3rd Sub. H.B. 380
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: M. Cipriano 6
6 02-13-23 6:04 PM 6
H.B. 380
3rd Sub. (Cherry)
Representative Christine F. Watkins proposes the following substitute bill:
1 COMPETENCY TO STAND TRI AL AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Christine F. Watkins
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill addresses petitions to find a defendant incompetent to stand trial in a criminal
10action.
11Highlighted Provisions:
12 This bill:
13 <requires a court to consider certain factors when determining whether a defendant is
14incompetent;
15 <prohibits a court from granting a petition of incompetency based solely on the
16defendant having previously been released from custody due to incompetency in an
17unrelated criminal action, if the release occurred more than a year before the
18petition is filed; and
19 <makes technical and conforming changes.
20Money Appropriated in this Bill:
21 None
22Other Special Clauses:
23 None
24Utah Code Sections Affected:
25AMENDS:
*HB0380S03* 3rd Sub. (Cherry) H.B. 380 02-13-23 6:04 PM
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26 77-15-5, as last amended by Laws of Utah 2018, Chapter 147
27
28Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 77-15-5 is amended to read:
30 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
31defendant -- Scope of examination and report.
32 (1) A court in which criminal proceedings are pending shall stay all criminal
33proceedings, if:
34 (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
35 (b) the court raises the issue of the defendant's competency under Section 77-15-4.
36 (2) The court in which the petition described in Subsection (1)(a) is filed:
37 (a) shall inform the court in which criminal proceedings are pending of the petition, if
38the petition is not filed in the court in which criminal proceedings are pending;
39 (b) shall review the allegations of incompetency;
40 (c) may hold a limited hearing solely for the purpose of determining the sufficiency of
41the petition, if the court finds the petition is not clearly sufficient on its face;
42 (d) shall hold a hearing, if the petition is opposed by either party;
43 (e) may not order an examination of the defendant or order a hearing on the mental
44condition of the defendant unless the court finds that the allegations in the petition raise a bona
45fide doubt as to the defendant's competency to stand trial; and
46 (f) if the court finds that the allegations raise a bona fide doubt as to the defendant's
47competency to stand trial, shall order:
48 (i) the department to have the defendant evaluated by one forensic evaluator, if:
49 (A) the most severe charge against the defendant is a misdemeanor; or
50 (B) the defendant is charged with a felony but is not charged with a capital felony, and
51the court determines, based upon the allegations in the petition, that a second competency
52evaluation is not necessary;
53 (ii) the department to have the defendant evaluated by two forensic evaluators, if:
54 (A) the defendant is charged with a capital felony; or
55 (B) the defendant is charged with a felony but is not charged with a capital felony, and
56the court determines, based upon the allegations in the petition, that a second competency 02-13-23 6:04 PM 3rd Sub. (Cherry) H.B. 380
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57evaluation is necessary; and
58 (iii) the defendant to be evaluated by an additional forensic evaluator, if requested by a
59party, who shall:
60 (A) select the additional forensic evaluator; and
61 (B) pay for the costs of the additional forensic evaluator.
62 (3) (a) If the petition or other information sufficiently raises concerns that the
63defendant may have intellectual or developmental disabilities, at least one forensic evaluator
64who is experienced in intellectual or developmental disability assessments shall conduct a
65competency evaluation.
66 (b) The petitioner or other party, as directed by the court, shall provide to the forensic
67evaluator information and materials relevant to a determination of the defendant's competency,
68including the charging document, arrest or incident reports pertaining to the charged offense,
69known criminal history information, and known prior mental health evaluations and treatments.
70 (c) For purposes of a competency evaluation, a court may order that custodians of
71mental health records pertaining to the defendant provide those records to a forensic evaluator
72without the need for consent of the defendant.
73 (d) An order for a competency evaluation may not contain an order for any other
74inquiry into the mental state of the defendant.
75 (4) Pending a competency evaluation, unless the court or the department directs
76otherwise, the defendant shall be retained in the same custody or status that the defendant was
77in at the time the examination was ordered.
78 (5) In the conduct of a competency evaluation, a progress toward competency
79evaluation, and in a report to the court, a forensic evaluator shall consider and address, in
80addition to any other factors determined to be relevant by the forensic evaluator:
81 (a) the defendant's present ability to:
82 (i) rationally and factually understand the criminal proceedings against the defendant;
83 (ii) consult with the defendant's legal counsel with a reasonable degree of rational
84understanding in order to assist in the defense;
85 (iii) understand the charges or allegations against the defendant;
86 (iv) communicate facts, events, and states of mind;
87 (v) understand the range of possible penalties associated with the charges or allegations 3rd Sub. (Cherry) H.B. 380 02-13-23 6:04 PM
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88against the defendant;
89 (vi) engage in reasoned choice of legal strategies and options;
90 (vii) understand the adversarial nature of the proceedings against the defendant;
91 (viii) manifest behavior sufficient to allow the court to proceed; and
92 (ix) testify relevantly, if applicable;
93 (b) the impact of the mental disorder or intellectual disability, if any, on the nature and
94quality of the defendant's relationship with counsel;
95 (c) if psychoactive medication is currently being administered:
96 (i) whether the medication is necessary to maintain the defendant's competency; and
97 (ii) whether the medication may have an effect on the defendant's demeanor, affect, and
98ability to participate in the proceedings; and
99 (d) whether the defendant is exhibiting false or exaggerated physical or psychological
100symptoms relevant to the defendant's capacity to stand trial.
101 (6) If the forensic evaluator's opinion is that the defendant is incompetent to proceed,
102the forensic evaluator shall indicate in the report to the court:
103 (a) the factors that contribute to the defendant's incompetency, including the nature of
104the defendant's mental disorder or intellectual or developmental disability, if any, and its
105relationship to the factors contributing to the defendant's incompetency; and
106 (b) whether there is a substantial probability that restoration treatment may, in the
107foreseeable future, bring the defendant to competency to stand trial, or that the defendant
108cannot become competent to stand trial in the foreseeable future.
109 (7) (a) A forensic evaluator shall provide an initial report to the court and the
110prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report
111shall inform the court of the examiner's opinion concerning the competency of the defendant to
112stand trial.
113 (b) (i) If the forensic evaluator is unable to complete the report in the time specified in
114Subsection (7)(a), the forensic evaluator shall give written notice to the court.
115 (ii) A forensic evaluator who provides the notice described in Subsection (7)(b)(i) shall
116receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on
117which the forensic evaluator received the court's order to conduct a competency evaluation and
118file a report. 02-13-23 6:04 PM 3rd Sub. (Cherry) H.B. 380
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119 (iii) The court may further extend the deadline for completion of the evaluation and
120report if the court determines that there is good cause for the extension.
121 (iv) Upon receipt of an extension described in Subsection (7)(b)(iii), the forensic
122evaluator shall file the report as soon as reasonably possible.
123 (8) Any written report submitted by a forensic evaluator shall:
124 (a) identify the case ordered for evaluation by the case number;
125 (b) describe the procedures, techniques, and tests used in the examination and the
126purpose or purposes for each;
127 (c) state the forensic evaluator's clinical observations, findings, and opinions on each
128issue referred for examination by the court, and indicate specifically those issues, if any, on
129which the forensic evaluator could not give an opinion; and
130 (d) identify the sources of information used by the forensic evaluator and present the
131basis for the forensic evaluator's clinical findings and opinions.
132 (9) (a) Any statement made by the defendant in the course of any competency
133examination, whether the examination is with or without the consent of the defendant, any
134testimony by a forensic evaluator based upon the statement, and any other fruits of the
135statement may not be admitted in evidence against the defendant in any criminal proceeding
136except on an issue respecting mental condition on which the defendant has introduced
137evidence. The evidence may be admitted, however, where relevant to a determination of the
138defendant's competency.
139 (b) Before examining the defendant, the forensic evaluator shall specifically advise the
140defendant of the limits of confidentiality as provided under Subsection (9)(a).
141 (10) (a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
142competency hearing. The hearing shall be held not less than 5 and not more than 15 days after
143the day on which the court received the forensic evaluators' reports, unless for good cause the
144court sets a later date.
145 (b) Any person directed by the department to conduct the competency evaluation may
146be subpoenaed to testify at the hearing.
147 (c) The court may call any forensic evaluator to testify at the hearing who is not called
148by the parties. If the court calls a forensic evaluator, counsel for the parties may cross-examine
149the forensic evaluator. 3rd Sub. (Cherry) H.B. 380 02-13-23 6:04 PM
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150 (d) If the forensic evaluators are in conflict as to the competency of the defendant, all
151forensic evaluators should be called to testify at the hearing if reasonably available. A conflict
152in the opinions of the forensic evaluators does not require the appointment of an additional
153forensic evaluator unless the court determines the appointment to be necessary.
154 (11) (a) A defendant shall be presumed competent to stand trial unless the court, by a
155preponderance of the evidence, finds the defendant incompetent to proceed. The burden of
156proof is upon the proponent of incompetency at the hearing.
157 (b) An adjudication of incompetent to proceed does not operate as an adjudication of
158incompetency to give informed consent for medical treatment or for any other purpose, unless
159specifically set forth in the court order.
160 (12) In determining the defendant's competency to stand trial, the court shall consider
161the totality of the circumstances, [which may include] including:
162 (a) the petition;
163 (b) the defendant's criminal and arrest history;
164 (c) prior mental health evaluations and treatments provided to the court by the
165defendant;
166 (d) subject to Subsection (14), whether the defendant was found incompetent to
167proceed in a criminal action unrelated to the charged offense for which the petition is filed;
168 (e) the testimony of lay witnesses[, in addition to], if any;
169 (f) the forensic evaluator's report, testimony, and studies[.]; and
170 (g) any other relevant evidence bearing on the competency of the defendant.
171 (13) If the court finds the defendant incompetent to proceed:
172 (a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
173 (i) include findings addressing each of the factors in Subsection (5)(a);
174 (ii) include a transportation order, if necessary;
175 (iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological,
176or social work reports submitted to the court relative to the mental condition of the defendant,
177and any other documents made available to the court by either the defense or the prosecution,
178pertaining to the defendant's current or past mental condition; and
179 (iv) be sent by the court to the department; and
180 (b) the prosecuting attorney shall provide to the department: 02-13-23 6:04 PM 3rd Sub. (Cherry) H.B. 380
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181 (i) the charging document and probable cause statement, if any;
182 (ii) arrest or incident reports prepared by law enforcement and pertaining to the
183charged offense; and
184 (iii) additional supporting documents.
185 (14) The court may not find the defendant incompetent to proceed based solely on a
186court having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6 in
187an unrelated criminal action, if the court in the unrelated criminal action ordered the release
188more than one year before the day on which the petition described in Subsection (12)(a) is
189filed.
190 [(14)] (15) The court may make any reasonable order to ensure compliance with this
191section.
192 [(15)] (16) Failure to comply with this section does not result in the dismissal of
193criminal charges.