Reliance on Contemporaneous Unrelated Case Competency Evaluations and Preservation of Due Process Rights

Introduction

In State of New Hampshire v. S.B. (No. 2023-0417, Apr. 14, 2025), the Supreme Court of New Hampshire addressed whether a trial court may rely upon competency evaluations conducted in an unrelated criminal case—and whether a defendant preserves his due process right to present rebuttal evidence—when determining competence to stand trial. The defendant, S.B., faced criminal charges in superior court. Following his motion, the court ordered a competency evaluation by the Office of the Forensic Examiner (OFE). The OFE examiner, however, had already examined S.B. twice in an unrelated case—finding him competent as of February 2022 but not competent in 2016 and 2017—and submitted that report instead of conducting a new evaluation. A second examiner in the unrelated case soon concluded S.B. was again not competent. The trial court ultimately found S.B. not competent, dismissed the charges under RSA 135:17-a, and S.B. appealed, arguing (1) insufficient evidence of incompetence and (2) denial of due process by relying on unrelated-case reports without a case-specific examination.

Summary of the Judgment

The Supreme Court of New Hampshire unanimously affirmed. First, it held that the OFE examiner’s addendum and testimony sufficiently expressed the opinion that S.B. was not competent—given her change in position after reviewing the second examiner’s report—and that the trial court reasonably found incompetence. Second, it concluded S.B. failed to preserve any state or federal due process claim regarding the court’s reliance on unrelated-case evaluations, because he never invoked the appropriate constitutional provision in the trial court or in his appellate briefs. Finally, the court declined to apply plain error review, finding no “clear or obvious” violation of settled law that would justify relief.

Analysis

1. Precedents Cited

• State v. Smith, 177 N.H. ___, 2025 N.H. 1, ¶10: Established the two-part standard for competence—(a) factual and rational understanding of the proceedings, and (b) ability to consult with counsel with a reasonable degree of rational understanding—and the deferential standard of review of trial court findings.
• State v. Veale, 158 N.H. 632 (2009): Under the New Hampshire Constitution, due process entitles a defendant to a meaningful opportunity for rebuttal when competency is challenged; competency proceedings implicate reputational interests requiring procedural protections.
• State v. Oakes, 161 N.H. 270 (2010) and State v. Dellorfano, 128 N.H. 628 (1986): Clarified that to preserve a state-constitutional claim, a defendant must (a) raise the state-constitutional provision in the trial court and (b) specifically invoke it in appellate briefing.
• State v. Hanes, 171 N.H. 173 (2018): Defined the narrow scope of the plain error doctrine—error must be “plain,” or clearly settled to the contrary at the time of trial, and must result in a miscarriage of justice if uncorrected.

2. Legal Reasoning

a. Competence Determination: The court began with Smith’s standard and emphasized deference to the trial court’s factual findings unless no reasonable factfinder could have so ruled. The OFE examiner’s addendum—stating she could no longer opine S.B. was competent—and her testimony, combined with the corroborating report of the second forensic examiner, sufficed to establish incompetence. The State’s concession that it could not meet its burden further supported dismissal under RSA 135:17-a.

b. Due Process and Preservation: S.B. argued under Veale that relying on unrelated-case evaluations deprived him of a fair opportunity to present rebuttal evidence in this case. The court observed that S.B. never expressly invoked the New Hampshire or U.S. Constitution on this point in the trial court, nor did he frame his appellate argument as a state-constitutional claim. Under Oakes and Dellorfano, a mere reference to Veale without invoking the State Constitution is insufficient to preserve such a claim. Because S.B. failed to raise the issue at any critical stage, the claim was unpreserved.

c. Plain Error Review: Even if S.B. had invoked due process, the court found no “plain error.” Veale recognized the importance of a fair opportunity to rebut, but did not mandate a case-specific examination where multiple contemporaneous evaluations existed and no party objected to reliance upon them. There was thus no “clear” or “obvious” violation of law.

3. Impact

This decision clarifies three important points:

• Trial courts may rely on competency evaluations from an unrelated but contemporaneous case, provided the defendant does not object and the examiner’s opinions address the defendant’s current mental status.
• Defendants must strictly preserve due process claims by invoking the appropriate constitutional provisions both below and on appeal; references to caselaw alone are insufficient.
• The plain error doctrine applies sparingly in competency proceedings, requiring truly settled law to overturn an unpreserved error.

Lawyers and judges should ensure that any challenge to a competency process under state or federal due process is explicitly framed, and, if necessary, seek a separate evaluation tied to the specific charges.

Complex Concepts Simplified

• Competency to Stand Trial: A two-pronged test requiring (1) a factual and rational understanding of proceedings, and (2) the ability to assist counsel.
• Preservation of Constitutional Claims: To preserve a state-level due process claim, the defendant must (a) raise the issue in the trial court, citing the exact constitutional provision, and (b) include the same invocation in appellate briefs.
• Plain Error Doctrine: Allows appellate relief only when an obvious, settled legal error has occurred that leads to a miscarriage of justice and was not objected to at trial.
• Judicial Notice: A court may accept reports or documents (such as an expert’s evaluation) without further proof when their authenticity and relevance are undisputed.

Conclusion

The Supreme Court of New Hampshire’s decision in State v. S.B. affirms that trial courts retain discretion to consider contemporaneous evaluations from unrelated proceedings when determining competency, so long as no timely objection is raised. It underscores the necessity for defendants to explicitly invoke constitutional protections at the proper stages if they wish to challenge procedural aspects of competency hearings. Finally, it confirms that plain error review will not substitute for strategic preservation of issues. This ruling provides clear guidance for practitioners on how to structure competency challenges and preserve due process objections in future criminal cases.