Bill Text: HI SB2538 | 2016 | Regular Session | Introduced
Bill Title: Criminal Defendants; Fitness to Proceed; Number of Examiners
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2016-02-17 - The committee on JDL deferred the measure. [SB2538 Detail]
Download: Hawaii-2016-SB2538-Introduced.html
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THE SENATE |
S.B. NO. |
2538 |
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TWENTY-EIGHTH LEGISLATURE, 2016 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to criminal prosecutions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to address the fitness of defendants to proceed in criminal cases.
More specifically, this Act authorizes a court in the State to appoint either one or three qualified examiners to examine and report on the physical and mental condition of a defendant in a felony case. This Act also sets forth general factors to be used by the court to determine the number of qualified examiners to appoint for a particular felony case.
Before enactment of this Act, the court had no discretion. The court was required to appoint three qualified examiners for a felony case.
This Act also replaces duplicative language regarding the appointment and qualifications of examiners by consolidating these provisions in section 704-404(2), Hawaii Revised Statutes. The legislature finds that these amendments are to provide clarification and brevity, and are not intended to have substantive effect.
SECTION 2. Section 704-404, Hawaii Revised Statutes, is amended to read as follows:
1. By amending subsections (2) and (3) to read:
"(2) Upon suspension of further proceedings in the prosecution, the court shall appoint either one qualified examiner or 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.
In felony cases, the court shall base its decision to appoint one qualified examiner or three qualified examiners on:
(a) The court's perception of:
(i) The severity or complexity of the physical or mental disease, disorder, or defect of the defendant; and
(ii) The need or desirability for more than one examiners' examinations to properly diagnose the effect of the physical or mental disease, disorder, or defect on the defendant; or
(b) Any other factor deemed appropriate by the court.
In felony cases for which the court [shall
appoint] appoints three qualified examiners, at least one shall
be a psychiatrist and at least one shall be a licensed psychologist.
The third member may be 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 felony or nonfelony cases for which the court appoints one qualified examiner, the court may appoint either a psychiatrist or a licensed psychologist. All examiners for felony and nonfelony cases 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 the examination.
As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).
(3) An examination performed under this section
may employ any method that is accepted by the professions of medicine or psychology
for the examination of those alleged to be affected by a 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, if any, and [the examiners,] each
examiner, upon approval of the court, may secure the services of clinical psychologists
and other medical or paramedical specialists to assist in the examination and diagnosis."
2. By amending subsection (8) to read:
"(8) 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] those records available for inspection by
[the examiners.] each examiner. If, pursuant to this section, the
court orders the defendant committed to a hospital or other suitable facility under
the control of the director of health, then the county police departments shall
provide to the director of health and the defendant copies of all police reports
from cases filed against the defendant which have been adjudicated by the acceptance
of a plea of guilty or no contest, a finding of guilt, acquittal, acquittal pursuant
to section 704-400, or by the entry of plea of guilty or no contest made pursuant
to chapter 853, so long as the disclosure to the director of health and the defendant
does not frustrate a legitimate function of the county police departments, with
the exception of expunged records, records of or pertaining to any adjudication
or disposition rendered in the case of a juvenile, or records containing data from
the United States National Crime Information Center. The county police departments
shall segregate or sanitize from the police reports information that would result
in the likelihood or actual identification of individuals who furnished information
in connection with its investigation, or who were of investigatory interest. Records
shall not be re-disclosed except to the extent permitted by law."
SECTION 3. Section 704-406, Hawaii Revised Statutes, is amended by amending subsections (4) and (5) to read as follows:
"[[](4)]]] If a defendant
committed to the custody of the director of health for a limited period
pursuant to subsection (1) is not found fit to proceed prior to the expiration
of the commitment, the charge for which the defendant was committed for a
limited period shall be dismissed. Upon dismissal of the charge, the defendant
shall be released from custody unless the defendant is subject to prosecution
for other charges, in which case, unless the defendant is subject to the law
governing involuntary civil commitment, the court shall order the defendant's
commitment to the custody of the director of health to be placed in an
appropriate institution for detention, care, and treatment. Within a
reasonable time following any other 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] either one qualified examiner
or three qualified examiners in felony cases or one qualified examiner in
nonfelony cases to make a report. The court's appointment of an examiner or
examiners shall be made pursuant to section 704-404(2). If, following a
report, the court determines that the defendant probably will remain unfit to
proceed, the court may dismiss the charge and:
(a) Release the defendant; or
(b) Subject to the law governing involuntary civil commitment, 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.
[[](5)]]] If a defendant
released on conditions for a limited period pursuant to subsection (1) is not
found fit to proceed prior to the expiration of the release on conditions
order, the charge for which the defendant was released on conditions for a
limited period shall be dismissed. Upon dismissal of the charge, the defendant
shall be discharged from the release on conditions unless the defendant is
subject to prosecution for other charges or subject to the law governing
involuntary civil commitment, in which case the court shall order the
defendant's commitment to the custody of the director of health to be placed in
an appropriate institution for detention, care, and treatment. Within a
reasonable time following any other release on conditions under subsection (1),
the court shall appoint [a panel of] either one qualified examiner or
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. The court's
appointment of an examiner or examiners shall be made pursuant to section
704-404(2). If, following the report, the court determines that the
defendant probably will remain unfit to proceed, the court may dismiss the
charge and:
(a) Release the defendant; or
(b) Subject to the law governing involuntary civil commitment, 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."
SECTION 4. Section 704-408, Hawaii Revised Statutes, is amended to read as follows:
"§704-408 Determination of irresponsibility. If the report of the examiner or examiners filed pursuant to section 704-404, or the report of the examiner or examiners of the defendant's choice under section 704-409, states that the defendant at the time of the conduct alleged was affected by a physical or mental disease, disorder, or defect that 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 5. Section 704-409, Hawaii Revised Statutes, is amended to read as follows:
"§704-409 Access to defendant by examiners of defendant's choice. When, notwithstanding the report filed pursuant to section 704-404, the defendant wishes to be examined by one or more qualified physicians or other experts of the defendant's own choice, such examiner or examiners shall be permitted to have reasonable access to the defendant for the purposes of such examination.
The defendant shall have the discretion to select the examiner or examiners without regard to section 704-404(2)."
SECTION 6. Section 704-410, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) At the hearing pursuant to section
704-405 or upon the trial, [the examiners] any examiner who
reported pursuant to section 704-404 may be called as [witnesses] a
witness by the prosecution, the defendant, or the court. If the issue is
being tried before a jury, the jury may be informed that [the] an
examiner or 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."
SECTION 7. Section 704-411, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:
"(3) When ordering a hearing pursuant to subsection (2):
(a) In nonfelony cases, the court shall appoint [a]
one qualified examiner to examine and report upon the physical and mental
condition of the defendant. [The court may appoint either a psychiatrist or
a licensed psychologist. The examiner may be designated by the director of
health from within the department of health. The examiner 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[;] pursuant to section 704-404(2); and
(b) In felony cases, the court shall appoint either
one qualified examiner or three qualified examiners to examine and report
upon the physical and mental condition of the defendant. [In each case, the
court shall appoint at least one psychiatrist and at least one licensed
psychologist. The third member may be a psychiatrist, a licensed psychologist,
or a 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. The three examiners shall be appointed from a list of certified
examiners as determined by the department of health.] The court's
appointment of an examiner or examiners shall be made pursuant to section
704-404(2).
To facilitate the examination and the proceedings
thereon, the court may cause the defendant, if not then confined, to be
committed to a hospital or other suitable facility for the purpose of
examination for a period not exceeding thirty days or such longer period as the
court determines to be necessary for the purpose upon written findings for good
cause shown. The court may direct that qualified physicians or psychologists
retained by the defendant be permitted to witness the examination. The
examination and report and the compensation of persons making or assisting in
the examination shall be in accord with section 704-404(3), (4)(a) and (b),
(6), (7), (8), and (9). [As used in this section, the term "licensed
psychologist" includes psychologists exempted from licensure by section
465-3(a)(3).]"
SECTION 8. Section 704-414, Hawaii Revised Statutes, is amended to read as follows:
"§704-414 Procedure upon application
for discharge, conditional release, or modification of conditions of release.
Upon filing of an application pursuant to section 704-412 for discharge or
conditional release, or upon the filing of an application pursuant to section
704-413 for discharge or for modification of conditions of release, the court
shall appoint either one qualified examiner or 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. [In felony
cases the court shall appoint at least one psychiatrist and at least one
licensed psychologist. The third member may be a psychiatrist, a licensed
psychologist, or a 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. The examiners shall be appointed from a list
of certified examiners as determined by the department of health.] The
court's appointment of an examiner or examiners shall be made pursuant to
section 704-404(2). To facilitate the examination and the proceedings
thereon, the court may cause the defendant, if not then confined, to be committed
to a hospital or other suitable facility for the purpose of the examination and
may direct that qualified physicians or psychologists retained by the defendant
be permitted to witness the examination. The examination and report and the
compensation of persons making or assisting in the examination shall be in
accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and (9). [As
used in this section, the term "licensed psychologist" includes
psychologists exempted from licensure by section 465-3(a)(3).]"
SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 11. This Act shall take effect on January 1, 2017.
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INTRODUCED BY: |
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Report Title:
Criminal Defendants; Fitness to Proceed; Number of Examiners
Description:
Provides that the court may appoint one or three qualified examiners to review the fitness of a criminal defendant to proceed in a felony case. Establishes criteria for determining the number of examiners to appoint. Amends statute formatting.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
