Competency Exams Are Not a Sixth Amendment “Critical Stage”: Vermont Recognizes Trial-Court Discretion to Exclude Defense Counsel

1. Introduction

State v. Jordan Lawyer (2026 VT 42) is an interlocutory appeal from the Superior Court, Franklin Unit, Criminal Division, addressing whether a defendant has a constitutional right to have defense counsel physically present during a court-ordered competency examination—specifically psychometric testing—conducted by a neutral examiner.

The State charged Jordan Lawyer with second-degree murder, first-degree aggravated domestic assault, eluding law enforcement while operating a vehicle in a grossly negligent manner, and aggravated assault, arising from allegations that defendant attacked his parents with a baseball bat, killed his father, wounded his mother, and later crashed after fleeing.

The trial court ordered a neutral competency examination. After interviews, the examiner, Dr. Keelin Garvey, said she could not opine on competency without psychometric testing and asserted that copyright and professional-ethics constraints required excluding third parties—including defense counsel—and even limiting disclosure of test identity to preserve validity. Defendant claimed a right to counsel’s presence under the Sixth Amendment and Chapter 1, Article 10 of the Vermont Constitution. The trial court excluded counsel; the Vermont Supreme Court accepted interlocutory review under V.R.A.P. 5.1(a).

2. Summary of the Opinion

The Vermont Supreme Court affirmed. It held:

  • A court-ordered competency examination is not a “critical stage” of the prosecution at which the Sixth Amendment right to counsel’s presence attaches.
  • Although consultation with counsel about whether to submit to an examination is a critical-stage concern, the exam itself is distinct.
  • Trial courts therefore have discretion to permit or exclude counsel from a competency exam; excluding counsel here was not an abuse of discretion.
  • Fifth Amendment protections address concerns that compelled statements (and derivative leads) might later be used against the defendant.

3. Analysis

3.1 Precedents Cited

The Court’s holding is built from four strands of authority: (i) critical-stage doctrine; (ii) the special purpose of competency proceedings; (iii) disruption concerns in psychiatric/psychological examinations; and (iv) Fifth Amendment limits on the later use of compelled statements.

A. Critical-stage framework

  • United States v. Wade, 388 U.S. 218 (1967): The Court quotes Wade for the foundational proposition that the right to counsel attaches at “critical stages” and includes counsel’s assistance whenever necessary to ensure a meaningful defense. Wade supplies the vocabulary Vermont uses to ask whether absence of counsel risks unfairness and whether counsel’s presence would protect against it.
  • In re Carter, 2004 VT 21: Carter supplies Vermont’s articulation of “critical stage” as any point “where counsel’s absence might derogate from the accused’s right to a fair trial,” and it emphasizes that the inquiry turns on the possibility of prejudice and the protective utility of counsel’s presence. Defendant relied heavily on Carter, but the Court distinguishes Carter’s context (a presentence investigation interview) from competency evaluations.
  • State v. Porter, 164 Vt. 515 (1996), and A.B. v. S.U., 2023 VT 32: Porter supports the Court’s statement that Chapter I, Article 10 is generally coextensive with the Sixth Amendment. A.B. v. S.U. is used to reject any undeveloped claim that Vermont’s Constitution provides greater protection without a tailored argument.
  • State v. Green Mountain Future, 2013 VT 87, and State v. Merchant, 173 Vt. 249 (2001): These cases supply standards of review—de novo for constitutional questions and abuse-of-discretion for procedural rulings.

B. Competency proceedings as a neutral, due-process safeguard

  • Estelle v. Smith, 451 U.S. 454 (1981): This is the opinion’s centerpiece. Vermont relies on Estelle’s description of psychiatric examinations as having a “limited, neutral purpose,” and—most importantly—on Estelle’s footnote 14, which distinguishes (1) the critical need to consult counsel beforehand from (2) any claimed right to have counsel physically present during the examination. Estelle provides both doctrinal framing and pragmatic support (counsel adds little and may disrupt).
  • Pate v. Robinson, 383 U.S. 375 (1966), as cited through State v. Beaudoin, 2008 VT 133: These cases ground competency evaluation in due process—trying an incompetent defendant is unconstitutional—thereby explaining why courts must be able to obtain effective competency information.
  • State v. Boyajian, 2022 VT 13: Boyajian is used in two ways. First, it confirms that a defendant has a constitutionally based right to a defense-retained expert (including state funding where appropriate) to help avoid erroneous competency determinations. Second, it characterizes the court-ordered exam as a “neutral evaluation,” reinforcing Vermont’s conclusion that the exam is not a prosecution tool designed to prove guilt.
  • State v. Gurung, 2025 VT 52: Cited (in a footnote) to clarify that competency concerns present ability to stand trial and is distinct from an insanity defense aimed at the mental state at the time of the offense.

C. Majority-rule and disruption cases from other jurisdictions

  • State v. Martin, 950 S.W.2d 20 (Tenn. 1997): Vermont cites Martin for the proposition that a substantial majority of jurisdictions reject a constitutional right to counsel’s presence at competency exams.
  • Seng v. Commonwealth, 839 N.E.2d 283 (Mass. 2005), and State v. Hardy, 325 S.E.2d 320 (S.C. 1985): These cases illustrate the “adequate protections elsewhere” rationale—if incompetent, defendant will not be tried; if competent, procedural protections and limits on the use of statements reduce prejudice; and counsel can cross-examine at a hearing.
  • United States v. Baird, 414 F.2d 700 (2d Cir. 1969): Supports the practical point that third-party presence can “destroy the effectiveness” of psychiatric interviews.
  • United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984) (plurality opinion): Quoted for a vivid, functional account of how even “silent observation” by counsel may undermine the examination, and for the point that mere observation without participation does not match the Sixth Amendment’s “Assistance of Counsel.”
  • Commonwealth v. Baldwin, 686 N.E.2d 1001 (Mass. 1997), and State v. Whitaker, 2022-Ohio-2840: These authorities support the key distinction Vermont adopts: deciding whether to undergo an evaluation may be a critical stage, but the interview/testing itself is not.
  • State v. Whitlow, 210 A.2d 763 (N.J. 1965), superseded by statute on other grounds by State v. Arrington, 359 A.3d 1166 (N.J. 2026): Whitlow is used to emphasize institutional necessity: competency exams are “crucial diagnostic tool[s]” and courts should make them effective.

D. Fifth Amendment protections for compelled statements (including derivative use)

  • State v. Bushey, 147 Vt. 140 (1986): Vermont precedent recognizing that the Fifth Amendment privilege against self-incrimination applies in court-ordered competency examinations. Bushey is also the vehicle by which the Court signals that derivative use is barred.
  • Kastigar v. United States, 406 U.S. 441 (1972): Cited (via Bushey) for the principle that compelled testimony may not be used directly or as an “investigatory lead,” i.e., derivative evidence is also prohibited.
  • State v. Morale, 174 Vt. 213 (2002): Reaffirms that the Fifth Amendment is violated when a defendant is compelled to produce testimony against himself.
  • Adams v. Maryland, 347 U.S. 179 (1954): Used to make a categorical point: constitutional privilege itself bars use of compelled self-incrimination; a statute is not required for protection.

E. Reliability screening of expert opinions

  • Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), plus USGen New England, Inc. v. Town of Rockingham, 2004 VT 90, and State v. Sullivan, 2017 VT 24: These cases are used to show that even if counsel is excluded from testing, the examiner’s methods and conclusions remain subject to reliability and relevance scrutiny under Vermont’s Daubert/V.R.E. 702 “gatekeeper” regime.

3.2 Legal Reasoning

The Court’s reasoning proceeds in a structured sequence:

  1. Define the constitutional question narrowly: the issue is counsel’s presence at the exam, not the right to consult counsel beforehand. The Court treats Estelle v. Smith as controlling guidance on that distinction.
  2. Apply the critical-stage test functionally: Under In re Carter and United States v. Wade, the inquiry turns on (a) risk of prejudice to a fair trial and (b) whether counsel’s presence would meaningfully mitigate that risk.
  3. Find minimal prejudice because the exam is neutral and nonadversarial: Competency examinations are not designed to prove guilt; they exist to protect due process by ensuring a defendant is fit to stand trial (State v. Beaudoin; Pate v. Robinson). The Court emphasizes the “limited, neutral purpose” framing from Estelle v. Smith and characterizes the evaluation as a diagnostic tool.
  4. Identify robust alternative protections: Vermont statutes provide post-exam procedural safeguards—review of results, cross-examination of the examiner, and competing evidence at a hearing (13 V.S.A. § 4816(f)). In addition, State v. Boyajian supports access to a defense expert to reduce the risk of erroneous competency findings. The Court also underscores Daubert reliability challenges.
  5. Credit disruption concerns as a practical, justice-system interest: The Court adopts the widely recognized concern that third-party presence can undermine the validity of psychiatric/psychometric testing (Estelle v. Smith n.14; United States v. Baird; United States v. Byers). It treats an effective competency evaluation as essential to both (a) the defendant’s right not to be tried while incompetent and (b) the State’s interest in a functioning criminal process.
  6. Resolve self-incrimination concerns through constitutional privilege rather than statutory text: Defendant’s worry that Vermont’s 13 V.S.A. § 4816(d) lacks the “fruits” language of Federal Rule of Criminal Procedure 12.2(c)(4) is met by the Fifth Amendment itself. Through State v. Bushey and Kastigar v. United States, the Court indicates that derivative use is constitutionally barred, not dependent on statutory phrasing. Estelle v. Smith supplies the waiver principle (statements cannot be used absent knowing waiver).
  7. Announce the rule and allocate discretion: Vermont “joins” the majority view: no constitutional right to counsel’s presence at competency exams. But the Court avoids a bright-line prohibition on counsel’s attendance, acknowledging that in some cases counsel might facilitate participation; accordingly, the decision is committed to trial-court discretion.
  8. Apply abuse-of-discretion review: The trial court considered the charged offenses, criminal history, purpose for counsel’s presence, and the examiner’s copyright/ethics concerns, and it emphasized the defendant’s ability to challenge the examiner later. Under State v. Merchant, the Court finds no untenable or unreasonable exercise of discretion.

3.3 Impact

Doctrinal impact in Vermont. The decision establishes a clear Vermont rule: a competency examination is not a Sixth Amendment “critical stage” requiring counsel’s physical presence. This resolves a recurring question in competency litigation and aligns Vermont with the national “substantial majority” view cited from State v. Martin.

Trial-court management and expert practice. By characterizing competency testing as a “crucial diagnostic tool” and crediting the risk of disruption, the Court strengthens the authority of trial judges to structure competency evaluations to preserve their scientific validity—particularly where psychometric instruments impose standardized administration conditions and confidentiality/copyright restrictions.

Defense strategy shifts toward front-end consultation and back-end litigation. The opinion implicitly channels defense protection into:

  • pre-exam consultation (the “significant decision of whether to submit” remains critical);
  • retained defense expertise (State v. Boyajian);
  • cross-examination and competing evidence at the competency hearing (13 V.S.A. § 4816(f)); and
  • methodology challenges under Daubert/V.R.E. 702.

Self-incrimination litigation may refocus on remedies, not presence. Because the Court relies on Fifth Amendment doctrine (State v. Bushey; Kastigar v. United States) rather than statutory text, future disputes may concentrate on (a) whether warnings/waiver were adequate under Estelle v. Smith, and (b) whether evidence offered at trial is derivative of compelled examination statements.

Open questions left for future cases. The Court expressly limits its holding to competency examinations and notes that whether counsel may be present during an insanity-defense examination is not before it. The Court also declines to reach a “notice” issue about information needed for counsel to advise on participation because it fell outside the scope of interlocutory review.

4. Complex Concepts Simplified

  • Competency vs. insanity: Competency asks whether the defendant can understand the proceedings and assist counsel now (present ability to stand trial). Insanity asks whether the defendant’s mental state at the time of the alleged crime excuses criminal responsibility (as noted in the opinion’s discussion and the reference to State v. Gurung).
  • “Critical stage”: A point in a criminal case where what happens can meaningfully affect the fairness of the trial and where having a lawyer present would help prevent unfairness (United States v. Wade; In re Carter).
  • Neutral evaluation: A court-ordered competency exam is intended to help the court decide a due-process question (can the defendant be tried?) rather than to help either side prove guilt or innocence (State v. Boyajian).
  • Psychometric testing: Standardized psychological tests administered under controlled conditions; deviations (including third-party observation) may undermine validity, and test materials may be subject to confidentiality/copyright restrictions.
  • Daubert / gatekeeping (V.R.E. 702): The judge must screen expert testimony for reliability and relevance (Daubert v. Merrell Dow Pharm., Inc.; USGen New England, Inc. v. Town of Rockingham; State v. Sullivan).
  • Fifth Amendment and “fruits”: The privilege against self-incrimination bars not only direct use of compelled statements but also derivative evidence—investigatory leads or evidence found because of the compelled statement (Kastigar v. United States; State v. Bushey).
  • Interlocutory appeal: An appeal taken before the final judgment, typically allowed only for discrete legal questions whose early resolution is important (here under V.R.A.P. 5.1(a)).

5. Conclusion

State v. Jordan Lawyer establishes a Vermont rule of practical significance: a court-ordered competency examination is not a “critical stage” triggering a Sixth Amendment right to counsel’s presence, and trial courts retain discretion to exclude counsel to preserve the examination’s effectiveness. The decision reconciles defendant-protective principles—due process competency safeguards, Fifth Amendment limits on compelled statements, access to defense experts, adversarial testing at a hearing, and Daubert scrutiny—while prioritizing the integrity and utility of competency diagnostics necessary to ensure defendants are tried only when competent.