Compelling Testimony from the Subject of a Mental Health Proceeding: To What Extent Should Fifth Amendment Considerations Apply?

Authored By: Sean Roman Strockyj

Excerpt

          This Article explores whether a respondent in various mental health proceedings in New York may be compelled to take the witness stand.  The author focuses on applications brought under New York’s Mental Hygiene Law (MHL), including psychiatric commitment cases, guardianship applications, and matters brought under the Sex Offender Management and Treatment Act (SOMTA).  In such litigation it is common for respondents to be represented by the Mental Hygiene Legal Service (MHLS), court appointed government attorneys whose focus is mental health law.  Each of the aforementioned proceedings can result in jury trials, where an application for respondent testimony is most likely to be necessary.  It is a subject that developed an inconsistent body of caselaw and is scarcely addressed in scholarly publications.