N.D. R. Juv. proce. 11.1

As amended through March 18, 2024

Rule 11.1 - CHILD COMPETENCY TO PROCEED; NOTICE OF DEFENSE BASED 3 ON MENTAL CONDITION; MENTAL EXAMINATION

(a)Proceeding when Child is Believed to be Incompetent.

(1) Authority to Order Evaluation of Child Competence. Any time after a petition is filed and before the final disposition of a case, if doubt arises as to the competence of a child, the juvenile court must suspend the case until the question of competence is determined. The court may order the child to submit to an examination by one or more mental health professionals retained by the state to determine competency. A child is incompetent and may not be permitted to admit to a delinquent offense, be tried, or receive a disposition for any offense when the child lacks sufficient ability to:

(A) appreciate the allegations against the child;

(B) appreciate the range and nature of possible dispositions that may be imposed in the proceedings against the child;

(C) understand the nature of the juvenile court process;

(D) disclose to counsel facts pertinent to the proceedings at issue;

(E) display appropriate courtroom behavior; or

(F) testify relevantly.

(2) Counsel. Any child subject to competency proceedings must be represented by counsel.

(3) Proceedings. The state's attorney, the child's counsel or the court may bring a motion to determine the competency of the child. The motion must set forth the facts constituting the basis for the motion but the child's counsel may not divulge communications in violation of the attorney-client privilege. The bringing of the motion by the child's counsel does not waive the attorney-client privilege. Any such motion may be brought over the objection of the child.

(4) Report of Examination. Within 30 days, the examiner must file a written report with the court, and the court must provide a copy to the state's attorney and child's counsel. The report contents may not be otherwise disclosed until the hearing on the child's competency. The report must include:

(A) a description of the procedures, techniques and tests used in the evaluation of the child and the purposes of each;

(B) any clinical observations, findings and opinions of the examiner on each issue referred by the court for evaluation;

(C) any recommended treatment or education for the child to attain competence;

(D) an assessment of the likelihood that the child will attain competence under the recommended treatment or education;

(E) an assessment of the probable duration of the treatment or education required to attain competence;

(G) consideration of whether the child is a danger to himself, herself or society;

(F) if the examiner recommends treatment for the child to attain competence, a recommendation as to whether services can best be provided to the child as an outpatient or inpatient, or by commitment to an institution for persons with intellectual disabilities or mental illness.

(5) Hearing and Determination of Competency. Upon receipt of the report of examination and notice to the parties, the court must hold a hearing within 10 days to review the report with the parties. If either party objects to the report's conclusion regarding the child's competency to proceed, the court must hold a hearing within 10 days on the issue of the child's competency to proceed.

(A) Finding of Competency. If the court determines that the child is competent by the greater weight of evidence, the court must enter a written order finding competency and the proceedings against the child must resume.

(B) Findings of Incompetency. Immediately upon a finding of incompetency of 54 the child, the court must determine whether:

(i) the child is danger to himself, herself or society;

(ii) providing services to the child will assist the child is attaining competence;

(iii) any services provided to the child can best be provided as an outpatient or inpatient, by commitment to an institution for persons with intellectual disabilities or metnal illness or as otherwise allowed by law.

(6) Dismissal of Delinquency Proceedings. The court has the discretion to:

(A) Dismiss the deliquency proceedings against the child and order the release of the child to the child's parent(s), guardian or legal custodian upon conditions considered appropriate by the court.

(B) Suspend the delinquency proceedings against the child for a period of up to one year and order services be provided to the child as an outpatient or inpatient, by commitment to an institution for persons with intellectual disabilities or mental illness.

(C) Dismiss the delinquency proceedings and direct that child in need of protection proceedings be initiated.

(b)Notice of Defense Based on Lack of Responsibility. A child alleged to be delinquent or unruly who intends to assert lack of responsibility by reason of mental disease or defect must serve written notice on the state of any intended lack of responsibility defense within the time designated in the scheduling order for making motions or afterward as the court directs. A child who fails to do so cannot later claim lack of responsibility. The court may, for good cause, allow a child to file the notice late, grant additional trial-preparation time, or make other appropriate orders.

(1) Notice of Evidence of Mental Disease or Defect. If a child alleged to be delinquent or unruly intends to introduce evidence relating to a mental disease or defect or any other mental condition of the child bearing on the issue of whether the child had the mental state required for the alleged delinquent or unruly act, the child must-within the time designated in the scheduling order for making motions or afterward as the court directs-notify the state in writing of this intention and file the notice. The court may, for good cause, allow the child to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders.

(2) Failure to Comply. If the child fails to give notice under Rule 11.1(b) or does not submit to an examination when ordered, the court may exclude any evidence from the child on the issue of the child's mental disease, mental defect, or any other mental condition bearing on the child's responsibility for the alleged delinquent or unruly act.

(3) Inadmissibility of Withdrawn Intention. Evidence of an intention of which notice was given under Rule 11.1(a) or (b), later withdrawn, is not, in any proceeding, admissible against the child who gave notice of the intention.

(c) Inadmissibility of a Child's Statements. No statement made by a child in the course of any examination conducted under this rule (whether conducted with or without the child's consent), no testimony based on the statement, and no other fruits of the statement may be admitted in evidence against the child in any proceeding except on an issue regarding mental condition on which the child has introduced evidence.

(d) Simultaneous Examinations. The court may order a competency examination under Rule 11.1(a), and an examination based on lack of responsibility under Rule 11.1(b) to all be conducted simultaneously.

N.D. R. Juv. proce. 11.1

Effective Date 3/1/2010; amended effective 10/1/2019; 7/1/2021.

Explanatory Note

Rule 11.1 was adopted effective October 1, 2019; amended effective 7/1/2021.

Rule 11.1 was amended, effective July 1, 2021 to update terminology and statutory references consistent with the July 1, 2021. amendments to the Juvenile Court Act, N.D.C.C. chs. 27-20.2, 27-20.3, and 27-20.4.

SOURCES: Juvenile Policy Board Minutes of June 11, 2021; July 31, 2019, page; June 21, 2019, pages 2-3; March 22, 2019, page 2; December 7, 2018, page 2; September 14, 2018, page 3; March 23, 2018, pages 3-4; December 15, 2017, page 3. Joint Procedure Committee Minutes of April 26, 2019, pages 14-17.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. § 27-20.4-15.

CROSS REFERENCE: N.D.R.Crim.P. 12.2 (Notice of Defense Based on Mental Condition; Mental Examination).