S.B. 8 Enrolled

SENTENCING IN CAPITAL CASES
AMENDMENTS
2003 GENERAL SESSION
STATE OF UTAH
Sponsor: David L. Gladwell
This act modifies the Criminal Code by providing that persons found by the court to be
mentally retarded are not subject to the death penalty. This act defines mental
retardation as applicable to death penalty cases. This act specifies procedures for the
examination of defendants alleging mental retardation and procedures for the judicial
hearing to determine mental retardation. This act is in response to the recent U.S.
Supreme Court case Atkins v. Virginia which prohibits execution of the mentally
retarded. This act also provides that defendants with specified subaverage functioning
are not subject to the death penalty if the defendant's confession is not substantially
corroborated. This act has an immediate effective date.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
62A-1-108.5, as enacted by Chapter 166, Laws of Utah 1991
76-2-305, as last amended by Chapter 2, Laws of Utah 1999
76-3-207, as last amended by Chapters 24 and 26, Laws of Utah 2002
77-18a-1, as last amended by Chapter 364, Laws of Utah 1997
ENACTS:
77-15a-101, Utah Code Annotated 1953
77-15a-102, Utah Code Annotated 1953
77-15a-103, Utah Code Annotated 1953
77-15a-104, Utah Code Annotated 1953
77-15a-105, Utah Code Annotated 1953
77-15a-106, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-1-108.5 is amended to read:

62A-1-108.5. Mental illness and mental retardation examinations -- Responsibilities
of the department.
(1) In accomplishing its duties to conduct mental illness and mental retardation
examinations under Title 77, Utah Code of Criminal Procedure, the department shall proceed as
outlined in this section and within appropriations authorized by the Legislature. The executive
director may delegate his responsibilities under this section to one or more divisions within the
department.
(2) When the department is ordered by the court to conduct a mental illness or mental
retardation examination, the executive director shall:
(a) direct that the examination be performed at the Utah State Hospital; or
(b) designate at least one examiner, selected under Subsection (3), to examine the
defendant in his current custody or status.
(3) The department shall establish criteria, in consultation with the Commission on
Criminal and Juvenile Justice, and shall contract with persons or organizations to conduct mental
illness and mental retardation examinations under Subsection (2)(b). In making this selection,
the department shall follow the provisions of Title 63, Chapter 56, Utah Procurement Code.
(4) Nothing in this section prohibits the executive director, at the request of defense
counsel or a prosecuting attorney in a criminal proceeding under Title 77, Utah Code of Criminal
Procedure, and for good cause shown, from proposing a person who has not been previously
selected under Subsection (3) to contract with the department to conduct the examination. In
selecting that person, the criteria of the department established under Subsection (3) and the
provisions of Title 63, Chapter 56, Utah Procurement Code, shall be met.
Section 2. Section 76-2-305 is amended to read:
76-2-305. Mental illness -- Use as a defense -- Influence of alcohol or other
substance voluntarily consumed -- Definition.
(1) (a) It is a defense to a prosecution under any statute or ordinance that the defendant,
as a result of mental illness, lacked the mental state required as an element of the offense
charged.

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(b) Mental illness is not otherwise a defense, but may be evidence in mitigation of the
penalty in a capital felony under Section 76-3-207 and may be evidence of special mitigation
reducing the level of a criminal homicide or attempted criminal homicide offense under Section
76-5-205.5 .
(2) The defense defined in this section includes the defenses known as "insanity" and
"diminished mental capacity."
(3) A person who asserts a defense of insanity or diminished mental capacity, and who is
under the influence of voluntarily consumed, injected, or ingested alcohol, controlled substances,
or volatile substances at the time of the alleged offense is not excused from criminal
responsibility on the basis of mental illness if the alcohol or substance caused, triggered, or
substantially contributed to the mental illness.
(4) (a) "Mental illness" means a mental disease or defect that substantially impairs a
person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
condition, the result of injury, or a residual effect of a physical or mental disease and includes,
but is not limited to, mental retardation.
(b) "Mental illness" does not mean[: (i) a personality or character disorder; or (ii)] an
abnormality manifested primarily by repeated criminal conduct.
(5) "Mental retardation" means a significant subaverage general intellectual functioning,
existing concurrently with deficits in adaptive behavior, and manifested [during the
developmental period as defined by the current Diagnostic and Statistical Manual of the
American Psychiatric Association] prior to age 22.
Section 3. Section 76-3-207 is amended to read:
76-3-207. Capital felony -- Sentencing proceeding.
(1) (a) When a defendant has pled guilty to or been found guilty of a capital felony, there
shall be further proceedings before the court or jury on the issue of sentence.
(b) In the case of a plea of guilty to a capital felony, the sentencing proceedings shall be
conducted before a jury or, upon request of the defendant and with the approval of the court and
the consent of the prosecution, by the court which accepted the plea.

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(c) (i) When a defendant has been found guilty of a capital felony, the proceedings shall
be conducted before the court or jury which found the defendant guilty, provided the defendant
may waive hearing before the jury with the approval of the court and the consent of the
prosecution, in which event the hearing shall be before the court.
(ii) If[, however,] circumstances make it impossible or impractical to reconvene the same
jury for the sentencing proceedings, the court may dismiss that jury and convene a new jury for
the proceedings.
(d) If a retrial of the sentencing proceedings is necessary as a consequence of a remand
from an appellate court, the sentencing authority shall be determined as provided in Subsection
(6).
(2) (a) In capital sentencing proceedings, evidence may be presented on:
(i) the nature and circumstances of the crime;
(ii) the defendant's character, background, history, and mental and physical condition;
(iii) the victim and the impact of the crime on the victim's family and community without
comparison to other persons or victims; and
(iv) any other facts in aggravation or mitigation of the penalty that the court considers
relevant to the sentence.
(b) Any evidence the court considers to have probative force may be received regardless
of its admissibility under the exclusionary rules of evidence. The state's attorney and the
defendant shall be permitted to present argument for or against the sentence of death.
(3) Aggravating circumstances include those outlined in Section 76-5-202 .
(4) Mitigating circumstances include:
(a) the defendant has no significant history of prior criminal activity;
(b) the homicide was committed while the defendant was under the influence of mental
or emotional disturbance;
(c) the defendant acted under duress or under the domination of another person;
(d) [(i)] at the time of the homicide, the capacity of the defendant to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirement of law was impaired as

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a result of a mental [illness or mental retardation] condition, intoxication, or influence of drugs[;
and], except that "mental condition" under this Subsection (4)(d) does not mean an abnormality
manifested primarily by repeated criminal conduct;
[(ii) as used in Subsection (4)(d)(i):]
[(A) "mental illness" has the same definition as in Section 76-2-305 ; and]
[(B) "mental retardation" means a significant subaverage general intellectual functioning,
existing concurrently with deficits in adaptive behavior;]
(e) the youth of the defendant at the time of the crime;
(f) the defendant was an accomplice in the homicide committed by another person and
the defendant's participation was relatively minor; and
(g) any other fact in mitigation of the penalty.
(5) (a) The court or jury, as the case may be, shall retire to consider the penalty. Except
as provided in Subsection 76-3-207.5 (2), in all proceedings before a jury, under this section, it
shall be instructed as to the punishment to be imposed upon a unanimous decision for death and
that the penalty of either an indeterminate prison term of not less than 20 years and which may be
for life or life in prison without parole, shall be imposed if a unanimous decision for death is not
found.
(b) The death penalty shall only be imposed if, after considering the totality of the
aggravating and mitigating circumstances, the jury is persuaded beyond a reasonable doubt that
total aggravation outweighs total mitigation, and is further persuaded, beyond a reasonable doubt,
that the imposition of the death penalty is justified and appropriate in the circumstances. If the
jury reports unanimous agreement to impose the sentence of death, the court shall discharge the
jury and shall impose the sentence of death.
(c) If the jury is unable to reach a unanimous decision imposing the sentence of death or
the state is not seeking the death penalty, the jury shall then determine whether the penalty of life
in prison without parole shall be imposed, except as provided in Subsection 76-3-207.5 (2). The
penalty of life in prison without parole shall only be imposed if the jury determines that the
sentence of life in prison without parole is appropriate. If the jury reports agreement by ten jurors

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or more to impose the sentence of life in prison without parole, the court shall discharge the jury
and shall impose the sentence of life in prison without parole. If ten jurors or more do not agree
upon a sentence of life in prison without parole, the court shall discharge the jury and impose an
indeterminate prison term of not less than 20 years and which may be for life.
(d) If the defendant waives hearing before the jury as to sentencing, with the approval of
the court and the consent of the prosecution, the court shall determine the appropriate penalty
according to the standards of Subsections (5)(b) and (c).
(e) If the defendant is sentenced to more than one term of life in prison with or without
the possibility of parole, or in addition to a sentence of life in prison with or without the
possibility of parole the defendant is sentenced for other offenses which result in terms of
imprisonment, the judge shall determine whether the terms of imprisonment shall be imposed as
concurrent or consecutive sentences in accordance with Section 76-3-401 .
(6) Upon any appeal by the defendant where the sentence is of death, the appellate court,
if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death
and remand the case to the trial court for new sentencing proceedings to the extent necessary to
correct the error or errors. An error in the sentencing proceedings may not result in the reversal of
the conviction of a capital felony. In cases of remand for new sentencing proceedings, all
exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial
and sentencing proceedings are admissible in the new sentencing proceedings, and if the
sentencing proceeding was before a:
(a) jury, a new jury shall be impaneled for the new sentencing proceeding unless the
defendant waives the hearing before the jury with the approval of the court and the consent of the
prosecution, in which case the proceeding shall be held according to Subsection (6)(b) or (c), as
applicable;
(b) judge, the original trial judge shall conduct the new sentencing proceeding; or
(c) judge, and the original trial judge is unable or unavailable to conduct a new
sentencing proceeding, then another judge shall be designated to conduct the new sentencing
proceeding, and the new proceeding will be before a jury unless the defendant waives the hearing

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before the jury with the approval of the court and the consent of the prosecution.
(7) In the event the death penalty is held to be unconstitutional by the Utah Supreme
Court or the United States Supreme Court, the court having jurisdiction over a person previously
sentenced to death for a capital felony shall cause the person to be brought before the court, and
the court shall sentence the person to:
(a) an indeterminate prison term of not less than 20 years and which may be for life, if
the death penalty is held unconstitutional prior to April 27, 1992; or
(b) life in prison without parole if the death penalty is held unconstitutional on or after
April 27, 1992, and any person who is thereafter convicted of a capital felony shall be sentenced
to an indeterminate prison term of not less than 20 years and which may be for life or life in
prison without parole.
(8) (a) If the appellate court's final decision regarding any appeal of a sentence of death
precludes the imposition of the death penalty due to mental retardation or subaverage general
intellectual functioning under Section 77-15a-101 , the court having jurisdiction over a defendant
previously sentenced to death for a capital felony shall cause the defendant to be brought before
the sentencing court, and the court shall sentence the defendant to life in prison without parole.
(b) If the appellate court precludes the imposition of the death penalty under Subsection
(8)(a), but the appellate court finds that sentencing the defendant to life in prison without parole
is likely to result in a manifest injustice, it may remand the case to the sentencing court for
further sentencing proceedings to determine if the defendant should serve a sentence of life in
prison without parole or an indeterminate prison term of not less than 20 years and which may be
for life.
Section 4. Section 77-15a-101 is enacted to read:
CHAPTER 15a. EXEMPTIONS FROM DEATH PENALTY IN CAPITAL CASES
77-15a-101. Mentally retarded defendant not subject to death penalty -- Defendant
with subaverage functioning not subject to death penalty if confession not corroborated.
(1) A defendant who is found by the court to be mentally retarded as defined in Section
77-15a-102 is not subject to the death penalty.

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(2) A defendant who does not meet the definition of mental retardation under Section
77-15a-102 is not subject to the death penalty if:
(a) the defendant has significantly subaverage general intellectual functioning that exists
concurrently with significant deficiencies in adaptive functioning;
(b) the functioning described in Subsection (2)(a) is manifested prior to age 22; and
(c) the state intends to introduce into evidence a confession by the defendant which is not
supported by substantial evidence independent of the confession.
Section 5. Section 77-15a-102 is enacted to read:
77-15a-102. "Mentally retarded" defined.
As used in this chapter, a defendant is "mentally retarded" if:
(1) the defendant has significant subaverage general intellectual functioning that results
in and exists concurrently with significant deficiencies in adaptive functioning that exist
primarily in the areas of reasoning or impulse control, or in both of these areas; and
(2) the subaverage general intellectual functioning and the significant deficiencies in
adaptive functioning under Subsection (1) are both manifested prior to age 22.
Section 6. Section 77-15a-103 is enacted to read:
77-15a-103. Court may raise issue of mental retardation at any time.
The court in which a capital charge is pending may raise the issue of the defendant's
mental retardation at any time. If raised by the court, counsel for each party shall be allowed to
address the issue of mental retardation.
Section 7. Section 77-15a-104 is enacted to read:
77-15a-104. Hearing -- Stay of proceeding -- Examinations of defendant -- Scope of
examination -- Report -- Procedures.
(1) (a) If a defendant proposes to offer evidence concerning or argue that he qualifies for
an exemption from the death penalty under Subsection 77-15a-101 (1) or (2), the defendant shall
file and serve the prosecuting attorney with written notice of his intention as soon as practicable,
but not fewer than 60 days before trial.
(b) If the defendant wishes to claim the exemption provided in Subsection

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77-15a-101 (2), the defendant shall file and serve the prosecuting attorney with written notice of
his intention as soon as practicable, but not fewer than 60 days before trial.
(2) When notice is given under Subsection (1), the court raises the issue, or a motion is
filed regarding Section 77-15a-101 , the court may stay all proceedings in order to address the
issue.
(3) (a) The court shall order the Department of Human Services to appoint at least two
mental health experts to examine the defendant and report to the court. The experts:
(i) may not be involved in the current treatment of the defendant; and
(ii) shall have expertise in mental retardation assessment.
(b) Upon appointment of the experts, the defendant or other party as directed by the court
shall provide information and materials to the examiners relevant to a determination of the
defendant's mental retardation, including copies of the charging document, arrest or incident
reports pertaining to the charged offense, known criminal history information, and known prior
mental health evaluations and treatments.
(c) The court may make the necessary orders to provide the information listed in
Subsection (3)(b) to the examiners.
(d) The court may provide in its order appointing the examiners that custodians of mental
health records pertaining to the defendant shall provide those records to the examiners without
the need for consent of the defendant or further order of the court.
(e) Prior to examining the defendant, examiners shall specifically advise the defendant of
the limits of confidentiality as provided under Section 77-15a-106 .
(4) During any examinations under Subsection (3), unless the court directs otherwise, the
defendant shall be retained in the same custody or status he was in at the time the examination
was ordered.
(5) The experts shall in the conduct of their examinations and in their reports to the court
consider and address:
(a) whether the defendant is mentally retarded as defined in Section 77-15a-102 ;
(b) the degree of any mental retardation the expert finds to exist;

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(c) whether the defendant has the mental deficiencies specified in Subsection
77-15a-101 (2); and
(d) the degree of any mental deficiencies the expert finds to exist.
(6) (a) The experts examining the defendant shall provide written reports to the court, the
prosecution, and the defense within 60 days of the receipt of the court's order, unless the expert
submits to the court a written request for additional time in accordance with Subsection (6)(c).
(b) The reports shall provide to the court and to prosecution and defense counsel the
examiners' written opinions concerning the mental retardation of the defendant.
(c) If an examiner requests of the court additional time, the examiner shall provide the
report to the court and counsel within 90 days from the receipt of the court's order unless, for
good cause shown, the court authorizes an additional period of time to complete the examination
and provide the report.
(7) Any written report submitted by an expert shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and the
purpose or purposes for each;
(c) state the expert's clinical observations, findings, and opinions; and
(d) identify the sources of information used by the expert and present the basis for the
expert's clinical findings and opinions.
(8) Within 30 days after receipt of the report from the Department of Human Services,
but not later than five days before hearing, or at any other time the court directs, the prosecuting
attorney shall file and serve upon the defendant a notice of witnesses the prosecuting attorney
proposes to call in rebuttal.
(9) (a) Except pursuant to Section 77-15a-105 , this chapter does not prevent any party
from producing any other testimony as to the mental condition of the defendant.
(b) Expert witnesses who are not appointed by the court are not entitled to compensation
under Subsection (10).
(10) (a) Expenses of examinations of the defendant ordered by the court under this

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section shall be paid by the Department of Human Services.
(b) Travel expenses associated with any court-ordered examination that are incurred by
the defendant shall be charged by the Department of Human Services to the county where
prosecution is commenced.
(11) (a) When the report is received, the court shall set a date for a hearing to determine
if the exemption under Section 77-15a-101 applies. The hearing shall be held and the judge shall
make the determination within a reasonable time prior to jury selection.
(b) Prosecution and defense counsel may subpoena to testify at the hearing any person or
organization appointed by the Department of Human Services to conduct the examination and
any independent examiner.
(c) The court may call any examiner to testify at the hearing who is not called by the
parties. If the court calls an examiner, counsel for the parties may cross-examine that examiner.
(12) (a) A defendant is presumed to be not mentally retarded unless the court, by a
preponderance of the evidence, finds the defendant to be mentally retarded. The burden of proof
is upon the proponent of mental retardation at the hearing.
(b) A finding of mental retardation does not operate as an adjudication of mental
retardation for any purpose other than exempting the person from a sentence of death in the case
before the court.
(13) (a) The defendant is presumed not to possess the mental deficiencies listed in
Subsection 77-15a-101 (2) unless the court, by a preponderance of the evidence, finds that the
defendant has significant subaverage general intellectual functioning that exists concurrently with
significant deficiencies in adaptive functioning and that this functioning was manifested prior to
age 22. The burden of proof is upon the proponent of that proposition.
(b) If the court finds by a preponderance of the evidence that the defendant has
significant subaverage general intellectual functioning that exists concurrently with significant
deficiencies in adaptive functioning and that this functioning was manifested prior to age 22, then
the burden is upon the state to establish that any confession by the defendant which the state
intends to introduce into evidence is supported by substantial evidence independent of the

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confession.
(14) (a) If the court finds the defendant mentally retarded, it shall issue an order:
(i) containing findings of fact and conclusions of law, and addressing each of the factors
in Subsections (5)(a) and (b); and
(ii) stating that the death penalty is not a sentencing option in the case before the court.
(b) If the court finds by a preponderance of the evidence that the defendant possesses the
mental deficiencies listed in Subsection 77-15a-101 (2) and that the state fails to establish that any
confession is supported by substantial evidence independent of the confession, the state may
proceed with its case and:
(i) introduce the confession into evidence, and the death penalty will not be a sentencing
option in the case; or
(ii) not introduce into evidence any confession or the fruits of a confession that the court
has found is not supported by substantial evidence independent of the confession, and the death
penalty will be a sentencing option in the case.
(c) (i) A finding by the court regarding whether the defendant qualifies for an exemption
under Section 77-15a-101 is a final determination of that issue for purposes of this chapter.
(ii) The following questions may not be submitted to the jury by instruction, special
verdict, argument, or other means:
(A) whether the defendant is mentally retarded for purposes of this chapter; and
(B) whether the defendant possesses the mental deficiencies specified in Subsection
77-15a-101 (2).
(iii) This chapter does not prevent the defendant from submitting evidence of retardation
or other mental deficiency to establish a mental condition as a mitigating circumstance under
Section 76-3-207 .
(15) A ruling by the court that the defendant is exempt from the death penalty may be
appealed by the state pursuant to Subsection 77-18a-1 (2)(h).
(16) Failure to comply with this section does not result in the dismissal of criminal
charges.

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Section 8. Section 77-15a-105 is enacted to read:
77-15a-105. Defendant's wilful failure to cooperate -- Expert testimony regarding
retardation is barred.
(1) If the defendant files notice, raises the issue, or intends to present evidence or make
an argument that the defendant is exempt from the death penalty under this chapter, the defendant
shall make himself available and fully cooperate in any examination by mental health experts
appointed by the Department of Human Services and any other independent examiners for the
defense or the prosecution.
(2) If the defendant wilfully fails to make himself available and fully cooperate in the
examination, and that failure is established to the satisfaction of the court, the defendant is barred
from presenting expert testimony relating to any exemption from the death penalty under this
chapter.
Section 9. Section 77-15a-106 is enacted to read:
77-15a-106. Limitations on admitting mental retardation examination evidence.
(1) The following may not be admitted into evidence against the defendant in any
criminal proceeding, except as provided in Subsection (2):
(a) any statement made by the defendant in the course of any mental examination
conducted under this chapter, whether the examination is with or without the consent of the
defendant, and any testimony by the expert based upon the defendant's statement; and
(b) any other fruits of the defendant's statement under Subsection (1)(a).
(2) Evidence under Subsection (1) may be admitted on an issue regarding a mental
condition on which the defendant has introduced evidence.
Section 10. Section 77-18a-1 is amended to read:
77-18a-1. Appeals -- When proper.
(1) An appeal may be taken by the defendant from:
(a) the final judgment of conviction, whether by verdict or plea;
(b) an order made after judgment that affects the substantial rights of the defendant;
(c) an interlocutory order when upon petition for review the appellate court decides the

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appeal would be in the interest of justice; or
(d) any order of the court judging the defendant by reason of a mental disease or defect
incompetent to proceed further in a pending prosecution.
(2) An appeal may be taken by the prosecution from:
(a) a final judgment of dismissal, including a dismissal of a felony information following
a refusal to bind the defendant over for trial;
(b) an order arresting judgment;
(c) an order terminating the prosecution because of a finding of double jeopardy or denial
of a speedy trial;
(d) a judgment of the court holding a statute or any part of it invalid;
(e) an order of the court granting a pretrial motion to suppress evidence when upon a
petition for review the appellate court decides that the appeal would be in the interest of justice;
(f) under circumstances not amounting to a final order under Subsection (2)(a), a refusal
to bind the defendant over for trial on a felony as charged or a pretrial order dismissing or
quashing in part a felony information, when upon a petition for review the appellate court decides
that the appeal would be in the interest of justice; [or]
(g) an order of the court granting a motion to withdraw a plea of guilty or no contest[.];
or
(h) a finding pursuant to Title 77, Chapter 15a, Exemptions from Death Penalty in
Capital Cases, that a capital defendant is exempt from a sentence of death, when upon a petition
for review the appellate court decides that the appeal would be in the interest of justice.
Section 11. Effective date.
If approved by two-thirds of all the members elected to each house, this act takes effect
upon approval by the governor, or the day following the constitutional time limit of Utah
Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
date of veto override.

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