Defendant’s Request for Videotaping of Competency Examination
by John W. Stickels
CAUSE NO. _______

THE STATE OF TEXAS	§	IN THE ______ DISTRICT COURT
	§
V.	§	OF		§
_______________	§	___________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW, _____________, Defendant in the above styled and numbered cause, by and through his attorney of record, and makes this Request for Videotaping of Competency examination, and would respectfully show this Honorable Court the following:
I.
	The defense hereby respectfully requests that the Court, in the interests of justice and for the purposes of preservation of evidence, order videotaping of all clinical assessments of whether _____________ or has attained competency to stand trial.
A. Background
	On May 27, 2010, the Court found _____________ incompetent to stand trial and ordered him committed to the North Texas State Hospital–Vernon Campus for a period of time not to exceed 120 days for examination and treatment toward the specific objective of attaining competency to stand trial. _____________ has been returned to Tarrant County. Thereafter, on August 13, 2011, Dr. _____________ authored a report stating that _____________ was not competent to stand trial. The State has requested that Mr. Scott be evaluated by a mental health professional for the purpose of determining whether _____________ is competent to stand trial. The defense requests that the competency evaluation by the State’s Psychologist or Psychiatrist be videotaped. 
B. Videotaping of Restoration Efforts
	The competency evaluation is a critical proceedings at which defendant has the right to counsel. Estelle v. Smith, 451 U.S. 454, 469–71 (1981). In order to safeguard _____________’s Sixth and Fourteenth Amendment rights, as well as to create a full and reliable record of the basis of the evaluator’s opinion, counsel requests that provision be made for all clinical assessments of _____________’s competency evaluation be videotaped, that the videotape be secured, and be disclosed only to defense counsel. United States v. Johnson, 362 F. Supp. 2d 1043, 1085–91 (D. Iowa 2005); United States v. Fell, 372 F. Supp. 2d 753, 761 (D. Vt. 2005). Videotaping of the competency examination by the state’s expert is for the protection of the defendant subject to evaluation by the government. It is not a tool for use by the government in seeking a capital conviction. The ABA Standards governing mental health issues in criminal cases make this clear in the context of the compelled competency examination: 
All court-ordered evaluations of defendant initiated by the prosecution should be recorded . . . if possible, on videotape, and a copy of the recording should be provided promptly to the defense attorney. The defense may use the recording for any evidentiary purpose permitted by the jurisdiction. If the defense intends to use the recording at trial, it should notify the court. Upon receiving notice, the court should promptly provide to the prosecution a copy of the recording. Upon defense motion, the court may enter a protective order redacting portions of the recording before it is forwarded to the prosecution. 
ABA Standards for Criminal Justice: Mental Health, Standard 7-3.6(d), at 100 (1986). 
	What the ABA standards recognize is that the competency proceedings exist for the protection of the defendant and it is necessary for the competency evaluation to be videotaped in order to protect _____________’s rights under the Sixth and Fourteenth Amendments. As the standards provide, only the defense should receive a copy of the videotapes; the government should receive a redacted version only “[i]f the defense intends to use the recording at trial” and when the defense provides such notice to the court. Cf. id. at Standard 7-3.6(c)(iii) (“The prosecutor may not be present at any mental evaluation of the defendant.”). The commentary explains that:
The sixth amendment right to adequate representation by an attorney is protected under the standard by the requirement that all court-ordered evaluations initiated by the prosecution be recorded, preferably through videotaping, and by the further requirement that a copy of the recording be supplied to defense counsel. Id. at 107 (commentary to paragraph (c)).
C. Conclusion
	In view of the likely evidentiary value, as well as to safeguard _____________’s constitutional rights to counsel and reliability of the competency evaluation, the defense requests that the Court order that all clinical assessments of whether _____________ is competent to stand trial and has the capacity to permit the proceedings go forward be videotaped and provided to defense counsel.

Respectfully submitted,

John W. Stickels
P. O. Box 121431
Arlington, Texas 76012 
Phone: (817) 479-9282
Fax: (817) 622-8071

BY: ________________________
John W. Stickels
State Bar No. 19225300
Attorney for ________________________

CERTIFICATE OF SERVICE

	By my signature above, I hereby certify that on the 16th day of September, 2011, a true and correct copy of the above and foregoing Motion has been delivered to the office of the Tarrant County Criminal District Attorney, 401 West Belknap, Fort Worth, Texas 76196.

_____________________________
John W. Stickels