JTIP Supplemental Materials
Lesson 10 – Challenging Probable Cause and Detention
Sample Motion to Oppose Psychological Evaluation
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Family Division - Juvenile Branch
IN THE MATTER OF
: Juvenile No. J-XXX-00
: Social File 99-JSF-XXX
: Judge XXXXX
JOHN SMITH
: Trial: March 3, 2000
Respondent
:
MOTION TO VACATE ORDER COMPELLING
PSYCHOLOGICAL EXAMINATION
John Smith, through counsel, respectfully requests that this Court, pursuant to Superior
Court Juvenile Rules 47-I, 106, 110 and 111, D.C. Code § 16-2315, and the Fourth, Fifth and
Sixth Amendments to the United States Constitution, vacate the order compelling John to submit
to a psychological examination. Counsel requests a hearing on this motion. In support of this
motion, Counsel states the following:
1. John was presented on February 5, 2000, and was charged with one count of
unauthorized use of a motor vehicle. D.C. Code § 22-3812.
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2. The court ordered, sua sponte, that John submit to a psychological evaluation.
Although counsel does not have a transcript of the proceeding, to the best of counsel’s
recollection, the court stated that the psychological examination was necessary to test John for
possible mental health issues. Counsel also recalls that the Court overruled counsel’s objection to
the examination, stating that John had a right to receive treatment from the court system.
3. There has been no allegation that John is incompetent within the meaning of Dusky v.
United States, 362 U.S. 402 (1960). Counsel proffers that John understands the proceedings
against him and is capable of assisting with his defense.
4. John’s mental state is not at issue. As a juvenile, John may not raise an insanity
defense. In Re C.W.M, 407 A.2d 617, 621 (D.C. 1979). A psychological evaluation is therefore
unnecessary.
5. A psychological evaluation is an intrusive experience, and should not be assigned to
every child who has contact with the juvenile system. John has a constitutionally protected right
to privacy under the Fourth and Fifth Amendments. See Roe v. Wade, 410 U.S. 113, 152-3
(1973); Warden v. Hayden, 387 U. S. 294, 304 (1967). The Court’s decision to order a
psychological evaluation without reliance on any specific factors relating to John individually
violates John’s right to privacy.
6. A psychological evaluation is not necessary to ensure the safety of John or of the
community. Less intrusive conditions of release, such as counseling, will be sufficient to ensure
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the safety of both John and the community. John is entitled to the least restrictive conditions of
release. Superior Court Juvenile Rule 106.
7. The use of a compelled psychological evaluation violates John’s Fifth Amendment
rights. John retains a Fifth Amendment privilege even after adjudication. The use of a compelled
psychological evaluation against John at disposition would violate his Fifth Amendment rights.
See Estelle v. Smith, 451 U.S. 454, 462 (1981).
8. Compelling John to submit to a psychological evaluation without the presence of
counsel violates his Sixth Amendment rights. See In Re Gault, 387 U.S. 1, 36 (1967).
9. Even if the final report did not contain incriminating information, intermediate notes
from a psychological evaluation could be used against John either at trial or sentencing, further
violating his Fifth Amendment rights.
10 . John is entitled to a hearing on this motion within 48 hours. Superior Court Juvenile Rule
110.
ARGUMENT
This psychological evaluation order is constitutionally overbroad, in violation of John’s
due process rights. Moreover, the order violates John’s Fifth Amendment rights, his Sixth
Amendment rights and his privacy rights. The government cannot show the necessity or
constitutionality of this evaluation. The order compelling John to submit to a psychological
examination should therefore be vacated.
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I. THE PSYCHOLOGICAL EXAMINATION IS UNNECESSARY.
John Smith is a young man before the court on his second contact with the juvenile
justice system. John has no adjudications. The commissioner sitting in courtroom JM-10 ordered
a psychological evaluation of John, despite the fact that nothing about John or his social history
indicates that he is mentally ill or in need of psychological evaluation.
John is competent within the meaning of Dusky v. United States, 362 U.S. 402 (1960).
Indeed, counsel proffers that he understands the proceedings against him and is able to assist
with his defense. Neither the government nor Court Social Services have made any allegation
that John is incompetent.
A psychological examination is not necessary for the government to prove whether John
assaulted a police officer or used a motor vehicle without authority to do so. Moreover, John may
not raise an insanity defense to the charges in the petition because he is charged as a juvenile. In
Re C.W.M, 407 A.2d 617, 621 (D.C. 1979). His mental state, therefore, cannot be at issue in
these proceedings. A psychological evaluation is therefore unnecessary.
Superior Court Juvenile Rule 106 makes clear the preference for the least restrictive pretrial conditions possible. John’s safety, and the safety of the community, can adequately be
ensured through the use of less intrusive mechanisms such as counseling. The psychological
evaluation is therefore unnecessary to meet the court’s purposes.
II. THE PSYCHOLOGICAL EXAMINATION ORDER IS OVERBROAD AND
VIOLATES JOHN’S DUE PROCESS RIGHTS.
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D.C. Code § 16-2315(a) allows the Family Division to “order a child to be examined to
aid in determining his physical or mental condition.” This broad grant of authority must have
some limits. Section 2315(a} cannot authorize the Family Division to order unlimited tests upon
every child, for the sole purpose of learning more about the child’s physical and mental
condition. The physical and mental testing must be linked to some goal of the court process.
John, like other children before the Family Division, has a right to privacy under the
Fourth and Fifth Amendments to the United States Constitution. See Roe v. Wade, 410 U.S. 113
at 152-3; Warden v. Hayden, 387 U.S. 294 at 304. The process of physically and mentally testing
John is an intrusion on his right to privacy. Indeed, the D. C. Court of Appeals has acknowledged
that mental testing is an “intensely personal and intrusive experience.” United States v. Harrod,
411 A.2d 1383, 1385 (D.C. 1980) (discussing psychiatric evaluations).
The question, therefore, is what balance should be struck between John’s constitutional
right to privacy and the Family Division’s powers under § 2315(a). The D.C. Court of Appeals
has dealt with this balancing in the related context of compelled governmental psychiatric
evaluations by the Commission on Mental Health under § 21-541(a)(2). The Court of Appeals
held that:
It would be unreasonable to conclude, therefore, that [the government] may intrude upon
constitutionally protected rights with virtually no procedural safeguards. Some procedural
safeguards are required before a psychiatric examination may be compelled, consistent
with the government’s legitimate interest in an expeditious examination of the person…
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In Re Johnson, 699 A.2d 362, 372 (D.C. 1997). Likewise, although the Family Division has the
power to order John to undergo a psychological evaluation, some procedural safeguards must be
in place.
The Court’s order in courtroom JM-10 did not relate to any specifics of John’s situation.
The Court merely indicated that John should be evaluated to see whether he suffers from any
mental illness. There is no indication in the police reports or John’s social history that he suffers
from mental illness. Counsel can proffer that John’s mental health does not appear to be in any
way abnormal.
The psychological evaluation order does not have a link to any goal of the Family
Division. John has not been adjudicated delinquent. Ordering John to undergo a psychological
evaluation pre-adjudication presumes that he is delinquent, violating the presumption of
innocence. There has been no finding that he is in need of care and rehabilitation. Even if John
was to be found delinquent, it might well be possible to fashion a set of services for John without
the use of a psychological evaluation. The psychological evaluation order therefore violates
John’s Fourth and Fifth Amendment rights to privacy and his Fifth Amendment due process
rights, without a sufficient showing of need on the part of the Family Division.
III. THE PSYCHOLOGICAL EXAMINATION VIOLATES JOHN’S FIFTH AND SIXTH
AMENDMENT RIGHTS.
John has a Fifth Amendment privilege. The Fifth Amendment privilege against selfincrimination applies equally to juveniles and adults. In Re Gault, 387 U.S. 1, 55 (1967). This
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privilege has also been codified in Juvenile Rule 111. Although the court expressed concern for
John’s treatment when ordering the evaluation, the Supreme Court noted in Gault that
[u] ltimately ... we confront the reality of that portion of the Juvenile Court process with
which we deal in this case. A [child] is charged with misconduct. The [child] is
committed to an institution where he may be restrained of liberty for years. It is of no
constitutional consequence and of limited practical meaning - that the institution to which
[the child] is committed is called an Industrial School. The fact of the matter is that,
however euphemistic the title, a “receiving home” or an “industrial school” for juveniles
is an institution of confinement in which the child is incarcerated.... Instead of mother and
father and sisters and brothers and friends and classmates, [the child’s] world is peopled
by guards, custodians, state employees, and “delinquents” confined with [the child] for
anything from waywardness to rape and homicide.
387 U. S. 1 at 27. The ‘industrial school’ where John is currently detained is Oak Hill Youth
Center. As the Court is aware, the District of Columbia entered into a consent decree on July 24,
1986, agreeing to improve living conditions at Oak Hill. See District of Columbia v. Jerry M.,
571 A.2d 178, 180 (D.C. 1990). The District has not yet complied with the terms of the consent
decree, and Oak Hill continues to operate with substandard living conditions fourteen years later.
John faces incarceration at Oak Hill until age 21, a period of five years.
John also has a Sixth Amendment right to counsel. The Supreme Court noted that:
There is no material difference in this respect between adult and juvenile proceedings of
the sort here involved. A proceeding where the issue is whether the child will be found to
be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in
seriousness to a felony prosecution....[t]he assistance of counsel is essential for the
determination of delinquency, carrying with it the awesome prospect of incarceration.
Gault, 387 U.S. at 36. John has asserted his Sixth Amendment right to counsel.
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In ordering the psychological examination, the court acknowledged John’s constitutional
rights, but went on to find that John ‘also has a right to treatment.’ This balancing of John’s Fifth
Amendment rights with his ‘right to treatment’ goes against the Supreme Court’s findings that:
The language of the Fifth Amendment…is unequivocal and without exception. And the
scope of the privilege is comprehensive.... ‘The privilege can be claimed in any
proceeding… it protects any disclosures which the witness may reasonably apprehend
could be used in a criminal prosecution or which could lead to other evidence that might
be so used.’
Id. at 47-48 (1967) (citations omitted) (emphasis in original) (quoting Murphy v. Waterfront
Commission, 378 U. S. 52, 94 (1964)). The psychological evaluation order violates John’s Fifth
Amendment rights and should be vacated. Corporation Counsel may represent that they will not
use the final psychological report at a fact-finding hearing. This is insufficient; John’s Fifth and
Sixth Amendment rights do not end with the fact-finding proceeding. He retains his rights
through disposition. The Supreme Court held in Mitchell v. United States, 526 U.S. 314, 325
(1999), that “this Court has already rejected the proposition that ‘incrimination is complete once
guilt has been adjudicated,’ and we reject it again today” (quoting Estelle v. Smith, 451 U.S. 454,
462 (1981)). The use of the psychological evaluation against John at disposition would therefore
violate his Fifth and Sixth Amendment rights. If Corporation Counsel agreed to immunize John
from prosecution for these charges, John’s rights would be adequately protected.
The psychological evaluation jeopardizes John’s Fifth and Sixth Amendment rights in
several ways. The court’s ability to order psychological evaluations is subordinate to John’s Fifth
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and Sixth Amendment rights. Estelle v. Smith, 451 U.S. 454 at 463. The District of Columbia
Court of Appeals noted that:
Unless the defendant has waived the fifth amendment right against self-incrimination
and the sixth amendment right to counsel, the government cannot attempt to prove guilt
or to determine punishment with expert testimony based on statements of the accused
made during a compelled psychiatric examination.
Clifford v. United States, 532 A.2d 628, 636 (D.C. 1987). John, through counsel, has asserted
his Fifth and Sixth Amendment rights and does not wish to submit to a psychological evaluation.
IV. THE INTERMEDIATE NOTES TAKEN BY THE PSYCHOLOGIST ALSO
REPRESENT A THREAT TO JOHN’S FIFTH AMENDMENT RIGHTS.
Corporation Counsel’s promise not to use the final report generated by the psychologist
at a fact-finding hearing is insufficient for other reasons, as well. The psychologist may take
notes of his or her evaluation of John in preparation for a final report. These intermediate notes
may contain inculpatory statements, which Corporation Counsel could then use against John at
either fact-finding or disposition.
CONCLUSION
Wherefore, for the reasons set out in the attached memorandum of points and authorities
and any reasons which may appear at a hearing on this motion, John respectfully requests that
this Court vacate its February 5th order compelling he submit to a psychological examination.
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion to Vacate Order Compelling Psychological
Examination was hand delivered to the Office of the Corporation Counsel, Attention Assistant
Corporation Counsel [FIRST & LAST NAME], Esq., Juvenile Section, 441 4th Street N.W.,
Room 450 Washington, DC 20001, on this _____th Day of February, 2000.
_______________________
[COUNSEL NAME]
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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Family Division - Juvenile Branch
IN THE MATTER OF
: Juvenile No. J-XXX-00
: Social File 99-JSF-XXX
: Judge XXXXX
JOHN SMITH
: Trial: March 3, 2000
Respondent
:
ORDER
This Court having considered the Motion to Vacate Order Compelling Psychological
Examination, it is this day of _________, 2000, hereby ORDERED, that the court’s February 5th
order compelling a psychological examination of John Smith is hereby vacated.
______________________________
The Honorable [NAME]
Copies to:
[DEFENSE COUNSEL NAME, ADDRESS, PHONE #, FAX#]
[PROSECUTOR NAME, ADDRESS, PHONE #, FAX #]
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