermont Supreme Court has been reluctant to require trial judges to take action on their own. In State v. Senna{29} the court held that because of counsel's failure formally to renew a competency objection at trial, the judge's failure to review competency sua sponte would be reviewable only as "plain error."{30} And the court has held in a variety of situations that the facts did not require sua sponte inquiry.{31}

§ 8.03

- The Psychiatric Evaluation

a. The Duty to Order Examination

The judge has discretion to order a psychiatric examination "at any time before, during or after trial" when either side raises the question of competency or the judge believes that competency is in doubt, and whenever the defendant gives notice of an insanity or diminished capacity defense or the judge believes that sanity is in doubt.{32} The judge must order an examination only if he or she "has reason to believe" that the defendant may not be competent.{33}

b. The Place of Examination

The judge can order the examination at the Vermont State Hospital in Waterbury, at a correctional center, or on an outpatient basis.{34}

Although there are no statutory criteria for the decision, a hospitalization order defeats the right to pretrial release, and defense counsel can argue that consistent with the right to bail and the presumption in favor of pretrial release{35} the judge should not order commitment if a less restrictive alternative will do.{36}

c. The Power to Compel Examination

The statute gives the judge authority to order a competency evaluation even if the defendant opposes it.{37} The same is true of sanity evaluations, the Vermont Supreme Court held in State v. Bushey,{38} if the judge believes there is a doubt about the defendant's sanity at the time of the alleged crime, and even if the defendant has not raised an insanity defense.{39}

d. Privilege Issues

The court in Bushey found it unnecessary to decide whether or when a court-ordered psychiatric examination violates the privilege against selfincrimination and did not seem much troubled by the question.{40}

Scope of the Privilege

The potential for violation of the privilege is clear, however. An order to submit to examination on pain of contempt, as in Bushey, is obviously compelled, and the defendant's responses are clearly communicative, at least if the psychiatrist relies on more than mere observations.{41} Even so, the United States Supreme Court has held that a routine examination whose findings are limited to the "neutral" use of determining competency can be compelled without offending the fifth amendment.{42} And when the defendant asserts an insanity defense and introduces psychiatric evidence, the judge can compel him to submit to a sanity examination sua sponte or on the prosecution's motion.{43} Whether or not the court can enforce such an order with contempt sanctions, the defendant may be precluded from presenting an insanity defense if he refuses to be examined by a state psychiatrist.{44}

A defendant cannot, however, be constitutionally compelled to answer potentially incriminating questions in a competency or sanity evaluation if he "neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence" and if his responses can be used to incriminate him.{45}

Immunity

In general the state can defeat a claim of privileged silence by granting an evidentiary privilege, or use-immunity, commensurate with the constitutional protection,{46} and at least part of what a defendant tells an examining psychiatrist is protected in this way.

The examining psychiatrist sends a report of his or her competency findings to the court, with copies to the prosecutor and defense counsel.{47} The same is true of sanity evaluations, whether or not the defendant has consented to the examination and whether or not he is raising an insanity defense.{48} But much of what the defendant says in the examination may not be admitted in evidence. A statutory privilege, 13 V.S.A. § 4816(c), provides:

No statement made in the course of the examination by the person examined, whether or not he has consented to the examination, shall be admitted as evidence in any criminal proceeding for the purpose of proving the commission of the offense or for the purpose of impeaching testimony of the person examined.{49}

The statute is only an evidentiary privilege, however. It does not prevent the psychiatrist from disclosing the defendant's statements to the court and the prosecutor.{50}

Although § 4816(c) applies only to court-ordered evaluations, the patient privilege statute{51} gives equivalent protection to private examinations. The privilege is applicable notwithstanding that the examination was for evaluation rather than treatment, and it is not waived by introduction of an insanity defense.{52}

These statutory protections do not prevent a psychiatrist from being questioned about statements that do not "ten[d] to prove the commission of the offense charged" and that give "a basis for the psychiatrist's evaluation. . . ."{53} Statements that are incriminating in the sense that they establish a motive for the crime may be admitted so long as they do not "directly bear" on the essential elements of the crime and the state has legitimate reason to introduce them, for example, to prove their falsity and therefore to undermine the basis of the doctor's opinion.{54}

The constitutional protection, however, may be broader. In Estelle v. Smith{55} the United States Supreme Court held that Miranda warnings were required for a court-ordered competency examination.{56} Miranda's view of what is incriminating, and therefore inadmissible, is considerably broader than statements that "directly bear" on elements of the crime{57} and statements that are beyond the scope of the statutory privilege may therefore be inadmissible under the constitution.{58} When the defendant requests an examination and presents evidence, however, the prosecution can rebut "with evidence from the reports of the examination that the defendant requested[,]" at least if the evidence relates to "general observations about the [defendant's] mental state" and does not include statements dealing with the crime charged.{59}

Counsel's Role

Despite Estelle's requirement of Miranda warnings and its holding that a psychiatric evaluation is a critical stage of the proceedings,{60} the United States Supreme Court did not hold that the defendant has a sixth amendment right to counsel's presence at the psychiatric evaluation and strongly implied the contrary.{61} The examining psychiatrist may have no objection to defense counsel's presence at the interview, however, and counsel can return the compliment by inviting the doctor to attend a lawyer-client interview (to observe first-hand the defendant's ability to communicate and assist in his or her defense).{61.5} Counsel should tell the psychiatrist why he or she thinks the client is or is not competent, and make sure that the doctor is clear on the legal standards of competency.

An independent competency evaluation may also be useful, and if so it should be considered one of the necessary defense services, payable by the defender general, to which indigent defendants are entitled under the public defender statutes.{62}

Finally, because competency and sanity are by no means the exclusive preserve of medical professionals, counsel should try to gather nonmedical evidence, both for its own sake and as additional information for the examining psychiatrists.

§ 8.04

- Hearing and Findings

Resolving the competency question should be the first thing on the court's agenda, "rather than left hanging in limbo," because a competent defendant has the right to proceed without a guardian ad litem, whereas an incompetent defendant has a right not to be criminally proceeded against at all, and a right to the protections of a guardian in a hospitalization hearing.{63} Until the issue is resolved, the Vermont Supreme Court has held, a guardian ad litem should also be appointed for the competency hearing itself.{64}

The judge is required to make findings,{65} which must be detailed enough to ensure that the judge used the correct standard and to permit meaningful review.{66} Recitation of statutory terms and "diagnostic labels" is not good enough.{67}

A finding of competency, which is not immediately appealable,{68} allows the criminal prosecution to go forward. At this point the defendant is entitled to proceed without a guardian ad litem, even at a subsequent hospitalization hearing, and it is error for the judge to fail to discharge a guardian who has been provisionally appointed.{69}

Once a finding of incompetency is made, the judge is required to hold a hospitalization hearing,{70} at which point "appointment of a guardian is mandatory."{71}

Even if (as is common) the psychiatric evaluation looked into the defendant's sanity at the time of the alleged crime, as well as competency, the judge should not make findings on that issue, which is "for the jury to decide at the trial on the merits."{72}

Whichever way it goes, the pretrial competency ruling by no means forecloses the issue. A competent defendant may become incompetent before or at the trial,{73} and counsel has a right, and even a duty,{74} to raise the issue as and when she deems appropriate. Similarly, an incompetent defendant may later become competent and subject to trial.{75}

a. Involuntary Medication

Whether the state can force medication on an incompetent defendant to make him competent is a question which has not been litigated in Vermont or definitively decided elsewhere. Federal due process prevents forced medication absent an overriding justification, and a showing that the state cannot obtain an adjudication of the criminal case by less intrusive means might be sufficient cause.{76} In Vermont the state can compel medication only for a person in need of treatment (as defined by the commitment statutes) and arguably only for the normal treatment goals.{77}

§ 8.05

Commitment Proceedings

By statute,{78} a hospitalization hearing must be held if the defendant is found to be incompetent, if the psychiatric reports conclude that he was insane at the time of the alleged offense,{79} or if he is acquitted (or not indicted) by reason of insanity.

Notice of the hearing goes to the parties and also to the commissioner of mental health.{80} The defendant "may be confined in jail or some other suitable place" for a period not to exceed fifteen days pending the hearing,{81} a provision which may violate statutory bail rights or due process liberty interests if less restrictive alternatives are available.{82}

§ 8.06

- Commitments for Mental Illness

When commitment is sought on the basis of mental illness - as opposed to mental retardation - the procedure "shall be as provided in chapter 181 of Title 18" for civil commitments.{83} The judge must find whether the defendant is a "person in need of treatment" as that term is defined in the civil commitment law,{84} that is, a person who, as a result of mental illness, poses a danger of harm to himself or to others.{85} Civil commitments are not warranted simply because the defendant would be better off if committed; "incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends."{86} Nor is commitment warranted simply to enable the state to undertake treatments, however advisable from a medical standpoint, which the defendant objects to.{87}

A person who might be a danger to himself if he lived alone but who can be adequately cared for by his family is not a person in need of treatment.{88} A finding of danger to self is also not supported by evidence that the defendant might offend someone and be attacked.{89} Danger of harm to others is not made out by evidence that the defendant was "hostile, angry and somewhat menacing" but not "a physical danger to other persons."{90} Commitment cannot be justified simply to save the public "from exposure to those whose ways are different. . . ."{91}

The defendant has a right to appointed counsel at the commitment hearing.{92} The rules of evidence and rules of civil procedure apply{93} and the state bears the burden of proof by clear and convincing evidence.{94}

The judge must make findings{95} and these findings must do more than repeat the expert testimony,{96} or recite "the diagnostic label . . . combined with statutory language. . . ."{97} To justify commitment the findings must cover both parts of the statutory test, mental illness and dangerousness.{98} Once such findings are made, however, the judge need not consider the feasibility of alternatives to hospitalization, although the civil commitment statutes require the judge to canvass alternatives, and prohibit hospitalization unless the hospital "can provide [the patient] with treatment which is adequate and appropriate to his condition."{99}

Hospitalization lasts "for an indeterminate period"{100} but

"`[i]ndeterminate' does not mean sine die"; rather, in line with the civil commitment scheme which limits an initial hospitalization order to ninety days,{101} it means no longer than ninety days (i.e., the defendant may be released before ninety days and must be released after ninety days).{102}

§ 8.07

- Commitment for Mental Retardation

A finding of incompetence may be based on the defendant's mental retardation, as opposed to mental illness, and in such cases the civil mental commitment statutes do not authorize hospitalization.{103} The statutes provide a parallel procedure, however. Instead of a finding that the defendant is "a person in need of treatment" the judge can find that he or she is "a person in need of custody, care and habilitation as defined in section 8839 of Title 18" and order commitment "for an indefinite period in a designated program."{104} A "person in need of custody, care and habilitation" is defined as a "mentally retarded person" who "presents a danger of harm to others" and "for whom appropriate custody, care and habilitation can be provided by the commissioner in a designated program."{105} The order "shall have the same force and effect as an order issued under section 8843 of Title 18[,]"{106} that is, "commit[ment] to the custody of the commissioner for placement in a designated program in the least restrictive environment consistent with the respondent's need for custody, care and habilitation for an indefinite or a limited period."{107} The commitment is reviewable after the first ninety days and each year thereafter.{108}

A finding that the defendant is competent to stand trial is in no way inconsistent with commitment for mental retardation, and a commitment proceeding can go forward at the same time as the criminal trial.{109} The prosecutor can be compelled to pursue commitment, even if the commitment proceedings "undermine his objectives in the criminal case. . . ."{110}

§ 8.08

- Recommitment and Release Procedures

Whether the commitment is based on mental illness or mental retardation, criminal defendants have the same status and the same rights, including the right to treatment and the right "to be examined and discharged, and to apply for and obtain judicial review of their cases," as their civilly committed counterparts.{111}

The discharge procedures, however, are different. When the charged crime involves personal injury or a threat of personal injury, the judge can require that the person not be discharged without a court hearing.{112} In all cases notice must be given to the committing judge and the state's attorney ten days before a proposed discharge.{113}

ENDNOTES

1. Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966).

2. 13 V.S.A. § 4817(a) ("A person shall not be tried for a criminal offense if he is incompetent to stand trial.").

3. 362 U.S. 402 (1960).

4. Dusky v. United States, 362 U.S. 402, 402 (1960). Although the United States Supreme Court has not ruled on the question, lower federal courts generally hold that Dusky states the due process standard, binding on the states. See, e.g., Felde v. Butler, 817 F.2d 281, 283 (5th Cir.), cert. denied, 484 U.S. 873 (1987).

5. United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

6. Drope v. Missouri, 420 U.S. 162, 171 (1974).

7. United States v. Hemsi, 901 F.2d 293, 295 (2d Cir. 1990).

8. In re Russell, 126 Vt. 240, 242-43 (1966).

9. ABA Criminal Justice Mental Health Standards § 7-4.1 (1984).

10. Id. at 173.

11. Id. at 173-75.

12. Medina v. California, 112 S. Ct. 2572, 2580 (1992). Defense counsel "is in a unique position to evaluate the precise issues involved in a fitness [i.e., competency] determination - the defendant's ability to understand the relevant charges and to cooperate with counsel. . . ." United States ex rel. S.E.C. v. Billingsley, 766 F.2d 1015, 1029 (7th Cir. 1985).

13. United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

14. In re Russell, 126 Vt. 240, 243 (1966).

15. See generally Note, Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961). Some courts require a specific showing that the defendant's amnesia will be prejudicial to the defense. See United States v. Borum, 467 F.2d 896 (10th Cir. 1972); Wilson v. United States, 391 F.2d 460, 463 (D.C. Cir. 1968).

16. Godinez v. Moran, 61 L.W. 4749 (1993).

17. In re Cameron, 142 Vt. 193 (1982). Voluntariness must be established in addition to competency. Godnez v. Moran, 61 L.W. 4749, 4752 (1993).

18. State v. Tompkins, No. 88-586 (Vt. July 2, 1990) (unpublished). But see State v. Bilodeau, No. 84-382 (Vt. Oct. 7, 1985) (unpublished) (judge had no compelling reason to doubt probationer's competency).

19. State v. Lambert, No. 87-103 (Vt. June 21, 1991) (unpublished).

20. 112 S. Ct. 2572 (1992).

21. Brown v. Warden, Great Meadow Correctional Facility, 682 F.2d 348 (2d Cir. 1982); Senna v. Patrissi, Civ. Action No. 91-21, slip op. 8 (Vt. Oct. 18, 1991) (opinion and order of Magistrate Judge Niedermeier).

22. Medina v. California, 112 S. Ct. 2572, 2583 (1992).

23. 13 V.S.A. § 4817(b); In re Hanson, No. 91-066, slip op. 3 (Vt. Feb. 26, 1993); State v. Hackett, 141 Vt. 223, 227 (1982).

24. 13 V.S.A. § 4817(b); State v. Hackett, 141 Vt. 223, 227 (1982). See § 8.03, infra.

25. State v. O'Connell, 149 Vt. 114, 117 (1987). See also In re Cameron, 142 Vt. 193 (1982).

26. State v. Williams, 154 Vt. 76, 79 (1990).

27. In re Hanson, No. 91-066, slip op. 3-4 (Vt. Feb. 26, 1993).

28. Drope v. Missouri, 420 U.S. 162, 180, 181 (1975). See also United States v. Auen, 846 F.2d 872, 877 (2d Cir. 1988) ("reasonable cause" to believe defendant may not be competent); Silverstein v. Henderson, 706 F.2d 361, 369 (2d Cir.), cert. denied, 464 U.S. 864 (1983).

29. 154 Vt. 343 (1990).

30. State v. Senna, 154 Vt. 343, 346 (1990). See also State v. Williams, 154 Vt. 76, 79 (1990) (counsel first questioned competency and then stipulated to it; no hearing required); State v. O'Connell, 149 Vt. 114, 117 (1987) (doubts about competency expressed by judge and not counsel; psychiatric report found defendant competent; no hearing required). The federal rule is different. When competency is in doubt counsel's failure to object is not considered a waiver. See Silverstein v. Henderson, 706 F.2d 361, 367 (2d Cir.), cert. denied, 464 U.S. 864 (1983); Senna v. Patrissi, Civ. Action No. 91-21 (Vt. Oct. 18, 1991) (opinion and order of Magistrate Judge Niedermeier).

31. See In re Hanson, No. 91-066, slip op. 4-5 (Vt. Feb. 26, 1993) (no reason to question competency at plea hearing); State v. Senna, 154 Vt. 343, 346 (1990) (defendant's "impromptu" outbursts at trial); In re Cameron, 142 Vt. 193, 194 (1982) (trial judge had no "compelling reason" to doubt competency). Cf. In re C.L., 143 Vt. 554 (1983) (recognition of mother's "thought disorder" did not raise sufficient doubt about competency to require appointment of guardian in CHINS proceeding).

32. 13 V.S.A. § 4814(a).

33. 13 V.S.A. § 4817(b); State v. Welch, No. 91-438, slip op. 5 (Vt. Oct. 2, 1992). The section allows the judge to refuse an examination in situations where he or she nevertheless has a duty to hold a competency hearing.

34. 13 V.S.A. § 4815(a).

35. See § 7.02, supra.

36. See In re Newchurch, 807 F.2d 404, 408-09 (5th Cir. 1986).

37. 13 V.S.A. § 4814(a)(2),(4).

38. 147 Vt. 140 (1986).

39. 13 V.S.A. § 4814(a)(3). This is so even though the court almost certainly lacks power to compel a defendant to defend on grounds of insanity, see State v. Davignon, 152 Vt. 209, 216-222 (1989), and notwithstanding that copies of the psychiatrist's report are sent to the trial judge and the prosecutor. State v. Bushey, 147 Vt. 140, 143-44 (1986). An order for a competency evaluation commonly includes an order to evaluate the defendant's sanity at the time of the alleged offense. See App. 11-12.

40. The court held that any constitutional violation was harmless since the defendant's compelled statements were not introduced into evidence. State v. Bushey, 147 Vt. 140, 144 (1986).

41. Estelle v. Smith, 451 U.S. 454, 463-65 (1981).

42. Estelle v. Smith, 451 U.S. 454, 465 (1981).

43. Estelle v. Smith, 451 U.S. 454, 465-66 (1981) (citing federal cases).

44. Estelle v. Smith, 451 U.S. 454, 466 n.10 (1981). Cf. V.R.Cr.P. 12.1(e) (court may preclude defense for failure to give notice of insanity defense).

45. Estelle v. Smith, 451 U.S. 454, 468 (1981) (requiring Miranda warnings). See also State v. Miner, 128 Vt. 55, 69-71 (1969) (defendant must be warned of right to remain silent). Responses that are used to enhance punishment are incriminatory. Estelle, 451 U.S. at 462.

46. Kastigar v. United States, 406 U.S. 441, 453-62 (1972). See §§ 30.08-30.09, infra.

47. 13 V.S.A. § 4816(b).

48. State v. Bushey, 147 Vt. 140, 143-44 (1986).

49. The purpose of the provision is to promote objective examination. State v. Miner, 128 Vt. 55, 69 (1969).

50. State v. Bushey, 147 Vt. 140, 143-44 (1986).

51. 12 V.S.A. § 1612; State v. Lapham, 135 Vt. 393, 402-03 (1977). The patient privilege is now set forth in V.R.E. 503.

52. State v. Lapham, 135 Vt. 393, 403-04 (1977).

53. State v. Lapham, 135 Vt. 393, 404 (1977); State v. Oakes, 129 Vt. 241, 257 (1971). Cf. State v. Mecier, 138 Vt. 149, 154 (1980) ("[a]ny admission . . . which tends to prove any element of the crime. . . .")

54. State v. Mecier, 138 Vt. 149, 154-55 (1980).

55. 451 U.S. 454 (1981).

56. Estelle v. Smith, 451 U.S. 454, 468-69 (1991). See State v. Miner, 128 Vt. 55, 69-71 (1969) (reaching the same conclusion).

57. See § 3.02, supra. In general a witness may validly claim the privilege against self-incrimination unless it is "perfectly clear . . . that the answer[s] cannot possibly have [a] tendency" to incriminate. Hoffman v. United States, 341 U.S. 479, 488 (1956) (emphasis in original, internal quotes omitted).

58. In State v. Bushey, 147 Vt. 140, 144 (1986), the court found it unnecessary to decide whether the privilege statute was coextensive with the fifth amendment.

59. Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987).

60. Estelle v. Smith, 451 U.S. 454, 469-471 (1991).

61. Estelle v. Smith, 451 U.S. 454, 470 n.14 (1991) (counsel could contribute little and might disrupt the examination). The sixth amendment requires that counsel be informed of the procedure and be permitted to advise her client how to proceed. Id. at 470-71; Buchanan v. Kentucky, 483 U.S. 402, 424-25 (1987).

62. See § 6.08, supra. Cf. Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (defendant must have access to competent psychiatrist when sanity will be a "significant factor" at trial).

63. State v. Hackett, 141 Vt. 223, 227 (1982).

64. State v. Hackett, 141 Vt. 223, 227 (1982).

65. 13 V.S.A. § 4817(b).

66. Compare United States v. Auen, 846 F.2d 872, 877 (2d Cir. 1988) (findings under federal competency statute).

67. Cf. State v. O'Connell, 136 Vt. 43, 46 (1978) (findings in connection with 13 V.S.A. § 4820 hospitalization hearing). See § 8.05, infra.

68. State v. Cleary, 150 Vt. 649 (1988).

69. Hackett, 141 Vt. 223, 226 (1982); State v. Ladd, 139 Vt. 642, 644 (1981).

70. 13 V.S.A. § 4820(2).

71. State v. Hackett, 141 Vt. 223, 227 (1982). It is not clear whether an order finding the defendant incompetent can be appealed immediately as a collateral final order under V.R.A.P. 5.1 or as an interlocutory order under V.R.A.P. 5. Incompetency rulings are immediately appealable in federal court. See United States v. Gold, 790 F.2d 235, 238 (2d Cir. 1986).

72. State v. Clarke, 145 Vt. 547, 549 (1985).

73. Drope v. Missouri, 420 U.S. 162, 181 (1975); State v. Cleary, 150 Vt. 649 (1988) ("ruling of the trial court finding defendant competent could change at any time up to and through the trial proceedings"); 13 V.S.A. § 4814(a) (competency evaluation may be ordered any time before sentence).

74. State v. Senna, 154 Vt. 343, 346 (1990).

75. 13 V.S.A. § 4817(c). Cf. Jackson v. Indiana, 406 U.S. 715 (1972) (little prospect that defendant would become competent).

76. Riggins v. Nevada, 112 S. Ct. 1810, 1815 (1992). Justice Kennedy would allow forced medication only if it did not affect the defendant's demeanor or his relations with defense counsel. Id. at 1819-20 (concurring opinion).

77. See 18 V.S.A. §§ 7611, 7618; In re L.R., 146 Vt. 17 (1985).

78. 13 V.S.A. § 4820.

79. An ambiguous finding that an insanity defense "could be supported" was enough to trigger a hearing. State v. Clarke, 145 Vt. 547, 550 (1985).

80. 13 V.S.A. § 4821.

81. 13 V.S.A. § 4820.

82. See § 8.03, supra.

83. 13 V.S.A. § 4821. See State v. Spear, 142 Vt. 547, 550 (1983). Cf. State v. Condrick, 144 Vt. 362, 364 (1984) (procedure "closely parallels but is not identical to" civil commitment procedure).

84. 13 V.S.A. § 4822.

85. 18 V.S.A. § 7101(17); State v. Robinson, 146 Vt. 486, 488 (1986); State v. Condrick, 144 Vt. 362, 364-65 (1984); State v. Spear, 142 Vt. 547, 550 (1983). The statutes further defines the terms "mental illness," 18 V.S.A. § 7101(14), and "danger of harm" to self or others, 18 V.S.A. § 7101(17)(A),(B).

86. State v. Spear, 142 Vt. 547, 550 (1983) (quoting O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)).

87. State v. Spear, 142 Vt. 547, 551 (1983).

88. State v. Spear, 142 Vt. 547, 550-51 (1983).

89. State v. Spear, 142 Vt. 547, 551 (1983).

90. State v. Robinson, 146 Vt. 486, 487, 489 (1986).

91. State v. Spear, 142 Vt. 547, 551 (1983) (quoting O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)).

92. 18 V.S.A. § 7613(a). Patients facing Title 18 civil commitment are usually represented by Vermont Legal Aid.

93. 18 V.S.A. § 7615(c).

94. 18 V.S.A. § 7616(b). This is the constitutional minimum. Addington v. Texas, 441 U.S. 418 (1979).

95. 13 V.S.A. § 4822(a); 18 V.S.A. § 7617(a),(b).

96. State v. O'Connell, 136 Vt. 43, 46 (1978).

97. State v. Condrick, 144 Vt. 362, 365 (1984); State v. Ladd, 139 Vt. 642, 643-44 (1981).

98. State v. Condrick, 144 Vt. 362, 366 (1984) (judge omitted findings on dangerousness); State v. O'Connell, 136 Vt. 43, 47 (1978) (judge omitted findings on mental illness).

99. State v. Condrick, 144 Vt. 362, 366 (1984); 18 V.S.A. § 7616(d),(e). In particular cases this difference in treatment may run afoul of equal protection principles. See generally Jackson v. Indiana, 406 U.S. 715, 723-30 (1972).

100. 13 V.S.A. § 4822(a).

101. 18 V.S.A. § 7619.

102. State v. Mayer, 139 Vt. 176, 179 (1980).

103. See 18 V.S.A. § 7101(14) (mental illness does not include mental retardation).

104. 13 V.S.A. § 4823(a).

105. 18 V.S.A. § 8839(3). The terms "mentally retarded," "danger of harm to others," and "designated program" are each separately defined. 18 V.S.A. §§ 8821(5), 8839(1),(2).

106. 13 V.S.A. § 4823(b).

107. 18 V.S.A. § 8843(c). When less restrictive alternatives are unavailable because of a lack of resources, the court can only order the commissioner to "use his best efforts to find such a placement within a reasonable time." In re C.B., 147 Vt. 378, 384 (1986).

108. 18 V.S.A. § 8845(c).

109. In re D.C., No. 91-564, slip op. 5 (Vt. Nov. 6, 1992).

110. In re D.C., No. 91-564, slip op. 5 (Vt. Nov. 6, 1992).

111. 13 V.S.A. § 4822(b) (cross-referencing 18 V.S.A. §§ 7611-22); 13 V.S.A. § 4823(b) (cross-referencing 18 V.S.A. § 8843).

112. 13 V.S.A. § 4822(a). If the defendant was committed after a finding of incompetency, the hearing must be held before the committing court; otherwise it is normally held in the district court in Waterbury, where the state hospital is located, § 4822(b), or (in the case of a retarded person) in the place where he or she resides, § 4823(c).

113. 13 V.S.A. §§ 4822(c); 4823(c).