H.B. 377

1

CODE OF CRIMINAL PROCEDURE
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Rebecca D. Lockhart
6 Senate Sponsor: Curtis S. Bramble
7
8 LONG TITLE
9 General Description:
10 This bill eliminates references to civil commitment in the criminal competency statutes.
11 Highlighted Provisions:
12 This bill:
13 . deletes provisions that reference civil commitment procedures within the criminal
14 competency procedures.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 77-15-5, as last amended by Laws of Utah 2003, Chapter 82
22 77-15-6, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
23 77-15-6.5, as enacted by Laws of Utah 2006, Chapter 335
24
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 77-15-5 is amended to read:
27 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of

28 defendant -- Scope of examination and report.
29 (1) When a petition is filed pursuant to Section 77-15-3 raising the issue of the
30 defendant's competency to stand trial or when the court raises the issue of the defendant's
31 competency pursuant to Section 77-15-4 , the court in which proceedings are pending shall stay
32 all proceedings. If the proceedings are in a court other than the district court in which the
33 petition is filed, the district court shall notify that court of the filing of the petition. The district
34 court in which the petition is filed shall pass upon the sufficiency of the allegations of
35 incompetency. If a petition is opposed by either party, the court shall, prior to granting or
36 denying the petition, hold a limited hearing solely for the purpose of determining the
37 sufficiency of the petition. If the court finds that the allegations of incompetency raise a bona
38 fide doubt as to the defendant's competency to stand trial, it shall enter an order for a hearing
39 on the mental condition of the person who is the subject of the petition.
40 (2) (a) After the granting of a petition and prior to a full competency hearing, the court
41 may order the Department of Human Services to examine the person and to report to the court
42 concerning the defendant's mental condition.
43 (b) The defendant shall be examined by at least two mental health experts not involved
44 in the current treatment of the defendant.
45 (c) If the issue is sufficiently raised in the petition or if it becomes apparent that the
46 defendant may be incompetent due to mental retardation, at least one expert experienced in
47 mental retardation assessment shall evaluate the defendant. Upon appointment of the experts,
48 the petitioner or other party as directed by the court shall provide information and materials to
49 the examiners relevant to a determination of the defendant's competency and shall provide
50 copies of the charging document, arrest or incident reports pertaining to the charged offense,
51 known criminal history information, and known prior mental health evaluations and treatments.
52 (d) The prosecuting and defense attorneys shall cooperate in providing the relevant
53 information and materials to the examiners, and the court may make the necessary orders to
54 provide the information listed in Subsection (2)(c) to the examiners. The court may provide in
55 its order for a competency examination of a defendant that custodians of mental health records
56 pertaining to the defendant shall provide those records to the examiners without the need for
57 consent of the defendant or further order of the court.
58 (3) During the examination under Subsection (2), unless the court or the executive

59 director of the department directs otherwise, the defendant shall be retained in the same
60 custody or status he was in at the time the examination was ordered.
61 (4) The experts shall in the conduct of their examination and in their report to the court
62 consider and address, in addition to any other factors determined to be relevant by the experts:
63 (a) the defendant's present capacity to:
64 (i) comprehend and appreciate the charges or allegations against him;
65 (ii) disclose to counsel pertinent facts, events, and states of mind;
66 (iii) comprehend and appreciate the range and nature of possible penalties, if
67 applicable, that may be imposed in the proceedings against him;
68 (iv) engage in reasoned choice of legal strategies and options;
69 (v) understand the adversary nature of the proceedings against him;
70 (vi) manifest appropriate courtroom behavior; and
71 (vii) testify relevantly, if applicable;
72 (b) the impact of the mental disorder, or mental retardation, if any, on the nature and
73 quality of the defendant's relationship with counsel;
74 (c) if psychoactive medication is currently being administered:
75 (i) whether the medication is necessary to maintain the defendant's competency; and
76 (ii) the effect of the medication, if any, on the defendant's demeanor and affect and
77 ability to participate in the proceedings.
78 (5) If the expert's opinion is that the defendant is incompetent to proceed, the expert
79 shall indicate in the report:
80 (a) which of the above factors contributes to the defendant's incompetency;
81 (b) the nature of the defendant's mental disorder or mental retardation and its
82 relationship to the factors contributing to the defendant's incompetency;
83 (c) the treatment or treatments appropriate and available; and
84 (d) the defendant's capacity to give informed consent to treatment to restore
85 competency.
86 (6) The experts examining the defendant shall provide an initial report to the court and
87 the prosecuting and defense attorneys within 30 days of the receipt of the court's order. The
88 report shall inform the court of the examiner's opinion concerning the competency of the
89 defendant to stand trial, or, in the alternative, the examiner may inform the court in writing that

90 additional time is needed to complete the report. If the examiner informs the court that
91 additional time is needed, the examiner shall have up to an additional 30 days to provide the
92 report to the court and counsel. The examiner must provide the report within 60 days from the
93 receipt of the court's order unless, for good cause shown, the court authorizes an additional
94 period of time to complete the examination and provide the report.
95 (7) Any written report submitted by the experts shall:
96 (a) identify the specific matters referred for evaluation;
97 (b) describe the procedures, techniques, and tests used in the examination and the
98 purpose or purposes for each;
99 (c) state the expert's clinical observations, findings, and opinions on each issue referred
100 for examination by the court, and indicate specifically those issues, if any, on which the expert
101 could not give an opinion; and
102 (d) identify the sources of information used by the expert and present the basis for the
103 expert's clinical findings and opinions.
104 (8) (a) Any statement made by the defendant in the course of any competency
105 examination, whether the examination is with or without the consent of the defendant, any
106 testimony by the expert based upon such statement, and any other fruits of the statement may
107 not be admitted in evidence against the defendant in any criminal proceeding except on an
108 issue respecting mental condition on which the defendant has introduced evidence. The
109 evidence may be admitted, however, where relevant to a determination of the defendant's
110 competency.
111 (b) Prior to examining the defendant, examiners should specifically advise the
112 defendant of the limits of confidentiality as provided under Subsection (8)(a).
113 (9) When the report is received the court shall set a date for a mental hearing which
114 shall be held in not less than five and not more than 15 days, unless the court enlarges the time
115 for good cause. [The hearing shall be conducted according to the procedures outlined in
116 Subsections 62A-15-631 (9)(b) through (9)(f).] Any person or organization directed by the
117 department to conduct the examination may be subpoenaed to testify at the hearing. If the
118 experts are in conflict as to the competency of the defendant, all experts should be called to
119 testify at the hearing if reasonably available. The court may call any examiner to testify at the
120 hearing who is not called by the parties. If the court calls an examiner, counsel for the parties

121 may cross-examine the expert.
122 (10) A person shall be presumed competent unless the court, by a preponderance of the
123 evidence, finds the person incompetent to proceed. The burden of proof is upon the proponent
124 of incompetency at the hearing. An adjudication of incompetency to proceed shall not operate
125 as an adjudication of incompetency to give informed consent for medical treatment or for any
126 other purpose, unless specifically set forth in the court order.
127 (11) (a) If the court finds the defendant incompetent to stand trial, its order shall
128 contain findings addressing each of the factors in Subsections (4)(a) and (b) of this section.
129 The order issued pursuant to Subsection 77-15-6 (1) which the court sends to the facility where
130 the defendant is committed or to the person who is responsible for assessing his progress
131 toward competency shall be provided contemporaneously with the transportation and
132 commitment order of the defendant, unless exigent circumstances require earlier commitment
133 in which case the court shall forward the order within five working days of the order of
134 transportation and commitment of the defendant.
135 (b) The order finding the defendant incompetent to stand trial shall be accompanied by:
136 (i) copies of the reports of the experts filed with the court pursuant to the order of
137 examination if not provided previously;
138 (ii) copies of any of the psychiatric, psychological, or social work reports submitted to
139 the court relative to the mental condition of the defendant; and
140 (iii) any other documents made available to the court by either the defense or the
141 prosecution, pertaining to the defendant's current or past mental condition.
142 (12) If the court finds it necessary to order the defendant transported prior to the
143 completion of findings and compilation of documents required under Subsection (11), the
144 transportation and commitment order delivering the defendant to the Utah State Hospital, or
145 other mental health facility as directed by the executive director of the Department of Human
146 Services or his designee, shall indicate that the defendant's commitment is based upon a finding
147 of incompetency, and the mental health facility's copy of the order shall be accompanied by the
148 reports of any experts filed with the court pursuant to the order of examination. The executive
149 director of the Department of Human Services or his designee may refuse to accept a defendant
150 as a patient unless he is accompanied by a transportation and commitment order which is
151 accompanied by the reports.

152 (13) Upon a finding of incompetency to stand trial by the court, the prosecuting and
153 defense attorneys shall provide information and materials relevant to the defendant's
154 competency to the facility where the defendant is committed or to the person responsible for
155 assessing his progress towards competency. In addition to any other materials, the prosecuting
156 attorney shall provide:
157 (a) copies of the charging document and supporting affidavits or other documents used
158 in the determination of probable cause;
159 (b) arrest or incident reports prepared by a law enforcement agency pertaining to the
160 charged offense; and
161 (c) information concerning the defendant's known criminal history.
162 (14) The court may make any reasonable order to insure compliance with this section.
163 (15) Failure to comply with this section shall not result in the dismissal of criminal
164 charges.
165 Section 2. Section 77-15-6 is amended to read:
166 77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
167 hearings -- Notice to prosecuting attorneys.
168 (1) Except as provided in Subsection (5), if after hearing, the person is found to be
169 incompetent to stand trial, the court shall order the defendant committed to the custody of the
170 executive director of the Department of Human Services or his designee for the purpose of
171 treatment intended to restore the defendant to competency. The court may recommend but not
172 order placement of the defendant. The court may, however, order that the defendant be placed
173 in a secure setting rather than a nonsecure setting. The director or his designee shall designate
174 the specific placement of the defendant during the period of evaluation and treatment to restore
175 competency.
176 (2) The examiner or examiners designated by the executive director to assess the
177 defendant's progress toward competency may not be involved in the routine treatment of the
178 defendant. The examiner or examiners shall provide a full report to the court and prosecuting
179 and defense attorneys within 90 days of [receipt] arrival of the [court's order] defendant at the
180 treating facility. If any examiner is unable to complete the assessment within 90 days, that
181 examiner shall provide to the court and counsel a summary progress report which informs the
182 court that additional time is necessary to complete the assessment, in which case the examiner

183 shall have up to an additional 90 days to provide the full report. The full report shall assess:
184 (a) the facility's or program's capacity to provide appropriate treatment for the
185 defendant;
186 (b) the nature of treatments provided to the defendant;
187 (c) what progress toward competency restoration has been made with respect to the
188 factors identified by the court in its initial order;
189 (d) the defendant's current level of mental disorder or mental retardation and need for
190 treatment, if any; and
191 (e) the likelihood of restoration of competency and the amount of time estimated to
192 achieve it.
193 (3) The court on its own motion or upon motion by either party or by the executive
194 director may appoint additional mental health examiners to examine the defendant and advise
195 the court on his current mental status and progress toward competency restoration.
196 (4) Upon receipt of the full report, the court shall hold a hearing to determine the
197 defendant's current status. At the hearing, the burden of proving that the defendant is
198 competent is on the proponent of competency. Following the hearing, the court shall determine
199 by a preponderance of evidence whether the defendant is:
200 (a) competent to stand trial;
201 (b) incompetent to stand trial with a substantial probability that the defendant may
202 become competent in the foreseeable future; or
203 (c) incompetent to stand trial without a substantial probability that the defendant may
204 become competent in the foreseeable future.
205 (5) (a) If the court enters a finding pursuant to Subsection (4)(a), the court shall
206 proceed with the trial or such other procedures as may be necessary to adjudicate the charges.
207 (b) If the court enters a finding pursuant to Subsection (4)(b), the court may order that
208 the defendant remain committed to the custody of the executive director of the Department of
209 Human Services or his designee for the purpose of treatment intended to restore the defendant
210 to competency.
211 (c) If the court enters a finding pursuant to Subsection (4)(c), the court shall order the
212 defendant released from the custody of the director unless the prosecutor informs the court that
213 commitment proceedings pursuant to Title 62A, Chapter 5, Services to People with

214 Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be
215 initiated. These commitment proceedings must be initiated within seven days after the court's
216 order entering the finding in Subsection (4)(c), unless the court enlarges the time for good
217 cause shown. The defendant may be ordered to remain in the custody of the director until
218 commitment proceedings have been concluded. If the defendant is committed, the court which
219 entered the order pursuant to Subsection (4)(c), shall be notified by the director at least ten days
220 prior to any release of the committed person.
221 (6) If the defendant is recommitted to the department pursuant to Subsection (5)(b), the
222 court shall hold a hearing one year following the recommitment.
223 (7) At the hearing held pursuant to Subsection (6), except for defendants charged with
224 the crimes listed in Subsection (8), a defendant who has not been restored to competency shall
225 be ordered released or temporarily detained pending civil commitment proceedings under the
226 same terms as provided in Subsection (5)(c).
227 (8) If the defendant has been charged with aggravated murder, murder, attempted
228 murder, manslaughter, or a first degree felony and the court determines that the defendant is
229 making reasonable progress towards restoration of competency at the time of the hearing held
230 pursuant to Subsection (6), the court may order the defendant recommitted for a period not to
231 exceed 18 months for the purpose of treatment to restore the defendant to competency with a
232 mandatory review hearing at the end of the 18-month period.
233 (9) Except for defendants charged with aggravated murder or murder, a defendant who
234 has not been restored to competency at the time of the hearing held pursuant to Subsection (8)
235 shall be ordered released or temporarily detained pending civil commitment proceedings under
236 the same terms as provided in Subsection (5)(c).
237 (10) If the defendant has been charged with aggravated murder or murder and the court
238 determines that he is making reasonable progress towards restoration of competency at the time
239 of the mandatory review hearing held pursuant to Subsection (8), the court may order the
240 defendant recommitted for a period not to exceed 36 months for the purpose of treatment to
241 restore him to competency.
242 (11) If the defendant is recommitted to the department pursuant to Subsection (10), the
243 court shall hold a hearing no later than at 18-month intervals following the recommitment for
244 the purpose of determining the defendant's competency status.

245 (12) A defendant who has not been restored to competency at the expiration of the
246 additional 36-month commitment period ordered pursuant to Subsection (10) shall be ordered
247 released or temporarily detained pending civil commitment proceedings under the same terms
248 as provided in Subsection (5)(c).
249 (13) In no event may the maximum period of detention under this section exceed the
250 maximum period of incarceration which the defendant could receive if he were convicted of
251 the charged offense. This Subsection (13) does not preclude pursuing involuntary civil
252 commitment nor does it place any time limit on civil commitments.
253 (14) Neither release from a pretrial incompetency commitment under the provisions of
254 this section nor civil commitment requires dismissal of criminal charges. The court may retain
255 jurisdiction over the criminal case and may order periodic reviews to assess the defendant's
256 competency to stand trial.
257 (15) A defendant who is civilly committed pursuant to Title 62A, Chapter 5, Services
258 to People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act,
259 may still be adjudicated competent to stand trial under this chapter.
260 (16) (a) The remedy for a violation of the time periods specified in this section, other
261 than those specified in Subsection (5)(c), (7), (9), (12), or (13), shall be a motion to compel the
262 hearing, or mandamus, but not release from detention or dismissal of the criminal charges.
263 (b) The remedy for a violation of the time periods specified in Subsection (5)(c), (7),
264 (9), (12), or (13) shall not be dismissal of the criminal charges.
265 (17) In cases in which the treatment of the defendant is precluded by court order for a
266 period of time, that time period may not be considered in computing time limitations under this
267 section.
268 (18) At any time that the defendant becomes competent to stand trial, the clinical
269 director of the hospital or other facility or the executive director of the Department of Human
270 Services shall certify that fact to the court. The court shall conduct a hearing within 15
271 working days of the receipt of the clinical director's or executive director's report, unless the
272 court enlarges the time for good cause.
273 (19) The court may order a hearing or rehearing at any time on its own motion or upon
274 recommendations of the clinical director of the hospital or other facility or the executive
275 director of the Department of Human Services.

276 (20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
277 attorney. If the hearing is held in the county where the defendant is confined, notice shall also
278 be given to the prosecuting attorney for that county.
279 Section 3. Section 77-15-6.5 is amended to read:
280 77-15-6.5. Petition for involuntary medication of incompetent defendant.
281 (1) As used in this section:
282 (a) "Executive director" means the executive director of the Department of Human
283 Services or the executive director's designee.
284 (b) "Final order" means a court order that determines the rights of the parties and
285 concerning which appellate remedies have been exhausted or the time for appeal has expired.
286 (2) (a) At any time after a defendant has been found incompetent to proceed and has
287 been committed to the Department of Human Services under Section 77-15-6 for treatment to
288 restore competency, the executive director shall notify the court, prosecuting attorney, and
289 attorney for the defendant if the executive director has determined that the defendant is not
290 responding to treatment and is unlikely to be restored to competency without the involuntary
291 administration of antipsychotic medication.
292 (b) The executive director shall provide the notification under Subsection (2)(a) only if
293 there is no basis for involuntarily medicating the defendant for reasons other than to restore the
294 defendant's competency.
295 (3) In the notice under Subsection (2)(a), the executive director shall state whether the
296 executive director believes:
297 (a) medication is necessary to render the defendant competent;
298 (b) medication is substantially likely to render the defendant competent;
299 (c) medication is substantially unlikely to produce side effects which would
300 significantly interfere with the defendant's ability to assist in his defense;
301 (d) no less intrusive means are available, and whether any of those means have been
302 attempted to render the defendant competent; and
303 (e) medication is medically appropriate and is in the defendant's best medical interest
304 in light of his medical condition.
305 (4) (a) Upon receipt of the notice under Subsection (2)(a), the court shall conduct a
306 hearing within 30 days, unless the court extends the time for good cause, to determine whether

307 the court should convene a hearing regarding the involuntary medication of the defendant.
308 [(b) The court shall conduct an involuntary medication hearing according to the
309 procedures outlined in Subsections 62A-15-631 (9)(b) through (9)(f).]
310 [(c)] (b) The prosecuting attorney shall represent the state at any hearing under this
311 section.
312 [(d)] (c) The court shall consider whether the following factors apply in determining
313 whether the defendant should be involuntarily medicated:
314 (i) important state interests are at stake in restoring the defendant's competency;
315 (ii) involuntary medication will significantly further the important state interests, in
316 that the medication proposed:
317 (A) is substantially likely to render the defendant competent to stand trial; and
318 (B) is substantially unlikely to produce side effects which would significantly interfere
319 with the defendant's ability to assist the defense counsel in conducting his defense;
320 (iii) involuntary medication is necessary to further important state interests, because
321 any alternate less intrusive treatments are unlikely to achieve substantially the same results; and
322 (iv) the administration of the proposed medication is medically appropriate, as it is in
323 the defendant's best medical interest in light of his medical condition.
324 (5) In determining whether the proposed treatment is medically appropriate and is in
325 the defendant's best medical interest, the potential penalty the defendant may be subject to, if
326 the defendant is convicted of any charged offense, is not a relevant consideration.
327 (6) (a) If the court finds by clear and convincing evidence that the involuntary
328 administration of antipsychotic medication is appropriate, it shall make findings addressing
329 each of the factors in Subsection (4)[(d)](c) and shall issue an order authorizing the Department
330 of Human Services to involuntarily administer antipsychotic medication to the defendant in
331 order to restore his competency, subject to the periodic reviews and other procedures provided
332 in Section 77-15-6 .
333 (b) When issuing an order under Subsection (6)(a), the court shall consider ordering
334 less intrusive means for administering the drugs, such as a court order to the defendant
335 enforceable by the contempt power, before ordering more intrusive methods of involuntary
336 medication.
337 (7) The provisions in Section 77-15-6 establishing time limitations for treatment of

338 incompetent defendants before they must be either released or civilly committed are tolled
339 from the time the executive director gives notice to the court and the parties under Subsection
340 (2) until:
341 (a) the court has issued a final order for the involuntary medication of the defendant,
342 and the defendant has been medicated under that order; or
343 (b) the court has issued a final order that the defendant will not be involuntarily
344 medicated.
345 (8) This section applies only when the prosecution seeks an order of involuntary
346 medication solely for the purpose of rendering a defendant competent to proceed.




Legislative Review Note
as of 1-29-08 6:20 PM

Office of Legislative Research and General Counsel