P v. Dunley (4th Dist., Div.2) Post-Rehearing, MDO Defendants Still Similarly Situated to NGI Defendants For Purposes of Compelled Testimony; Strict Scrutiny Applies

Back in April, I commented on the initial opinion in this case holding that MDO defendants are similarly situated to NGI defendants for purposes of compelled testimony.  The initial opinion remanded the case to the trial court to give the State a chance to justify the disparate treatment (California statutes grant NGI defendants a right not to testify, not so for MDO defendants).

The State petitioned for rehearing to settle the issue of what standard the trial court is to apply.  The petition for rehearing was granted and the Fourth District now holds that strict scrutiny is the applicable standard.