130.3Next Steps After Capacity Evaluation
- The defense may accept or dispute an evaluation reporting that the defendant has capacity to proceed, resulting in either a finding of capacity by the court or a contested hearing.
- If the defendant lacks capacity to proceed the charges must be dismissed, but may be reinstated under some circumstances if the defendant regains capacity.
When Defendant Is Found Capable of Proceeding
- Ask defendant’s attorney if he or she contests the report from the Central Regional Hospital, mental health center, or private mental health expert?
- If the defense does not contest the report, ask defendant’s attorney to stipulate to the introduction of the report without the testimony of the medical expert(s).
- Schedule a hearing for the court to make a finding that defendant has the capacity to proceed. If the defendant’s attorney agrees to the introduction of the evaluation report at the hearing:
- Mark the report as an exhibit.
- Move to introduce the report (offer it into evidence).
- Ask the court to make a finding on the record that the defendant has the capacity to proceed based on the report.
If the defense disputes the conclusions in the mental health evaluation report, and maintains that the defendant lacks capacity to proceed, then the court will have to resolve the issue at the hearing. See G.S. 15A-1002(b)(1). See the next entry, Sample Voir Dire of Mental Health Expert, for suggested questions to ask the examiner at that hearing.
When Defendant Is Found Incapable of Proceeding
Parties are permitted to stipulate that a defendant has capacity to proceed, but they may not stipulate that the defendant lacks capacity to proceed – only the court can make that finding. G.S. 15A-1002(b1). When the defendant is found incapable of proceeding, see generally G.S. 15A-1003 through 15A-1008 and G.S. 122C-261. Once a defendant is found incapable of proceeding, the criminal charges against the defendant “shall” be dismissed, which may be done upon motion of the prosecutor, the defendant, or the court. G.S. 15A-1008. The dismissal shall be filed upon the earliest of the following:
- When it appears to the satisfaction of the court that the defendant will not gain the capacity to proceed;
- When, as a result of incarceration, commitment, or confinement, the defendant has been substantially deprived of his liberty for a period of time equal to or in excess of the maximum term of imprisonment authorized for the most serious offense charged, assuming the highest prior conviction level; or
- Upon the expiration of a set period of time after the court has found the defendant incapable of proceeding: 5 years for misdemeanor charges; 10 years for felony charges.
Before 2013, prosecutors had greater latitude under G.S. 15A-1009 to dismiss the charges "with leave" and reinstate them later. However, amendments which became effective December 1, 2013, modified G.S. 15A-1008 and repealed G.S. 15A-1009. Under the current statutes, a dismissal filed under section (2) above is always without leave; however, a dismissal filed under sections (1) or (3) may be reinstated upon the defendant becoming capable of proceeding by filing a written notice to the clerk, the defendant, and defense counsel. See G.S. 15A-1008(b), (c). Additionally, if a defendant was found incapable of proceeding and placed in the custody of an institution or individual (as in the case of a civil commitment), and the defendant later regains capacity to proceed, he or she may be returned to the county for supplemental hearings and trial. See G.S. 15A-1006 (Return of defendant for trial upon gaining capacity); G.S. 15A-1007 (Supplemental hearings).
When a defendant is found incapable of proceeding, the court must also determine whether the defendant meets the criteria for involuntary commitment. The defendant may be involuntarily committed if the court finds the defendant is mentally ill and either (i) dangerous to himself or others, or (ii) in need of treatment to prevent further disability or deterioration that would predictably result in dangerousness. G.S. 15A-1003(a); G.S. 122C-261. For a more detailed discussion of the issues regarding involuntary commitment, including the problematic situation where a defendant may cycle back and forth between (i) regaining capacity during treatment, but then (ii) decompensating and losing capacity again while awaiting trial, see 2013 Defender Manual, Chapter 2.8, Procedures After Order of Incapacity.
Administration of Drugs to Render Defendant Competent to Stand Trial
The U.S. Supreme Court has held that, under certain circumstances, it is permissible to forcibly medicate a defendant in order to restore capacity to proceed. See Sell v. United States, 539 U.S. 166 (2003). The Court ruled in Sell that the government may involuntarily administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is: (i) medically appropriate; (ii) substantially unlikely to have side effects that may undermine the trial’s fairness; and, (iii) after considering any other less-intrusive alternatives; it is (iv) necessary to significantly further important governmental trial-related interests. Cf. Riggins v. Nevada, 504 U.S. 127 (1992) (involuntary medication of defendant during capital trial violated his Sixth Amendment and due process rights where judge failed to make findings of the need to administer medication or determine reasonable alternatives to medication).
The Fourth Circuit has applied Sell in several recent cases, and likewise held that if the prosecution presents sufficient evidence to support all the relevant factors, forced medication to restore the defendant’s competency is appropriate. See, e.g., U.S. v. Sheikh, 651 Fed. Appx. 168 (4th Cir. 2016) (unpublished); U.S. v. Chatmon, 596 Fed. Appx. 216 (4th Cir. 2015) (unpublished); U.S. v. Sanderson, 521 Fed. Appx. 232 (4th Cir. 2013) (unpublished).
To date, North Carolina’s appellate courts have not yet clearly ruled on whether, when, and how a state court may order that a defendant be forcibly medicated to restore competency under state law. See State v. McRae, 139 N.C. App 387 (2000) (insufficient record to address issue of involuntary medication); State v. Monk, 63 N.C. App. 512 (1983) (“Our research has not, however, disclosed a North Carolina case determinative of the issue raised here—whether a defendant may be compelled to take medication necessary to render him competent to stand trial.”).