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