Report Title:

Separation of Fitness Exams From Penal Responsibility Examinations

Description:

Recommends that the penal responsibility defense "may only be raised by the defense". Separates the fitness to proceed and penal responsibility examinations. Establishes shorter timeframes for completion of fitness evaluations.

THE SENATE

S.B. NO.

1365

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE SEPARATION OF FITNESS EXAMS FROM PENAL RESPONSIBILITY EXAMINATIONS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 704-402, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense[.] and may only be raised by the defendant."

SECTION 2. Section 704-404, Hawaii Revised Statutes, is amended to read as follows:

"704-404 Examination of defendant with respect to physical or mental disease, disorder, or defect. (1) Whenever [the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or] the court determines that there is reason to doubt the defendant's fitness to proceed, [or reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case,] the court [may] shall immediately suspend all further proceedings in the prosecution. If a trial jury has been empanelled, it shall be discharged or retained at the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.

[(2)] (a) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant[.] regarding the defendant's fitness to proceed. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be either a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases the court may appoint either a psychiatrist or a licensed psychologist. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted on an out-patient basis or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination [for a period not exceeding thirty days, or such longer period as the court determines to be necessary for the purpose]. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness [and participate in] the examination. The court shall set a return date in felony cases no later than fifteen working days and in nonfelony cases no later than ten working days from the receipt of the report(s) of the evaluator(s), at which time the written evaluation of the appointed examiner shall be reviewed by the court. If the defendant is at liberty, the return date may be set no later than thirty days. The return date may be extended by the court without a hearing upon a showing of good cause; provided that the return date for confined defendants shall not be extended to a date more than thirty days in felony cases and twenty days in nonfelony cases from the receipt of the report(s), and forty-five days for confined defendants, unless waived by the parties. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).

[(3)] (b) In such examination any method may be employed which is accepted by the professions of medicine or psychology for the examination of those alleged to be suffering from physical or mental disease, disorder, or defect[;] affecting their fitness to proceed; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners may, upon approval of the court, secure the services of clinical psychologists and [other] medical or paramedical specialists to assist in the examination and diagnosis.

[(4)] (c) The report of the examination shall include the following:

[(a)] (i) A description of the nature of the examination;

[(b)] (ii) A diagnosis of the physical or mental condition of the defendant[;] at the time of the examination;

[(c)] (iii) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense; and

[(d) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;]

[(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is required to establish an element of the offense charged; and]

[(f)] (iv) Where more than one examiner is appointed, a statement that the diagnosis and opinion rendered were arrived at independently of any other examiner, unless there is a showing of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report.

[(5)] (d) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

[(6)] (e) The report of the examination, including any

supporting documents, shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

[(7)] (f) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion.

[(8)] (g) [The] In felony cases, the court shall obtain all existing, medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies notwithstanding any other statutes, and make such records available for inspection by the examiners. In nonfelony cases, the court shall obtain all existing mental health, medical, and police records and shall make such records available for inspection by all examiners. In nonfelony cases, upon request of any examiner, the court shall also obtain all existing social and juvenile records, including those expunged, and other pertinent records in the custody of public agencies notwithstanding any other statutes, and shall make such records available for inspection by all examiners.

[(9)] (h) The compensation of persons making or assisting in the examination, other than those retained by the [nonindigent] non-indigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State.

(2) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, the court may immediately suspend all further proceedings in the prosecution. If a trial jury has been empaneled, it may be discharged or retained in the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.

(a) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant regarding penal responsibility. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be either a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases the court may appoint either a psychiatrist or a licensed psychologist. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court may, in appropriate circumstances, appoint an additional examiner or examiners. The examination may be conducted on an outpatient basis, or, in the court's discretion, the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or such longer period as the court determines to be necessary for the purpose upon a showing of good cause. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).

(b) In such examination any method may be employed that is accepted by the medical or psychological profession for the examination of those alleged to be affected by physical or mental disease, disorder, or defect; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners may, upon approval of the court, secure the services of clinical psychologists and medical or paramedical specialists to assist in the examination and diagnosis.

(c) The report of the examination shall include the following:

(i) A description of the nature of the examination;

(ii) A diagnosis of the physical or mental condition of the defendant at the time of the offense;

(iii) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;

(iv) All results of physical or mental examinations, tests, list of authorities, and data relied upon to form an opinion; and

(v) A statement that the diagnosis and opinion rendered were arrived at independently of the other examiners, unless there is a showing of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report.

(d) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

(e) The report of the examination, including any supporting documents, shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

(f) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion; provided that the explanation shall not include an opinion as to the capacity of the defendant to have a particular state of mind that is required to establish an element of the offense charged, unless the court so directs.

(g) The court shall obtain all existing medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies notwithstanding any other statutes, and make such records available for inspection by the examiners.

(h) The compensation of persons making or assisting in the examination, other than those retained by the non-indigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State.

(3) An evaluation of the defendant's fitness to proceed shall not be combined with an evaluation of the defendant's physical or mental condition regarding penal responsibility, or with an evaluation for any other purpose, unless the defendant so requests; provided that in nonfelony cases, the court may also order combined evaluations upon a finding of good cause."

SECTION 3. Section 704-405, Hawaii Revised Statutes, is amended to read as follows:

"704-405 Determination of fitness to proceed. When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor [counsel for] the defendant contests the finding of the report filed pursuant to section [704-404,] 704-404(1), the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue."

SECTION 4. Section 704-406, Hawaii Revised Statutes, is amended to read as follows:

"704-406 Effect of finding of unfitness to proceed. (1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in section 704-407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. If the court is satisfied that the defendant may be released on condition without danger to the defendant or to the person or property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, [on conditions the court determines necessary.] pursuant to chapter 804. A copy of the report filed pursuant to section 704-404 shall be attached to the order of commitment or order of [conditional] release.

(2) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or [conditional] release of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and [may order] release the defendant [to be discharged] or, subject to the law governing [the] involuntary [hospitalization or conditional release of persons suffering from physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment or order the defendant to be released on such conditions the court determines necessary.] civil commitment procedures, refer the matter to the director of health for institution of proceedings pursuant to chapter 334, as appropriate.

(3) Within a reasonable time following any commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and release the defendant or subject the defendant to involuntary civil commitment procedures.

(4) Within a reasonable time following any [conditional] release under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and release the defendant or subject the defendant to involuntary civil commitment procedures."

SECTION 5. Section 704-407, Hawaii Revised Statutes, is amended to read as follows:

"704-407 Special post-commitment or [post-conditional release] post-release hearing. (1) At any time after commitment or release as provided in section 704-406, the defendant or the defendant's counsel or the director of health may apply for a special post-commitment or post-release hearing. If the application is made by or on behalf of a defendant not represented by counsel, the defendant shall be afforded a reasonable opportunity to obtain counsel, and if the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if the counsel for the defendant satisfies the court by affidavit or otherwise that [as an attorney the] counsel has reasonable grounds for a good faith belief that the counsel's client has an objection based upon legal grounds to the charge.

(2) If the motion for a special post-commitment or post-release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and may in an appropriate case quash the indictment or other charge, or find it to be defective or insufficient, or otherwise terminate the proceedings on the law. In any such case, unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or conditional release ordered under section 704-406 and order the defendant to be discharged or, subject to the law governing [the] involuntary [hospitalization or conditional release of persons suffering from physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment or order the defendant to be released on such conditions as the court deems necessary.] civil commitment procedures, refer the matter to the director of health for institution of proceedings pursuant to chapter 334, as appropriate."

SECTION 6. Section 704-408, Hawaii Revised Statutes, is amended to read as follows:

"704-408 Determination of irresponsibility. If the report of the examiners filed pursuant to section [704-404,] 704-404(2), or the report of the examiners of the defendant's choice under section 704-409, states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired the defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law, the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant."

SECTION 7. Section 704-410, Hawaii Revised Statutes, is amended to read as follows:

"704-410 Form of expert testimony regarding physical or mental disease, disorder, or defect. (1) [At the hearing pursuant to section 704-405 or upon the trial, the examiners who reported pursuant to section 704-404 may be called as witnesses by the prosecution, the defendant, or the court. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be. If called by the court, the witness shall be subject to cross-examination by the prosecution and the defendant. Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness.] An examiner may be called by the prosecution, the defendant, or the court to testify as a witness on the issue of the defendant's fitness to proceed. If called by the court, the witness shall be subject to cross-examination by the prosecution and the defendant. When an examiner testifies on the issue of the defendant's fitness to proceed, the examiner shall be permitted to make a statement as to the nature of the examination, diagnosis of the physical or mental condition of the defendant at the time of the examination, and opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against the defendant or to assist in the defendant's own defense is impaired as a result of physical or mental disease, disorder, or defect.

(2) [When an examiner testifies on the issue of the defendant's fitness to proceed, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against the defendant or to assist in the defendant's own defense is impaired as a result of physical or mental disease, disorder, or defect.] An examiner may be called by the defendant to testify as a witness on the issue of the defendant's penal responsibility for conduct alleged, or by the prosecution to rebut a defense of lack of penal responsibility raised pursuant to this chapter. When an examiner testifies on the issue of the defendant's penal responsibility for conduct alleged, the examiner shall be permitted to make a statement as to the nature of the examination, diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and opinion of the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired as a result of physical or mental disease, disorder, or defect, at that time. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be.

(3) [When an examiner testifies on the issue of the defendant's responsibility for conduct alleged or the issue of the defendant's capacity to have a particular state of mind which is necessary to establish an element of the offense charged, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law or to have a particular state of mind which is necessary to establish an element of the offense charged was impaired as a result of physical or mental disease, disorder, or defect at that time.] When an examiner testifies, the examiner shall be permitted to make any explanation reasonably serving to clarify the examiner's diagnosis and opinion and may be cross-examined as to any matter bearing on the examiner's competency or credibility or the validity of the examiner's diagnosis or opinion.

(4) [When an examiner testifies, the examiner shall be permitted to make any explanation reasonably serving to clarify the examiner's diagnosis and opinion and may be cross-examined as to any matter bearing on the examiner's competency or credibility or the validity of his diagnosis or opinion.] Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness."

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST