H.B. 288

1

COMPETENCY TO STAND TRIAL
2 AMENDMENTS
3 2002 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Scott Daniels
6 This act modifies the Code of Criminal Procedure to allow the examiners of a defendant
7 whose competency to stand trial has been raised access to all relevant information, including
8 mental health records.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 77-15-5, as last amended by Chapter 162, Laws of Utah 1994
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 77-15-5 is amended to read:
14 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of defendant
15 -- Scope of examination and report.
16 (1) When a petition is filed pursuant to Section 77-15-3 raising the issue of the defendant's
17 competency to stand trial or when the court raises the issue of the defendant's competency pursuant
18 to Section 77-15-4 , the court in which proceedings are pending shall stay all proceedings. If the
19 proceedings are in a court other than the district court in which the petition is filed, the district
20 court shall notify that court of the filing of the petition. The district court in which the petition is
21 filed shall pass upon the sufficiency of the allegations of incompetency. If a petition is opposed
22 by either party, the court shall, prior to granting or denying the petition, hold a limited hearing
23 solely for the purpose of determining the sufficiency of the petition. If the court finds that the
24 allegations of incompetency raise a bona fide doubt as to the defendant's competency to stand trial,
25 it shall enter an order for a hearing on the mental condition of the person who is the subject of the
26 petition.
27 (2) (a) After the granting of a petition and prior to a full competency hearing, the court may

28 order the Department of Human Services to examine the person and to report to the court
29 concerning the defendant's mental condition.
30 (b) The defendant shall be examined by at least two mental health experts not involved in
31 the current treatment of the defendant.
32 (c) If the issue is sufficiently raised in the petition or if it becomes apparent that the
33 defendant may be incompetent due to mental retardation, at least one expert experienced in mental
34 retardation assessment shall evaluate the defendant. Upon appointment of the experts, the
35 petitioner or other party as directed by the court shall provide information and materials to the
36 examiners relevant to a determination of the defendant's competency and shall provide copies of
37 the charging document, arrest or incident reports pertaining to the charged offense, known criminal
38 history information, and known prior mental health evaluations and treatments.
39 (d) The prosecuting and defense attorneys shall cooperate in providing the relevant
40 information and materials to the examiners, and the court may make the necessary orders to
41 provide the information listed in Subsection (2)(c) to the examiners. The court may provide in its
42 order appointing the examiners that custodians of mental health records pertaining to the defendant
43 shall provide those records to the examiners without the need for consent of the defendant or
44 further order of the court.
45 (3) During the examination under Subsection (2), unless the court or the executive director
46 of the department directs otherwise, the defendant shall be retained in the same custody or status
47 he was in at the time the examination was ordered.
48 (4) The experts shall in the conduct of their examination and in their report to the court
49 consider and address, in addition to any other factors determined to be relevant by the experts:
50 (a) the defendant's present capacity to:
51 (i) comprehend and appreciate the charges or allegations against him;
52 (ii) disclose to counsel pertinent facts, events, and states of mind;
53 (iii) comprehend and appreciate the range and nature of possible penalties, if applicable,
54 that may be imposed in the proceedings against him;
55 (iv) engage in reasoned choice of legal strategies and options;
56 (v) understand the adversary nature of the proceedings against him;
57 (vi) manifest appropriate courtroom behavior; and
58 (vii) testify relevantly, if applicable;

59 (b) the impact of the mental disorder, or mental retardation, if any, on the nature and
60 quality of the defendant's relationship with counsel;
61 (c) if psychoactive medication is currently being administered:
62 (i) whether the medication is necessary to maintain the defendant's competency; and
63 (ii) the effect of the medication, if any, on the defendant's demeanor and affect and ability
64 to participate in the proceedings.
65 (5) If the expert's opinion is that the defendant is incompetent to proceed, the expert shall
66 indicate in the report:
67 (a) which of the above factors contributes to the defendant's incompetency;
68 (b) the nature of the defendant's mental disorder or mental retardation and its relationship
69 to the factors contributing to the defendant's incompetency;
70 (c) the treatment or treatments appropriate and available; and
71 (d) the defendant's capacity to give informed consent to treatment to restore competency.
72 (6) The experts examining the defendant shall provide an initial report to the court and the
73 prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report
74 shall inform the court of the examiner's opinion concerning the competency of the defendant to
75 stand trial, or, in the alternative, the examiner may inform the court in writing that additional time
76 is needed to complete the report. If the examiner informs the court that additional time is needed,
77 the examiner shall have up to an additional 30 days to provide the report to the court and counsel.
78 The examiner must provide the report within 60 days from the receipt of the court's order unless,
79 for good cause shown, the court authorizes an additional period of time to complete the
80 examination and provide the report.
81 (7) Any written report submitted by the experts shall:
82 (a) identify the specific matters referred for evaluation;
83 (b) describe the procedures, techniques, and tests used in the examination and the purpose
84 or purposes for each;
85 (c) state the expert's clinical observations, findings, and opinions on each issue referred
86 for examination by the court, and indicate specifically those issues, if any, on which the expert
87 could not give an opinion; and
88 (d) identify the sources of information used by the expert and present the basis for the
89 expert's clinical findings and opinions.

90 (8) (a) Any statement made by the defendant in the course of any competency examination,
91 whether the examination is with or without the consent of the defendant, any testimony by the
92 expert based upon such statement, and any other fruits of the statement may not be admitted in
93 evidence against the defendant in any criminal proceeding except on an issue respecting mental
94 condition on which the defendant has introduced evidence. The evidence may be admitted,
95 however, where relevant to a determination of the defendant's competency.
96 (b) Prior to examining the defendant, examiners should specifically advise the defendant
97 of the limits of confidentiality as provided under this Subsection (8)(b).
98 (9) When the report is received the court shall set a date for a mental hearing which shall
99 be held in not less than five and not more than 15 days, unless the court enlarges the time for good
100 cause. The hearing shall be conducted according to the procedures outlined in Subsections
101 62A-12-234 (9)(b) through (9)(f). Any person or organization directed by the department to
102 conduct the examination may be subpoenaed to testify at the hearing. If the experts are in conflict
103 as to the competency of the defendant, all experts should be called to testify at the hearing if
104 reasonably available. The court may call any examiner to testify at the hearing who is not called
105 by the parties. If the court calls an examiner, counsel for the parties may cross-examine the expert.
106 (10) A person shall be presumed competent unless the court, by a preponderance of the
107 evidence, finds the person incompetent to proceed. The burden of proof is upon the proponent of
108 incompetency at the hearing. An adjudication of incompetency to proceed shall not operate as an
109 adjudication of incompetency to give informed consent for medical treatment or for any other
110 purpose, unless specifically set forth in the court order.
111 (11) (a) If the court finds the defendant incompetent to stand trial, its order shall contain
112 findings addressing each of the factors in Subsections [ 77-15-5 ](4)(a) and (b). The order issued
113 pursuant to Subsection 77-15-6 (1) which the court sends to the facility where the defendant is
114 committed or to the person who is responsible for assessing his progress toward competency shall
115 be provided contemporaneously with the transportation and commitment order of the defendant,
116 unless exigent circumstances require earlier commitment in which case the court shall forward the
117 order within five working days of the order of transportation and commitment of the defendant.
118 (b) The order finding the defendant incompetent to stand trial shall be accompanied by:
119 (i) copies of the reports of the experts filed with the court pursuant to the order of
120 examination if not provided previously;

121 (ii) copies of any of the psychiatric, psychological, or social work reports submitted to the
122 court relative to the mental condition of the defendant;
123 (iii) any other documents made available to the court by either the defense or the
124 prosecution, pertaining to the defendant's current or past mental condition.
125 (12) If the court finds it necessary to order the defendant transported prior to the
126 completion of findings and compilation of documents required under Subsection (11), the
127 transportation and commitment order delivering the defendant to the Utah State Hospital, or other
128 mental health facility as directed by the executive director of the Department of Human Services
129 or his designee, shall indicate that the defendant's commitment is based upon a finding of
130 incompetency, and the mental health facility's copy of the order shall be accompanied by the
131 reports of any experts filed with the court pursuant to the order of examination. The executive
132 director of the Department of Human Services or his designee may refuse to accept a defendant
133 as a patient unless he is accompanied by a transportation and commitment order which is
134 accompanied by the reports.
135 (13) Upon a finding of incompetency to stand trial by the court, the prosecuting and
136 defense attorneys shall provide information and materials relevant to the defendant's competency
137 to the facility where the defendant is committed or to the person responsible for assessing his
138 progress towards competency. In addition to any other materials, the prosecuting attorney shall
139 provide:
140 (a) copies of the charging document and supporting affidavits or other documents used in
141 the determination of probable cause;
142 (b) arrest or incident reports prepared by a law enforcement agency pertaining to the
143 charged offense;
144 (c) information concerning the defendant's known criminal history.
145 (14) The court may make any reasonable order to insure compliance with this section.
146 (15) Failure to comply with this section shall not result in the dismissal of criminal
147 charges.

Legislative Review Note
as of 1-28-02 9:54 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel