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7 LONG TITLE
8 General Description:
9 This bill addresses petitions to find a defendant incompetent to stand trial in a criminal
10 action.
11 Highlighted Provisions:
12 This bill:
13 ▸ requires a court to consider certain factors when determining whether a defendant is
14 incompetent;
15 ▸ prohibits a court from granting a petition of incompetency based solely on the
16 defendant having previously been released from custody due to incompetency in an
17 unrelated criminal action, if the release occurred more than a year before the
18 petition is filed; and
19 ▸ makes technical and conforming changes.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 This bill provides a coordination clause.
24 Utah Code Sections Affected:
25 AMENDS:
26 77-15-5, as last amended by Laws of Utah 2018, Chapter 147
27 Utah Code Sections Affected by Coordination Clause:
28 77-15-5, Utah Code Annotated 1953
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30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 77-15-5 is amended to read:
32 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
33 defendant -- Scope of examination and report.
34 (1) A court in which criminal proceedings are pending shall stay all criminal
35 proceedings, if:
36 (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
37 (b) the court raises the issue of the defendant's competency under Section 77-15-4.
38 (2) The court in which the petition described in Subsection (1)(a) is filed:
39 (a) shall inform the court in which criminal proceedings are pending of the petition, if
40 the petition is not filed in the court in which criminal proceedings are pending;
41 (b) shall review the allegations of incompetency;
42 (c) may hold a limited hearing solely for the purpose of determining the sufficiency of
43 the petition, if the court finds the petition is not clearly sufficient on its face;
44 (d) shall hold a hearing, if the petition is opposed by either party;
45 (e) may not order an examination of the defendant or order a hearing on the mental
46 condition of the defendant unless the court finds that the allegations in the petition raise a bona
47 fide doubt as to the defendant's competency to stand trial; and
48 (f) if the court finds that the allegations raise a bona fide doubt as to the defendant's
49 competency to stand trial, shall order:
50 (i) the department to have the defendant evaluated by one forensic evaluator, if:
51 (A) the most severe charge against the defendant is a misdemeanor; or
52 (B) the defendant is charged with a felony but is not charged with a capital felony, and
53 the court determines, based upon the allegations in the petition, that a second competency
54 evaluation is not necessary;
55 (ii) the department to have the defendant evaluated by two forensic evaluators, if:
56 (A) the defendant is charged with a capital felony; or
57 (B) the defendant is charged with a felony but is not charged with a capital felony, and
58 the court determines, based upon the allegations in the petition, that a second competency
59 evaluation is necessary; and
60 (iii) the defendant to be evaluated by an additional forensic evaluator, if requested by a
61 party, who shall:
62 (A) select the additional forensic evaluator; and
63 (B) pay for the costs of the additional forensic evaluator.
64 (3) (a) If the petition or other information sufficiently raises concerns that the
65 defendant may have intellectual or developmental disabilities, at least one forensic evaluator
66 who is experienced in intellectual or developmental disability assessments shall conduct a
67 competency evaluation.
68 (b) The petitioner or other party, as directed by the court, shall provide to the forensic
69 evaluator information and materials relevant to a determination of the defendant's competency,
70 including the charging document, arrest or incident reports pertaining to the charged offense,
71 known criminal history information, and known prior mental health evaluations and treatments.
72 (c) For purposes of a competency evaluation, a court may order that custodians of
73 mental health records pertaining to the defendant provide those records to a forensic evaluator
74 without the need for consent of the defendant.
75 (d) An order for a competency evaluation may not contain an order for any other
76 inquiry into the mental state of the defendant.
77 (4) Pending a competency evaluation, unless the court or the department directs
78 otherwise, the defendant shall be retained in the same custody or status that the defendant was
79 in at the time the examination was ordered.
80 (5) In the conduct of a competency evaluation, a progress toward competency
81 evaluation, and in a report to the court, a forensic evaluator shall consider and address, in
82 addition to any other factors determined to be relevant by the forensic evaluator:
83 (a) the defendant's present ability to:
84 (i) rationally and factually understand the criminal proceedings against the defendant;
85 (ii) consult with the defendant's legal counsel with a reasonable degree of rational
86 understanding in order to assist in the defense;
87 (iii) understand the charges or allegations against the defendant;
88 (iv) communicate facts, events, and states of mind;
89 (v) understand the range of possible penalties associated with the charges or allegations
90 against the defendant;
91 (vi) engage in reasoned choice of legal strategies and options;
92 (vii) understand the adversarial nature of the proceedings against the defendant;
93 (viii) manifest behavior sufficient to allow the court to proceed; and
94 (ix) testify relevantly, if applicable;
95 (b) the impact of the mental disorder or intellectual disability, if any, on the nature and
96 quality of the defendant's relationship with counsel;
97 (c) if psychoactive medication is currently being administered:
98 (i) whether the medication is necessary to maintain the defendant's competency; and
99 (ii) whether the medication may have an effect on the defendant's demeanor, affect, and
100 ability to participate in the proceedings; and
101 (d) whether the defendant is exhibiting false or exaggerated physical or psychological
102 symptoms relevant to the defendant's capacity to stand trial.
103 (6) If the forensic evaluator's opinion is that the defendant is incompetent to proceed,
104 the forensic evaluator shall indicate in the report to the court:
105 (a) the factors that contribute to the defendant's incompetency, including the nature of
106 the defendant's mental disorder or intellectual or developmental disability, if any, and its
107 relationship to the factors contributing to the defendant's incompetency; and
108 (b) whether there is a substantial probability that restoration treatment may, in the
109 foreseeable future, bring the defendant to competency to stand trial, or that the defendant
110 cannot become competent to stand trial in the foreseeable future.
111 (7) (a) A forensic evaluator shall provide an initial report to the court and the
112 prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report
113 shall inform the court of the examiner's opinion concerning the competency of the defendant to
114 stand trial.
115 (b) (i) If the forensic evaluator is unable to complete the report in the time specified in
116 Subsection (7)(a), the forensic evaluator shall give written notice to the court.
117 (ii) A forensic evaluator who provides the notice described in Subsection (7)(b)(i) shall
118 receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on
119 which the forensic evaluator received the court's order to conduct a competency evaluation and
120 file a report.
121 (iii) The court may further extend the deadline for completion of the evaluation and
122 report if the court determines that there is good cause for the extension.
123 (iv) Upon receipt of an extension described in Subsection (7)(b)(iii), the forensic
124 evaluator shall file the report as soon as reasonably possible.
125 (8) Any written report submitted by a forensic evaluator shall:
126 (a) identify the case ordered for evaluation by the case number;
127 (b) describe the procedures, techniques, and tests used in the examination and the
128 purpose or purposes for each;
129 (c) state the forensic evaluator's clinical observations, findings, and opinions on each
130 issue referred for examination by the court, and indicate specifically those issues, if any, on
131 which the forensic evaluator could not give an opinion; and
132 (d) identify the sources of information used by the forensic evaluator and present the
133 basis for the forensic evaluator's clinical findings and opinions.
134 (9) (a) Any statement made by the defendant in the course of any competency
135 examination, whether the examination is with or without the consent of the defendant, any
136 testimony by a forensic evaluator based upon the statement, and any other fruits of the
137 statement may not be admitted in evidence against the defendant in any criminal proceeding
138 except on an issue respecting mental condition on which the defendant has introduced
139 evidence. The evidence may be admitted, however, where relevant to a determination of the
140 defendant's competency.
141 (b) Before examining the defendant, the forensic evaluator shall specifically advise the
142 defendant of the limits of confidentiality as provided under Subsection (9)(a).
143 (10) (a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
144 competency hearing. The hearing shall be held not less than 5 and not more than 15 days after
145 the day on which the court received the forensic evaluators' reports, unless for good cause the
146 court sets a later date.
147 (b) Any person directed by the department to conduct the competency evaluation may
148 be subpoenaed to testify at the hearing.
149 (c) The court may call any forensic evaluator to testify at the hearing who is not called
150 by the parties. If the court calls a forensic evaluator, counsel for the parties may cross-examine
151 the forensic evaluator.
152 (d) If the forensic evaluators are in conflict as to the competency of the defendant, all
153 forensic evaluators should be called to testify at the hearing if reasonably available. A conflict
154 in the opinions of the forensic evaluators does not require the appointment of an additional
155 forensic evaluator unless the court determines the appointment to be necessary.
156 (11) (a) A defendant shall be presumed competent to stand trial unless the court, by a
157 preponderance of the evidence, finds the defendant incompetent to proceed. The burden of
158 proof is upon the proponent of incompetency at the hearing.
159 (b) An adjudication of incompetent to proceed does not operate as an adjudication of
160 incompetency to give informed consent for medical treatment or for any other purpose, unless
161 specifically set forth in the court order.
162 (12) In determining the defendant's competency to stand trial, the court shall consider
163 the totality of the circumstances, [
164 (a) the petition;
165 (b) the defendant's criminal and arrest history;
166 (c) prior mental health evaluations and treatments provided to the court by the
167 defendant;
168 (d) subject to Subsection (14), whether the defendant was found incompetent to
169 proceed in a criminal action unrelated to the charged offense for which the petition is filed;
170 (e) the testimony of lay witnesses[
171 (f) the forensic evaluator's report, testimony, and studies[
172 (g) any other relevant evidence bearing on the competency of the defendant.
173 (13) If the court finds the defendant incompetent to proceed:
174 (a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
175 (i) include findings addressing each of the factors in Subsection (5)(a);
176 (ii) include a transportation order, if necessary;
177 (iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological,
178 or social work reports submitted to the court relative to the mental condition of the defendant,
179 and any other documents made available to the court by either the defense or the prosecution,
180 pertaining to the defendant's current or past mental condition; and
181 (iv) be sent by the court to the department; and
182 (b) the prosecuting attorney shall provide to the department:
183 (i) the charging document and probable cause statement, if any;
184 (ii) arrest or incident reports prepared by law enforcement and pertaining to the
185 charged offense; and
186 (iii) additional supporting documents.
187 (14) The court may not find the defendant incompetent to proceed based solely on a
188 court having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6 in
189 an unrelated criminal action, if the court in the unrelated criminal action ordered the release
190 more than one year before the day on which the petition described in Subsection (12)(a) is
191 filed.
192 [
193 section.
194 [
195 criminal charges.
196 Section 2. Coordinating H.B. 380 with H.B. 330 -- Substantive and technical
197 amendments.
198 If this H.B. 380 and H.B. 330, Civil Commitment Amendments, both pass and become
199 law, it is the intent of the Legislature that the Office of Legislative Research and General
200 Counsel shall prepare the Utah Code database for publication by amending
201 Subsection 77-15-5(12) in this H.B. 380 to read:
202 "(12) In determining the defendant's competency to stand trial, the court shall consider
203 the totality of the circumstances, [
204 (a) the petition;
205 (b) the defendant's criminal and arrest history;
206 (c) prior mental health evaluations and treatments provided to the court by the
207 defendant;
208 (d) subject to Subsection (14), whether the defendant was found incompetent to
209 proceed in a criminal action unrelated to the charged offense for which the petition is filed;
210 (e) the testimony of lay witnesses[
211 (f) the forensic evaluator's [
212 (g) the materials on which the forensic evaluator's report is based; and
213 (h) any other relevant evidence or consideration bearing on the competency of the
214 defendant.".