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H.B. 346 Enrolled






Chief Sponsor: LaVar Christensen

Senate Sponsor: Mark B. Madsen

             8      LONG TITLE
             9      General Description:
             10          This bill modifies the Code of Criminal Procedure regarding the procedures for
             11      determining a defendant's competency to stand trial.
             12      Highlighted Provisions:
             13          This bill:
             14          .    modifies the hearing procedure for determining if a defendant is competent to stand
             15      trial to provide for the court's consideration of the totality of the circumstances,
             16      including testimony of lay witnesses.
             17      Money Appropriated in this Bill:
             18          None
             19      Other Special Clauses:
             20          None
             21      Utah Code Sections Affected:
             22      AMENDS:
             23          77-15-5, as last amended by Laws of Utah 2008, Chapter 212
             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) (a) 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.
             34          (b) The district court in which the petition is filed shall pass upon the sufficiency of the
             35      allegations of incompetency. If a petition is opposed by either party, the court shall, prior to
             36      granting or denying the petition, hold a limited hearing solely for the purpose of determining
             37      the sufficiency of the petition. If the court finds that the allegations of incompetency raise a
             38      bona fide doubt as to the defendant's competency to stand trial, it shall enter an order for a
             39      hearing 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. Any person or organization directed by the department to conduct the
             116      examination may be subpoenaed to testify at the hearing. If the experts are in conflict as to the
             117      competency of the defendant, all experts should be called to testify at the hearing if reasonably
             118      available. The court may call any examiner to testify at the hearing who is not called by the
             119      parties. If the court calls an examiner, counsel for the parties may cross-examine the expert.
             120          (10) A person shall be presumed competent unless the court, by a preponderance of the
             121      evidence, finds the person incompetent to proceed. The burden of proof is upon the proponent
             122      of incompetency at the hearing. An adjudication of incompetency to proceed shall not operate
             123      as an adjudication of incompetency to give informed consent for medical treatment or for any
             124      other purpose, unless specifically set forth in the court order.
             125          (11) In determining the defendant's competency to stand trial, the court shall consider
             126      the totality of the circumstances, which may include the testimony of lay witnesses, in addition
             127      to the expert testimony, studies, and reports provided under this section.
             128          [(11)] (12) (a) If the court finds the defendant incompetent to stand trial, its order shall
             129      contain findings addressing each of the factors in Subsections (4)(a) and (b) of this section.
             130      The order issued pursuant to Subsection 77-15-6 (1) which the court sends to the facility where
             131      the defendant is committed or to the person who is responsible for assessing his progress
             132      toward competency shall be provided contemporaneously with the transportation and
             133      commitment order of the defendant, unless exigent circumstances require earlier commitment
             134      in which case the court shall forward the order within five working days of the order of
             135      transportation and commitment of the defendant.
             136          (b) The order finding the defendant incompetent to stand trial shall be accompanied by:
             137          (i) copies of the reports of the experts filed with the court pursuant to the order of
             138      examination if not provided previously;
             139          (ii) copies of any of the psychiatric, psychological, or social work reports submitted to
             140      the court relative to the mental condition of the defendant; and
             141          (iii) any other documents made available to the court by either the defense or the

             142      prosecution, pertaining to the defendant's current or past mental condition.
             143          [(12)] (13) (a) If the court finds it necessary to order the defendant transported prior to
             144      the completion of findings and compilation of documents required under Subsection [(11)]
             145      (12), the transportation and commitment order delivering the defendant to the Utah State
             146      Hospital, or other mental health facility as directed by the executive director of the Department
             147      of Human Services or his designee, shall indicate that the defendant's commitment is based
             148      upon a finding of incompetency, and the mental health facility's copy of the order shall be
             149      accompanied by the reports of any experts filed with the court pursuant to the order of
             150      examination.
             151          (b) The executive director of the Department of Human Services or his designee may
             152      refuse to accept a defendant as a patient unless he is accompanied by a transportation and
             153      commitment order which is accompanied by the reports.
             154          [(13)] (14) Upon a finding of incompetency to stand trial by the court, the prosecuting
             155      and defense attorneys shall provide information and materials relevant to the defendant's
             156      competency to the facility where the defendant is committed or to the person responsible for
             157      assessing his progress towards competency. In addition to any other materials, the prosecuting
             158      attorney shall provide:
             159          (a) copies of the charging document and supporting affidavits or other documents used
             160      in the determination of probable cause;
             161          (b) arrest or incident reports prepared by a law enforcement agency pertaining to the
             162      charged offense; and
             163          (c) information concerning the defendant's known criminal history.
             164          [(14)] (15) The court may make any reasonable order to insure compliance with this
             165      section.
             166          [(15)] (16) Failure to comply with this section shall not result in the dismissal of
             167      criminal charges.

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