In re MH 2008-000867 – 8/5/2010

August 25, 2010

Arizona Supreme Court Holds That Use of Telephonic Testimony in a Hearing for Court-Ordered Treatment Does Not Violate Due Process.

A doctor filed an application seeking an involuntary mental health evaluation of a patient. Two other doctors, Drs. F and H, performed the evaluation, and Dr. H filed a petition for court-ordered treatment. Dr. F could not be present at the hearing for the petition, because he was attending a professional conference on that day, and the patient was unwilling to agree to continue the hearing. Because A.R.S. § 36-539(B) requires that both evaluating physicians testify, Dr. F testified telephonically. The patient appealed, and the court of appeals vacated the commitment order, holding that the patient had a due process right to confrontation similar to the right of confrontation under the Sixth Amendment. The court held that because the patient had this right, absent a showing of necessity based on the witness’s unavailability, the telephonic testimony violated the patient’s rights. Even though the treatment order had expired, the Arizona Supreme Court accepted review because it was an issue of statewide importance and was capable of evading review.

The Supreme Court affirmed the order of the superior court and vacated the opinion of the court of appeals. The Court held that a civil commitment proceeding is not constitutionally equivalent to a criminal prosecution and that Sixth Amendment jurisprudence regarding confrontation, therefore, does not apply. The Court held that, when considering whether to permit telephonic testimony, the first inquiry is whether there is good cause for its use. The Court stated that although the superior court had not made a good cause finding, under the circumstances of the case, good cause existed. After the good cause is shown, the next inquiry is whether admission of the telephonic testimony comported with due process. Because allowing the telephonic testimony served important government interests and did not significantly increase the patient’s risk of an erroneous deprivation of his liberty, the Court held that the admission of the telephonic testimony did not deprive the patient of due process.

Vice Chief Justice Hurwitz authored the opinion; Chief Justice Berch and Justices Ryan, Bales, and Pelander concurred.