Competency and the Residual Hearsay Exception

I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.

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The American Psychiatric Association is about to release the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly abbreviated DSM-V and pronounced “DSM five.” This is important to criminal lawyers because mental health issues are litigated in so many criminal cases, and the DSM is the generally accepted authority on mental health diagnoses. By … Read more

The Supreme Court on Competency and Collateral Review

Yesterday, the United States Supreme Court decided an important competency case. Let’s start the discussion with a quiz. Which of the following statements is true? a. A trial may be conducted even when a capital defendant is incompetent. b. Federal habeas proceedings may continue even when a petitioner/former capital defendant is incompetent. c. An execution … Read more


Forfeiture of Counsel and “Gray Area” Defendants

I’ve previously written on this blog (here) about forfeiture of counsel. As I’ve noted, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right, typically because of misconduct. A recent case, … Read more

Fourth Circuit Decides Involuntary Medication Case

A former School of Government law fellow blogged here about the involuntary medication of death-sentenced prisoners. A recent Fourth Circuit case has moved me to think about the somewhat more common issue of the involuntary medication of incompetent defendants. Sell v. United States, 539 U.S. 166 (2003), held that the state is permitted “involuntarily to … Read more

State v. Forte and the Competency of Elderly Witnesses

This week, the court of appeals decided State v. Forte, a case in which the defendant was convicted of exploitation of an elder adult in violation of G.S. 14-112.2 and its predecessor. The case provides a helpful interpretation of some of the key terms in the statute, and it is worth reading for that alone. … Read more

What to Do When Dorothea Dix Lights the “No Vacancy” Sign

When one side or the other questions a defendant’s capacity to proceed, the judge may order a competency evaluation. The evaluation is often done locally on an outpatient basis, but in some circumstances, the judge may order the defendant committed “to a State facility for the mentally ill for observation and treatment for the period, … Read more

Forcible Medication and the Death Penalty

Editor’s note: Tom Tynan is an alumnus of Duke University Law School, a recent federal judicial clerk, and a soon-to-be associate at a large law firm. He spent several months at the School of Government recently, helping me prepare to update the Capital Case Law Handbook. We’ll miss him. by School of Government law fellow … Read more