Be it declared and enacted by the Governor, Coucil and Representatives of their majesties' province of the Massachusetts Bay in New England, in General Court assembled, and by the authority of the same,

That all and every the rights and liberties of the people, in this present act mentioned, shall be firmly and strictly holden and observed; that is to say, -

[Art. 1] That no freeman shall be taken and imprisoned or be disseized of his freehold or libertys or his free customes, or be outlawed or exiled, or in any manner destroyed, nor shall be passed upon, adjudged or condemned, but the the lawful judgment of his peers or the law of this province.

. . .

[Art. 6] All trials shall be by the verdict of twelve men, peers or equals, and of the neighbourhood and in the country or shire where the fact shall arise or grow, whether the same be by indictment, information, or otherwise against the person offending, except in cases where the law of the province shall otherwise provide.

CHAPTER 33. AN ACT FOR THE ESTABLISHING OF JUDICATORIES AND COURTS OF JUSTICE WITHIN THIS PROVINCE

For the more orderly regulation and establishment of courts of justice throughout this province, -

Be it enacted and ordained by His Excellency the Governor, Council and Representatives convened in General Assembly, and it is hereby enacted and ordained by the authority of the same,

...

[Sect. 10] That all matters and issues in fact arising or happening within the said province, shall by tryed by twelve good and lawful men of the neighbourhood; and that no person or persons shall be chosen and returned to serve upon any such jury but such as shall have a real estate of freehold worth forty shillings per annum, or personal estate worth fifty pounds.

[sic: liberties, libertys, customes, neighbourhood, shire, trials, tryed]

Disallowed by the privy council, August 22, 1695

Acts and Resolves of the Province of the Massachusetts Bay - Volume I. 1692 - 1714. Boston: Wright & Potter, Printers to the State...1869, pages 40, 72, & 74.

According to Peter Charles Hoffer, resesearch professor of history at the University of Georgia in his book The Salem Witchcraft Trials: A Legal History (Univ. Press of Kansas, 1997), the 19 people convicted of being witches or of practicing witchcraft in Salem, Massachusetts, and executed (hanged) for this reason in 1692 and 1693, were all indicted by grand juries and tried by trial juries, and "The verdict had to be unanimous" (page 87). How likely is it that people accused of being witches were entitled to jury trial but people accused of insanity or lunacy were not?

MICHIGAN - yes:

330.1448. Information and documents to be furnished hospitalizedpersons

Sec. 448. (1) Not later than 12 hours after an individual ishospitalized under section 423 or 438, the hospital directorshall ensure that the individual receives all of thefollowing:

(a) A copy of the application or petition that asserted that theindividual is a person requiring treatment.

(b) A written statement explaining that the individual will beexamined by a psychiatrist within 24 hours after his or herhospitalization, excluding legal holidays.

(c) A written statement in simple terms explaining the rights ofthe individual to a full court hearing pursuant to sections 451to 465, to be present at the hearing, to be represented by legalcounsel, to a jury trial , and to an independent clinicalevaluation.

MINNESOTA - no

253B.08 Judicial commitment; hearing procedures.

Subdivision 1.Time for commitment hearing. The hearing on the commitment petition shall be held within 14 days from the date of the filing of the petition. For good cause shown, the court may extend the time of hearing up to an additional 30 days. The proceeding shall be dismissed if the proposed patient has not had a hearing on a commitment petition within the allowed time. The proposed patient, or the head of the treatment facility in which the person is held, may demand in writing at any time that the hearing be held immediately. Unless the hearing is held within five days of the date of the demand, exclusive of Saturdays, Sundays and legal holidays, the petition shall be automatically discharged if the patient is being held in a treatment facility pursuant to court order. For good cause shown, the court may extend the time of hearing on the demand for an additional ten days.

Subd. 2. Notice of hearing. The proposed patient, patient's counsel, the petitioner, the county attorney, and any other persons as the court directs shall be given at least five days' notice that a hearing will be held and at least two days' notice of the time and date of the hearing, except that any person may waive notice. Notice to the proposed patient may be waived by patient's counsel.

Subd. 2a. Place of hearing. The hearing shall be conducted in a manner consistent with orderly procedure. The hearing shall be held at a courtroom meeting standards prescribed by local court rule which may be at a treatment facility.

Subd. 3. Right to attend and testify. All persons to whom notice has been given may attend the hearing and, except for the proposed patient's counsel, may testify. The court shall notify them of their right to attend the hearing and to testify. The court may exclude any person not necessary for the conduct of the proceedings from the hearings except any person requested to be present by the proposed patient. Nothing in this section shall prevent the court from ordering the sequestration of any witness or witnesses other than the petitioner or the proposed patient.

Subd. 4. Repealed, 1997 c 217 art 1 s 118

Subd. 5. Absence permitted. (a) The court may permit the proposed patient to waive the right to attend the hearing if it determines that the waiver is freely given. At the time of the hearing the patient shall not be so under the influence of drugs, medication, or other treatment so as to be hampered in participating in the proceedings. When the licensed physician or licensed psychologist attending the patient is of the opinion that the discontinuance of drugs, medication, or other treatment is not in the best interest of the patient, the court, at the time of the hearing, shall be presented a record of all drugs, medication or other treatment which the patient has received during the 48 hours immediately prior to the hearing.

(b) The court, on its own motion or on the motion of any party, may exclude or excuse a proposed patient who is seriously disruptive or who is incapable of comprehending and participating in the proceedings. In such instances, the court shall, with specificity on the record, state the behavior of the proposed patient or other circumstances justifying proceeding in the absence of the proposed patient.

Subd. 5a. Witnesses. The proposed patient or the patient's counsel and the county attorney may present and cross-examine witnesses, including examiners, at the hearing. The court may in its discretion receive the testimony of any other person. Opinions of court-appointed examiners may not be admitted into evidence unless the examiner is present to testify, except by agreement of the parties.

Subd. 6. Repealed, 1997 c 217 art 1 s 118

Subd. 7. Evidence. The court shall admit all relevant evidence at the hearing. The court shall make its determination upon the entire record pursuant to the rules of evidence.

In any case where the petition was filed immediately following a criminal proceeding in which the proposed patient was acquitted under section 611.026 , the court shall take judicial notice of the record of the criminal proceeding.

Subd. 8. Record required. The court shall keep accurate records containing, among other appropriate materials, notations of appearances at the hearing, including witnesses, motions made and their disposition, and all waivers of rights made by the parties. The court shall take and preserve an accurate stenographic record or tape recording of the proceedings.

HIST: 1982 c 581 s 8; 1983 c 348 s 9; 1984 c 623 s 5; 1986 c 444; 1991 c 255 s 19; 1997 c 217 art 1 s 49-54

MINNESOTA CONSTITUTION

Sec. 4. TRIAL BY JURY. The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. A jury trial may be waived by the parties in all cases in the manner prescribed by law. The legislature may provide that the agreement of five-sixths of a jury in a civil action or proceeding, after not less than six hours' deliberation, is a sufficient verdict. The legislature may provide for the number of jurors in a civil action or proceeding, provided that a jury have at least six members. [Amended, November 8, 1988]

Chapter Title: CIVIL COMMITMENT ACT

Section: 253B.092 Standards and criteria for administration of neuroleptic medication; procedures.

Subdivision 1. General. Neuroleptic medications maybe administered to patients subject to early intervention orcivil commitment as mentally ill or mentally ill and dangerousonly as provided in this section. For purposes of this section,"patient" includes a proposed patient who is the subject of apetition for early intervention or commitment.

Subd. 2. Administration without judicial review.

Neuroleptic medications may be administered without judicialreview in the following circumstances:

(1) the patient has the capacity to make an informeddecision under subdivision 4;

(2) the patient does not have the present capacity toconsent to the administration of neuroleptic medication, butprepared a health care directive under chapter 145C or adeclaration under section 253B.03, subdivision 6d, requestingtreatment or authorizing an agent or proxy to request treatment,and the agent or proxy has requested the treatment;

(3) a substitute decision-maker appointed by the courtconsents to the administration of the neuroleptic medication andthe patient does not refuse administration of the medication; or

(4) the substitute decision-maker does not consent or thepatient is refusing medication, and the patient is in anemergency situation.

Subd. 3. Emergency administration. A treatingphysician may administer neuroleptic medication to a patient whodoes not have capacity to make a decision regardingadministration of the medication if the patient is in anemergency situation. Medication may be administered for so longas the emergency continues to exist, up to 14 days, if thetreating physician determines that the medication is necessaryto prevent serious, immediate physical harm to the patient or toothers. If a request for authorization to administer medicationis made to the court within the 14 days, the treating physicianmay continue the medication through the date of the first courthearing, if the emergency continues to exist. If the requestfor authorization to administer medication is made to the courtin conjunction with a petition for commitment or earlyintervention and the court makes a determination at thepreliminary hearing under section 253B.07, subdivision 7, thatthere is sufficient cause to continue the physician's orderuntil the hearing under section 253B.08, the treating physicianmay continue the medication until that hearing, if the emergencycontinues to exist. The treatment facility shall document theemergency in the patient's medical record in specific behavioralterms.

Subd. 4. Patients with capacity to make informed decision. A patient who has the capacity to make an informed decision regarding the administration of neuroleptic medication may consent or refuse consent to administration of the medication. The informed consent of a patient must be in writing.

[underline added]

Comment: The above section illustrates the value of having a written declaration of your wishes prior to being subjected to involuntary psychiatric "hospitalization" stating that you wish to refuse all psychotropic "medication," electroconvulsive "therapy," and use of physical restraints in all circumstances. This prevents use of the argument that you would consent to such (mis)treatment if only you did not have a mental illness. Having a psychiatrist, psychologist, or a physician attach a statement (preferably notarized) stating that in his or her opinion you are competent to make the declaration refusing "treatment" and perhaps also that the psychiatrist, psychologist, or other physician agrees with your decision would add strength to your declaration.

MISSISSIPPI - There is no mention of jury trial in the commitmentstatutes.

SEC. 41-21-73. Procedures for hearing; evidence; witnesses;commitment; disposition and findings.

(3) The respondent shall have the right to offer evidence, to beconfronted with the witnesses against him and to cross-examinethem and shall have the privilege against self-incrimination. Therules of evidence applicable in other judicial proceedings inthis state shall be followed.

(4) If the court finds by clear and convincing evidence that theproposed patient is a mentally ill or mentally retarded personand, if after careful consideration of reasonable alternativedispositions, including, but not limited to, dismissal of theproceedings, the court finds that there is no suitablealternative to judicial commitment, the court shall commit thepatient for treatment in the least restrictive treatment facilitywhich can meet the patient's treatment needs.

MISSISSIPPI CONSTITUTION

Article 3, Section 31. The right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.

SOURCES: 1817 art I § 28; 1832 art I § 28; 1869 art I § 12; 1916 ch 158.

In Fant v. Buchanan, 17 S. 371 (1895), the Supreme Court of Mississippi said "prior to the Code of 1880, a jury of 12 men was provided for in inquests of lunacy ... the code of 1880 provided for an inquest by 6 men and was in force when the constitution of 1890 was adopted, and conferred on the chancery court full jurisdiction in cases of idiocy, lunacy, and persons of unsound mind".

MISSOURI - yes

632.335

The respondent shall have the following rights in addition tothose specified elsewhere:

(1) To be represented by an attorney;

(2) To present evidence on his own behalf;

(3) To cross-examine witnesses who testify against him;

(4) To remain silent;

(5) To view and copy all petitions and reports in the court fileof his case;

(6) To have the hearing open or closed to the public as heelects;

(7) To be proceeded against according to the rules of evidenceapplicable to civil judicial proceedings;

(8) A hearing before a jury if requested by the patient or hisattorney .

MISSOURI CONSTITUTION

Right of trial by jury--qualification of jurors--two-thirds verdict.

Section 22(a). That the right of trial by jury as heretofore enjoyed shall remain inviolate; provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law, and a two-thirds majority of such number concurring may render a verdict in all civil cases; that in all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury.

Source: Const. of 1875, Art. II, § 28 (as amended Nov. 6, 1900).

MONTANA - yes

Chapter 21

Mentally Ill

Part 1. Treatment of the Seriously Mentally Ill

53-21-101.

118 (2) Whenever possible, a person detained pursuant to thispart must be detained in a mental health facility and in thecounty of residence. If the person detained demands a jurytrial and trial cannot be held within 7 days, the individual may besent to the state hospital until time of trial if arrangementscan be made to return him to trial. The trial must be held within30 days.

MONTANA CONSTITUTION

ARTICLE II - DECLARATION OF RIGHTS

Section 15. Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.

Section 26. Trial by jury. The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

NEBRASKA - No right to jury trial is mentioned in the commitment statute. Hearings are by a "mental health board":

Chapter 83, 83-1018: The members of the mental health board shall be appointed for terms of two years by the presiding judge of the district court in the district in which the board is located. The board shall consist of a lawyer licensed to practice law in this state, and any two of the following, but not more than one from each class: A physician; a psychologist; a psychiatric social worker; a psychiatric nurse; a clinical social worker; or a layperson with a demonstrated interest in mental health issues. ...

NEBRASKA CONSTITUTION (requires Acrobat Reader)

Article I - Bill of Rights

Sec. 2. There shall be enither slavery nor involuntary servitude in this state, otherwise than for punishment of crime, whereof the party shall have been duly convicted. ...

Sec. 6. The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may be general law suthorize a verdict in civil cases in any court by not less than five-sixts of the jury. (Amended 1920.)

Sec. 7. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

NEVADA - The commitment statutes make no mention of right to jurytrial, and the description of commitment procedure makes cleartrial will by the court without a jury. See NRS 433A.220 Hearing on petition; notice . The court must appointtwo examiners, at least one of whom must be a physician. Theother may be a psychologist. The "Declaration oflegislative intent" (below) says it was not the intention of thestate legislators to violate the civil rights of people accusedof "mental illness." The legislators apparently simply donot understand the necessity of a lay jury to avoid unjustimprisonment (or "hospitalization") in mental "hospitals" andtherefore might change the law if it is called to theirattention:

Nevada Statutes

Chapter 433

Administration of Programs

General Provisions

NRS 433.003 Declaration of legislative intent. Thelegislature hereby declares that it is the intent of thisTitle:

1. To eliminate both the forfeiture of any civil and legal rightsof any person and the imposition of any legal disability on anyperson, based on an allegation of mental illness or mentalretardation...

NEVADA CONSTITUTION

Article 1 - Declaration of Rights

Sec: 3. Trial by jury; waiver in civil cases. The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict notwithstanding this Provision.

NEW HAMPSHIRE - The right to jury trial in civil commitment for mental illness is not currently (in the year 2000) recognized in New Hampshire:

Sec.135-C:43 Conduct of Hearing. – For hearings held under thischapter, the person sought to be admitted shall have the right tolegal counsel, to present evidence on his own behalf, to have aclosed hearing unless he requests otherwise, and to cross-examinewitnesses. He shall also have the right to summon as a witnessthe psychiatrist who filed the report pursuant to RSA 135-C:40and to cross-examine him. A transcript, which may consist only ofany audio recording of the proceedings, and at the court'sdiscretion, shall be made of the entire proceeding. Thetranscript may serve as the basis for an appeal and the costs ofthe transcript shall be apportioned, within the judge'sdiscretion, between the state and the person sought to beadmitted. The transcript or recording shall be retained by thecourt for 2 years or until official notice is received ofdischarge, if the person is admitted on an involuntary basis andsubsequently discharged.

Source. 1986, 212:1, eff. Jan. 1, 1987.

NEW HAMPSHIRE CONSTITUTION

Bill of Rights

[Art.] 20. [Jury Trial in Civil Causes.] In all controversies concerning property, and in all suits between two or more persons except those in which another practice is and has been customary and except those in which the value in controversy does not exceed $1,500 and no title to real estate is involved, the parties have a right to a trial by jury. This method of procedure shall be held sacred, unless, in cases* arising on the high seas and in cases relating to mariners' wages, the legislature shall think it necessary hereafter to alter it.

June 2, l784

Amended in l877 to prohibit jury trials unless the amount in controversy exceeds $l00.

Amended in l960 to increase the amount to $500 before a jury trial may be requested.

*"Cases" appears in l792 parchment copy of constitution. Original constitution had "causes."Amended in 1988 to change $500 to $1,500

In 1987 in the case of McElroy v. Gaffney, 529 A.2d 889,at page 891, the Supreme Court of New Hampshire said Article 20 "affords the unqualified right to a trial by juryin actions at common law, as it was understood to apply at common law prior to 1784."

In H. v. S., decided by the Superior Court of Judicatureof the State of New Hampshire in 1827, the Court said:

This was an appeal from a decree of the judge of probate in thiscounty, declaring the appellant to be a person non compos mentis, and appointing a guardian of his person and estate. ... The statute of March 21, 1776 , enacted that it should be the power of the judge of probate, upon request made by any of the friends, of any idiot, non compos, lunatic, or distracted person,to direct the selectmen of the town to make inquisition thereinto, "and if the person said to be an idiot, or distracted, shall be so determined by the judge of probate in such county, and selectmen of the town or a major part of them, wherein such idiot or distracted person lives, then and in that case the said judge of probate shall assign and appoint some suitable person or persons to be guardian or guardians." ... When the selectmen find a person to be non compos mentis and make return to the judge of probate accordingly, it is competent to such person to traverse the fact before the judge of probate, and to bring the cause by appeal to this court where the fact may be tried by a jury . [Reports of Cases in the Superior Court of Judicature of the State of New Hampshire ...Volume IV. - Chester, Currier, French, and Brown. 1830. Pages 60-68 - underline added]

In colonial New Hampshire and the early days of statehood, appointment of a guardian was the manner of authorizing confinement for reason of mental illness or insanity. As the Supreme Judicial Court of New Hampshire said in 1866 in Davis v. Merrill, 47 NH 208 at 211: "Under our practice in this State, where it becomes pretty certain that one of our citizens has become permanently insane, or is likely to be, and he has property, for the protection of his person and the community, as well as his property, a guardian is required, and may be appointed, agreeably to the requirements of the law. Where a guardian is thus appointed, he assumes the parental relation, and has generally the authority of a parent. Under our law, the guardian, having for the time being the legal custody of the person of the ward, may, of course, commit him to an asylum..."

Similarly, in 1842 in the case of Colby vs. Jackson, 12 NH 526 at 528, the Superior Court of Judicature of New Hampshire ruled that the trial court correctly gave the following jury instruction: "The court instructed the jury...that if the plaintiff were so insane that it was dangerous to himself and others to permit him to be at liberty, the defendant might confine him until application could be made to the proper authority, and a guardian appointed - that such an application must be made in a reasonable time - that the defendant had no right to confine him for an indefinite time, as long as he should think proper, without making any application for, and procuring the appointment of a guardian..."

Since there was a right to jury trial in involuntary guardianship (on appeal from the probate court to the Superior Court of Judicature), and guardianship was the manner of authorizing confinement for reason of mental illness or insanity, it logically follows that the right to jury trial in civil commitment for mental illness is also preserved by the above provision in the New Hampshire Constitution Bill of Rights - if, as the Supreme Court of New Hampshire said in McElroy v. Gaffney, 529 A.2d 889, 891 that Article 20 "affords the unqualified right to a trial by jury in actions at common law, as it was understood to apply at common law prior to 1784."

However, the Supreme Court of New Hampshire said otherwise in 1950 in the case of In re Moulton, 77 A2d 26 at 28, in which the Court upheld the constitutionality of a law allowing civil commitment of "sexual psychopaths" at the conclusion of their criminal sentences that specifically said there "shall be no right to trial by jury." The Court said: "The statutes relating to the care, control and treatment of sexual psychopaths are analogous to insanity proceedings and it cannot be said that it is a common law requirement embedded in the Constitution that trial by jury is a prerequisite of the validity of such acts. Such is the weight of authority." The Court is entirely wrong on this point, as shown by decisions of the highest courts of New York (Sporza), Tennessee (Johnson v. Helms), Texas (White v. White), and Washington (Ellern and Quesnell) interpreting similar state constitutional provisions in which these other state supreme courts found that there was a right to jury trial in civil commitment for mental illness at common law that is preserved by a state constitutional provision preserving the right to jury trial as it existed at the time of the adoption of the state constitution. As a New Jersey court also said in In re McLaughlin, 102 A. 439 (1917): "At common law it was the practice to inquire whether a man was an idiot, or not, by the writ of de idiota inquirendo, in which proceeding there was the trial by jury. The method of proving a man non compos was quite the same. ... The act is silent on the method of determining the lunacy; but, as already shown, it was determined by a jury at common law." The Supreme Court of Mississippi reached a similar conclusion in Fant v. Buchanan, 17 S. 371 (1895): "...prior to the Code of 1880, a jury of 12 men was provided for in inquests of lunacy ... the code of 1880 provided for an inquest by 6 men and was in force when the constitution of 1890 was adopted, and conferred on the chancery court full jurisdiction in cases of idiocy, lunacy, and persons of unsound mind".

Moreover, unlike the "the right of trial by jury shall remain inviolate" language found in many state constitutions, the express language of Article 20 of the New Hampshire Constitution Bill of Rights does not merely preserve the right to jury trial as it existed when the state constitution was adopted. It says, "In allcontroversies concerning property, and in all suits between two or more persons ... the parties have a right to a trial by jury" with certain exceptions: small value in controversy, mariner's wages, and - most importantly - "except those in which another practice is and has been customary." This is a grant of a right to jury trial in all cases that do not fall within one of the exceptions. New Hampshire's state constitutional provision protecting right to jury trial in civil cases is very similar to Maine's, which reads: "In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced..." In Harriman v. Maddocks, 560 A.2d 11 (1989), the Supreme Judicial Court of Maine said: "Under our constitution, jury trials are available, '[i]n all civil suits, and in all controversies concerning property ... except in cases where it has heretofore been otherwise practiced.' Me. Const. art. I, §20. The court's practice in analyzing the right to a jury trial is to find there is such a right unless it is affirmatively shown that a jury trial was unavailable in such a case in 1820." It can't be affirmatively shown there was no right to jury trial in confinement because of insanity or lunacy or what we now call mental illness when the New Hampshire state constitution was adopted, because there was one.

Are any New Hampshire lawyers reading this?

NEW JERSEY - The commitment statutes make no mention of jurytrial.

Title 30 - 30:4-27.14

A person subject to involuntary commitment has the followingrights at a court hearing and any subsequent review courthearing:

a. The right to be represented by counsel or, if indigent, byappointed counsel;

b. The right to be present at the court hearing unless the courtdetermines that because of the person's conduct at the courthearing the proceeding cannot reasonably continue while theperson is present;

c. The right to present evidence;

d. The right to cross examine witnesses; and

e. The right to a hearing in camera [in private].





NEW JERSEY STATE CONSTITUTION 1947

ARTICLE I

RIGHTS AND PRIVILEGES

[§]9. The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of six persons. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury.

The New Jersey sexual predator law (Megan's Law) states:

a. The rules of evidence applicable in criminal cases shallapply, and all constitutional rights available to a defendant ata criminal trial, other than the right to a trial by jury and the right not to be tried while incompetent, shall apply.



Regarding Electroshock treatment: 30:4-27.11d:

(5) Not to receive electroconvulsive treatment or participate inexperimental research without the express and informed, writtenconsent of the patient. The patient shall have the right toconsult with counsel or interested party of the patient's choice.A copy of the patient's consent shall be placed in the patient'streatment record. If the patient has been adjudicatedincompetent, a court of competent jurisdiction shall hold ahearing to determine the necessity of the procedure. The patientshall be physically present at the hearing, represented bycounsel, and provided the right and opportunity to be confrontedwith and to cross-examine all witnesses alleging the necessity ofthe procedure. In these proceedings, the burden of proof shall beon the party alleging the necessity of the procedure. In theevent that a patient cannot afford counsel, the court shallappoint an attorney not less than 10 days before the hearing. Anattorney so appointed shall be entitled to a reasonable fee to bedetermined by the court and paid by the State.

NEW MEXICO - There is no right to jury trial for 30 day commitments but is for "extended" commitments.

43-1-12. Extended commitment of adults.

A. ...

B. A hearing shall be held upon the petition prior to theexpiration of the thirty-day commitment period, at which theclient shall have all rights granted to him under Section 43-1-11NMSA 1978 and in addition shall have a right to a trial by asix-person jury if requested, and to an expeditious appeal,unless waived.

New Mexico Constitution

Article II - Bill of Rights

Sec. 12. [Trial by jury; less than unanimous verdicts in civil cases.]

The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate. In all cases triable in courts inferior to the district court the jury may consist of six. The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.

NEW YORK - yes

S 9.35 Review of court authorization to retain an involuntary patient. If a person who has been denied release or whose retention, continued retention, or transfer and continued retention has been authorized pursuant to this article, or any relative or friend in his behalf, be dissatisfied with any such order he may, within thirty days after the making of any such order, obtain a rehearing and a review of the proceedings already had and of such order upon a petition to a justice of the supreme court other than the judge or justice presiding over the court making such order. Such justice shall cause a jury to be summoned and shall try the question of the mental illness and the need forretention of the patient so authorized to be retained. Any such patientor the person applying on his behalf for such review may waive the trial of the fact by a jury and consent in writing to trial of such fact by the court. No such petition for rehearing and review shall be made by anyone other than the person so authorized to be retained or the father, mother, husband, wife, or child of such person, unless the petitioner shall have first obtained the leave of the court upon good cause shown. If the verdict of the jury, or the decision of the court when jury trial has been waived, be that such person is not mentally ill or is not in need of retention the justice shall forthwith discharge him, but if the verdict of the jury, or the decision of the court where a jury trial hasbeen waived , be that such person is mentally ill and in need of retention the justice shall certify that fact and make an order authorizing continued retention under the original order. Such order shall be presented, at the time of authorization of continued retention of such mentally ill person, to, and filed with, the director of the hospital in which the mentally ill person is authorized to be retained, and a copy thereof shall be forwarded to the department by such director and filed in the office thereof. Proceedings under the order shall notbe stayed pending an appeal therefrom, except upon an order of a justiceof the supreme court, made upon a notice and after a hearing, withprovisions made therein for such temporary care or confinement of the alleged mentally ill person as may be deemed necessary. [underline added]

NEW YORK CONSTITUTION

Article I - Bill of Rights

Sec. 2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.

In 1908 in Sporza v. German Savings Bank, Vol. 84 Northeastern Reporter, page 406, the Court of Appeals of New York ruled that trial by jury in civil commitment for mental illness and in involuntary guardianship is guaranteed by the New York State Constitution. The Court said: "It is manifest that in England up to a period long subsequent to the adoption of the New York Constitution of 1777 the verdict of a jury was essential to establish the status of a person alleged to be incompetent either as an idiot or a lunatic. ... A careful examination of the New York statutes and decisions bearing upon the subject leave no doubt in my mind that prior to the Constitution of 1846, and since then until the enactment of section 2323a of the Code of Civil Procedure, the courts in this state have not assumed jurisdiction to appoint a committee of the person or estate of an incompetent person, in the absence of a finding by a jury [pages 413-414]... The unvarying practice seems to have been to require a jury trial as a condition precedent to the appointment of a committee for the person or estate of a lunatic [p. 414]."

See also Matter of Coates, 8 AD2d 441 (1959), Arnold v. Sanchez, 166 Misc 2d 493, 634 NYS2d 343 (1995) and Robert C. v. Wack, 635 NYS2d 677 (1995) interpreting the Sporza case as requiring the allegedly mentally ill person have a right to demand a jury in civil commitment for mental illness pursuant to the state constitutional provision preserving the right to jury trial as it existed when the state constitution was adopted.

NORTH CAROLINA - There is no mention of jury trial in thecommitment statutes:

General Statutes of North Carolina

Chapter 122c. Mental Health, Developmental Disabilities, andSubstance Abuse Act of 1985, Part 7, § 122C-261 and following statutes

NORTH CAROLINA CONSTITUTION

Article I - Declaration of Rights

Sec. 24. Right of jury trial in criminal cases. No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

Sec. 25. Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.

NORTH DAKOTA - There is no mention of jury trial in thecommitment statutes:

North Dakota Century Code

Title 25. Mental and Physical Illness or Disability

Chapter 25-01. General Provisions

25-01-01 and following statutes

25-03.1 - Commitment Procedures

25-03.1-19 - Involuntary Treatment Hearing

Involuntary psychosurgery, sterilization or research on a "patient" may be ordered, after a hearing, pursuant to Sec. 25-01.2-11 of the North Dakota Century Code.

NORTH DAKOTA CONSTITUTION

Article I - Declaration of Rights (requires Acrobat Reader)

Section 13. The right of trial by jury shall be secured to all, and remain inviolate. A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve. The legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members. All verdicts must be unanimous.

OHIO - There is no mention of jury trial in the commitmentstatutes:

Ohio Code

Title 51

Chapter 22, Sections 5122.141 and 5122.15 and Chapter 5119 of the Revised Code:

OHIO CONSTITUTION

Article 1 - Bill of Rights

§ 1.05 Trial by jury (1851, amended 1912)

The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.

(As amended September 3, 1912.)

OKLAHOMA - yes

Sec. 43A-5-411

A. A person alleged to be a mentally ill person and a personrequiring treatment shall have the following rights: 1. The rightto notice, as provided by Section 6 of this act; 2. The right tocounsel, including court-appointed counsel, and if the person hasno counsel, that the court shall appoint an attorney to representthe person at no cost if the person is an indigent person andcannot afford an attorney; 3. The right to a hearing and theright to a closed hearing, unless the person requests otherwise;4. Upon request, right to a jury trial . The jury shall becomposed of six persons... [underline added]

The statutes provide for involuntary psychiatricdrugging:

S 9.35 Review of court authorization to retain an involuntarypatient.

Sec. 43A-5-204.

A. During the detention periods authorized by the Mental Healthand Substance Abuse Services Law, Section 1-101 et seq. of thistitle, or during the time set forth in the Mental Health andSubstance Abuse Services Law for the precommitment screeningexamination, or while in the custody of the Department ofCorrections appropriate treatment and medication, includingpsychotropic medication, may be administered to a consentingindividual.

B. Treatment and medication may be administered to anonconsenting individual upon the written order of a physicianwho has personally examined the patient and who finds suchmedication or treatment is necessary to protect the patient, thefacility or others from serious bodily harm, and who so notes inthe individual's medication record, with an explanation of thefacts leading up to the decision to administer treatment andmedication including psychotropic medication. 43A-5-411.

OKLAHOMA CONSTITUTION

Article II: Bill of Rights

Section II-19: Trial by jury.

The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Provided, however, that the Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil cases,involving more than Ten Thousand Dollars ($10,000.00), and felonycriminal cases shall consist of twelve (12) persons. All other juriesshall consist of six (6) persons. However, in all cases the partiesmay agree on a lesser number of jurors than provided herein.

In all criminal cases where imprisonment for more than six (6) months is authorized the entire number of jurors must concur to render a verdict. In all other cases three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict. When a verdict is rendered by less than the whole number of jurors, the verdict shall be signed by each juror concurring therein.

OREGON - There is no mention of jury trial in the commitmentstatutes.

426.090 Citation; service.

The judge shall cause a citation to issue to the allegedlymentally ill person stating the nature of the information filedconcerning the person and the specific reasons the person isbelieved to be mentally ill. The citation shall further contain anotice of the time and place of the commitment hearing, the rightto legal counsel, the right to have legal counsel appointed ifthe person is unable to afford legal counsel, and, if requested,to have legal counsel immediately appointed, the right tosubpoena witnesses in behalf of the person to the hearing andother information as the court may direct



426.100 Advice of court; appointment of legal counsel; fee;representation of state's interest.

(1) At the time the allegedly mentally ill person is broughtbefore the court, the court shall advise the person of thefollowing:

(a) The reason for being brought before the court;

(b) The nature of the proceedings;

(c) The possible results of the proceedings;

(d) The right to subpoena witnesses; and

(e) The person's rights regarding representation by orappointment of counsel.

OREGON CONSTITUTION

Article I - Bill of Rights

Section 17. Jury trial in civil cases. In all civil cases the right of Trial by Jury shall remain inviolate.-

PENNSYLVANIA: There is no mention of jury trial in the commitmentstatutes.

§ 5100.84. Persons who may be subject to involuntary emergency examination and treatment under Pennsylvania law

§ 29.42. Procedures for Appointment of Guardians.

Pennsylvania's mental patients' Bill of Rights

PENNSYLVANIA CONSTITUTION (requires Acrobat Reader)

Article I - Declaration of Rights

6. Trial by jury.

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case.

(May 18, 1971, P.L. 765, J.R.1)

RHODE ISLAND: There is no mention of jury trial in the commitmentstatutes.

Sec. 40.1-5-8 Civil court certification

(i) Hearing. A hearing scheduled under this section shall beconducted pursuant to the following requirements:

(1) All evidence shall be presented according to the usual rulesof evidence which apply in civil, non jury cases. The subject ofthe proceedings shall have the right to present evidence in hisor her own behalf, and to cross examine all witnesses against himor her, including any physician who has completed a certificateor filed a report as provided hereunder. The subject of theproceedings shall have the further right to subpoena witnessesand documents, the cost of such to be borne by the court wherethe court finds upon an application of the subject that theperson cannot afford to pay for the cost of subpoenaing witnessesand documents.

RHODE ISLAND CONSTITUTION

ARTICLE I - DECLARATION OF CERTAIN CONSTITUTIONAL RIGHTS AND PRINCIPLES

Section 15. Trial by jury. The right of trial by jury shall remain inviolate. In civil cases the general assembly may fix the size of the petit jury at less than twelve but not less than six.

SOUTH CAROLINA - There is no mention of jury trial in thecommitment statutes:

South Carolina Statutes

Title 44 - Health

Chapter 23.

Provisions Applicable to Both Mentally Ill

And Mentally Retarded Persons

Article 1. - Definitions and General Matter

Section 44-23-10 and following statutes

SOUTH CAROLINA CONSTITUTION

Article I - Declaration of Rights

SECTION 14. Trial by jury; witnesses; defense.

The right of trial by jury shall be preserved inviolate. Any person charged with an offense shall enjoy the right to a speedy and public trial by an impartial jury; to be fully informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be fully heard in his defense by himself or by his counsel or by both.

SOUTH DAKOTA - There is no mention of jury trial in thecommitment statutes. Hearings are before a "Board of Mental Illness."

South Dakota Codified Laws

Title 27a. Mentally Ill Persons

Chapter 27a-1. Definitions and General Provisions

27A-1-1 and following statutes

Chapter 11A - Hearings Procedure - under "statutes" choose "title list"; then choose title "27A" and then "11A".

CONSTITUTION OF SOUTH DAKOTA

ARTICLE VI - BILL OF RIGHT [sic - singular]

§ 6. Jury trial - Reduced jury - Three-fourths vote.

The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.

TENNESSEE - yes

33-3-606 Time for hearing.

The hearing shall be held as soon as possible but not more thantwenty (20) days after the complaint was filed except that thecourt may continue the hearing for up to ten (10) days for goodcause and may continue the hearing for as long as necessary toimpanel a jury if the defendant demands a jury trial . [underline added]

33-3-609. Jury trial.

Either party may demand a jury trial on the issues.

[Acts 1983, ch. 323, § 9; T.C.A., § 33-368.]

TENNESSEE CONSTITUTION

Article I, Sec. 6. Trial by jury - Qualifications of jurors.

That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.

In Johnson v. Helms, 100 S.W. 2d 648 (1937), the Supreme Court of Tennessee ruled that the above provision of the state constitution protects a right to jury trial in civil psychiatric commitment because the right existed both under common law and under a statute that existed when the Tennessee state constitution was adopted.

Under section 33-3-102 of the Tennessee statutes: "(a) Any individual who: (1) Without probable cause for believing a person to be mentally retarded or mentally ill, causes or conspires with or assists another to cause the hospitalization or admission of any such person under this title; or (2) Causes or conspires with or assists another to cause the denial to any person of any right accorded to such person under this title; commits a Class E felony." Under Section 33-3-103, "It is a Class C misdemeanor for any person knowingly to furnish false information for the purpose of securing the hospitalization or admission of any individual to any public facility for the mentally ill or mentally retarded."