Rights at Hearing
Right to Remain Silent
State v. Matthews, 46 Or App 757 (1980)
Right to remain silent during a civil commitment hearing is limited to testimony that might implicate defendant in a criminal matter.
State v. Mills, 36 Or App 727, rev den, 285 Or 195 (1978).
No right to trial by jury. Proceedings must comport with due process.
State v. O’Neill, 274 Or 59 (1976).
Defendant not entitled to Miranda before being examined. Oregon Statutory Procedure does not violate Articles 9 and 14 on grounds of vagueness or as invasion of privacy. de novo review.
Advise of Rights
State v. May, 131 Or App 570 (1994).
Civil commitment order reversed because the court failed to advise the appellant of her hearing rights as required by statute. Reversal was required even though the attorney did not object.
State v. Tardanico, 132 Or App 230 (1994).
The court followed May and stated that advice of rights is mandatory.
State v. Allison, 129 Or App 47 (1994).
Appellant was civilly committed after counsel stipulated to the commitment. Court failed to inform appellant of advice of rights contained in ORS 426.100(1). Given the due process interest at stake, the Court of Appeals reversed the commitment and held that the trial court must always inform a person of the nature and possible outcomes of the proceedings.
In The Matter Of Cach, 172 Or. App. 745 (2001)
Failure by court to advise AMIP of his right to private counsel does not violate due process, i.e. – is not grounds to reverse comittment.
Burden of Proof
State v. Brenhuber, 146 Or App 719 (1997): burden of proof at dispositional phase is preponderance of the evidence.
State v. Waters, 165 Or App 645 (3/01/00)
Issue was propriety of counsel/AMIP stipulating to committment on basis of inability to provide for basic personal needs. AMIP argued that due to nature of civil committment, the court should \i never\i0 accept a factual stipulation. In the alternative, court should accept iff mental health professionals say that she/he is competent to do so (RKC — interesting logical conundrum). CA dodges the question — says this was invited error by counsel offering to stipulate, therefore error not preserved, therefore we won’t consider it. Court also notes that appellate counsel did not raise issue of adequate assistance of counsel.
Matter of Vandenberg, 48 Or App 609 (1980).
Mental deficiency proceeding. Double jeopardy does not apply to mental commitment proceeding.
State v. Adair, 42 Or App 675 (1979).
Granting of continuance pursuant to ORS 426.100(5) is discretionary.
State v. O’Neill, 274 Or 59 (1976).
Court cannot take judicial notice of files from a prior commitment hearing.
State v. Brungard, 101 Or App 67 (1990).
The best evidence rule does not require that prior commitment papers be put in evidence.
State v. O’Neill, supra, State v. English, supra, State v. Watkins, 35 Or App 87, 581 P2d 90 (1978).
The investigation report may be used to help formulate questions even if the report is not admissible. The AMIP may be questioned about prior commitments to determine the nature and extent of mental disorder and to predict future conduct.
State v. Gill, 120 Or App 543 (1993).
Commitment was reversed. The judge marked the appropriate form indicating the client had a mental disorder, but did not mark the rest of the form as to whether the person was dangerous to self or others or unable to care for basic needs. Consequently, it was held that the written findings were inadequate to support the commitment and the court’s statements were ambiguous. Note, however, that the examiners both recommended discharge.
State v. Watkins, 35 Or App 87 (1978) de novo review.
Where observation of witnesses is essential to resolution of the factual issues, the court will accord substantial weight to the trial court’s finding based on observations. Questions of the AMIP regarding prior commitment was allowed based on relevancy (relevant to determine the nature and extent of the mental disorder and to predict future conduct).
Note: May want to argue Rule 403 and 404(3).
Sufficiency of Evidence
State v. Billingsley, 85 Or App 387 (1987).
Examiners were ambivalent about whether defendant was mentally ill. they couldn’t say whether he would harm himself or others or care for himself. The judge found defendant to be on the verge of an episode, showed poor judgment, and was out of touch with reality. Defendant called 911, said he was “wigging out.” At the hearing, defendant testified that he pretended he was freaking out so he could stay in the hospital to get out of the drug scene and relax for a few days. Court reversed the commitment, stating there was insufficient evidence to show the defendant was suffering from a mental disorder. Poor judgment alone isn’t enough for a commitment.
State v. Evjen, 111 Or App 368 (1992)
The court is not required to explain why it rejects the examiner’s reports, but there must be clear and convincing evidence in the record to support the trial court’s findings.
State v. Johnson, 131 Or App 561 (1994)
Appellant was committed after a finding that he was dangerous to himself. He had suffered some medical and psychological problems, but could have lived with his parents and was stable at the time of the hearing. After de novo review, the court reversed the commitment order, holding that the state failed to meet its burden of proof. Specific details of the case should be reviewed.
State v. Siebold, 100 Or App 365, 786 P2d 219 (1990).
In order to be clear and convincing, evidence must be of “extraordinary persuasiveness”.
State v. Whitman, 132 Or App 596 (1995).
The court reversed a commitment holding that the record did not establish by clear and convincing evidence that the appellant was a danger to herself or others. The appellant was found by police after refusing to leave a liquor store complaining that people were trying to kill her. Appellant refused to communicate with the investigator, attorney, judge or examiner. There was very little other information presented. The judge’s observations in court were not made a part of the record. The judge did admonish the client that he would infer from her non-responsiveness that she met the criteria. The court held that non-evidence of this type was insufficient, saying that the examiner’s opinions were couched in speculation and uncertainty.
State v. Sterzicg, 47 Or App 621, 614 P2d 631 (1980).
Clear and convincing evidence is highly probable, of extraordinary persuasiveness, demonstrates that the truth of the facts asserted is highly probable.
State v. Fry, 36 Or App 297, 584 P2d 354 (1978).
Apprehension and speculation alone are not enough.
State v. Whitman, 132 Or App 596, 889 P2d 372 (1995).
Examiner conclusions that are based upon an appellant’s refusal to speak, and that are uncertain and speculative do not meet the clear and convincing standard.
State v. Gjerde, 147 Or App 187 (1997)
Mere feistiness is not enough to establish a causal link to either dangerousness or inability to care for basic personal needs.
State v. White, 155 Or App 288 (1999)
AMIP’s inability/unwillingness to acknowledge mental condition did not prevent her from addressing basic personal needs. In addition, AMIP’s friend/employer/landlord (one person) was prepared to assist w/basic personal needs.
State v. DeMartino, 164 Or App 331 (1999)
Only evidence in record re: voluntary compliance w/treatment is that she had complied in the past.
State v. Billingsley, 85 Or App 387, 736 P2d 611 (1987)
Poor judgment does not prove a mental disorder
State v. Furnish, 86 Or App 194, 738 P2d 607 (1987).
In order to decide that a person is mentally ill, it must first be established that he suffers from a mental disorder.
State v. Jepson, 48 Or App 411, 617 P2d 284 (1980).
A finding of either dangerousness or inability to provide for one’s basic needs, without a finding of a mental disorder, is insufficient to justify commitment.
State v. Sickler, 133 Or App 50 (1995).
A suspicion of a mental disorder is not enough. It must be shown that there is a mental disorder at the time of the hearing.
State v. Phyll, 36 Or App 627, 585 P2d 48 (1978) and State v. Garibbo, 77 Or App 321, 713 P2d 671 (1985)
There must be a nexus between the inability to provide basic needs (or other grounds for commitment) and the mental disorder. This nexus is not found where it is unclear whether the inability results from the mental disorder or the appellant’s financial difficulties.
State v. Bunting, 112 Or App 143, 146 (1992)
“A person is subject to a ‘basic needs’ committment under ORS 426.005(2)(b) if clear and convincing evidence demonstrates that, due to a mental disorder, there is a likelihood that the person probably would not survive in the near future because the person is unable to provide for basic personal needs and is not receiving care necessary for health or safety.”
State v. Blanding, 174 Or App 238 (2001)
AMIP had mental disease but owns own home, shops, cooks, has $15,000 in bank account. CA says that refusal to take meds increases her disorganization and disability but that is only a speculative threat, citing State v. Baxter, 138 Or App 94, 98 (1995).
State v. Aron, 176 Or App 74 (2001)
Even though AMIP had mental disorder, no clear and convincing evidence of inability to provide for basic personal needs. Food to eat, place to stay, health insurance, support group of family and friends. Court says no direct evidence in record that AMIP would not eat or take liquids if left alone. And disorder episodic in nature.
Oregon v. Phyll, 36 Or App 627 (1978) (decided under beyond a reasonable doubt standard)
Finding that a person is unable to care for basic needs must be accompanied by determination that inability is due to mental disorder, not lack of resources.
State v. Arnston, 47 Or App 477 (1980); State v. Jepson, 48 Or App 411 (1980)
Court follows Phyll, but applied clear and convincing standard.
State v. Stephens, 23 Or App 257 (1975) (decided under BRD standard)
Examiners were ambivalent, but thought that defendant needed a structured living situation. Defendant had been hospitalized for medical condition and while hospitalized his physician filed an MI. Court of Appeals reversed, stating equivocal evidence is not sufficient to show BRD that defendant should be committed.
State v. Stanley, 117 Or App 327 (1992)
Requires finding of existing conditions. Here the client was homeless, but family could assist. There was evidence that the client thought about where he could live, eat, get medications and receive social security.
State v. Johnson, 117 Or App 237, 843 P2d 985 (1992).
Basic needs are those things necessary to sustain life, including food and shelter.
State v. Johnson, 131 Or App 561, 886 P2d 42 (1994).
Under the basic needs standard, the state must prove that the person is unable to obtain some commodity or service without which he or she cannot sustain life. If these needs can be met through his or her own resources, or through the assistance of family or friends, then commitment is not justified.
State v. Stanley, 117 Or App 327, 843 P2d 1018 (1992).
Finding that a person is unable to provide for his basic needs requires a finding of existing conditions.
State v. Jensen, 141 Or App 391 (1996): AMIP’s “basic needs” met by correctional institution. No evidence introduced that he would be released in the near future, or if so, he would be unable to survive.
State v. Ayala, 164 Or App 399 (1999)
AMIP pregnant and had diagnosis of gestational diabetes. But, no evidence in record as to general nature of the disease, how severe AMIP’s case was, what type of care needed to treat.
State v. Bolander, 178 Or App (2001) AMIP facing eviction, no alternate housing plans, denial about mental illness and medication needs. Found to meet basic needs because had income, ability to shop and prepare meals, no history of homelessness.
State v. King, 177 Or App (10/31/01)
AMIP’s history of reoccuring decompressions triggered at any time by factors beyond AMIP’s control, need for restraints in an episode @ hospital, nurse testifies that illness could cause him to strike out. Court notes that behavior during 15-day hospital stay more indicative of danger to others than his demeanor @ hearing. (Seemingly in contradiction to Lucas).
State v. Jepson, 48 Or App 411 (1980)
Past verbal acts, while probative, must be supported by evidence that they clearly form a foundation for predicting future dangerousness.
State v. Arnold, 36 Or App 869 (1978)
Only violent act was against property. Defendant broke a window to get into his mother’s house to escape a cold and wet night.
State v. Fry, 36 Or App 297 (1978)
Past acts alone cannot serve as a foundation for predicting future dangerousness.
State v. Lucas, 31 Or App 947 (1977)
Must focus on the condition at time of the hearing.
State v. Tardanico, 119 Or App 166 (1993). State v. Alexander, 26 Or App 943 (1976)
Explains what is required from an expert opinion.
State v. Hegblom, 179 Or App (2002). AMIP dangerous to others because voices in head tell him to kick children and he is in denial about illness.
State v. Jerry Smith, 71 Or App 205 (1984)
Alcoholism is a mental disorder, under ORS 426.005(2), if the person, due to his alcoholism, is dangerous to self or others or unable to provide for basic needs. The court reiterated it must first be established that the person has a mental disorder. The court was careful to state, however, that the fact that an appellant’s alcoholism is causing his brain and body to deteriorate is insufficient in and of itself to justify a finding of mental illness.
State v. Sickler, 133 Or App 50 (1995)
This case defines chronic alcoholism and acute alcoholism. The commitment was reversed, with the court finding that “suspicion” of mental disorder was not enough. There was no evidence of current substance use when client’s behavior was irrational to provide a nexus between past behavior patterns and recent behavior.
State v. Bryant, 127 Or App 68 (1994)
The state moved to revoke petitioner’s outpatient commitment status because she violated a condition of her release status which prohibited her from abusing drugs or alcohol. Trial court refused to revoke because the state failed to prove the petitioner was currently mentally ill. Court of Appeals held that the state did not have to prove that the patient was mentally ill on the specific day of revocation. The court held that due process is satisfied since the state proved at the original commitment hearing that the petitioner was mentally ill.
State v. Brungard, 101 Or App 67, 789 P2d 683 (1990).
With respect to subsequent involuntary commitments, the best evidence rule does not require that the original prior commitment papers be put into evidence.
In State v. Johansen, 125 Or App 365, 866 P2d 470 (1993),
the appellant challenged the constitutionality of Oregon’s recommitment procedures. The court held the procedures to be constitutional: the appellant failed to demonstrate that the process involves a constitutionally impermissible risk or error, and the state has significant interest in providing care for those who cannot care for themselves and in protecting the rest of the community. The minimum due process protections owed to patients are provided through the initial commitment process and the certification process for recommitment. The court also rejected appellant’s separation of powers argument since the statute affords an adequate opportunity for judicial review of the certification decision.
State v. Linder, 177 Or App (10/31/01): Under “Appeal;” court considers and rejects right to collaterally challenge committment order (former counsel did not timely file motion for appeal). Distinguishes SER Juv Dep’t v. Geist, 310 Or 176 (1990), which allowed such a challenge in parental termination case, on ground that Geist predated P.G.E. v. BOLI, 317 Or 606 (1993), which set out the methodology of statutory analysis, and is irreconcilable with PGE. AMIP may have a civil remedy but can’t appeal on basis of inadequate counsel. Also note under Pieretti, the issue was ability to appeal AMIP’s motion to recuse counsel, ie. it was a motion preserved on the record, not a PCR-like attack on adequacy of counsel per se.
State v. Pieretti, 110 Or App 379, 382 rev den (1991)
AMIP’s claim of inadequate assistance of counsel can be considered on direct appeal.
State v. Jayne, 174 Or App 74 (2001)
Court of Appeals declined to exercise discretion to review question of whether error to admit report of pre-committment investigator without the investigator being present for cross-examination and without waiver by AMIP of presence at hearing, contrarty to ORS 426.095 (4)(d)(C).