Supreme Judicial Court (September 20, 2010)
It is not a per se violation of due process to hold a hearing under G.L. c. 276, §58A to determine an incompetent person's dangerousness, regardless of whether the person is an adult defendant or a juvenile.
During a dangerousness hearing pursuant to G.L. c. 276, §58A, the Commonwealth may satisfy its burden of proof exclusively by hearsay evidence, (note that live witnesses can also be hearsay witnesses!), so long as its proffered hearsay bears substantial indicia of reliability and is substantially trustworthy.
If a judge orders an individual detained after a G.L. c. 276, §58A hearing, that person may be held beyond the statutory maximum period of ninety days if the person remains incompetent to stand trial, but due process requires that "the rule of reasonableness" be applied.
The juvenile was arraigned as a delinquent child on charges stemming from his participation in a brutal group attack on a man sleeping in a park in Lynn. At arraignment the Commonwealth moved to hold him without bail under G.L. c. 276, §58A and for the revocation of his bail on prior pending charges. The juvenile moved to stay the §58A proceedings, arguing that the same court had determined several months previously that he was not competent to stand trial on the other delinquency matters.
The judge denied the juvenile's motion to stay the proceedings and proceeded to conduct the dangerousness hearing. The Commonwealth did not call any witnesses during the proceeding, relying instead on police reports and videotaped interrogations of the codefendants and other witnesses to the crime. After the hearing, the judge determined, by clear and convincing evidence, that the juvenile was dangerous and that no conditions of release would ensure the safety of the public. The judge also ruled that the period of delay arising from the juvenile's incompetency should not be counted in calculating the ninety day maximum detention period under §58A. The juvenile petitioned for relief pursuant to G.L. c. 211, §3.
It is not a per se violation of due process to hold a §58A hearing to determine an incompetent person's dangerousness:
In 2004, the Supreme Judicial Court held in Commonwealth v. Torres, 441 Mass. 499 that "[c]onducting a bail hearing for a defendant found incompetent to stand trial does not per se violate that defendant's due process rights," but recognized that "each case may require some assessment by the hearing judge of whether the defendant's mental condition prevents any meaningful communication with counsel, such that the court will be unable to obtain the information necessary to set a proper bail." Recognizing that a defendant's or juvenile's interest in a dangerousness hearing is even greater than in a bail proceeding, the Court likened the situation to permitting an incompetent person to be civilly committed as a sexually dangerous person. The Court must balance the defendant's right to meaningfully participate in a detention hearing against the Commonwealth's interest in protecting society. "A dangerous defendant's or juvenile's incompetency makes him no less of a threat to the safety of others than a defendant or juvenile who is dangerous but competent." Commonwealth v. Nieves, 446 Mass. 583 (2006). Based on this reasoning, the Court concluded that is not a per se violation of due process to hold a hearing under §58A to determine an incompetent person's dangerousness, regardless of whether that person is an adult defendant or a juvenile.
The Commonwealth may satisfy its burden of proof at a §58A hearing by relying solely on hearsay evidence so long as that evidence bears substantial indicia of reliability and there is good cause to deny the defendant his confrontation rights:
While §58A provides that the "rules concerning the admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing," the SJC had not addressed the question of whether the Commonwealth may rely exclusively on hearsay evidence at a detention hearing. The Court compared §58A proceedings to probation revocation hearings, where deprivation of liberty is also at stake, and the rules of evidence do not apply. In Commonwealth v. Durling, 407 Mass. 108 (1990), the SJC held that hearsay that would otherwise be inadmissible at a criminal trial may be admitted at a revocation hearing if the evidence is substantially reliable and if there is good cause to deny the defendant his right of confrontation. In this §58A case, the Commonwealth's evidence consisted of out-of-court statements of co-defendants and witnesses contained in police reports as well as videotaped admissions. The Court was "satisfied that the reports and videotapes bore substantial indicia of reliability to supply good cause for the Commonwealth's decision not to present live testimony."
An individual may be held beyond the statutory ninety day if he remains incompetent to stand trial but due process requires that "the rule of reasonableness" be applied:
In this case, the judge ruled that the maximum ninety day detention period under §58A is tolled because of the juvenile's incompetency. The juvenile argued that this ruling was an incorrect interpretation of the statute, and if correct, could result in the indefinite detention of the juvenile in violation of his due process rights.
The judge's ruling is required by the language of the statute. Section 58A(3) excludes from the ninety day deadline "any period of delay as defined in rule 36(b)(2)"; among the excluded periods of delay defined in that rule is "[a]ny period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial."
However, the detention of an incompetent defendant or juvenile under §58A is limited by constitutional requirements of due process, which necessitate the "rule of reasonableness" to be applied by considering the following factors:
1. Whether there is a substantial probability that the juvenile will attain competency in the foreseeable future;
2. Whether there is evidence of progress toward achieving competency; and
3. If there is such a substantial probability and progress, whether the duration of the pretrial detention has become unreasonable.
Based on the record in this case, the Court was unable to evaluate the reasonableness of the juvenile's continued detention. The case was remanded for the judge to conduct a prompt hearing on the matter.