State v. Lewis: Timing of Essential-Need Determinations in Competency Proceedings

Introduction

In State of New Hampshire v. Kenneth J. Lewis, Jr., No. 2023-0213 (N.H. Mar. 26, 2025), the New Hampshire Supreme Court addressed two interrelated issues in the context of a competency proceeding: first, whether a defendant implicitly waives psychotherapist-patient and physician-patient privileges by submitting to a court-ordered competency evaluation; and second, when a prosecutor may demonstrate “essential need” for privileged medical and mental health records produced to the court’s forensic examiner. The defendant, facing multiple misdemeanor charges from October 2021 to June 2022, challenged the State’s motion to compel production of his privileged records. The Supreme Court affirmed the trial court’s denial of the motion and clarified when trial courts should resolve essential-need disputes.

Summary of the Judgment

The Supreme Court reviewed a trial court order that compelled the defendant’s medical and mental health records to the Office of the Forensic Examiner (OFE) for a competency evaluation. After the OFE found the defendant competent to stand trial, the State moved to compel production of those records for its own use. The trial court denied the motion; on appeal, the Supreme Court affirmed. It held that:

1. Defense compliance with a competency-evaluation order—even where a privilege holder refuses to sign a release—does not constitute an implied waiver of psychotherapist-patient or physician-patient privileges.
2. The State must wait until the OFE report is issued and until it is known whether an evidentiary competency hearing is needed before requiring privileged records. A motion for essential need is premature if filed immediately after the evaluation without knowing the contents or contested status of the OFE report.

Analysis

Precedents Cited

• Petition of State of N.H. (State v. MacDonald), 162 N.H. 64 (2011): Established that appellate review of discovery management is for an unsustainable exercise of discretion and that privileges are waived only if a party injects privileged communications into the case.
• In re Search Warrant (Med. Records of C.T.), 160 N.H. 214 (2010): Enumerated three exceptions to privilege—statutory authorization, compelling countervailing consideration, or essential need under specific circumstances—and defined the essential-need test (unavailability of information elsewhere plus compelling justification).
• State v. Salimullah, 172 N.H. 739 (2020): Reaffirmed a defendant’s due-process right not to be tried while incompetent and detailed factors for a trial court to determine a bona fide doubt about competency.
• State v. Doyle, 176 N.H. 594 (2024): Confirmed that records provided to a forensic examiner in competency proceedings are not exempt from statutory privilege analysis.
• Mortgage Specialists v. Davey, 153 N.H. 764 (2006): Held that an issue first raised in a motion for reconsideration is preserved if the trial court had a fair opportunity to rule on it initially.

Legal Reasoning

The court divided its reasoning into two main inquiries:

1. Implied Waiver: Because the defendant refused to sign any release, defense counsel resorted to an ex parte motion to compel records to the OFE. The court held this did not constitute consent or injection of privileged communications. Injecting privileged matter requires the privilege holder’s affirmative waiver, which was absent here.
2. Essential-Need Timing: The State argued it had to present the best evidence of competency at a hearing and could not prepare without the privileged records. The Supreme Court ruled that it is premature to assess essential need before the OFE issues its report and before an evidentiary hearing is actually requested. Until then, the State cannot show unavailability of equivalent evidence or a compelling justification.

Under the unsustainable-exercise-of-discretion standard, the trial court’s refusal to compel was neither clearly untenable nor prejudicial to the State.

Impact

This decision provides clear procedural guidance for competency proceedings:

• Trial courts should delay essential-need determinations until after the forensic examiner’s report is filed and the necessity of a hearing is clear.
• Defendants retain full privilege rights unless they affirmatively inject confidential communications into the case.
• Prosecutors must identify alternative sources and demonstrate a compelling justification before accessing privileged records.

The ruling may shape discovery disputes in other jurisdictions, particularly where mental-health records intersect with competency assessments.

Complex Concepts Simplified

• Psychotherapist-Patient Privilege: A confidentiality right belonging to the patient to prevent disclosure of therapy sessions.
• Implied Waiver: Losing a privilege by voluntarily placing the privileged information at issue in litigation.
• Essential-Need Test: The standard requiring that a party show (1) no alternative source for the information and (2) a compelling justification for breaching privilege.
• Competency Hearing: A proceeding to determine whether a defendant can understand charges and assist counsel.
• Unsustainable Exercise of Discretion: The narrow appellate review standard for discovery rulings, requiring a showing that a decision was clearly unreasonable or unfair.

Conclusion

State v. Lewis clarifies two pivotal points in competency-related discovery:

1. Defense compliance with competency-evaluation orders does not strip a defendant of privilege absent a signed release or affirmative injection of confidential material.
2. Prosecutors must await the forensic examiner’s report and the actual need for a hearing before claiming essential need for privileged records.

By reaffirming the sanctity of patient-holder privileges and setting a clear timeline for essential-need motions, the court struck a balanced approach between defendants’ rights and the State’s obligation to prove competency.