Thanks
@Seattle1!
For me, that was not a terribly persuasive brief. I have no idea what the judge will do but I guess the defense will have the opportunity to post one last brief before that decision is made.
CRS 16-8-5-401(1) ("defendant waives privilege")
doesn't mention recording even though we've had the ability to easily audio-record for over a half-century (and the ability to easily videotape for over a quarter-century.) The state claims the statute could include recordings. Yeah, it could. It could have been written to include alot of things not mentioned. Maybe it could even have said all parties can directly observe evaluations in real time. But that's not what it says. Observation, whether via audio- or videotape or in "the flesh" wasn't mentioned. And it seems to me there is good reason it wasn't for a
pre-trial competency evaluation.
As a non-lawyer, the brief to me seems to rest mainly on the notion of "transparency is always best" and I'm not sure that's the case so far as a defendant's pre-trial rights go. (And I'm quite sure when it comes down to it, it's not how most DA's offices operate either!)
A second difficulty I have is with the argument the state makes about the possibility of conflicting reports. While admitting they aren't "soothsayers" and so there may not be a future conflict, the state argues recordings will be the "best evidence" for all parties to consider if there is a conflict in recommendations re: competency.
That argument makes it sound as though the state expects all parties to be able to properly function as fully-trained psychiatrists and psychologists, if necessary. Coming from a psychology perspective, I have trouble with that notion.
If there is a conflict, the best evidence, in my opinion, is not the recordings but
the testimony of the evaluators. Anyone who does court-ordered evaluations is going to have a very clear idea why he/she made a particular recommendation. He/she will lay out his/her reasoning in the report to the court and will be prepared to discuss that reasoning.
For example, let's say the defendant said A, B, and C during the evals. (Of course, it wouldn't be this simple in a real eval situation.)
Evaluator #1 testifies A was key in his recommendation of competency. (A fact he included his report.) Evaluator #2 testifies C was key in her recommendation of incompetency. (A fact she included in her report.) It sounds as though the state is arguing:
1) Statement B, a statement neither evaluator thought particularly relevant, should be heard and considered by the "psychologically-untrained" court parties to determine competency.
2) Both Statements A and C need to be heard on tape/ seen on videotape by the psychologically-untrained court parties to determine which statement was "heard wrong" in real time by the trained evaluators.
Of course, the evaluators can be and should be examined about their recommendations and their weighting of Statements A and C contained in their respective reports. Of course, each evaluator will be allowed to read the other evauator's report and will be prepared to offer expert testimony to rebut the other report. And Evaluator #1 can be asked why he appeared to discount C while #2 can be asked the same about A. But the notion that the court has to hear/see both A and C on tape to decide which is "right" (or decide neither is and B is key instead) doesn't make sense to me. In fact, I can't think of other instances where conflicts in expert testimony even
during a trial would be handled that way. For example, if there is a dispute about autopsy findings between the state's medical examiner and the defense expert, the court doesn't view a videotape of the autopsy to decide who is "right."
JMO
