NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.


                                         2015 VT 133

                                Nos. 14-284, 14-285 & 14-286

State of Vermont                                              Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Windham Unit,
                                                              Criminal Division

Anthony Gotavaskas                                            May Term, 2015

State of Vermont

  v.

Grant S. Bercik

David Suntag, J.

David W. Gartenstein, Windham County Deputy State’s Attorney, Brattleboro, for
 Plaintiff-Appellant.

Matthew F. Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for
 Defendants-Appellees.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J. The State appeals the Windham Superior Court, Criminal Division’s

decisions to seal certain portions of competency reports prepared in connection with court

ordered competency evaluations of Anthony Gotavaskas and Grant S. Bercik, defendants in two

separate criminal cases. For the reasons stated herein, we reverse and remand.

        ¶ 2.   The facts of the respective underlying cases are as follows:
       ¶ 3.    During the summer of 2013, defendant Gotavaskas was charged with burglary of

an occupied dwelling in one docket and providing false information and operation without the

owner’s consent in a second docket. At his arraignment on September 10, 2013, Gotavaskas

raised the issue of his competency and the trial court ordered a competency evaluation pursuant

to 13 V.S.A. § 4814.

       ¶ 4.    A competency evaluation was conducted by Dr. Paul Cotton, who issued a report

dated September 24, 2013 concluding that Gotavaskas was competent to stand trial. Following

the evaluation, a competency hearing was held on October 17, 2013, during which the State

offered the competency evaluation into evidence, contending that the entire report should be

admitted under 13 V.S.A. § 4816(e), which requires admission of the relevant portion of a

competency report. Although Gotavaskas did not contest the competency finding, he objected to

the admission of the entire report and offered a redacted version excluding portions he claimed

were not relevant. The State disagreed, contending that because Dr. Cotton relied upon all of the

information in the report as a basis for his opinion, the entire report should be admitted for its

relevancy on the issue of Gotavaskas’ competency.

       ¶ 5.    The court redacted the competency report to include only information regarding

the evaluator’s impressions of Gotavaskas and specific findings as to competence. The court

admitted the non-redacted portions of the report and excluded the redacted ones, finding the

portions it chose to redact to be “less relevant” to a finding of competency than the non-redacted

portions. The State made a timely objection to the trial court’s redaction.

       ¶ 6.    In January 2014, Gotavaskas again raised the competency issue, leading the State

to seek another evaluation by Dr. Cotton. In a second report by Dr. Cotton, dated February 14,

2014, he found Gotavaskas to be incompetent.

       ¶ 7.    A second competency hearing was held on March 28, 2014, at which the parties

stipulated to a finding of incompetency. Again the parties disagreed about what portions of the

                                                 2
report should be received into evidence; the State sought admission of the entire report, while

Gotavaskas only agreed that certain portions should be admitted. The court received the report

under seal but deferred ruling on the admission of the report pending its decision on what

portions should be admitted, entering a finding of incompetency.           After the finding of

incompetence, the parties stipulated that Gotavaskas was a person in need of treatment and he

was committed to the care of the Commissioner of Mental Health on an order of

nonhospitalization (ONH).

       ¶ 8.    Although the finding of incompetency had been made and ONH had issued, the

court considered the arguments over the still unresolved admission of the competency reports,

issuing a written decision on July 3, 2014.

       ¶ 9.    In September 2013, defendant Bercik was charged with simple assault. He was

arraigned and pled not guilty. Several months after arraignment, Bercik filed a motion for

competency and sanity evaluations, which the court granted.

       ¶ 10.   A competency evaluation was conducted by Dr. Jonathan Weker, who issued a

report dated January 8, 2014 concluding that Bercik was incompetent to stand trial.

       ¶ 11.   A competency hearing was held on February 21, 2014, at which time the State

sought a finding of incompetency and the admission of the entirety of Dr. Weker’s report.

Although Bercik agreed that there should be a lack of competency finding, he opposed the

admittance of the entire report, requesting that the court temporarily seal the report. The court

made a finding of incompetency and received Dr. Weker’s report under seal, deferring ruling on

the admission of the report pending further briefing by the parties. Although not admitted in

evidence, the court based its finding of incompetence upon the conclusions contained in Dr.

Weker’s report.

       ¶ 12.   Bercik, who had previously been on an ONH, remained on an ONH following the

determination of incompetency.

                                                3
       ¶ 13.   On April 14, 2014 defendants Gotavaskas and Bercik moved for the court to

redact their competency evaluations to include only the portions relevant to a finding of

competency or incompetency, pursuant to 13 V.S.A. § 4816(e) and the Rules for Public Access

to Court Records (P.A.C.R.) 6(b)(19). By similar entry orders dated July 3, 2014, the court

granted defendants’ motions to redact certain portions of the competency evaluations.             In

deciding to redact portions of each report, the court balanced the privacy interests of the

defendants in not having “less relevant” information disclosed with the public’s interest in

knowing how the court reached its decisions.

       ¶ 14.   Section 4816(e) of Title 13 dictates that “[t]he relevant portions of a psychiatrist’s

report shall be admitted into evidence as an exhibit on the issue of the person’s mental

competency to stand trial.” 13 V.S.A. § 4816(e). The admission of material into evidence

customarily carries with it public access to those records, and there is an express policy within

the PACR that the public shall have access to court records unless an exception applies. Vt. R.

Pub. Acc. Ct. Rec. § 6(a) (“The public shall have access to all case records, in accordance with

the provisions of this rule.”). One such exception is contained in P.A.C.R. 6(b)(19), excepting

from public disclosure “[a]n evaluation by a mental health professional to determine competency

to stand trial . . . if not admitted into evidence.” Id. § 6(b)(19). Additionally, under P.A.C.R.

7(a) a court may, after a finding of good cause specific to the case before the court and

exceptional circumstances, “seal from public access a record to which the public otherwise has

access or may redact information from a record to which the public has access.” Id. § 7(a).

       ¶ 15.   Recognizing the public access that would be afforded to the defendants’ private

information if the competency reports were admitted in their entirety, the court’s decisions,

issued after the incompetency determinations had been made, limited the admission of the

reports to unredacted portions. No findings were made as to the portions excluded by the court,

which made no case-specific basis for the decision to exclude them. The court discussed the

                                                 4
P.A.C.R. and recognized the defendants’ privacy interests, finding it appropriate to balance the

defendants’ interests with those of the public:

                Typically, the evaluator’s impressions of the defendant and
                specific findings as to competence will be relevant enough to the
                determination that they cannot be redacted or sealed. However,
                personal history, past diagnoses, medical and substance abuse
                history, and observations regarding criminal responsibility, for
                example, may not be closely related enough to competency to
                require release to the public.

The court then redacted certain portions of the reports without indicating what was being

redacted in these specific cases or why.

        ¶ 16.   This Court has long recognized the public’s interest in access to information upon

which judicial decisions are made, an access necessary for the maintenance of public confidence

in the judiciary. State v. Koch, 169 Vt. 109, 117, 730 A.2d 577, 583 (1999). This presumption

of public access is deep-rooted and so strong that it applies even to pretrial criminal proceedings.

State v. Tallman, 148 Vt. 465, 475, 537 A.2d 422, 428 (1989). Such a presumption is especially

critical, however, at the junction of our criminal and mental health statutes, where both the

mental health of the defendant and public safety concerns are to be considered. By requiring the

admission of relevant portions of a competency evaluation, which are thus made available to the

public through P.A.C.R. 6(b)(19) unless sealed under P.A.C.R. 7, § 4816(e) is consistent with

this long-standing policy.

        ¶ 17.   Narrowly viewed, the cases before the Court involve evidentiary rulings

concerning undisputed findings of incompetency. No outside entity has raised an issue of public

access. Thus, the initial issue is whether there is a justiciable controversy before this Court and,

if so, whether the State has standing to raise it.

        ¶ 18.   Although no person or member of the public sought to intervene to represent the

public’s right of access to the competency evaluations, this is not to say that the public did not

have an interest in seeing that justice was done in the determination of these defendants’

                                                     5
competency. For the judicial system to function properly, it is essential that the basis for court

rulings not be cloaked, because this prevents the public from knowing how and why decisions

have been reached. In this respect, it may fall upon the prosecutor to represent the public’s right

of access to the decision making process, which might otherwise go unrepresented, especially in

cases such as these where the media or the general public may be unaware of the competency

issues. An evidentiary ruling in a competency hearing which excludes certain information

contained in the competency report will have a collateral impact on the public’s ability to access

the documents supporting the competency ruling, and will do so without meaningful notice to the

public.

          ¶ 19.   While we ordinarily would expect members of the public to assert and advocate

for their own interests in matters impacting public access, a member of the public would lack

standing to intervene regarding an evidentiary ruling at a competency hearing. Because the

public lacks meaningful notice and an opportunity to be heard on the evidentiary ruling, and

because that ruling will impact public access to the evidentiary records, there is a public interest

at stake. It is in the public interest that the public has access to information upon which

competency decisions are made, as reflected in the legislative decision requiring disclosure of

relevant information in the competency statute. Koch, 169 Vt. at 117, 730 A.2d at 583; Tallman,

148 Vt. at 475, 537 A.2d at 428.       Because the prosecutor is involved in the competency

proceeding and is the only party in a position to object to the court’s ruling on behalf of the

public on evidentiary matters which will collaterally impact public access, we conclude that,

under the circumstances presented here, the State had standing to assert public access concerns.

To hold otherwise would create a proceeding in which the only party with the meaningful ability

to object would be the defendant. We can envision a similar circumstance when, in the course of

a proceeding, on a motion by a party or on the court’s own motion, the court invokes P.A.C.R. 7

to seal records which would otherwise be available to the public. In such a case, as distinguished

                                                 6
from a direct public records request from a member of the public, the prosecutor would again be

the only one in a position to raise an objection or appeal on behalf of the public interest.

       ¶ 20.   Although the State may have standing to address the right of public access, an

actual case or controversy must still exist for these cases to properly be before this Court.

Absent a case or controversy, the appeals are moot.

       ¶ 21.   Here, the findings of incompetency were based on documents received under seal,

and those documents remain under seal as a consequence of the court’s order.                   Further,

defendants have been found incompetent and therefore have yet to stand trial on the pending

criminal charges.    Each defendant’s competency remains subject to further evaluation and

consideration by the criminal division. Under these circumstances, the appeals are not moot.

       ¶ 22.   Even if the appeals were moot, we have recognized exceptions to the case or

controversy doctrine in cases that are capable of repetition yet likely to evade review, as well as

in cases where negative collateral consequences, such as the stigma of mental health

commitment, are likely to result from the action being reviewed. See In re P.S., 167 Vt. 63, 67,

702 A.2d 98, 101 (1997) (citing State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984))

(finding that negative collateral consequences can apply in mental health commitment cases

because “[t]he legal disabilities radiating from the label of mentally incompetent are myriad”).

We address these exceptions as an alternative, in the event the cases were, in fact, moot.

       ¶ 23.   To fall within the mootness exception for situations capable of repetition yet

evading review, a plaintiff must satisfy a two-prong test. First, “the challenged action must be in

its duration too short to be fully litigated prior to its cessation or expiration.” Price v. Town of

Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26 (citing Tallman, 148 Vt. at 469, 537 A.2d at

424). Second, “there must be a reasonable expectation that the same complaining party will be

subjected to the same action again.” Price, 2011 VT 48, ¶ 24; Paige v. State, 2013 VT 105, ¶ 10,

195 Vt. 302, 88 A.3d 1182. Competency is a fluid concept which may exist at one time during

                                                  7
the prosecution of a case and not at another such that a finding of incompetency does not

eliminate a future finding of competency or vice versa. See State v. Lockwood, 160 Vt. 547,

555-56, 632 A.2d 655, 660 (1993) (“Once a defendant has been found competent, the trial court

must be alert to changed circumstances that would indicate the need for a new determination of

competency”).

       ¶ 24.    The negative collateral consequences exception to the mootness doctrine “is

limited to situations where proceeding to a decision in an otherwise dead case is ‘justified by a

sufficient prospect that the decision will have an impact on the parties.’ ” Paige, 2013 VT 105,

¶ 12 (quoting In re Collette, 2008 VT 136, ¶ 16, 185 Vt. 210, 969 A.2d 101). While the stigma

attached to a finding of incompetency may be less than that which attaches to an order of

involuntary commitment, it is, nonetheless, a finding which leads to further proceedings under

Vermont’s mental health laws.

       ¶ 25.    In In re S.N., we declined to invoke an asserted public interest exception to the

case or controversy doctrine. 2007 VT 47, ¶ 9, 181 Vt. 641, 928 A.2d 510 (mem.). In that case,

S.N. had been ordered to submit to an emergency mental health examination and had requested a

probable cause hearing. Id. ¶ 2. The court found no probable cause to determine him to be a

person in need of treatment and had ordered him discharged from the State Hospital. Id. ¶ 4. By

the time of the appeal, S.N. had been released from the State Hospital and had returned to New

York. Id. We found the hypothetical possibility that S.N. would return to Vermont insufficient

to invoke the public interest exception. Id. ¶ 7.

       ¶ 26.    Unlike in S.N., defendants have been the subject of criminal charges that have not

been prosecuted to conclusion due to findings of incompetency. In addition, both defendants

have had further or ongoing involvement with our mental health laws through ONHs already in

place prior to those criminal charges or directly resulting from the instant criminal charges,

making these stronger cases for the adoption of a public interest exception than was presented in

                                                    8
S.N. Although there is a recognized public interest here, we decline to adopt further exceptions

to the mootness doctrine.

       ¶ 27.   In considering the two recognized exceptions, we find that the cases at hand

present situations capable of evading review. It was defendants’ objections to the admission of

the competency reports in their entirety which triggered the controversy leading to these appeals.

The State has objected on two separate occasions to orders which resulted in only portions of

competency evaluations being admitted into evidence, despite broad statutory language dictating

admission of relevant portions of the reports. Yet despite the lack of formal admission of any

portion of the competency reports, orders of non-competency issued based upon documents

received under seal. Under these circumstances, to consider these appeals moot by virtue of the

incompetency rulings would leave the State with no remedy in any case where, as here, the State

did not object to the ultimate conclusion as to competency, and would allow the trial court to

create a process and a procedure by which its actions could not be reviewed. Thus, we are

satisfied that both prongs of the “evading review” exception to the mootness doctrine are met if

we otherwise considered the issue to be moot. Consequently, we need not address whether the

“negative collateral consequences” exception might also apply in this instance.

       ¶ 28.   Turning to the court’s rulings regarding admission of the competency reports, we

start with the statutory language of 13 V.S.A. § 4816(e) in effect at the time of these orders,

which read as follows:

                (e) The relevant portion of a psychiatrist’s report shall be
               admitted into evidence as an exhibit on the issue of the person’s
               mental competency to stand trial and the opinion therein shall be
               conclusive on the issue if agreed to by the parties and if found by
               the Court to be relevant and probative on the issue.

       ¶ 29.   The substance of this appeal turns on consideration of the term “relevant.” The

State argues that “relevance” in § 4816 is determined by reference to V.R.E. 401, while



                                                9
defendants assert that a narrower construction of “relevant” should apply given the privacy

interests which pertain to assessments of this nature.

       ¶ 30.   In State v. Whitney, 2005 VT 102, ¶ 4, 178 Vt. 435, 885 A.2d 1200, this Court

held that the defendant was not entitled to have a competency report sealed where the trial court

relied on it in finding the defendant to be competent, but the report was never formally offered

into evidence. We found the lack of formal admission an unconvincing technical argument and

further found the public had access to the report. Id. ¶ 8.

       ¶ 31.   The language of the statute requires that the relevant portion of a competency

evaluation shall be admitted into evidence. The statute does not create hierarchies of relevance

or provide the trial court with discretion to exclude relevant portions of competency reports.

P.A.C.R. 6(b)(19) follows the statute in that a competency evaluation is exempted from public

disclosure “if not admitted into evidence.” Consistent with Whitney, neither the statute nor the

P.A.C.R. allow the court to rely upon a competency report in the determination of competency

but not admit at least the relevant portions of the report.

       ¶ 32.   Also consistent with Whitney, relevant portions of a competency report otherwise

accessible by the public might be redacted in a case where the necessary showing of “good

cause” and “exceptional circumstances” has been made on a case-specific basis under P.A.C.R.

7(a). No findings approaching that which would be necessary to redact portions of any report

under P.A.C.R. 7(a) were made in either of defendants’ cases.

       ¶ 33.   While, by its language, the statute contemplates that some portions of a

competency report might not be relevant, and thus not required to be admitted, it does not

suggest that any other application of “relevance” should be used in considering what portions of

a competency report are relevant for competency purposes other than that which is set forth in

V.R.E. 401, the test for relevancy in Vermont courts. Whatever standard the trial court used



                                                  10
here, it did not apply a V.R.E. 401 analysis to its decision on what portions of the reports to

admit and what portions to exclude. It should have done so.

       ¶ 34.   Because the court did not apply the relevancy considerations required by V.R.E.

401, it is necessary to remand these cases so that the proper findings may be made. Consistent

with 13 V.S.A. § 4816(d), relevant portions of the competency reports shall be admitted. Those

portions of the reports are accessible to the public unless the necessary case-specific findings

sufficient to justify redaction under P.A.C.R. 7(a) are made.

       ¶ 35.   In so holding, we are cognizant of the concerns expressed by the dissent in

Whitney concerning dissemination of sensitive material.         But the balance between what is

publicly accessible and what is not in terms of competency evaluations has been clearly stated in

13 V.S.A. § 4816(e) and P.A.C.R. 6(a) and 7(a)—relevant portions of competency evaluations

shall be admitted and admitted portions of competency evaluations are public unless redacted. It

is not for us to rule otherwise where the applicable legal framework is clear.

       Reversed and remanded for further proceedings consistent with this opinion.


                                               FOR THE COURT:



                                               Associate Justice


       ¶ 36.   SKOGLUND, J., dissenting.          “In the case of a mentally ill defendant, with

serious criminal charges pending against him and who has allegedly violated the conditions of

the nonhospitalization order under which he was released into the community, the public interest

is profound.” State v. Koch, 169 Vt. 109, 116, 730 A.2d 577, 582 (1999). I wrote that sixteen

years ago in Koch and still agree with the statement. But, while there may be a valid public

interest in this case, it does not trump a trial judge’s careful exercise of discretion in admitting

into evidence only the relevant portions of a competency evaluation. That exercise of discretion

                                                11
is exactly what the law allows and the statute contemplates a responsible jurist will do when

deciding what evidence should become a public record.

       ¶ 37.   In both cases before this Court, the parties stipulated to the incompetency of

defendants. Then, the court ordered briefing on the issue of admission of the competency

evaluations. The defense asked for redaction of portions of the report and the State argued the

entire report was relevant and admissible.

       ¶ 38.   The trial court found that “not all of the information typically present in a

competency report is directly related to the determinations that are the report’s object.” The trial

court then contrasted elements of competency reports that should not be redacted or sealed—i.e.,

the evaluator’s impressions of the defendant and specific findings regarding competence—with

elements that could be sealed because they were not related to competency, such as personal

history, past diagnoses, medical and substance abuse history. As a result, the trial court decided

portions of defendants’ competency evaluations were not relevant to the question being

decided—that is, whether they were competent to stand trial.

       ¶ 39.   This appeal should be resolved by a plain reading of 13 V.S.A. § 4816(e): “The

relevant portions of a psychiatrist’s report shall be admitted into evidence as an exhibit on the

issue of the person’s mental competency to stand trial.” That sentence is not difficult to parse.

       ¶ 40.   By its unambiguous terms, § 4816(e) limits the admission of a psychiatrist’s

report to “the relevant portions.” Evidence Rule 401 provides: “ ‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” V.R.E. 401. Relevance is one of the core principles ensuring the reliability of fact

finding conducted in judicial proceedings.      It is the central test governing admissibility of

evidence.



                                                12
       ¶ 41.   We have examined relevancy as it relates to competency evaluations in several

cases. In State v. Oakes, 129 Vt. 241, 276 A.2d 18 (1971), cert. denied, 404 U.S. 965 (1971), we

recognized the trial court’s broad discretion over admission of competency evaluations. In

Oakes, the defendant challenged testimony of the examining physician that reported what

defendant had said about his drinking habits. Even though the facts “did not tend to establish, in

any way, the truth or falsity of the charge,” the Court found no error because “these facts were

essential ingredients in the full evaluation of the issue of the respondent’s sanity, or lack of it.”

Id. at 257. Moreover, as the trial progressed, “the relevance of this testimony on that issue

became even more pronounced.” Id.

       ¶ 42.   We accorded the same evidentiary discretion to the trial court in State v. Whitney,

2005 VT 102, 178 Vt. 435, 885 A.2d 1200. In Whitney, defendant was found competent to stand

trial based on the stipulation of the parties. But Whitney feared release of the competency report

would compromise his ability to get a fair trial. His motion to seal the report was denied by the

trial court and he appealed. Beyond deciding that Whitney’s arguments failed to demonstrate

prejudice, this Court held his motion was “based primarily, if not exclusively, on his claim that

the court rules did not allow public access to the competency report because the report had not

been admitted into evidence.” Id. ¶ 4. See also P.A.C.R. 6(b)(19) (denying public access to

“evaluation[s] by a mental health professional to determine the competency to stand trial and/or

sanity of a criminal defendant, if not admitted into evidence”). This Court found Whitney’s

argument to be merely technical and, relying on 13 V.S.A. § 4816(d),1 stated:

               ‘The relevant portion’ of the report shall be admitted into evidence
               as an exhibit on the issue of the person’s mental competency to
               stand trial and the opinion therein shall be conclusive on the issue


       1
           The language contained in the former 13 V.S.A. § 4816(d) is the same language
contained in the current 13 V.S.A. 4816(e); the statute was amended in 2010. See 2009, No. 146
(Adj. Sess.), § C25a.

                                                 13
               if agreed to by the parties and if found by the court to be relevant
               and probative on the issue.

Id. ¶ 10 (emphasis in original). The majority affirmed the trial court’s decision.

       ¶ 43.   Because Whitney was found competent, I argued in dissent that the only relevant

part of the report would have been that containing the psychiatrist’s conclusions concerning the

defendant’s ability to understand the legal process, to appreciate the charges against him and to

assist in his defense—that is, his competency to stand trial. Id. ¶ 26. Still, I appreciate the

Whitney majority’s implicit deference afforded to the trial court’s evidentiary decision. 2 I fail to

see why that deference is not afforded in this case.

       ¶ 44.   A common thread ties our cases discussing relevancy and competency reports

together: the deference afforded the trial court.      Indeed, in all cases involving evidentiary

decisions “[t]rial courts have great latitude in deciding whether to admit or exclude evidence, and

such decisions will not be reversed absent an abuse of discretion resulting in prejudice.” Little,

167 Vt. at 579, 705 A.2d at 180. The deference afforded to trial court is reflected in our standard

of review for evidentiary decisions: abuse of discretion. State v. Lumumba, 2014 VT 85, ¶ 3,

197 Vt. 315, 104 A.3d 627 (quoting Desautels, 2006 VT 84, ¶ 12 (“On review, we generally

accord deference to the court’s decision to admit or deny evidence, and will reverse the trial

       2
           Although the Whitney majority made clear that the right to access trumped the
defendant’s technical arguments regarding admission of the reports, Whitney, 2005 VT 102, ¶
10, the majority did not indicate whether Evidence Rule 401 or Evidence Rule 403 was the more
appropriate vehicle to consider relevance under 13 V.S.A. § 4816(d). Given the Whitney
majority’s focus on the defendant’s inability to demonstrate prejudice, id. ¶ 4, I assume Evidence
Rule 403. See Reporter’s Notes, V.R.E. 403 (allowing a trial court to exercise its discretion “to
exclude evidence that is technically relevant if its probative value is outweighed by dangers of
prejudice”). Consideration under Evidence Rule 403 may be more appropriate because the rule
allows a trial court to balance the “liberalized provisions in the area[] of competence” with
possible prejudice to the defendant in the form of public disclosure. Id. In this case, on the other
hand, the majority asks the trial court to make findings based on Rule 401. See ante, ¶ 33. I
understand that in practice, however, analysis under Evidence Rule 401 and Evidence Rule 403
blends together. My point is that, regardless of the evidence rule used, the trial court’s
evidentiary decision must be afforded substantial deference. See State v. Desautels, 2006 VT 84,
¶ 12, 180 Vt. 189, 908 A.2d 463; State v. Little, 167 Vt. 577, 579, 705 A.2d 177, 180
(1997)(mem.).
                                                 14
court’s ruling ‘only when there has been an abuse of discretion that resulted in prejudice.’ ”).

Moreover, the party who objects to the evidentiary decision must demonstrate that they suffered

prejudice to overcome the deferential presumption. Id. Discretion is abused when a court

“either totally withholds or exercises its discretion on clearly untenable or unreasonable

grounds.” State v. Russell, 2011 VT 36, ¶ 9, 189 Vt. 632, 22 A.3d 455 (mem.). I analyze the

trial court’s decision with that standard in mind.

         ¶ 45.   What is the “action” should be the first consideration when evaluating the

relevance of evidence. V.R.E. 401; see McCormick, Evidence § 185, 541 (3d ed. 1984). Here,

the matter under consideration is whether the defendants were competent to stand trial. Nothing

more. “In order for evidence to be relevant [,] . . . it must tend to support the proposition for

which it was offered.” State v. Dragon, 130 Vt. 334, 341, 292 A.2d 826, 831 (1972).

         ¶ 46.   An examination to determine a defendant’s competency focuses on only two

issues, the mental competency of the person examined to stand trial for the alleged offense and

the sanity of the person examined at the time of the alleged offense. 13 V.S.A. § 4816(a). In

both cases before us, the examination was solely to determine competency.               Regarding

competency to stand trial, the evaluating psychiatrists described the standard as follows:

“whether he has sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding and whether he has a rational as well as factual understanding of the

proceedings against him.” Thus, the relevant portion of an examination would be that containing

the psychiatrist’s conclusions concerning defendant’s ability to understand the legal process, to

appreciate the charges against him, and to assist in his defense—that is, his competency to stand

trial.

         ¶ 47.   The court ruled that “not all of the information typically present in a competency

report is directly related to the determinations that are the report’s object.” In balancing the

interests at play—limited public access under P.A.C.R. 6(b)(19) and open access under

                                                 15
Whitney—the court found it appropriate to redact the report. The court found that the sections of

the competency reports detailing some medical records, data pertaining to competency, legal

history, competency assessment, mental status exam, and the ultimate conclusion—competence

to stand trial—were relevant. The court then accepted the stipulation of incompetency based on

these “relevant portions” in compliance with 13 V.S.A. § 4816(e). This evidentiary decision is a

trial court’s bailiwick and should not be overturned unless untenable. Russell, 2011 VT 36, ¶ 9

(stating that discretion is abused when a court “exercises its discretion on clearly untenable or

unreasonable grounds.”). Moreover, the range of private information present in a competency

evaluation suggests that we should encourage trial judges to undertake this very analysis.

       ¶ 48.   A Ninth Circuit case, U.S. v. Guerrero, 693 F.3d 990 (9th Cir. 2012), illustrates

the scope of information contained in a competency evaluation. Guerrero was indicted for first-

degree murder, first-degree murder of a United States correctional officer, and murder by a

federal prisoner serving a life sentence.      The government sought the death penalty.        A

competency evaluation and a Neuropsychological Evaluation report were prepared by the

defense and the Bureau of Prisons forensic psychologist submitted a forensic evaluation of

Guerrero’s competence to stand trial. Guerrero filed an interlocutory appeal of the district

court’s order denying his motion to seal his pretrial competency proceedings and related filings.

On appeal, the court found it lacked jurisdiction but evaluated the issues thoroughly.

       ¶ 49.   Guerrero argued that his right to privacy outweighed any public right of access.

He noted that the evaluation reports describe his mental illnesses and cognitive defects, his

academic record as a child, his social history, physical and sexual abuse he experienced and the

names of his minor daughter and other relatives. Focusing on the competency evaluation and

Guerrero’s right to privacy, the district court stated that to the extent that Guerrero’s privacy

rights were cognizable, they were largely surrendered by the fact that he had placed his

competency at issue.

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       ¶ 50.   The Ninth Circuit rejected that analysis. “We do not agree with the district court

that a defendant surrenders his right to privacy because he may not be constitutionally fit to stand

trial.” Id. at 1003. Instead, the Ninth Circuit indicated that courts may give weight to the

privacy interests of defendants when considering access to judicial proceedings, and noted that

these interests can be protected by alternatives to full disclosure, such as protective orders and

redaction. Id. at 1003.

       ¶ 51.   A decision by the court that a person accused of a crime is not competent to be

tried is, of course, in the public’s sphere of interest. See Koch, 169 Vt. at 116, 730 A.2d at 582.

However, I posit that the public does not have a legitimate interest in an incompetent defendant’s

early childhood education, his family’s medical and psychological history, and any history of

abuse or neglect. Nor would such information tend to show a defendant’s competency is more or

less probable than it would be without the evidence. And, I stress that everything the public

finds interesting is not necessarily in the public interest, as that concept is understood in the legal

community.

       ¶ 52.   Basically this appeal is simple.        The State disagrees with the trial court’s

evidentiary ruling on relevance.      But, the State has not demonstrated that the trial court’s

decision to redact portions of the competency reports prejudiced it in any sense. See Desautels,

2006 VT 84, ¶ 12 (requiring an abuse of discretion resulting in prejudice). I fail to see how

protecting a defendant’s early childhood education, his family’s medical and psychological

history, and any history of abuse or neglect can be prejudicial to the State.

       ¶ 53.   The State argues that the integrity of the judicial process depends in large part on

public scrutiny. Agreed. But, all documents considered by a court in making significant judicial

decisions are not provided to the public. Surely the public is interested in criminal sentencing,

and rightly so.    However, they are forbidden access to Pre-Sentence Investigation reports.

V.R.Cr.P. 32(c)(1).

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       ¶ 54.   At times, sensitive information must be carefully handled. To this end, the Rules

of Access specifically exclude certain records: those pertaining to adoption proceedings,

V.P.A.C.R. 6(b)(1), sterilization proceedings, P.A.C.R. 6(b)(2), grand juries, V.P.A.C.R. 6(b)(3),

analysis of DNA of a person, V.P.A.C.R. 6(b)(8), and records of the court in mental health and

mental retardation proceedings under part 8 of Title 18, “unless failure to make disclosure would

be contrary to the public interest.” V.P.A.C.R. 6(b)(5). In fact, thirty-four specific records are

denied the public under the rules. See generally V.P.A.C.R. 6.

       ¶ 55.   Further, 7(a) of the Rules of Access specifically endorses redaction as an

appropriate tool for the courts when a record is accessible to the public. V.P.A.C.R. 7(a). Our

general statutory scheme indicates that the integrity of the judicial system depends not only on

promoting public access, but also on protecting sensitive information. Although “inquiring

minds” may “want to know,” the court does not publish the National Enquirer.

       ¶ 56.   Unlike the situation presented in State v. Koch, the issue is not the right of access

to a hearing on hospitalization or the sealing of an ONH. See generally Koch, 169 Vt. at 117,

730 A.2d at 583. This appeal simply concerns an evidentiary decision by the trial court. While

the majority wants more findings, I find sufficient information in the court’s balanced approach

to satisfy myself that there was no abuse of discretion.

       ¶ 57.   I respectfully dissent.



                                                Associate Justice




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