Capacity, Commitment, and COVID-19

The capacity-commitment process in criminal cases is complicated. It involves many moving parts in two different systems: criminal justice and mental health. How is the process bearing up in the COVID-19 era? Based on my conversations with the experts—lawyers, judges, and mental health professionals involved in these cases—the answer is surprisingly well. This post considers the various steps in the process and focuses on a concern common to many court proceedings these days: when does the defendant need to be present, in person or remotely?

First, a brief review of the process and the law on a defendant’s right to be present. The capacity-commitment process in North Carolina often begins with an evaluation, conducted by mental health professionals on order of a criminal court judge, about a defendant’s capacity to defend against the pending criminal charges. G.S. 15A-1002(a). Following the evaluation, if the defendant is incapable of proceeding, the criminal court judge determines whether involuntary commitment is appropriate. G.S. 15A-1003(a). If the judge finds commitment appropriate, a commitment case begins against the defendant. The commitment proceedings are governed by the requirements of G.S. Chapter 122C and can result in commitment of the defendant to a state hospital. Unless the prosecutor or criminal court judge dismisses the criminal case, the criminal case remains pending; it is merely on hold while the defendant is incapable of defending against the criminal charges. The criminal case may resume if the criminal court judge determines that the defendant has gained capacity, again based largely on the evaluation of mental health professionals.

These steps all occur before trial of the criminal case. In pretrial proceedings in criminal cases, a defendant’s right to be present depends on the nature of the proceeding (as opposed to the right to be present at every stage of a trial). See 2 North Carolina Defender Manual § 21.1A, Right to Be Present: Basis of Right (Jan. 2018). If the subject matter of the hearing “implicates the defendant’s confrontation rights, or is such that the defendant’s presence would have a reasonably substantial relation to his opportunity to defend,” then the defendant has a constitutional right to be present. See State v. Buchanan, 330 N.C. 202, 223–24 (1991). Under this basic principle, a defendant generally has the right to be present at evidentiary hearings before trial. In numerous cases involving non-evidentiary hearings, the courts have found no violation of the defendant’s right to presence, but the basis for these rulings is not always clear—sometimes the courts found that the defendant had no right to be present, sometimes they found that the right was waived, sometimes they found that the defendant’s absence was not prejudicial. See 2 North Carolina Defender Manual at § 21.1B, Right to Be Present: Pretrial Proceedings. It is therefore difficult to generalize about when defendants do and do not have a right to be present before trial.

Initial motion questioning capacity. The process to determine capacity typically begins when the defendant’s criminal attorney questions the defendant’s capacity to proceed and requests an evaluation of the defendant’s capacity by a mental health professional (although the State or criminal court judge also may raise the question of capacity). Such motions, typically submitted on a form from the North Carolina Administrative of the Courts (AOC-CR-207B (Nov. 2018) for examination by a local forensic examiner, and AOC-CR-208B (Dec. 2013) for examination at Central Regional Hospital), are often uncontested, limiting the need for in-person proceedings with multiple participants.

If the prosecutor does not contest the motion, defense counsel typically submits it directly to a judge. If the judge finds grounds for the motion, the judge may grant it without a hearing and without the defendant being present. I doubt that our courts would find that a defendant has an automatic right to be present at this stage. The statutes suggest that a judge may order an examination of the defendant’s capacity without a hearing. See G.S. 15A-1002(b)(1) (requiring the court to hold a hearing when a defendant’s capacity is questioned but stating that the hearing is held after a capacity examination if the court has ordered an examination). Case law also indicates that a defendant may not have a right to be present at this initial phase. See State v. Davis, 349 N.C. 1 (1998) (holding that defendant did not have right to be present when trial judge amended an order for a capacity examination by substituting a different examiner). In addition, Rule 1.14 of the North Carolina Rules of Professional Conduct recognizes that an attorney may take protective action on behalf of a client with diminished capacity. For an incarcerated client with a mental health problem, an attorney may conclude that acting swiftly to obtain a capacity evaluation is a necessary protective action.

The situation may differ if the defendant does not want to question capacity. The Davis opinion states generally that the determination of whether a defendant is capable of standing trial “does not implicate defendant’s confrontation rights and does not have a substantial relation to his opportunity to defend.” 349 N.C. at 18. I question whether that broad statement holds true when a defendant opposes his or her attorney’s request for a capacity evaluation. Regardless of the answer, it makes sense for an attorney to consult with a client about requesting a capacity examination and, if the client opposes the motion, request a hearing at which the client is present.

Capacity examination. In misdemeanor cases, if the court grants a motion for a capacity evaluation, a local forensic examiner conducts the examination. See G.S. 15A-1002(b)(1a) (providing in misdemeanor cases for local forensic examination of capacity). If the defendant is in jail, the examiner does the evaluation at the jail. Some jails have telemedicine capabilities—equipment allowing health care providers to meet with inmate patients remotely. Such equipment, when available, is a valuable aid in conducting needed capacity examinations while protecting the safety of health care providers and inmates.

In felony cases, a court may order a local capacity examination or an examination at Central Regional Hospital (CRH) in Butner, North Carolina. See G.S. 15A-1002(b)(2) (providing in felony cases for capacity examination at CRH without local examination first if the court finds an examination at CRH is more appropriate). Typically, law enforcement drives the defendant to CRH for a capacity examination. Within the last several days, CRH performed what may be its first telemedicine capacity examination. Remote examinations by CRH may be possible in the future but may not yet be feasible on a wide scale. Do not assume telemedicine evaluations are possible and can simply be ordered up (remember what your mom said about what happens when you “assume”). Check first with CRH about whether and when remote examinations may be possible.

Capacity hearing and determination. Once the examiner completes the capacity evaluation, the criminal court typically holds a hearing on the defendant’s capacity to proceed. The broad language from the Davis opinion, quoted above, suggests that a defendant does not have a right to be present at any proceedings involving capacity to proceed, but I have doubts about such an approach. The circumstances of that case were narrow, involving only the modification of the initial order for a capacity examination. In contrast, a hearing following an examination may involve live testimony and the presentation of evidence, the sort of proceeding at which the defendant would likely have a right to be present (and heard).

On the question of live testimony, an examiner’s report is admissible at a hearing to determine capacity, which may obviate the need for examiners to appear and testify. G.S. 15A-1002(b)(1a) (admissibility of local examination report); G.S. 15A-1002(b)(2) (admissibility of state hospital examination report). As at any hearing, however, the parties (defense and prosecution) or judge may call the examiner to testify. If the parties agree, the examiner may testify remotely under the April 2, 2020 Order of the Chief Justice of the North Carolina Supreme Court. See Emergency Directive 3.

If the prosecutor does not contest an examiner’s conclusion that a defendant is incapable to proceed, a hearing may be unnecessary. In those circumstances, defense counsel could present the examiner’s report and other supporting evidence to the judge, who could enter an order finding the defendant incapable to proceed on that basis. (The parties may not stipulate, however, that a person is incapable to proceed; a judge must make the finding. G.S. 15A-1002(b1).) Even when capacity is uncontested, the defendant should ordinarily be present because of the significance of the determination being made. In addition to deciding whether the defendant has the capacity to defend against the criminal charges, the judge decides whether involuntary commitment proceedings are appropriate. G.S. 15A-1003(a). If the criminal court judge finds that the charged offense is a “violent crime” as provided in G.S. 15A-1003(a), the defendant goes directly to a state hospital and must remain there until released by court order. These commitments have become known as ITP (incapacity to proceed) commitments.

In these extraordinary times, does the defendant have to be present in person at an uncontested hearing on capacity and commitment? The Chief Justice’s April 2, 2020 Order authorizes remote proceedings at which the defendant has a right to be present if the defendant waives the right to personal presence. See Emergency Directive 3 of Order. I have doubts about an incapable defendant’s capacity to take any action in a criminal case, including waiving the right to be present in person. In cases in which a defendant requires immediate treatment, however, speedy action may be necessary. A court could find that defense counsel has the authority to waive the right to presence to protect a client with diminished capacity.

Following an incapacity determination. If the criminal court finds that a defendant is incapable to proceed in the criminal case and that grounds for commitment exist, commitment proceedings ensue under G.S. Chapter 122C. A discussion of commitment proceedings would take me out of my lane, but additional criminal proceedings about the defendant’s capacity often occur.

Thus, a criminal court judge may hold a supplemental hearing to determine whether a defendant has gained the capacity to proceed. G.S. 15A-1007 provides for such hearings if the defendant has been committed and the state hospital reports that the defendant has gained the capacity to proceed. A criminal court judge also may be asked to dismiss the criminal charges. G.S. 15A-1008 requires the judge to dismiss the criminal charges in one of three circumstances, including when it appears that the defendant will not gain the capacity to proceed. Like the initial hearing to determine capacity to proceed, such hearings may involve testimony and other evidence, likely requiring the presence of the defendant.

The possibility of such hearings reinforces an important point. Even when a defendant has been found incapable to proceed and has been committed, the criminal case remains pending until either the defendant regains capacity and the case moves forward or the criminal court judge or prosecutor dismisses the criminal case. Defense counsel remains in the criminal case until it is resolved and remains responsible for monitoring whether the circumstances of G.S. 15A-1008 (requiring dismissal) have been met. The functions of defense counsel and others within the court system are an important, and essential, conduit between the criminal justice and mental health systems.

For those interested, I have written more about the capacity commitment process in a chapter in the superior court benchbook here and a chapter in the pretrial volume of the defender manual here. If you have questions, please feel free to leave a comment or contact me at home (where else) at Be well.

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