§ 18-207. Mental condition not a defense--Provision for treatment during incarceration--Reception of evidence--Notice and appointment of expert examiners

(1) Mental condition shall not be a defense to any charge of criminal conduct.

(2) If by the provisions of section 19-2523, Idaho Code, the court finds that one convicted of crime suffers from any mental condition requiring treatment, such  person shall be committed to the board of correction or such city or county official as provided by law for placement in an appropriate facility for treatment, having regard for such conditions of security as the case may require. In the event a sentence of incarceration has been imposed, the defendant shall receive treatment in a facility which provides for incarceration or less restrictive confinement. In the event that a course of treatment thus commenced shall be concluded prior to the expiration of the sentence imposed, the offender shall remain liable for the remainder of such sentence, but shall have credit for time incarcerated for treatment.

(3) Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.

(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:

(a) Notice must be given at least ninety (90) days in advance of trial, or such other period as justice may require, that a party intends to raise any issue of mental condition and to call expert witnesses concerning such issue, failing which such witness shall not be permitted to testify until such time as the opposing party has a complete opportunity to consider the substance of such testimony and prepare for rebuttal through such opposing expert(s) as the party  may choose.

(b) A party who expects to call an expert witness to testify on an issue of mental condition must, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert, or a copy of a written report. The court may authorize the taking of depositions to inquire further into the substance of such reports or synopses.

(c) Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, the court shall order that the state's experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant's mental condition may be in issue.

(d) The court is authorized to appoint at least one (1) expert at public expense upon a showing by an indigent defendant that there is a need to inquire into questions of the defendant's mental condition. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to  pay shall be made in accordance with chapter 8, title 19, Idaho Code.

(e) If an examination cannot be conducted by reason of the unwillingness of the defendant to cooperate, the examiner shall so advise the court in writing. In  such cases the court may deny the party refusing to cooperate the right to present evidence in support of a mental status claim unless the interest of justice requires otherwise and shall instruct the jury that it may consider the party's lack of cooperation for its effect on the credibility of the party's mental status claim.

§ 401. Mental illness or psychiatric disorder

(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused's conduct. If the defendant prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of "not guilty by reason of insanity."

(b) Where the trier of fact determines that, at the time of the conduct charged, a defendant suffered from a mental illness or serious mental disorder which substantially disturbed such person's thinking, feeling or behavior and/

(c) It shall not be a defense under this section if the alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health care practitioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms "insanity" or "mental illness" do not include an abnormality manifested only by repeated criminal or other antisocial conduct.

§ 16-3-2. Mental capacity; insanity

West's Code of Georgia Annotated Currentness

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 2. Criminal Liability

Article 1. Culpability

§ 16-2-3. Presumption of sound mind and discretion

Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.

CREDIT(S)

Laws 1968, p. 1249, § 1.

Formerly Code 1933, § 26-606.

Current through the 2012 Regular Session

5/6-2. Insanity

§ 6-2. Insanity.

(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.

(b) The terms "mental disease or mental defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.

(d) For purposes of this Section, "mental illness" or "mentally ill" means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person's judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior.

(e) When the defense of insanity has been presented during the trial, the burden of proof is on the defendant to prove by clear and convincing evidence that the defendant is not guilty by reason of insanity. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged, and, in a jury trial where the insanity defense has been presented, the jury must be instructed that it may not consider whether the defendant has met his burden of proving that he is not guilty by reason of insanity until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.

§ 704-400. Physical or mental disease, disorder, or defect excluding penal responsibility

(1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law.

(2) As used in this chapter, the terms “physical or mental disease, disorder, or defect” do not include an abnormality manifested only by repeated penal or otherwise anti-social conduct.

§ 5-2-312. Mental disease as defense

(a)(1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he or she lacked capacity as a result of mental disease or defect to:

(A) Conform his or her conduct to the requirements of law; or

(B) Appreciate the criminality of his or her conduct.

(2) When the affirmative defense of mental disease or defect is presented to a jury, prior to deliberations the jury shall be instructed regarding the disposition of a defendant acquitted on a ground of mental disease or defect pursuant to § 5-2-314.

(b) As used in the Arkansas Criminal Code, “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) When a defendant is acquitted on a ground of mental disease or defect, the verdict and judgment shall state that the defendant was acquitted on a ground of mental disease or defect.

§ 14. Insanity

Purdon's Pennsylvania Statutes and Consolidated Statutes Currentness

Title 18 Pa.C.S.A. Crimes and Offenses (Refs & Annos)

Part I. Preliminary Provisions

Chapter 3. Culpability (Refs & Annos)

§ 314. Guilty but mentally ill

(a) General rule.--A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

(b) Plea of guilty but mentally ill.--A person who waives his right to trial may plead guilty but mentally ill. No plea of guilty but mentally ill may be accepted by the trial judge until he has examined all reports prepared pursuant to the Rules of Criminal Procedure, has held a hearing on the sole issue of the defendant's mental illness at which either party may present evidence and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered. If the trial judge refuses to accept a plea of guilty but mentally ill, the defendant shall be permitted to withdraw his plea. A defendant whose plea is not accepted by the court shall be entitled to a jury trial, except that if a defendant subsequently waives his right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial.

(c) Definitions.--For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons found guilty but mentally ill):

(1) “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

(2) “Legal insanity.” At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.

(d) Common law M'Naghten's Rule preserved.--Nothing in this section shall be deemed to repeal or otherwise abrogate the common law defense of insanity (M'Naghten's Rule) in effect in this Commonwealth on the effective date of this section.

1982, Dec. 15, P.L. 1262, No. 286, § 1, effective in 90 days.

Current through Regular Session Act 2013-4

Purdon's Pennsylvania Statutes and Consolidated Statutes Currentness

Title 18 Pa.C.S.A. Crimes and Offenses (Refs & Annos)

Part I. Preliminary Provisions

Chapter 3. Culpability (Refs & Annos)

§ 315. Insanity

(a) General rule.--The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.

(b) Definition.--For purposes of this section, the phrase “legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

CREDIT(S)

1982, Dec. 15, P.L. 1262, No. 286, § 1, effective in 90 days.

est's Code of Georgia Annotated Currentness

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 2. Criminal Liability

Article 1. Culpability

§ 16-2-3. Presumption of sound mind and discretion

Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.

CREDIT(S)

Laws 1968, p. 1249, § 1.

Formerly Code 1933, § 26-606.

Current through the 2012 Regular Session

701.4. Insanity

A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a diseased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguishing between right and wrong in  relation to that act. Insanity need not exist for any specific length of time before or after the commission of the alleged criminal act. If the defense of insanity is raised, the defendant must prove by a preponderance of the evidence that the defendant at the time of the crime suffered from such a deranged condition of the mind as to render the defendant incapable of knowing the nature and quality of the act the defendant was committing or was incapable of distinguishing between right and wrong in relation to the act.

§ 13A-3-1. Mental disease or defect.

(a) It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) “Severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

§ 401. Mental illness or psychiatric disorder

(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused's conduct. If the defendant prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of "not guilty by reason of insanity."

(b) Where the trier of fact determines that, at the time of the conduct charged, a defendant suffered from a mental illness or serious mental disorder which substantially disturbed such person's thinking, feeling or behavior and/

(c) It shall not be a defense under this section if the alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health care practitioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms "insanity" or "mental illness" do not include an abnormality manifested only by repeated criminal or other antisocial conduct.

161.295. Mental disease or defect

(1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(2) As used in chapter 743, Oregon Laws 1971, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.

Effective: July 22, 2011

West's Revised Code of Washington Annotated Currentness

Title 9A. Washington Criminal Code (Refs & Annos)

Chapter 9A.12. Insanity

9A.12.010. Insanity

To establish the defense of insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) He or she was unable to perceive the nature and quality of the act with which he or she is charged; or

(b) He or she was unable to tell right from wrong with reference to the particular act charged.

(2) The defense of insanity must be established by a preponderance of the evidence.

CREDIT(S)

[2011 c 336 § 353, eff. July 22, 2011; 1975 1st ex.s. c 260 § 9A.12.010.]

Current with 2013 Legislation effective through June 7, 2013

West's RCWA T. 9A, Ch. 9A.16, Refs & Annos

West's Revised Code of Washington Annotated Currentness

Title 9A. Washington Criminal Code

Chapter 9A.16. Defenses

Current with 2013 Legislation effective through June 7, 2013

West's RCWA 9A.16.010

HRS § 704-400

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-400. Physical or mental disease, disorder, or defect excluding penal responsibility

(1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law.

(2) As used in this chapter, the terms “physical or mental disease, disorder, or defect” do not include an abnormality manifested only by repeated penal or otherwise anti-social conduct.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1984, ch. 90, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-401

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-401. Evidence of physical or mental disease, disorder, or defect admissible when relevant to state of mind

Evidence that the defendant was affected by a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is required to establish an element of the offense.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 2006, ch. 230, § 5.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-402

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-402. Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irresponsibility is made

(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.

(2) When the defense provided for by subsection (1) is submitted to a jury, the court shall, if requested by the defendant, instruct the jury as to the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.

(3) When the defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the verdict and the judgment shall so state.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1973, ch. 136, § 4(a); Laws 1980, ch. 222, § 1(1); Laws 1982, ch. 229, § 1; Laws 1983, ch. 124, § 14.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-403

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-403. Physical or mental disease, disorder, or defect excluding fitness to proceed

No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1984, ch. 90, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-404

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-404. Examination of defendant with respect to physical or mental disease, disorder, or defect

(1) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or there is reason to doubt the defendant's fitness to proceed, or reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may immediately suspend all further proceedings in the prosecution. If a trial jury has been empanelled, it shall be discharged or retained at the discretion of the court. The discharge of the trial jury shall not be a bar to further prosecution.

(2) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases the court may appoint either a psychiatrist or a licensed psychologist. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted on an out-patient basis or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or such longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term “licensed psychologist” includes psychologists exempted from licensure by section 465-3(a)(3).

(3) An examination performed under this section may employ any method that is accepted by the professions of medicine or psychology for the examination of those alleged to be affected by a physical or mental disease, disorder, or defect; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners, upon approval of the court, may secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination and diagnosis.

(4) The report of the examination shall include the following:

(a) A description of the nature of the examination;

(b) A diagnosis of the physical or mental condition of the defendant;

(c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;

(d) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;

(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind that is required to establish an element of the offense charged; and

(f) Where more than one examiner is appointed, a statement that the diagnosis and opinion rendered were arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction.

(5) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

(6) Three copies of the report of the examination, including any supporting documents, shall be filed with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

(7) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion.

(8) The court shall obtain all existing medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statutes, and make such records available for inspection by the examiners. If, pursuant to this section, the court orders the defendant committed to a hospital or other suitable facility under the control of the director of health, then the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant which have been adjudicated by the acceptance of a plea of guilty or no contest, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of plea of guilty or no contest made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments, with the exception of expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with its investigation, or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law.

(9) The compensation of persons making or assisting in the examination, other than those retained by the nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1973, ch. 136, § 4(b); Laws 1974, ch. 54, § 1; Laws 1979, ch. 3, § 1; Laws 1979, ch. 105, § 64; Laws 1983, ch. 172, § 1; Laws 1984, ch. 90, § 1; Laws 1987, ch. 145, § 1; Laws 1988, ch. 305, § 5; Laws 1992, ch. 88, § 1; Laws 1997, ch. 306, § 1; Laws 2006, ch. 230, § 6; Laws 2008, ch. 99, § 1, eff. May 23, 2008.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-405

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-405. Determination of fitness to proceed

When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 704-404, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue.

CREDIT(S)

Laws 1972, ch. 9, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-406

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-406. Effect of finding of unfitness to proceed

(1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in section 704-407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; provided that the commitment shall be limited in certain cases as follows:

(a) When the defendant is charged with a petty misdemeanor not involving violence or attempted violence, the commitment shall be limited to no longer than sixty days from the date the court determines the defendant lacks fitness to proceed; and

(b) When the defendant is charged with a misdemeanor not involving violence or attempted violence, the commitment shall be limited to no longer than one hundred twenty days from the date the court determines the defendant lacks fitness to proceed.

If the court is satisfied that the defendant may be released on conditions without danger to the defendant or to the person or property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, on conditions the court determines necessary; provided that the release on conditions of a defendant charged with a petty misdemeanor not involving violence or attempted violence shall continue for no longer than sixty days, and the release on conditions of a defendant charged with a misdemeanor not involving violence or attempted violence shall continue for no longer than one hundred twenty days. A copy of the report filed pursuant to section 704-404 shall be attached to the order of commitment or order of release on conditions. When the defendant is committed to the custody of the director of health for detention, care, and treatment, the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the [likely] or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law.

(2) When the defendant is released on conditions after a finding of unfitness to proceed, the department of health shall establish and monitor a fitness restoration program consistent with conditions set by the court order of release, and shall inform the prosecuting attorney of the county that charged the defendant of the program and report the defendant's compliance therewith.

[(3)] When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and:

(a) Order the defendant to be discharged;

(b) Subject to the law governing the involuntary civil commitment of persons affected by physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to the law governing involuntary outpatient treatment, order the defendant to be released on conditions the court determines necessary.

[(4)] If a defendant committed to the custody of the director of health for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the commitment, the charge for which the defendant was committed for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be released from custody unless the defendant is subject to prosecution for other charges, in which case, unless the defendant is subject to the law governing involuntary civil commitment, the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(b) Subject to the law governing involuntary civil commitment, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment.

[(5)] If a defendant released on conditions for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the release on conditions order, the charge for which the defendant was released on conditions for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be discharged from the release on conditions unless the defendant is subject to prosecution for other charges or subject to the law governing involuntary civil commitment, in which case the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other release on conditions under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(b) Subject to the law governing involuntary civil commitment, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1986, ch. 314, § 7; Laws 1993, ch. 87, § 1; Laws 1997, ch. 306, § 2; Laws 2006, ch. 230, § 7; Laws 2008, ch. 99, § 2, eff. May 23, 2008; Laws 2011, ch. 53, § 2, eff. July 1, 2011; Laws 2011, ch. 112, § 2, eff. July 1, 2011.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-407

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-407. Special hearing following commitment or release on conditions

(1) At any time after commitment as provided in section 704-406, the defendant or the defendant's counsel or the director of health may apply for a special post-commitment or post-release hearing. If the application is made by or on behalf of a defendant not represented by counsel, the defendant shall be afforded a reasonable opportunity to obtain counsel, and if the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if the counsel for the defendant satisfies the court by affidavit or otherwise that, as an attorney, the counsel has reasonable grounds for a good faith belief that the counsel's client has an objection based upon legal grounds to the charge.

(2) If the motion for a special post-commitment or post-release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and, in an appropriate case, may quash the indictment or other charge, find it to be defective or insufficient, or otherwise terminate the proceedings on the law. In any such case, unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or release ordered under section 704-406 and:

(a) Order the defendant to be discharged;

(b) Subject to the law governing involuntary civil commitment of persons affected by a physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to the law governing involuntary outpatient treatment, order the defendant to be released on such conditions as the court deems necessary.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1980, ch. 222, § 1(2); Laws 1984, ch. 90, § 1; Laws 2006, ch. 230, § 8.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-408

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-408. Determination of irresponsibility

If the report of the examiners filed pursuant to section 704-404, or the report of examiners of the defendant's choice under section 704-409, states that the defendant at the time of the conduct alleged was affected by a physical or mental disease, disorder, or defect that substantially impaired the defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law, the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1980, ch. 222, § 1(3); Laws 1984, ch. 90, § 1; Laws 2006, ch. 230, § 9.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-409

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-409. Access to defendant by examiners of defendant's choice

When, notwithstanding the report filed pursuant to section 704-404, the defendant wishes to be examined by one or more qualified physicians or other experts of the defendant's own choice, such examiner or examiners shall be permitted to have reasonable access to the defendant for the purposes of such examination.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1984, ch. 90, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-410

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-410. Form of expert testimony regarding physical or mental disease, disorder, or defect

(1) At the hearing pursuant to section 704-405 or upon the trial, the examiners who reported pursuant to section 704-404 may be called as witnesses by the prosecution, the defendant, or the court. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be. If called by the court, the witness shall be subject to cross-examination by the prosecution and the defendant. Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness.

(2) When an examiner testifies on the issue of the defendant's fitness to proceed, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against the defendant or to assist in the defendant's own defense is impaired as a result of physical or mental disease, disorder, or defect.

(3) When an examiner testifies on the issue of the defendant's responsibility for conduct alleged or the issue of the defendant's capacity to have a particular state of mind which is necessary to establish an element of the offense charged, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law or to have a particular state of mind which is necessary to establish an element of the offense charged was impaired as a result of physical or mental disease, disorder, or defect at that time.

(4) When an examiner testifies, the examiner shall be permitted to make any explanation reasonably serving to clarify the examiner's diagnosis and opinion and may be cross-examined as to any matter bearing on the examiner's competency or credibility or the validity of the examiner's diagnosis or opinion.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1980, ch. 222, § 1(4); Laws 1984, ch. 90, § 1; Laws 1988, ch. 305, § 6.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-411

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-411. Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing

(1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:

(a) The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:

(i) Is affected by a physical or mental disease, disorder, or defect;

(ii) Presents a risk of danger to self or others; and

(iii) Is not a proper subject for conditional release;

provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others. The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law;

(b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition. For any defendant granted conditional release pursuant to this paragraph, and who was charged with a petty misdemeanor, misdemeanor, or violation, the period of conditional release shall be no longer than one year; or

(c) The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.

(2) The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.

(3) When ordering a hearing pursuant to subsection (2):

(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and

(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, a licensed psychologist, or a qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or such longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and (9). As used in this section, the term “licensed psychologist” includes psychologists exempted from licensure by section 465-3(a)(3).

(4) Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).

(5) In any proceeding governed by this section, the defendant's fitness shall not be an issue.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1974, ch. 54, § 2; Laws 1979, ch. 3, § 2; Laws 1983, ch. 281, § 1; Laws 1984, ch. 90, § 1; Laws 1986, ch. 314, § 8; Laws 1987, ch. 145, § 2; Laws 1988, ch. 305, § 7; Laws 1992, ch. 88, § 2; Laws 1997, ch. 306, § 3; Laws 2006, ch. 230, § 10; Laws 2008, ch. 99, § 3, eff. May 23, 2008; Laws 2008, ch. 100, § 3, eff. July 1, 2008; Laws 2009, ch. 127, § 2, eff. June 16, 2009; Laws 2011, ch. 99, § 2, eff. July 1, 2011.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-412

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-412. Committed person; application for conditional release or discharge; by the director of health; by the person

(1) After the expiration of at least ninety days following an original order of commitment pursuant to section 704-411(1)(a), or after the expiration of at least sixty days following the revocation of conditional release pursuant to section 704-413, if the director of health is of the opinion that the person committed is still affected by a physical or mental disease, disorder, or defect and may be granted conditional release or discharged without danger to self or to the person or property of others or that the person is no longer affected by a physical or mental disease, disorder, or defect, the director shall make an application for either the conditional release or discharge of the person, as appropriate. In such a case, the director shall submit a report to the court by which the person was ordered committed and shall transmit copies of the application and report to the prosecuting attorney of the county from which the person was committed and to the person committed.

(2) After the expiration of ninety days from the date of the order of commitment pursuant to section 704-411, or after the expiration of sixty days following the revocation of conditional release pursuant to section 704-413, the person committed may apply to the court from which the person was committed for an order of discharge upon the ground that the person is no longer affected by a physical or mental disease, disorder, or defect. The person committed may apply for conditional release or discharge upon the ground that, though still affected by a physical or mental disease, disorder, or defect, the person may be released without danger to self or to the person or property of others. A copy of the application shall be transmitted to the prosecuting attorney of the county from which the person was committed. If the court denies the application, the person shall not be permitted to file another application for either conditional release or discharge until one year after the date of the hearing held on the immediate prior application.

(3) Upon application to the court by either the director of health or the person committed, the court shall complete the hearing process and render a decision within sixty days of the application; provided that for good cause the court may extend the sixty-day time frame upon the request of the director of health or the person committed.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 2006, ch. 230, § 11; Laws 2008, ch. 100, § 4, eff. July 1, 2008; Laws 2009, ch. 127, § 3, eff. June 16, 2009.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-413

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-413. Conditional release; application for modification or discharge; termination of conditional release and commitment

(1) Any person granted conditional release pursuant to this chapter shall continue to receive mental health or other treatment and care deemed appropriate by the director of health until discharged from conditional release. The person shall follow all prescribed treatments and take all prescribed medications according to the instructions of the person's treating mental health professional. If a mental health professional who is treating a person granted conditional release believes that either the person is not complying with the requirements of this section or there is other evidence that hospitalization is appropriate, the mental health professional shall report the matter to the probation officer of the person granted conditional release. The probation officer may order the person granted conditional release to be hospitalized for a period not to exceed seventy-two hours if the probation officer has probable cause to believe the person has violated the requirements of this subsection. No person shall be hospitalized beyond the seventy-two-hour period, as computed pursuant to section 1-29, unless a hearing has been held pursuant to subsection (4); provided that on or before the expiration of the seventy-two-hour period, a court may conduct a hearing to determine whether the person would benefit from further hospitalization, which may render a revocation of conditional release unnecessary. If satisfied, the court may order further temporary hospitalization for a period not to exceed ninety days, subject to extension as appropriate, but in no event for a period longer than one year. At any time within that period, the court may determine that a hearing pursuant to subsection (4) should be conducted.

(2) The director of health may apply to the court ordering any person released pursuant to this chapter, for the person's discharge from, or modification of, the order granting conditional release; provided that the person receives community-based mental health services from or contracted by the department of health, and the director is of the opinion that the person on conditional release is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The director shall make an application for the discharge from, or modification of, the order of conditional release in a report to the circuit from which the order was issued. The director shall transmit a copy of the application and report to the prosecuting attorney of the county from which the conditional release order was issued, to the person's treating mental health professionals, and to the probation officer supervising the conditional release. The person on conditional release shall be given notice of the application.

(3) Any person granted conditional release pursuant to this chapter may apply to the court ordering the conditional release for discharge from, or modification of, the order granting conditional release on the ground that the person is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The application shall be accompanied by a letter from or supporting affidavit of a qualified physician or licensed psychologist. A copy of the application and letter or affidavit shall be transmitted to the prosecuting attorney of the circuit from which the order issued and to any persons supervising the release, and the hearing on the application shall be held following notice to such persons. If the court denies the application, the person shall not be permitted to file another application for either discharge or modification of conditional release until one year after the date of the denial.

(4) If, at any time after the order pursuant to this chapter granting conditional release, the court determines, after hearing evidence, that:

(a) The person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled; or

(b) For the safety of the person or others, the person's conditional release should be revoked,

the court may forthwith modify the conditions of release or order the person to be committed to the custody of the director of health, subject to discharge or release in accordance with the procedure prescribed in section 704-412.

(5) Upon application for discharge from, or modification of, the order of conditional release by either the director of health or the person, the court shall complete the hearing process and render a decision within sixty days of the application, provided that for good cause the court may extend the sixty day time frame upon the request of the director of health or the person.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1983, ch. 189, § 1; Laws 1988, ch. 305, § 8; Laws 1997, ch. 306, § 4; Laws 2006, ch. 230, § 12; Laws 2008, ch. 100, § 5, eff. July 1, 2008.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-414

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-414. Procedure upon application for discharge, conditional release, or modification of conditions of release

Upon filing of an application pursuant to section 704-412 for discharge or conditional release, or upon the filing of an application pursuant to section 704-413 for discharge or for modification of conditions of release, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, a licensed psychologist, or a qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The examiners shall be appointed from a list of certified examiners as determined by the department of health. To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of the examination and may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and (9). As used in this section, the term “licensed psychologist” includes psychologists exempted from licensure by section 465-3(a)(3).

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1974, ch. 54, § 3; Laws 1979, ch. 3, § 3; Laws 1986, ch. 314, § 9; Laws 1987, ch. 145, § 3; Laws 1988, ch. 305, § 9; Laws 1992, ch. 88, § 3; Laws 1997, ch. 306, § 5; Laws 2006, ch. 230, § 13.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-415

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-415. Disposition of application for discharge, conditional release, or modification of conditions of release

(1) If the court is satisfied from the report filed pursuant to section 704-414, and such testimony of the reporting examiners as the court deems necessary, that:

(a) The person is affected by a physical or mental disease, disorder, or defect and the discharge, conditional release, or modification of conditions of release applied for may be granted without danger to the committed or conditionally released person or to the person or property of others; or

(b) The person is no longer affected by a physical or mental disease, disorder, or defect,

the court shall grant the application and order the relief. If the court is not so satisfied, it shall promptly order a hearing.

(2) Any such hearing shall be deemed a civil proceeding and the burden shall be upon the applicant to prove that the person is no longer affected by a physical or mental disease, disorder, or defect or may safely be either released on the conditions applied for or discharged. According to the determination of the court upon the hearing, the person shall be:

(a) Discharged;

(b) Released on such conditions as the court determines to be necessary; or

(c) Recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1982, ch. 232, § 1; Laws 2006, ch. 230, § 14.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-416

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-416. Statements for purposes of examination or treatment inadmissible except on issue of physical or mental condition

A statement made by a person subjected to examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any penal proceeding on any issue other than that of the person's physical or mental condition, but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication, unless such statement constitutes an admission of guilt of the offense charged.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1984, ch. 90, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-416.5

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-416.5. Supervision of person on conditional release

(1) Any person hospitalized under this chapter who is subsequently placed on conditional release shall be subject to the supervision of a probation officer until such time as that supervision is terminated by order of the court.

(2) The probation officer shall report, as the court may order, whether the conditionally released person is complying with the conditions of the release.

CREDIT(S)

Laws 1983, ch. 69, § 1; Laws 2006, ch. 230, § 15.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-417

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-417. Use of out-of-state institutions

The term “appropriate institution” includes any institution within or without this State to which the defendant may be eligible for admission and treatment for physical or mental disease, disorder, or defect.

CREDIT(S)

Laws 1972, ch. 9, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-418

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-418. Immaturity excluding penal conviction; transfer of proceedings to family court

(1) A person shall not be tried for or convicted of an offense if the person is subject to the exclusive original jurisdiction of the family court, unless the family court has waived jurisdiction over the person.

(2) No court shall have jurisdiction to try or convict a person of an offense if penal proceedings against the person are barred by subsection (1). When it appears that a person charged with the commission of an offense may be of such an age that penal proceedings may be barred under subsection (1), the court shall hold a hearing thereon, and the burden shall be on the prosecution to establish to the satisfaction of the court that the penal proceeding is not barred upon such grounds. If the court determines the penal proceeding is barred, custody of the person charged shall be surrendered to the family court, and the case, including all papers and processes relating thereto, shall be transferred.

CREDIT(S)

Laws 1972, ch. 9, § 1; Laws 1981, ch. 206, § 1; Laws 1984, ch. 90, § 1.

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

HRS § 704-419

West's Hawai‘i Revised Statutes Annotated Currentness

Division 5. Crimes and Criminal Proceedings

Title 37. Hawaii Penal Code

Chapter 704. Penal Responsibility and Fitness to Proceed

§ 704-419. Repealed by Laws 1980, ch. 306, § 2

Current with amendments through Act 5 of the 2013 Regular Session. For research tips related to newly added material, see Scope.

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-301. Definitions

As used in this subchapter:

(1) “Appropriate facility” means any facility within or without this state to which a defendant is eligible for admission and treatment for mental disease or defect;

(2) “Capacity of the defendant to have the culpable mental state” means a defendant's ability to have the culpable mental state necessary to establish an element of the offense charged, as defined in § 5-2-202;

(3) “Compliance monitor” means either a social service representative or licensed social worker, or both, employed by the Department of Human Services for the purpose of, including, but not limited to:

(A) Verifying that a person conditionally released pursuant to a provision of this subchapter is in compliance with the conditions for release;

(B) Providing social service assistance to a person conditionally released pursuant to a provision of this subchapter; and

(C) Reporting compliance with the conditions for release or lack of compliance with the conditions for release to the appropriate circuit court;

(4) “Designated receiving facility or program” means an inpatient or outpatient treatment facility or program that is designated within each geographic area of the state by the Director of the Division of Behavioral Health of the Department of Human Services to accept the responsibility for the care, custody, and treatment of a person involuntarily admitted to the state mental health system;

(5)(A) “Mental disease or defect” means a:

(i) Substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life;

(ii) State of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period; or

(iii) Significant impairment in cognitive functioning acquired as a direct consequence of a brain injury.

(B) As used in the Arkansas Criminal Code, “mental disease or defect” does not include an abnormality manifested only by:

(i) Repeated criminal or otherwise antisocial conduct;

(ii) Continuous or noncontinuous periods of intoxication, as defined in § 5-2-207(b)(1), caused by a substance such as alcohol or a drug; or

(iii) Dependence upon or addiction to any substance such as alcohol or a drug;

(6) “Prescribed regimen of medical, psychiatric, or psychological care or treatment” means to [FN1] care or treatment for a mental illness, as defined in § 20-47-202;

(7) “Qualified psychiatrist” means a licensed psychiatrist who has successfully completed either a post-residency fellowship in forensic psychiatry accredited by the American Board of Psychiatry and Neurology or a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;

(8) “Qualified psychologist” means a licensed psychologist who has received a post-doctoral diploma in forensic psychology accredited by the American Board of Professional Psychology or successfully completed a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;

(9)(A) “Restraint” means any manual method, physical or mechanical device, material, or equipment that immobilizes a person or reduces the ability of a person to move his or her arms, legs, body, or head freely.

(B) “Restraint” does not include devices such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of a person for the purpose of protecting the person from falling or to permit the person to participate in activities without the risk of physical harm to himself or herself; and

(10) “State mental health system” means the Arkansas State Hospital and any other facility or program certified by the Division of Behavioral Health of the Department of Human Services.

CREDIT(S)

Acts of 1975, Act 280, § 616; Acts of 1995, Act 767, § 1, eff. March 24, 1995; Acts of 1997, Act 922, § 1; Acts of 2001, Act 1554, § 1, eff. Aug. 13, 2001; Acts of 2007, Act 636, § 1, eff. July 31, 2007.

Formerly A.S.A. 1947, § 41-616.

[FN1] So in original. Probably should read “the”.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-302. Lack of fitness to proceed generally

(a) No person who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect shall be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.

(b) A court shall not enter a judgment of acquittal on the ground of mental disease or defect against a defendant who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect.

CREDIT(S)

Acts of 1975, Act 280, § 603; Acts of 2001, Act 1554, § 2, eff. Aug. 13, 2001.

Formerly A.S.A. 1947, § 41-603.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-303. Mental disease, admissibility

Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether the defendant had the kind of culpable mental state required for commission of the offense charged.

CREDIT(S)

Acts of 1975, Act 280, § 602.

Formerly A.S.A. 1947, § 41-602.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-304. Notice of defense

(a) When a defendant intends to raise mental disease or defect as a defense in a prosecution or put in issue his or her fitness to proceed, the defendant shall notify the prosecutor and the court at the earliest practicable time.

(b)(1) Failure to notify the prosecutor within a reasonable time before the trial date entitles the prosecutor to a continuance that for limitation purposes is deemed an excluded period granted on application of the defendant.

(2) Alternatively, in lieu of suspending any further proceedings under § 5-2-305, the court may order the immediate examination of the defendant at a designated receiving facility or program by a qualified psychiatrist or a qualified psychologist.

CREDIT(S)

Acts of 1975, Act 280, § 604; Acts of 1977, Act 360, § 1; Acts of 1995, Act 767, § 2, eff. March 24, 1995.

Formerly A.S.A. 1947, § 41-604.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 27, 2011

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-305. Mental health examination of defendant

(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately suspend any further proceedings in a prosecution if:

(A) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect;

(B) There is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause;

(C) A defendant charged in circuit court files notice that he or she will put in issue his or her fitness to proceed; or

(D) There is reason to doubt the defendant's fitness to proceed.

(2)(A) If a trial jury has been impaneled, the court may retain the jury or declare a mistrial and discharge the jury.

(B) A discharge of the trial jury is not a bar to further prosecution.

(b)(1) Upon suspension of further proceedings in the prosecution, the court shall enter an order:

(A) Directing that the defendant undergo examination and observation by one (1) or more qualified psychiatrists or qualified psychologists;

(B) Appointing one (1) or more qualified psychiatrists not practicing within the Arkansas State Hospital to make an examination and report on the mental condition of the defendant; or

(C) Directing the Director of the Division of Behavioral Health of the Department of Human Services to determine who will examine and report upon the mental condition of the defendant.

(2) The Director of the Division of Behavioral Health of the Department of Human Services or his or her designee shall determine the location of the forensic examination.

(3) The forensic examination shall be for a period not exceeding thirty (30) days or such longer period as the Director of the Division of Behavioral Health of the Department of Human Services or his or her designee determines to be necessary for the purpose of the forensic examination.

(4)(A)(i) A uniform evaluation order shall be developed by the Administrative Office of the Courts, the office of the Prosecutor Coordinator, and the Department of Human Services.

(ii) At a minimum the uniform evaluation order shall contain the:

(a) Defendant's name, age, gender, and race;

(b) Charges pending against the defendant;

(c) Defendant's attorney's name and address;

(d) Defendant's custody status;

(e) Case number; and

(f) Case number and a unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center.

(iii) The uniform evaluation order shall be utilized any time that a defendant is ordered to be examined by the court pursuant to this section and a copy of the uniform evaluation order shall be forwarded to the Director of the Department of Human Services or his or her designee.

(iv) No forensic examination shall be conducted without using the uniform evaluation order.

(B)(i) The Division of Behavioral Health of the Department of Human Services shall maintain a database of all examinations of defendants performed pursuant to this chapter.

(ii)(a) At a minimum the database shall contain the information on the uniform evaluation order as provided in subdivision (b)(4)(A)(ii) of this section.

(b) Additionally, the database shall track insanity acquittees and their conditional release.

(c) Upon completion of a forensic examination pursuant to subsection (b) of this section, the court may enter an order providing for further examination and may order the defendant committed to the Arkansas State Hospital or other appropriate facility for further examination and observation if the court determines that commitment and further examination and observation are warranted.

(d)(1) A report of a forensic examination shall include the following:

(A) A description of the nature of the forensic examination;

(B) A substantiated diagnosis in the terminology of the American Psychiatric Association's current edition of the Diagnostic and Statistical Manual;

(C) An opinion on whether the defendant lacks the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense as a consequence of mental disease or defect;

(D) A description of any evidence that the defendant is feigning a sign or symptom of mental disease or defect;

(E)(i) An opinion as to whether the defendant has the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense.

(ii) If the opinion under subdivision (d)(1)(E)(i) of this section is that the defendant has the capacity to understand the proceedings and to effectively assist in his or her own defense, then the examiner shall further examine the defendant and include in the report of the forensic examination an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired at the time of the conduct alleged.

(iii) An opinion under subdivision (d)(1)(E)(i) or (d)(1)(E)(ii) of this section shall also include a description of the reasoning used by the examiner to support the opinion; and

(F)(i) When directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.

(ii) An opinion under subdivision (d)(1)(F)(i) of this section shall also include a description of the reasoning used by the examiner to support the opinion.

(2) In addition to the information required in subdivision (d)(1) of this section, the report of the forensic examination shall include a separate explanation of:

(A) The sign or symptom of mental disease or defect that led to the opinion on the presence of mental disease or defect; and

(B) The evidence that supports the opinion of the examiner on the capacity of the defendant to understand the proceedings against him or her and the defendant's capacity to assist in his or her own defense.

(e) If a forensic examination cannot be conducted because of the unwillingness of the defendant to participate in the forensic examination, the report of the forensic examination shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant is the result of mental disease or defect.

(f)(1) A person designated to perform a forensic examination shall file the report of the forensic examination with the clerk of the court, and the clerk of the court shall mail a copy to the defense attorney and a copy to the prosecuting attorney.

(2) Upon entry of an order by a circuit court, a copy of the report of the forensic examination concerning a defendant shall be provided to the circuit court by the person designated to perform the forensic examination.

(g)(1) Notwithstanding the provision of any statute enacted prior to January 1, 1976, any existing medical or pertinent record in the custody of a public agency shall be made available to the examiner and counsel for inspection and copying.

(2) The court shall require the prosecuting attorney to provide to the examiner any information relevant to the forensic examination, including, but not limited to:

(A) The name and address of any attorney involved in the matter;

(B) Information about the alleged offense; and

(C) Any information about the defendant's background that is deemed relevant to the forensic examination, including the criminal history of the defendant.

(3) The court may require the attorney for the defendant to provide any available information relevant to the forensic examination, including, but not limited to, a:

(A) Psychiatric record;

(B) Medical record; or

(C) Record pertaining to treatment of the defendant for substance or alcohol abuse.

(h)(1) When a forensic examination of a defendant has been completed, the county from which the defendant had been sent for the forensic examination shall procure the defendant within three (3) working days from the Arkansas State Hospital or from a designated receiving facility or program or other facility where the forensic examination was performed.

(2) If the county fails to procure the defendant within this three-day period, the county shall bear any room or board costs on the fourth and subsequent days.

(i) A person under commitment and supervision of the Department of Correction who is a defendant charged in circuit court shall not undergo an examination or observation conducted by a psychiatrist or other mental health employee of the Department of Correction to determine the mental condition of the defendant.

(j)(1) A person or entity that provides treatment under this subchapter may impose a charge for the cost of the treatment.

(2) A charge for costs under subdivision (j)(1) of this section may not exceed the actual cost of the treatment.

(3)(A) The Division of Behavioral Health of the Department of Human Services shall promulgate rules establishing reasonable charges for costs of treatment under this subchapter.

(B) Rules establishing reasonable charges for costs of treatment under this subchapter shall:

(i) Provide for postponing the collection of the charges based on clinical considerations or the patient's inability to pay, or both; and

(ii) Waive charges for treatment of defendants who plead guilty or nolo contendere or are found guilty at trial.

CREDIT(S)

Acts of 1975, Act 280, § 605; Acts of 1977, Act 360, § 2; Acts of 1979, Act 886, § 1; Acts of 1983, Act 191, § 3; Acts of 1989, Act 645, §§ 5, 6; Acts of 1989, Act 898, § 1; Acts of 1989, Act 911, §§ 5, 6; Acts of 1995, Act 767, § 3, eff. March 24, 1995; Acts of 2001, Act 1554, § 3, eff. Aug. 13, 2001; Acts of 2011, Act 991, §§ 1 to 3, eff. July 27, 2011.

Formerly A.S.A. 1947, § 41-605.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-306. Defense physicians, guaranteed access

When a defendant desires to be examined by one (1) or more qualified physicians or other experts of his or her own choice, that qualified physician or other expert is permitted to have reasonable access to the defendant for the purpose of examination.

CREDIT(S)

Acts of 1975, Act 280, § 610.

Formerly A.S.A. 1947, § 41-610.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-307. Examination statements, admissibility

Any statement made by a person during an examination or treatment is admissible as evidence only:

(1) To the extent permitted by the Uniform Rules of Evidence; and

(2) If the statement is constitutionally admissible.

CREDIT(S)

Acts of 1975, Act 280, § 615; Acts of 1977, Act 360, § 3.

Formerly A.S.A. 1947, § 41-615.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-308. Experts as witnesses

(a) At any hearing concerning a defendant's responsibility or fitness to proceed, or upon trial, an examiner who reported pursuant to § 5-2-305 may be called as a witness by the prosecution, the defendant, or the court.

(b) If called by the court, the examiner called as a witness is subject to cross-examination by the prosecution and by the defendant.

(c) Both the prosecution and the defendant may summon any other qualified physician or other expert to testify.

CREDIT(S)

Acts of 1975, Act 280, § 611.

Formerly A.S.A. 1947, § 41-611.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-309. Defendant's fitness, determination

(a) If the defendant's fitness to proceed becomes an issue, the issue of the defendant's fitness to proceed shall be determined by the court.

(b) If neither party contests the finding of the report filed pursuant to § 5-2-305, the court may make the determination under subsection (a) of this section on the basis of the report.

(c) If the finding of the report is contested, the court shall hold a hearing on the issue of the defendant's fitness to proceed.

CREDIT(S)

Acts of 1975, Act 280, § 606.

Formerly A.S.A. 1947, § 41-606.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 31, 2007

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-310. Lack of fitness to proceed--Procedures subsequent to finding

(a)(1)(A) If the court determines that a defendant lacks fitness to proceed, the proceeding against him or her shall be suspended and the court may commit the defendant to the custody of the Department of Human Services for detention, care, and treatment until restoration of fitness to proceed.

(B) However, if the court is satisfied that the defendant may be released without danger to himself or herself or to the person or property of another, the court may order the defendant's release and the release shall continue at the discretion of the court on conditions the court determines necessary.

(2) A copy of the report filed pursuant to § 5-2-305 shall be attached to the order of commitment or order of conditional release.

(b)(1) Within a reasonable period of time, but in any case within ten (10) months of a commitment pursuant to subsection (a) of this section, the department shall file with the committing court a written report indicating whether the defendant is fit to proceed, or if not, whether:

(A) The defendant's mental disease or defect is of a nature precluding restoration of fitness to proceed; and

(B) The defendant presents a danger to himself or herself or to the person or property of another.

(2)(A) The court shall make a determination within one (1) year of a commitment pursuant to subsection (a) of this section.

(B) Pursuant to the report of the department or as a result of a hearing on the report, if the court determines that the defendant is fit to proceed, prosecution in ordinary course may commence.

(C) If the defendant lacks fitness to proceed but does not present a danger to himself or herself or to the person or property of another, the court may release the defendant on conditions the court determines to be proper.

(D) If the defendant lacks fitness to proceed and presents a danger to himself or herself or the person or property of another, the court shall order the department to petition for an involuntary admission.

(E) Upon filing of an order finding that the defendant lacks fitness to proceed issued under subdivision (b)(2)(A) of this section with a circuit clerk or a probate clerk, the circuit clerk or the probate clerk shall submit a copy of the order to the Arkansas Crime Information Center.

(c)(1) On the court's own motion or upon application of the department, the prosecuting attorney, or the defendant, and after a hearing if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.

(2) However, if the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.

CREDIT(S)

Acts of 1975, Act 280, § 607; Acts of 1989, Act 645, § 1; Acts of 1989, Act 911, § 1; Acts of 2007, Act 463, § 1, eff. July 1, 2007; Acts of 2007, Act 568, § 1, eff. July 31, 2007.

Formerly A.S.A. 1947, § 41-607.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-311. Incapacitated defendants, motions

The fact that the defendant lacks fitness to proceed does not preclude through counsel and without the personal participation of the defendant any motion upon:

(1) A ground that the:

(A) Indictment is insufficient;

(B) Statute of limitations has run; or

(C) Prosecution is barred by a former prosecution; or

(2) Any other ground that the court deems susceptible of fair determination prior to trial.

CREDIT(S)

Acts of 1975, Act 280, § 608.

Formerly A.S.A. 1947, § 41-608.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-312. Mental disease as defense

(a)(1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he or she lacked capacity as a result of mental disease or defect to:

(A) Conform his or her conduct to the requirements of law; or

(B) Appreciate the criminality of his or her conduct.

(2) When the affirmative defense of mental disease or defect is presented to a jury, prior to deliberations the jury shall be instructed regarding the disposition of a defendant acquitted on a ground of mental disease or defect pursuant to § 5-2-314.

(b) As used in the Arkansas Criminal Code, “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) When a defendant is acquitted on a ground of mental disease or defect, the verdict and judgment shall state that the defendant was acquitted on a ground of mental disease or defect.

CREDIT(S)

Acts of 1975, Act 280, § 601; Acts of 2001, Act 248, § 1, eff. Aug. 13, 2001.

Formerly A.S.A. 1947, § 41-601.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-313. Acquittal based on mental health report

(a) On the basis of the report filed pursuant to § 5-2-305 and after a hearing, if a hearing is requested, the court may enter judgment of acquittal on the ground of mental disease or defect if the court is satisfied that the following criteria are met:

(1) The defendant currently has the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense; and

(2) At the time of the conduct charged, the defendant lacked capacity as a result of mental disease or defect to conform his or her conduct to the requirements of law or to appreciate the criminality of his or her conduct.

(b) If the defendant did not raise the issue of mental disease or defect as an affirmative defense pursuant to § 5-2-305(a)(1)(A) or (C), then the court is required to make a factual determination that the defendant committed the offense and that he or she was suffering from a mental disease or defect at the time of the commission of the offense.

CREDIT(S)

Acts of 1975, Act 280, § 609; Acts of 1989, Act 645, § 2; Acts of 1989, Act 911, § 2; Acts of 2001, Act 1554, § 4, eff. Aug. 13, 2001.

Formerly A.S.A. 1947, § 41-609.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 31, 2007

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-314. Acquittal--Examination of defendant--Hearing

(a) When a defendant is acquitted on the ground of mental disease or defect, a circuit court is required to determine and to include the determination in the order of acquittal one (1) of the following:

(1) The offense involved bodily injury to another person or serious damage to the property of another person or involved a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant remains affected by mental disease or defect;

(2) The offense involved bodily injury to another person or serious damage to the property of another person or involved a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant is no longer affected by mental disease or defect;

(3) The offense did not involve bodily injury to another person or serious damage to the property of another person nor did it involve substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant remains affected by mental disease or defect; or

(4) The offense did not involve bodily injury to another person or serious damage to the property of another person nor did it involve a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant is no longer affected by mental disease or defect.

(b)(1) If the circuit court enters a determination based on subdivision (a)(1) or (3) of this section, the circuit court shall order the defendant committed to the custody of the Department of Human Services for an examination by a psychiatrist or a licensed psychologist.

(2) Upon filing of an order of commitment under subdivision (b)(1) of this section with a circuit clerk, the circuit clerk shall submit a copy of the order to the Arkansas Crime Information Center.

(c) If the circuit court enters a determination based on subdivision (a)(2) or (4) of this section, the circuit court shall immediately discharge the defendant.

(d)(1)(A) The department shall file the psychiatric or psychological report with the probate clerk of the circuit court having venue within thirty (30) days following receipt of an order of acquittal.

(B) If before thirty (30) days the department makes application to the circuit court for an extension of time to file the psychiatric or psychological report and the circuit court finds there is good cause for the delay, the circuit court may order that additional time be allowed for the department to file the psychiatric or psychological report.

(C) A hearing shall be conducted by the circuit court and shall take place not later than ten (10) days following the filing of the psychiatric or psychological report with the circuit court.

(2) If the psychiatric or psychological report is not filed within thirty (30) days following the department's receipt of an order of acquittal or within such additional time as authorized by the circuit court, the circuit court may grant a petition for a writ of habeas corpus ordering the release of the defendant under terms and conditions that are reasonable and just for the defendant and societal concerns about the safety of persons and property of others.

(e)(1) A person found not guilty on the ground of mental disease or defect of an offense involving bodily injury to another person or serious damage to the property of another person or involving a substantial risk of bodily injury to another person or serious damage to the property of another person has the burden of proving by clear and convincing evidence that his or her release would not create a substantial risk of bodily injury to another person or serious damage to property of another person due to a present mental disease or defect.

(2) With respect to any other offense, the person has the burden of proof by a preponderance of the evidence.

(f)(1) A person acquitted whose mental condition is the subject of a hearing has a right to counsel.

(2)(A) If it appears to the circuit court that the person acquitted is in need of counsel, an attorney shall be appointed immediately upon filing of the original petition.

(B)(i) When an attorney is appointed by the circuit court, the circuit court shall determine the amount of the fee to be paid the attorney appointed by the circuit court and issue an order of payment.

(ii) The amount of the fee allowed shall be based upon the time and effort of the attorney in the investigation, preparation, and representation of the client at the court hearings.

(g)(1) The quorum court of each county shall appropriate funds for the purpose of payment of the attorney's fees provided for by subsection (f) of this section.

(2) Upon presentment of a claim accompanied by an order of the circuit court fixing the fee, the claim shall be approved by the county court and paid in the same manner as other claims against the county are paid.

(h) A hearing conducted pursuant to subsection (d) of this section may be held at the Arkansas State Hospital or a designated receiving facility or program where the person acquitted is detained.

(i) When conducting any hearing set out in this section, the circuit judge may conduct the hearing within any county of his or her judicial district.

(j)(1)(A) It is the duty of the prosecuting attorney's office in the county where the petition is filed to represent the State of Arkansas at any hearing held pursuant to this section except a hearing pending at the Arkansas State Hospital in Pulaski County.

(B) A prosecuting attorney may contract with another attorney to provide services under subdivision (j)(1) of this section.

(2) The office of the Prosecutor Coordinator shall appear for and on behalf of the State of Arkansas at the Arkansas State Hospital in Little Rock.

(3) Representation under this subsection is a part of the official duties of a prosecuting attorney or the office of the Prosecutor Coordinator and the prosecuting attorney or the office of the Prosecutor Coordinator is immune from civil liability in the performance of this official duty.

CREDIT(S)

Acts of 1989, Act 645, § 3; Acts of 1989, Act 821, § 1; Acts of 1989, Act 911, § 3; Acts of 1995, Act 609, § 1; Acts of 2003, Act 1185, § 3, eff. July 16, 2003; Acts of 2005, Act 1446, § 1, eff. Aug. 12, 2005; Acts of 2007, Act 463, § 2, eff. July 1, 2007; Acts of 2007, Act 568, §§ 2, 3, eff. July 31, 2007.

Formerly A.S.A. 1947, §§ 41-612, 41-612.2; Acts of 1975, Act 280, § 612; Acts of 1983, Act 917, §§ 1, 3.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 27, 2011

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-315. Release of acquittees

(a)(1)(A) When the Director of the Department of Human Services or his or her designee determines that a person acquitted has recovered from his or her mental disease or defect to such an extent that his or her release or his or her conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another person, the director shall promptly file an application for discharge or conditional release of the person acquitted with the circuit court that ordered the commitment.

(B) In addition, if the person acquitted has an impairment due to alcohol or substance abuse, the director may petition the circuit court for involuntary commitment under § 20-64-815.

(2) The director shall send a copy of the application to the counsel for the person acquitted and to the attorney for the state.

(b)(1) Within twenty (20) days after receiving the application for discharge or conditional release of the person acquitted, the attorney for the state may petition the circuit court for a hearing to determine whether the person acquitted should be released.

(2) If the attorney for the state does not request a hearing, the circuit court may conduct a hearing on its own motion or discharge the person acquitted.

(c) If the circuit court finds after a hearing under subsection (b) of this section by the standard specified in § 5-2-314(e) that the person acquitted has recovered from his or her mental disease or defect to such an extent that:

(1) The discharge of the person acquitted would no longer create a substantial risk of bodily injury to another person or serious damage to property of another person, then the circuit court shall order that the person acquitted be immediately discharged; or

(2) The conditional release of the person acquitted under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another person, then the circuit court shall order:

(A) That the person acquitted be conditionally released under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been:

(i) Prepared for the person acquitted;

(ii) Certified to the circuit court as appropriate by the director of the facility in which the person acquitted is committed; and

(iii) Found by the circuit court to be appropriate; and

(B) Explicit conditions of release, including without limitation requirements that:

(i) The person acquitted comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment;

(ii) The person acquitted be subject to regularly scheduled personal contact with a compliance monitor for the purpose of verifying compliance with the conditions of release;

(iii) Compliance with the conditions of release be documented with the circuit court by the compliance monitor at ninety-day intervals or at such intervals as the circuit court may order; and

(iv) Impose the conditions of release for a period of up to five (5) years.

(d) If the circuit court determines that the person acquitted has not met his or her burden of proof under subsection (c) of this section, the person acquitted shall continue to be committed to the custody of the Department of Human Services.

(e) A person ordered to be in charge of a prescribed regimen of medical, psychiatric, or psychological care or treatment of a person acquitted shall provide:

(1) The prescribed regimen of medical, psychiatric, or psychological care or treatment;

(2) Periodic written documentation to a compliance monitor of compliance with the conditions of release, including, but not limited to, documentation of compliance with the prescribed:

(A) Medication;

(B) Treatment and therapy;

(C) Substance abuse treatment; and

(D) Drug testing; and

(3)(A) Written notice of any failure of the person acquitted to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment to the:

(i) Compliance monitor;

(ii) Attorney for the person acquitted;

(iii) Attorney for the state; and

(iv) Circuit court having jurisdiction.

(B) The written notice under subdivision (e)(3)(A) of this section shall be provided immediately upon the failure of the person acquitted to comply with a condition of release.

(C)(i) Upon the written notice under subdivision (e)(3)(A) of this section or upon other probable cause to believe that the person acquitted has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person acquitted may be detained and shall be taken without unnecessary delay before the circuit court having jurisdiction over him or her.

(ii) After a hearing, the circuit court shall determine whether the person acquitted should be remanded to an appropriate facility on the ground that, in light of his or her failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his or her continued release would create a substantial risk of bodily injury to another person or serious damage to property of another person.

(D) At any time after a hearing employing the same criteria, the circuit court may modify or eliminate the prescribed regimen of medical, psychiatric, or psychological care or treatment.

(f)(1) Regardless of whether the director or his or her designee has filed an application pursuant to a provision of subsection (a) of this section, and at any time during the commitment of the person acquitted, a person acquitted, his or her counsel, or his or her legal guardian may file with the circuit court that ordered the commitment a motion for a hearing to determine whether the person acquitted should be discharged from the facility in which the person acquitted is committed.

(2) However, no motion under subdivision (f)(1) of this section may be filed more than one (1) time every one hundred eighty (180) days.

(3) A copy of the motion under subdivision (f)(1) of this section shall be sent to the:

(A) Director of the facility in which the person acquitted is committed; and

(B) Attorney for the state.

CREDIT(S)

Acts of 1989, Act 645, § 4; Acts of 1989, Act 911, § 4; Acts of 1995, Act 609, § 2; Acts of 1995, Act 767, § 4, eff. March 24, 1995; Acts of 1997, Act 922, § 2; Acts of 2011, Act 990, § 1, eff. July 27, 2011.

Formerly A.S.A. 1947, § 41-613; Acts of 1975, Act 280, § 613.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 27, 2011

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-316. Conditional release--Subsequent discharge, modification, or revocation

(a)(1) The Director of the Department of Human Services or his or her designee, or a person conditionally released under § 5-2-315, or both, may apply to the court ordering the conditional release for discharge from or modification of the order granting conditional release on the ground that he or she may be discharged or the order modified without danger to himself or herself or to the person or property of another person.

(2) The application shall be accompanied by a supporting affidavit of a qualified physician.

(3) A copy of the application and affidavit shall be transmitted to the prosecuting attorney of the judicial circuit from which the person was conditionally released and to any person supervising his or her release, and the hearing on the application shall be held following notice to the prosecuting attorney and the person supervising his or her release.

(b)(1) After notice to the conditionally released person and a hearing, the court may determine that the conditionally released person has violated a condition of release or that for the safety of the conditionally released person or for the safety of the person or property of another person the conditional release should be modified, extended for a period specified by the court not to exceed five (5) years, or revoked.

(2)(A) If an order is entered revoking the most recent order of conditional release under subdivision (b)(1) of this section, all conditions of the release shall be abated, and the person shall be ordered to be committed to the custody of the director or the director's designee.

(B) After the revocation described in subdivision (b)(2)(A) of this section, the person is subject to future discharge or conditional release only under the procedure prescribed in § 5-2-315.

CREDIT(S)

Acts of 1975, Act 280, § 614; Acts of 1997, Act 922, § 3; Acts of 2007, Act 623, § 1, eff. March 28, 2007; Acts of 2011, Act 990, § 2, eff. July 27, 2011.

Formerly A.S.A. 1947, § 41-614.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-317. Jurisdiction and venue

(a) A circuit court has exclusive jurisdiction over a person acquitted by reason of mental disease or defect and committed to the custody of the Director of the Department of Health and Human Services pursuant to § 5-2-314(b).

(b) Venue is determined as follows:

(1) For a person committed to the custody of the Department of Health and Human Services pursuant to § 5-2-314(b) and who has been committed to the Arkansas State Hospital for examination, then venue may be in Pulaski County for the initial hearing pursuant to § 5-2-314 and for a conditional release hearing pursuant to § 5-2-315; and

(2) For a person who has been conditionally released pursuant to § 5-2-315, then venue for any hearing seeking the modification, revocation, or dismissal of a conditional release order is in the county where the person currently resides.

CREDIT(S)

Acts of 1995, Act 609, § 3; Acts of 2003, Act 1185, § 4, eff. July 16, 2003; Acts of 2005, Act 1845, § 1, eff. Aug. 12, 2005.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§§ 5-2-318 to 5-2-324. Reserved

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§§ 5-2-318 to 5-2-324. Reserved

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective:[See Text Amendments]

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-325. Repealed by Acts of 1989, Act 911, § 7

CREDIT(S)

Acts of 1989, Act 911, § 7.

Formerly A.S.A. 1947, § 41-612.1; Acts 1983, Act 917, § 2.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

Effective: July 31, 2007

West's Arkansas Code Annotated Currentness

Title 5. Criminal Offenses (Refs & Annos)

Subtitle 1. General Provisions (Chapters 1 to 9)

Chapter 2. Principles of Criminal Liability

Subchapter 3. Mental Disease or Defect

§ 5-2-326. Restraint of an Arkansas State Hospital patient

(a) If necessary for security, an Arkansas State Hospital patient shall be physically restrained with a restraint while being transported to locations away from hospital grounds or to and from any court appearance.

(b) A patient shall not be physically restrained with a restraint if the restraint is medically contraindicated.

(c) The restraint shall be implemented in accordance with safe and appropriate restraint techniques as determined by hospital policy.

(d) The restraint used shall be the least restrictive type or technique necessary to effectively protect the patient, staff members, or others from harm.

(e) The restraint shall not be used as a means of coercion, discipline, convenience, or retaliation by staff.

CREDIT(S)

Acts of 2007, Act 636, § 2, eff. July 31, 2007.

Current through 2012 Fiscal Sess. and 11/6/2012 election, including changes made by Ark. Code Rev. Comm. received through 11/1/2012, and emerg. eff. acts from 2013 Reg. Sess.: 7, 38, 39, 40, 41, 67, 109, 111, 135, 136, 139, 145, 147, 153, 169, 171, 176, 210, 234, 276, 282, 290, 304, 308, 315, 332, 336, 350, 378, 427, 442, 457, 458, 461, 500, 504, 512, 521, 522, 528, 539, 556, 557, 575, 600 to 602, 713, 747, 969, 990, 999, 1018, 1042, 1065, 1081, 1093, 1095, 1100, 1109, 1169, 1173, 1180, 1184, 1227, 1241, 1271, 1302, 1311, 1315, 1334, 1405, 1413, 1444, 1497, 1498, 1500.

V.A.M.S. 562.086

Effective:[See Text Amendments]

Vernon's Annotated Missouri Statutes Currentness

Title XXXVIII. Crimes and Punishment; Peace Officers and Public Defenders

Chapter 562. General Principles of Liability (Refs & Annos)

562.086. Lack of responsibility because of mental disease or defect

1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he was incapable of knowing and appreciating the nature, quality or wrongfulness of his conduct.

2. The procedures for the defense of lack of responsibility because of mental disease or defect are governed by the provisions of chapter 552, RSMo.

CREDIT(S)

(L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1, 1979. Amended by L.1993, S.B. No. 180, § A.)

Statutes are current with emergency legislation approved through May 15, 2013, of the 2013 First Regular Session of the 97th General Assembly. Constitution is current through the November 6, 2012 General Election.

West's F.S.A. § 775.027

Effective: June 19, 2000

West's Florida Statutes Annotated Currentness

Title XLVI. Crimes (Chapters 775-899)

Chapter 775. Definitions; General Penalties; Registration of Criminals (Refs & Annos)

775.027. Insanity defense

(1) Affirmative defense.--All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:

(a) The defendant had a mental infirmity, disease, or defect; and

(b) Because of this condition, the defendant:

1. Did not know what he or she was doing or its consequences; or

2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.

(2) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

CREDIT(S)

Added by Laws 2000, c. 2000-315, § 1, eff. June 19, 2000.

Current with chapters in effect from the 2013 1st Reg. Sess. of the 23rd Legislature through May 20, 2013

Vernon's Annotated Missouri Statutes Currentness

Title XXXVIII. Crimes and Punishment; Peace Officers and Public Defenders

Chapter 562. General Principles of Liability (Refs & Annos)

562.086. Lack of responsibility because of mental disease or defect

1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he was incapable of knowing and appreciating the nature, quality or wrongfulness of his conduct.

2. The procedures for the defense of lack of responsibility because of mental disease or defect are governed by the provisions of chapter 552, RSMo.

CREDIT(S)

(L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1, 1979. Amended by L.1993, S.B. No. 180, § A.)

Statutes are current with emergency legislation approved through May 15, 2013, of the 2013 First Regular Session of the 97th General Assembly. Constitution is current through the November 6, 2012 General Election.

West's Louisiana Statutes Annotated Currentness

Louisiana Revised Statutes

Title 14. Criminal Law

Chapter 1. Criminal Code (Refs & Annos)

Part I. General Provisions

Subpart C. Culpability

§ 14. Insanity

If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.

Current through the 2012 Regular Session.

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 25. Diminished capacity; insanity; evidence; amendment of section

(a) The defense of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person's intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.

(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.

(c) Notwithstanding the foregoing, evidence of diminished capacity or of a mental disorder may be considered by the court only at the time of sentencing or other disposition or commitment.

(d) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.

CREDIT(S)

(Added by Initiative Measure, approved by the people, June 8, 1982.)

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 29.8. Basis of defense; plea of not guilty by reason of insanity

In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances. This section shall apply only to persons who utilize this defense on or after the operative date of the section.

CREDIT(S)

(Formerly § 25.5, added by Stats.1993-94, 1st Ex.Sess., c. 10 (S.B.40), § 1. Renumbered § 29.8 and amended by Stats.2012, c. 162 (S.B.1171), § 120.)

Current with urgency legislation through Ch. 20 of 2013 Reg.Sess, also including Chs. 27, 29, and 41.

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 26. Persons capable of committing crime; exceptions

All persons are capable of committing crimes except those belonging to the following classes:

One--Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.

Two--Persons who are mentally incapacitated.

Three--Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.

Four--Persons who committed the act charged without being conscious thereof.

Five--Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.

Six--Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.

CREDIT(S)

(Enacted in 1872. Amended by Code Am.1873-74, c. 614, p. 422, § 2; Stats.1976, c. 1181, p. 5285, § 1; Stats.1981, c. 404, p. 1592, § 3; Stats.2007, c. 31 (A.B.1640), § 3.)

Current with urgency legislation through Ch. 20 of 2013 Reg.Sess, also including Chs. 27, 29, and 41.

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 28. Evidence of mental disease, mental defect or mental disorder

(a) Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.

(b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.

(c) This section shall not be applicable to an insanity hearing pursuant to Section 1026.

(d) Nothing in this section shall limit a court's discretion, pursuant to the Evidence Code, to exclude psychiatric or psychological evidence on whether the accused had a mental disease, mental defect, or mental disorder at the time of the alleged offense.

CREDIT(S)

(Added by Stats.1981, c. 404, p. 1592, § 4. Amended by Stats.1982, c. 893, p. 3318, § 3; Stats.1984, c. 1433, § 1; Stats.2001, c. 854 (S.B.205), § 18; Stats.2002, c. 784 (S.B.1316), § 528.)

Current with urgency legislation through Ch. 20 of 2013 Reg.Sess, also including Chs. 27, 29, and 41.

West's Ann.Cal.Penal Code § 29

Effective:[See Text Amendments]

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 29. Mental state; restriction on expert testimony; determination by trier of fact

In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.

CREDIT(S)

(Added by Stats.1984, c. 1433, § 3.)

Current with urgency legislation through Ch. 20 of 2013 Reg.Sess, also including Chs. 27, 29, and 41.

West's Ann.Cal.Penal Code § 29.2

Formerly cited as CA PENAL § 21

Effective: January 1, 2013

West's Annotated California Codes Currentness

Penal Code (Refs & Annos)

Part 1. Of Crimes and Punishments

Title 1. Of Persons Liable to Punishment for Crime

§ 29.2. Manifestation of intent; evidence of lack of capacity or ability to control conduct

(a) The intent or intention is manifested by the circumstances connected with the offense.

(b) In the guilt phase of a criminal action or a juvenile adjudication hearing, evidence that the accused lacked the capacity or ability to control his or her conduct for any reason shall not be admissible on the issue of whether the accused actually had any mental state with respect to the commission of any crime. This subdivision is not applicable to Section 26.

CREDIT(S)

(Formerly § 21, enacted in 1872. Amended by Stats.1981, c. 404, p. 1591, § 1; Stats.1982, c. 893, § 1. Renumbered § 29.2 and amended by Stats.2012, c. 162 (S.B.1171), § 118.)

Current with urgency legislation through Ch. 20 of 2013 Reg.Sess, also including Chs. 27, 29, and 41.

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 2. General Principles of Criminal Responsibility

Chapter 8. General Defenses to Criminal Responsibility (Refs & Annos)

§ 8.01. Insanity

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2640, ch. 454, § 1, eff. Aug. 29, 1983; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

Current through Chapters effective immediately through Chapter 36 of the 2013 Regular Session of the 83rd Legislature

McKinney's Consolidated Laws of New York Annotated Currentness

Penal Law (Refs & Annos)

Chapter 40. Of the Consolidated Laws (Refs & Annos)

Part One. General Provisions

Title C. Defenses

Article 40. Other Defenses Involving Lack of Culpability (Refs & Annos)

§ 40.15 Mental disease or defect

In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility  means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

1. The nature and consequences of such conduct; or

2. That such conduct was wrong.

CREDIT(S)

(Added L.1984, c. 668, § 3.)

Current through L.2013, chapter 28.

West's F.S.A. § 775.027

Effective: June 19, 2000

West's Florida Statutes Annotated Currentness

Title XLVI. Crimes (Chapters 775-899)

Chapter 775. Definitions; General Penalties; Registration of Criminals (Refs & Annos)

775.027. Insanity defense

(1) Affirmative defense.--All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:

(a) The defendant had a mental infirmity, disease, or defect; and

(b) Because of this condition, the defendant:

1. Did not know what he or she was doing or its consequences; or

2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.

(2) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

CREDIT(S)

Added by Laws 2000, c. 2000-315, § 1, eff. June 19, 2000.

Current with chapters in effect from the 2013 1st Reg. Sess. of the 23rd Legislature through May 20, 2013

West's Smith-Hurd Illinois Compiled Statutes Annotated Currentness

Chapter 720. Criminal Offenses

Criminal Code

Act 5. Criminal Code of 2012 (Refs & Annos)

Title II. Principles of Criminal Liability

Article 6. Responsibility (Refs & Annos)

5/6-2. Insanity

§ 6-2. Insanity.

(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.

(b) The terms "mental disease or mental defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.

(d) For purposes of this Section, "mental illness" or "mentally ill" means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person's judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior.

(e) When the defense of insanity has been presented during the trial, the burden of proof is on the defendant to prove by clear and convincing evidence that the defendant is not guilty by reason of insanity. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged, and, in a jury trial where the insanity defense has been presented, the jury must be instructed that it may not consider whether the defendant has met his burden of proving that he is not guilty by reason of insanity until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.

CREDIT(S)

Laws 1961, p. 1983, § 6-2, eff. Jan. 1, 1962. Amended by P.A. 82-553, § 1, eff. Sept. 17, 1981; P.A. 83-288, § 1, eff. Jan. 1, 1984; P.A. 89-404, § 15, eff. Aug. 20, 1995; P.A. 90-593, § 15, eff. June 19, 1998.

Formerly Ill.Rev.Stat.1991, ch. 38, ¶ 6-2.

Current through P.A. 98-16 of the 2013 Reg. Sess.

Chapter 3. Culpability (Refs & Annos)

§ 314. Guilty but mentally ill

(a) General rule.--A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

(b) Plea of guilty but mentally ill.--A person who waives his right to trial may plead guilty but mentally ill. No plea of guilty but mentally ill may be accepted by the trial judge until he has examined all reports prepared pursuant to the Rules of Criminal Procedure, has held a hearing on the sole issue of the defendant's mental illness at which either party may present evidence and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered. If the trial judge refuses to accept a plea of guilty but mentally ill, the defendant shall be permitted to withdraw his plea. A defendant whose plea is not accepted by the court shall be entitled to a jury trial, except that if a defendant subsequently waives his right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial.

(c) Definitions.--For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons found guilty but mentally ill):

(1) “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

(2) “Legal insanity.” At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.

(d) Common law M'Naghten's Rule preserved.--Nothing in this section shall be deemed to repeal or otherwise abrogate the common law defense of insanity (M'Naghten's Rule) in effect in this Commonwealth on the effective date of this section.

West's Code of Georgia Annotated Currentness

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 3. Defenses to Criminal Prosecutions (Refs & Annos)

Article 1. Responsibility

§ 16-3-2. Mental capacity; insanity

A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.

CREDIT(S)

Laws 1968, p. 1249, § 1.

Formerly Code 1933, § 26-702.

Current through the 2012 Regular Session

Ga. Code Ann., § 16-3-3

Effective:[See Text Amendments]

West's Code of Georgia Annotated Currentness

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 3. Defenses to Criminal Prosecutions (Refs & Annos)

Article 1. Responsibility

§ 16-3-3. Delusional compulsion

A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.

CREDIT(S)

Laws 1968, p. 1249, § 1.

Formerly Code 1933, § 26-703.

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-1. Insanity defense

A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence.

CREDIT(S)

L.1978, c. 95, § 2C:4-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 11A, eff. Sept. 1, 1979.

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-3. Requirement of notice

a. If a defendant intends to claim insanity pursuant to section 2C:4-1 or the absence of a requisite state of mind pursuant to section 2C:4-2, he shall serve notice of such intention upon the prosecuting attorney in accordance with the Rules of Court.

b. When a defendant is acquitted on the ground of insanity, the verdict and judgment shall so state.

CREDIT(S)

L.1978, c. 95, § 2C:4-3, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 12, eff. Sept. 1, 1979.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-4

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-4. Mental incompetence excluding fitness to proceed

a. No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.

b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:

(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and

(2) That his elementary mental processes are such that he comprehends:

(a) That he is in a court of justice charged with a criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will try to convict him of a criminal charge;

(d) That he has a lawyer who will undertake to defend him against that charge;

(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;

(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and

(g) That he has the ability to participate in an adequate presentation of his defense.

CREDIT(S)

L.1978, c. 95, § 2C:4-4, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 13, eff. Sept. 1, 1979.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-5

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-5. Psychiatric or psychological examination of defendant with respect to fitness to proceed

a. Whenever there is reason to doubt the defendant's fitness to proceed, the court may on motion by the prosecutor, the defendant or on its own motion, appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. The psychiatrist or licensed psychologist so appointed shall be either:

(1) From a list agreed to by the court, the prosecutor and the defendant; or

(2) Agreed to by the court, prosecutor and defendant.

Alternatively, the court may order examination of a defendant for fitness to proceed by the Department of Human Services. The department shall provide or arrange for examination of the defendant at a jail, prison or psychiatric hospital. However,  to ensure that a defendant is not unnecessarily hospitalized for the purpose of the examination, a defendant shall not be admitted to a State psychiatric hospital for an examination regarding his fitness to proceed unless a qualified psychiatrist or licensed psychologist designated by the commissioner determines that hospitalization is clinically necessary to perform the examination. Whenever the qualified psychiatrist or licensed psychologist determines that hospitalization is clinically necessary to perform the examination, the court shall order the defendant to be committed to the custody of the Commissioner of Human Services for placement in a State psychiatric hospital designated for that purpose for a period not exceeding 30 days.

A qualified psychiatrist or licensed psychologist retained by the defendant or by the prosecutor shall, if requested, be permitted to examine a defendant who has been admitted to a State psychiatric hospital.

b. The report of the examination shall include at least the following: (1) a description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to the defendant's capacity to understand the proceedings against him and to assist in his own defense. The person or persons conducting the examination may ask questions respecting the crime charged when such questions are necessary to enable formation of an opinion as to a relevant issue, however, the evidentiary character of any inculpatory statement shall be limited expressly to the question of competency and shall not be admissible on the issue of guilt.

c. If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental incompetence. Upon the filing of such a report, the court may permit examination without cooperation, may appoint a different psychiatrist or licensed psychologist, or may commit the defendant for observation for a period not exceeding 30 days except on good cause shown, or exclude or limit testimony by the defense psychiatrist or licensed psychologist.

d. The report of the examination shall be sent by the psychiatrist or licensed psychologist to the court, the prosecutor and counsel for the defendant.

CREDIT(S)

L.1978, c. 95, § 2C:4-5, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 13A, eff. Sept. 1, 1979; L.1997, c. 77, § 1, eff. April 24, 1997; L.1998, c. 111, § 1, eff. Oct. 17, 1998.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-6

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-6. Determination of fitness to proceed; effect of finding of unfitness; proceedings if fitness is regained; post-commitment hearing

a. When the issue of the defendant's fitness to proceed is raised, the issue shall be determined by the court. If neither the prosecutor nor counsel for the defendant contests the finding of the report filed pursuant to section 2C:4-5, the court may make the determination on the basis of such report. If the finding is contested or if there is no report, the court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, either party shall have the right to summon and examine the psychiatrists or licensed psychologists who joined in the report and to offer evidence upon the issue.

b. If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in subsection c. of this section. At this time, the court may commit him to the custody of the Commissioner of Human Services to be placed in an appropriate institution if it is found that the defendant is so dangerous to himself or others as to require institutionalization, or it shall proceed to determine whether placement in an outpatient setting or release is appropriate; provided, however, that no commitment to any institution shall be in excess of such period of time during which it can be determined whether it is substantially probable that the defendant could regain his competence within the foreseeable future.

If the court determines that the defendant is fit to proceed, but suffers from mental illness, as defined in section 2 of P.L.1987, c. 116 (C.30:4-27.2), that does not require institutionalization, the court shall order the defendant to be provided appropriate treatment in the jail or prison in which the defendant is incarcerated. Where the defendant is incarcerated in a county correctional facility, the county shall provide or arrange for this treatment. The Department of Corrections shall reimburse the county for the reasonable costs of treatment, as determined by the Commissioner of Corrections, provided that the county has submitted to the commissioner such documentation and verification as the commissioner shall require.

c. If the defendant has not regained his fitness to proceed within three months, the court shall hold a hearing on the issue of whether the charges against him shall be dismissed with prejudice or held in abeyance.

The hearing shall be held only upon notice to the prosecutor and with an opportunity for the prosecutor to be heard. When the charges are not dismissed, each defendant's case shall be specifically reviewed by the court at six-month intervals until an order is made by the court that the defendant stand trial or that the charges be dismissed.

There shall be a presumption that charges against a defendant who is not competent to proceed shall be held in abeyance. The presumption can be overcome only if the court determines, using the factors set forth in this subsection, that continuing the criminal prosecution under the particular circumstances of the case would constitute a constitutionally significant injury to the defendant attributable to undue delay in being brought to trial.

In determining whether the charges shall be held in abeyance or dismissed, the court shall weigh the following factors: the defendant's prospects for regaining competency; the period of time during which the defendant has remained incompetent; the nature and extent of the defendant's institutionalization; the nature and gravity of the crimes charged; the effects of delay on the prosecution; the effects of delay on the defendant, including any likelihood of prejudice to the defendant in the trial arising out of the delay; and the public interest in prosecuting the charges.

d. When the court, on its own motion or upon application of the commissioner, his designee or either party, determines after a hearing, if a hearing is requested, that the defendant has regained fitness to proceed, the proceedings shall be resumed.

e. (Deleted by amendment, P.L.1996, c. 133).

f. The fact that the defendant is unfit to proceed does not preclude determination of any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

CREDIT(S)

L.1978, c. 95, § 2C:4-6, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 13B, eff. Sept. 1, 1979; L.1996, c. 133, § 1, eff. Dec. 5, 1996; L.1997, c. 77, § 2, eff. April 24, 1997; L.1999, c. 16, § 1.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-7

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-7. Disposition

If a defendant is acquitted by reason of insanity the court shall dispose of the case as provided for in section 2C:4-8 of this chapter.

CREDIT(S)

L.1978, c. 95, § 2C:4-7, eff. Sept. 1, 1979.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-8

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-8. Commitment of a person by reason of insanity

a. After acquittal by reason of insanity, the court shall order that the defendant undergo a psychiatric examination by a psychiatrist of the prosecutor's choice. If the examination cannot take place because of the unwillingness of the defendant to participate, the court shall proceed as in section 2C:4-5c. The defendant, pursuant to this section, may also be examined by a psychiatrist of his own choice.

b. The court shall dispose of the defendant in the following manner:

(1) If the court finds that the defendant may be released without danger to the community or himself without supervision, the court shall so release the defendant; or

(2) If the court finds that the defendant may be released without danger to the community or to himself under supervision or under conditions, the court shall so order; or

(3) If the court finds that the defendant cannot be released with or without supervision or conditions without posing a danger to the community or to himself, it shall commit the defendant to a mental health facility approved for this purpose by the Commissioner of Human Services to be treated as a person civilly committed. In all proceedings conducted pursuant to this section and pursuant to section N.J.S. 2C:4-6 concerning a defendant who lacks the fitness to proceed, including any periodic review proceeding, the prosecuting attorney shall have the right to appear and be heard. The defendant's continued commitment, under the law governing civil commitment, shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which the defendant has been acquitted by reason of insanity. Expiration of that maximum period of imprisonment shall be calculated by crediting the defendant with any time spent in confinement for the charge or charges on which the defendant has been acquitted by reason of insanity.

c. No person committed under this section shall be confined within any penal or correctional institution or any part thereof.

CREDIT(S)

L.1978, c. 95, § 2C:4-8, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 15, eff. Sept. 1, 1979; L.1981, c. 290, § 9, eff. Sept. 24, 1981; L.1996, c. 133, § 2, eff. Dec. 5, 1996.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-9

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-9. Release of persons committed by reason of insanity

a. If a person has been committed pursuant to section 2C:4-8 or section 2C:4-6 and if the commissioner, or his designee, or the superintendent of the institution to which the person has been committed, is of the view that a person committed to his custody, pursuant to section 2C:4-8or section 2C:4-6, may be discharged or released on condition without danger to himself or to others, or that he may be transferred to a less restrictive setting for treatment, the commissioner or superintendent shall make application for the discharge or release of such person in a report to the court by which such person was committed and shall transmit a copy of such application and report to the prosecutor, the court, and defense counsel. The court may, in its discretion, appoint at least two qualified psychiatrists, neither of whom may be on the staff of the hospital to which the defendant had been committed, to examine such person and to report within 30 days, or such longer period as the court determines to be necessary for the purpose, their opinion as to his mental condition.

b. The court shall hold a hearing to determine whether the committed person may be safely discharged, released on condition without danger to himself or others, or treated as in civil commitment. The hearing shall be held upon notice to the prosecutor and with the prosecutor's opportunity to be heard. Any such hearing shall be deemed a civil proceeding. According to the determination of the court upon the hearing, the court shall proceed as in section 2C:4-8b. (1), (2) or (3).

c. A committed person may make application for his discharge or release to the court by which he was committed, and the procedure to be followed upon such application shall be the same as that prescribed above in the case of an application by the commissioner.

d. Each defendant's case shall be specifically reviewed as provided by the law governing civil commitment.

CREDIT(S)

L.1978, c. 95, § 2C:4-9, eff. Sept. 1, 1979. Amended by L.1979, c. 178, § 16, eff. Sept. 1, 1979; L.1996, c. 133, § 3, eff. Dec. 5, 1996.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

N.J.S.A. 2C:4-10

Effective:[See Text Amendments]

New Jersey Statutes Annotated Currentness

Title 2C. The New Jersey Code of Criminal Justice (Refs & Annos)

Subtitle 1. General Provisions

Chapter 4. Responsibility (Refs & Annos)

2C:4-10. Statements for purposes of examination or treatment inadmissible except on issue of mental condition

A statement made by a person subjected to psychiatric or psychological examination or treatment pursuant to section 2C:4-5, 2C:4-6 or 2C:4-9 for the purposes of such examination or treatment shall not be admissible in evidence against him in any criminal proceeding on any issue other than that of his mental condition but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication. When such a statement constitutes an admission of guilt of the crime charged or of an element thereof, it shall only be admissible where it appears at trial that conversations with the examining psychiatrist or licensed psychologist were necessary to enable him to form an opinion as to a matter in issue.

CREDIT(S)

L.1978, c. 95, § 2C:4-10, eff. Sept. 1, 1979. Amended by L.1997, c. 77, § 3, eff. April 24, 1997.

Current with laws effective through L.2013, c. 50, 52-59 and J.R. No. 8.

Arizona Revised Statutes Annotated Currentness

Title 13. Criminal Code (Refs & Annos)

Chapter 5. Responsibility (Refs & Annos)

§ 13-502. Insanity test; burden of proof; guilty except insane verdict

A. A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense. Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.

B. In a case involving the death or serious physical injury of or the threat of death or serious physical injury to another person, if a plea of insanity is made and the court determines that a reasonable basis exists to support the plea, the court may commit the defendant to a secure state mental health facility under the department of health services, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility for up to thirty days for mental health evaluation and treatment. Experts at the mental health facility who are licensed pursuant to title 32, [FN1] who are familiar with this state's insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity shall observe and evaluate the defendant. The expert or experts who examine the defendant shall submit a written report of the evaluation to the court, the defendant's attorney and the prosecutor. The court shall order the defendant to pay the costs of the mental health facility to the clerk of the court. The clerk of the court shall transmit the reimbursements to the mental health facility for all of its costs. If the court finds the defendant is indigent or otherwise is unable to pay all or any of the costs, the court shall order the county to reimburse the mental health facility for the remainder of the costs. Notwithstanding § 36-545.02, the mental health facility may maintain the reimbursements. If the court does not commit the defendant to a secure state mental health facility, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility, the court shall appoint an independent expert who is licensed pursuant to title 32, who is familiar with this state's insanity statutes, who is a specialist in mental diseases and defects and who is knowledgeable concerning insanity to observe and evaluate the defendant. The expert who examines the defendant shall submit a written report of the evaluation to the court, the defendant's attorney and the prosecutor. The court shall order the defendant to pay the costs of the services of the independent expert to the clerk of the court. The clerk of the court shall transmit the reimbursements to the expert. If the court finds the defendant is indigent or otherwise unable to pay all or any of the costs, the court shall order the county to reimburse the expert for the remainder of the costs. This subsection does not prohibit the defendant or this state from obtaining additional psychiatric examinations by other mental health experts who are licensed pursuant to title 32, who are familiar with this state's insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity.

C. The defendant shall prove the defendant's legal insanity by clear and convincing evidence.

D. If the finder of fact finds the defendant guilty except insane, the court shall determine the sentence the defendant could have received pursuant to § 13-707 or § 13-751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13-702, § 13-703, § 13-704, § 13-705, § 13-706, subsection A, § 13-710 or § 13-1406 if the defendant had not been found insane, and the judge shall sentence the defendant to a term of incarceration in the state department of corrections and shall order the defendant to be placed under the jurisdiction of the psychiatric security review board and committed to a state mental health facility under the department of health services pursuant to § 13-3994 for that term. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13-703 or 13-704. The court shall expressly identify each act that the defendant committed and separately find whether each act involved the death or physical injury of or a substantial threat of death or physical injury to another person.

E. A guilty except insane verdict is not a criminal conviction for sentencing enhancement purposes under section 13-703 or 13-704.

CREDIT(S)

Added by Laws 1993, Ch. 256, § 3, eff. Jan. 2, 1994. Amended by Laws 1996, Ch. 173, § 1; Laws 2007, Ch. 138, § 1; Laws 2008, Ch. 301, § 14, eff. Jan. 1, 2009.

[FN1] Section 32-101 et seq.

<Title 13, the revised Criminal Code, consisting of Chapters 1 to 33, 35, 35.1, and 36 to 38, was adopted by Laws 1977, Ch. 142, §§ 1 to 178, effective October 1, 1978, Laws 1978, Ch. 200, § 3, effective October 1, 1978, and Laws 1978, Ch. 215, § 3, effective October 1, 1978.>

Current through legislation effective May 7, 2013 of the First Regular Session of the Fifty-first Legislature (2013)

West's Annotated Indiana Code Currentness

Title 35. Criminal Law and Procedure

Article 41. Substantive Criminal Provisions (Refs & Annos)

Chapter 3. Defenses Relating to Culpability (Refs & Annos)

35-41-3-6 Mental disease or defect

Sec. 6. (a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.

(b) As used in this section, “mental disease or defect” means a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

CREDIT(S)

As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.11; P.L.184-1984, SEC.1.

West's Tennessee Code Annotated Currentness

Title 39. Criminal Offenses

Chapter 11. General Provisions

Part 5. General Defenses

§ 39-11-501. Insanity

(a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

(b) As used in this section, mental disease or defect does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

CREDIT(S)

1989 Pub.Acts, c. 591, § 1; 1995 Pub.Acts, c. 494, § 1, eff. July 1, 1995.

Current with laws from the 2013 First Reg. Sess., eff. through April 16, 2013

West's Colorado Revised Statutes Annotated Currentness

Title 18. Criminal Code (Refs & Annos)

Code of Alabama Currentness

Title 13A. Criminal Code. (Refs & Annos)

Chapter 3. Defenses.

Article 1. . Responsibility.

§ 13A-3-1. Mental disease or defect.

(a) It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) “Severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

CREDIT(S)

(Acts 1977, No. 607, p. 812, § 501; Acts 1988, No. 88-654, p. 1051, § 2.)

Current through Act 2013-172 of the 2013 Regular Session.

West's Louisiana Statutes Annotated Currentness

Louisiana Revised Statutes

Title 14. Criminal Law

Chapter 1. Criminal Code (Refs & Annos)

Part I. General Provisions

Subpart C. Culpability

§ 14. Insanity

Current through the 2012 Regular Session.

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.295. Mental disease or defect

(1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(2) As used in chapter 743, Oregon Laws 1971, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.

CREDIT(S)

Laws 1971, c. 743, § 36; Laws 1983, c. 800, § 1.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.300

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.300. Admissibility of evidence of mental disease or defect

Evidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime.

CREDIT(S)

Laws 1971, c. 743, § 37.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.305

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.305. Mental disease or defect; affirmative defense

Mental disease or defect constituting insanity under ORS 161.295 is an affirmative defense.

CREDIT(S)

Laws 1971, c. 743, § 38; Laws 1983, c. 800, § 2.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.309

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.309. Evidence of insanity; notice; filing of report; plea of guilty except for insanity

(1) The defendant may not introduce evidence on the issue of insanity under ORS 161.295, unless the defendant:

(a) Gives notice of intent to do so in the manner provided in subsection (3) of this section; and

(b) Files with the court a report of a psychiatric or psychological evaluation, conducted by a certified evaluator, in the manner provided in subsection (4) of this section.

(2) The defendant may not introduce in the case in chief expert testimony regarding partial responsibility or diminished capacity under ORS 161.300 unless the defendant gives notice of intent to do so in the manner provided in subsection (3) of this section.

(3) A defendant who is required under subsection (1) or (2) of this section to give notice shall file a written notice of purpose at the time the defendant pleads not guilty. The defendant may file the notice at any time after the plea but before trial when just cause for failure to file the notice at the time of making the plea is shown. If the defendant fails to file notice, the defendant may not introduce evidence for the establishment of a defense under ORS 161.295 or 161.300 unless the court, in its discretion, permits the evidence to be introduced where just cause for failure to file the notice is shown.

(4) A defendant who is required under subsection (1) of this section to file a report of a psychiatric or psychological evaluation shall file the report before trial. The report must be based on an evaluation conducted after the date of the alleged offense and must address the issue of insanity under ORS 161.295 and the dispositional determination described in ORS 161.325. If the defendant fails to file a complete report before trial, the defendant may not introduce evidence for the establishment of a defense under ORS 161.295 unless:

(a) The court, in its discretion, permits the evidence to be introduced when just cause for failure to file the report is shown; and

(b) If the defendant is charged with a felony, the defendant is tried by a jury.

(5)(a) A court may not accept a plea of guilty except for insanity to a felony unless a report described in subsection (4) of this section is filed with the court. If the report has not been filed, the court may order that a psychiatric or psychological evaluation of the defendant be conducted by a certified evaluator and a report of the evaluation be filed with the court.

(b) When the court orders an evaluation of a financially eligible person under this subsection, the court shall order the public defense services executive director to pay a reasonable fee for the evaluation from funds available for that purpose.

(6) As used in this section, “certified evaluator” means a psychiatrist or psychologist who holds a valid certification under the provisions of ORS 161.392.

CREDIT(S)

Laws 1971, c. 743, §§ 39, 40, 41; Laws 1983, c. 800, § 3; Laws 2003, c. 127, § 2; Laws 2011, c. 724, § 1, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.310

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.310. Repealed by Laws 1971, c. 743, § 432

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.313

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.313. Jury instructions; determination of insanity

When the issue of insanity under ORS 161.295 is submitted to be determined by a jury in the trial court, the court shall instruct the jury in accordance with ORS 161.327.

CREDIT(S)

Laws 1983, c. 800, § 16.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.315

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.315. Mental examination of defendant

Upon filing of notice or the introduction of evidence by the defendant as provided in ORS 161.309, the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined. Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state institution or any other suitable facility, if the defendant is 18 years of age or older, for observation and examination as the court may designate for a period not to exceed 30 days. If the defendant is  under 18 years of age, upon filing of the notice, the court, in its discretion, may order the defendant committed to a secure intensive community inpatient facility designated by the Oregon Health Authority for observation and examination as the court may designate for a period not to exceed 30 days. If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner.

CREDIT(S)

Laws 1971, c. 743, § 42; Laws 1977, c. 380, § 3; Laws 2007, c. 14, § 5, eff. March 29, 2007; Laws 2009, c. 595, § 101, eff. June 26, 2009; Laws 2011, c. 724, § 10, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.319

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.319. Guilty except for insanity; verdict and judgment

When the defendant is found guilty except for insanity under ORS 161.295, the verdict and judgment shall so state.

CREDIT(S)

Laws 1971, c. 743, § 43; Laws 1977, c. 380, § 4; Laws 1983, c. 800, § 4.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.320

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.320. Repealed by Laws 1971, c. 743, § 432

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.325

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.325. Entry of judgment of guilty except for insanity

(1) After entry of judgment of guilty except for insanity, the court shall, on the basis of the evidence given at the trial or at a separate hearing, if requested by either party, enter an order as provided in ORS 161.327, 161.328 or 161.329, whichever is appropriate.

(2) If the court enters an order as provided in ORS 161.327, it shall also:

(a) Determine on the record the offense of which the person otherwise would have been convicted;

(b) State on the record the mental disease or defect on which the defendant relied for the guilty except for insanity defense; and

(c) Make specific findings on whether there is a victim of the crime for which the defendant has been found guilty except for insanity and, if so, whether the victim wishes to be notified, under ORS 161.326, of any hearings and orders concerning the defendant and of any conditional release, discharge or escape of the defendant.

(3) The court shall include any such findings in its order.

(4) Except under circumstances described in ORS 137.076 (4), whenever a defendant charged with any offense listed in ORS 137.076 (1) has been found guilty of that offense except for insanity, the court shall, in any order entered under ORS 161.327 or 161.329, direct the defendant to submit to the obtaining of a blood or buccal sample in the manner provided in ORS 137.076.

CREDIT(S)

Laws 1971, c. 743, § 44; Laws 1977, c. 380, § 5; Laws 1979, c. 885, § 1; Laws 1981, c. 711, § 1; Laws 1983, c. 800, § 5; Laws 1991, c. 669, § 8; Laws 1999, c. 97, § 2; Laws 2005, c. 337, § 1; Laws 2010, c. 89 (1st Sp. Sess.), § 9, eff. May 22, 2010; Laws 2011, c. 724, § 2, eff. Aug. 5, 2011, operative Jan. 1, 2012; Laws 2011, c. 708, § 40, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.326

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.326. Notification rights of crime victim; request for reconsideration

(1) If the trial court, the Psychiatric Security Review Board or the Oregon Health Authority determines that a victim desires notification as described in ORS 161.325 (2), the agency having jurisdiction over the person shall make a reasonable effort to notify the victim of hearings and orders, conditional release, discharge or escape. Nothing in this subsection authorizes the agency to disseminate information that is otherwise privileged by law.

(2) When the agency conducts a hearing involving a person found guilty except for insanity of a crime for which there is a victim, the agency shall afford the victim an opportunity to be heard, either orally or in writing, at the hearing.

(3)(a) If the agency fails to make a reasonable effort to notify the victim of a hearing under subsection (1) of this section or fails to afford the victim an opportunity to be heard at the hearing under subsection (2) of this section, the victim may request that the agency reconsider the order of the agency.

(b) If the agency determines that the agency failed to make a reasonable effort to notify the victim or failed to afford the victim an opportunity to be heard, except as provided in paragraph (c) of this subsection, the agency shall grant the request for reconsideration. Upon reconsideration, the agency shall consider the statement of the victim and may consider any other information that was not available to the agency at the previous hearing.

(c) The agency may not grant a request for reconsideration that is made:

(A) After the person has been discharged from the jurisdiction of the board and the authority;

(B) After the board or the authority has held a subsequent hearing involving the person; or

(C) If the agency failed to make a reasonable effort to notify the victim of a hearing, more than 30 days after the victim knew or reasonably should have known of the hearing.

CREDIT(S)

Laws 1981, c. 711, § 9; Laws 2010, c. 89 (1st Sp. Sess.), § 6, eff. May 22, 2010; Laws 2011, c. 708, § 6, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.327

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.327. Jurisdiction given to Psychiatric Security Review Board or Oregon Health Authority

(1) Following the entry of a judgment pursuant to ORS 161.319, if the court finds by a preponderance of the evidence that a person found guilty except for insanity of a felony is affected by mental disease or defect and presents a substantial danger to others, the court shall enter an order as follows:

(a) If the court finds that the person is not a proper subject for conditional release, the court shall order the person committed to a state hospital or, if the person is under 18 years of age, to a secure intensive community inpatient facility for custody, care and treatment. When the court orders a person committed under this paragraph, the court shall place the person under the jurisdiction of:

(A) The Psychiatric Security Review Board, if the person is a tier one offender.

(B) The Oregon Health Authority, if the person is a tier two offender.

(b) If the court finds that the person can be adequately controlled with supervision and treatment if conditionally released and that necessary supervision and treatment are available, the court shall order the person conditionally released.

(2) When a person is conditionally released under this section, the person is subject to those supervisory orders of the court as are in the best interests of justice, the protection of society and the welfare of the person. The court shall designate a person or state, county or local agency to supervise the person upon release, subject to those conditions as the court directs in the order for conditional release. Prior to the designation, the court shall notify the person or agency to whom conditional release is contemplated and provide the person or agency an opportunity to be heard before the court. After receiving an order entered under subsection (1)(b) of this section, the person or agency designated shall assume supervision of the person pursuant to the direction of the Psychiatric Security Review Board. The person or agency designated as supervisor shall be required to report in writing no less than once per month to the board concerning the supervised person's compliance with the conditions of release.

(3) In determining whether a person should be conditionally released, the court:

(a) May order evaluations, examinations and compliance as provided in ORS 161.336 (4) and 161.346 (2);

(b) Shall order that the person be examined by a local mental health program designated by the board and a report of the examination be provided to the court if each felony for which the defendant was found guilty except for insanity is a Class C felony; and

(c) Shall have as its primary concern the protection of society.

(4) Upon placing a person on conditional release, the court shall notify the board in writing of the court's conditional release order, the supervisor appointed, and all other conditions of release, and the person shall be on conditional release pending hearing before the board. Upon compliance with this section, the court's jurisdiction over the person is terminated.

(5) The total period of commitment or conditional release under ORS 161.315 to 161.351 may not exceed the maximum sentence provided by statute for the crime for which the person was found guilty except for insanity.

(6) An order of the court under this section is a final order appealable by the person found guilty except for insanity in accordance with ORS 19.205 (5). Notwithstanding ORS 19.255, notice of an appeal under this section shall be served and filed within 90 days after the order appealed from is entered in the register. The person shall be entitled on appeal to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is financially eligible, suitable counsel shall be appointed in the manner provided in ORS 138.500 (1), and the compensation for counsel and costs and expenses of the person necessary to the appeal shall be determined and paid as provided in ORS 138.500.

(7) Following the entry of an order described in subsection (1) of this section, the court shall notify the person of the right to appeal and the right to a hearing before the agency exercising jurisdiction over the person in accordance with ORS 161.336 (5) and 161.341 (3).

CREDIT(S)

Laws 1979, c. 867, § 5; Laws 1979, c. 885, § 2; Laws 1981, c. 711, § 2; Laws 1981, Sp. Sess., c. 3, § 129; Laws 1983, c. 800, § 6; Laws 1989, c. 790, § 48; Laws 1995, c. 208, § 1; Laws 2001, c. 962, § 89. Laws 2003, c. 576, §§ 578, 579; Laws 2005, c. 685, §§ 1, 1a; Laws 2009, c. 595, § 102, eff. June 26, 2009; Laws 2011, c. 724, § 3, eff. Aug. 5, 2011, operative Jan. 1, 2012; Laws 2011, c. 708, § 36, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.328

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.328. Commitment to state mental hospital or other facility designated by Oregon Health Authority

(1) Following the entry of a judgment pursuant to ORS 161.319, the court shall order a person committed to a state mental hospital or other facility designated by the Oregon Health Authority if:

(a) Each offense for which the person is found guilty except for insanity is a misdemeanor; and

(b) The court finds that the person is affected by mental disease or defect and presents a substantial danger to others that requires commitment.

(2) The total period of commitment under this section may not exceed the maximum sentence provided by statute for the crime for which the person was found guilty except for insanity.

(3) If the superintendent of the state mental hospital or the director of the facility to which the person is committed determines that a person committed under this section is no longer affected by mental disease or defect or, if so affected, no longer presents a substantial danger to others that requires commitment, the superintendent or director shall file notice of that determination with the committing court. Upon filing of the notice, the superintendent or director shall discharge the person from custody.

CREDIT(S)

Laws 1981, c. 711, § 3; Laws 1983, c. 800, § 7; Laws 1987, c. 903, § 36; Laws 1995, c. 529, § 1; Laws 2011, c. 724, § 4, eff. Aug. 5, 2011, operative Jan. 1, 2012; Laws 2011, c. 708, § 37, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.329

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.329. Discharge from custody

Following the entry of a judgment pursuant to ORS 161.319, the court shall order that the person be discharged from custody if:

(1) The court finds that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others and is not in need of care, supervision or treatment; or

(2)(a) Each offense for which the person is found guilty except for insanity is a misdemeanor; and

(b) The court finds that the person does not present a substantial danger to others that requires commitment.

CREDIT(S)

Laws 1971, c. 743, § 45; Laws 1977, c. 380, § 6; Laws 1981, c. 711, § 4; Laws 2011, c. 724, § 5, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.330

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.330. Repealed by Laws 1971, c. 743, § 432

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.332

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.332. Definitions

As used in ORS 161.315 to 161.351 and 161.385 to 161.395:

(1) “Conditional release” includes, but is not limited to, the monitoring of mental and physical health treatment.

(2) “Tier one offender” means a person who has been found guilty except for insanity of a tier one offense.

(3) “Tier one offense” means:

(a) Aggravated murder as defined in ORS 163.095;

(b) Attempt or conspiracy to commit aggravated murder as defined in ORS 163.095;

(c) Murder as defined in ORS 163.115;

(d) Attempt or conspiracy to commit murder as defined in ORS 163.115;

(e) Manslaughter in the first degree as defined in ORS 163.118;

(f) Manslaughter in the second degree as defined in ORS 163.125;

(g) Assault in the first degree as defined in ORS 163.185;

(h) Assault in the second degree as defined in ORS 163.175;

(i) Kidnapping in the first degree as defined in ORS 163.235;

(j) Kidnapping in the second degree as defined in ORS 163.225;

(k) Rape in the first degree as defined ORS 163.375;

(L) Rape in the second degree as defined in ORS 163.365;

(m) Sodomy in the first degree as defined in ORS 163.405;

(n) Sodomy in the second degree as defined in ORS 163.395;

(o) Unlawful sexual penetration in the first degree as defined ORS 163.411;

(p) Unlawful sexual penetration in the second degree as defined ORS 163.408;

(q) Sexual abuse in the first degree as defined in ORS 163.427;

(r) Robbery in the first degree as defined in ORS 164.415;

(s) Robbery in the second degree as defined in ORS 164.405;

(t) Arson in the first degree as defined in ORS 164.325;

(u) Using a child in a display of sexually explicit conduct as defined in ORS 163.670;

(v) Compelling prostitution as defined in ORS 167.017; or

(w) Aggravated vehicular homicide as defined in ORS 163.149.

(4) “Tier two offender” means a person who has been found guilty except for insanity only of offenses that are not tier one offenses.

CREDIT(S)

Laws 1977, c. 380, § 1; Laws 1983, c. 800, § 8; Laws 2011, c. 708, § 11a, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.335

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.335. Laws 1971, c. 743, § 46; Laws 1973, c. 137, § 1; Laws 1975, c. 380, § 1; repealed by Laws 1977, c. 380, § 10 (161.336 enacted in lieu of 161.335)

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.336

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.336. Conditional release

(1)(a) When a person is conditionally released under ORS 161.315 to 161.351, the person is subject to those supervisory orders of the Psychiatric Security Review Board as are in the best interests of justice, the protection of society and the welfare of the person.

(b) An order of conditional release entered by the board or the Oregon Health Authority may designate any person or state, county or local agency capable of supervising the person upon release, subject to the conditions described in the order of conditional release.

(c) Prior to the designation, the agency conducting the hearing shall notify the person or state, county or local agency to whom conditional release is contemplated and provide the person or state, county or local agency an opportunity to be heard.

(d) After receiving an order entered under this section, the person or state, county or local agency designated in the order shall assume supervision of the person in accordance with the conditions described in the order and any modifications of the conditions ordered by the board.

(2) Conditions of release contained in orders entered under this section may be modified from time to time and conditional releases may be terminated as provided in ORS 161.351.

(3)(a) As a condition of release, the person may be required to report to any state or local mental health facility for evaluation. Whenever medical, psychiatric or psychological treatment is recommended, the order may require the person, as a condition of release, to cooperate with and accept the treatment from the facility.

(b) The facility to which the person has been referred for evaluation shall perform the evaluation and submit a written report of its findings to the board. If the facility finds that treatment of the person is appropriate, it shall include its recommendations for treatment in the report to the board.

(c) Whenever treatment is provided by the facility, it shall furnish reports to the board on a regular basis concerning the progress of the person.

(d) Copies of all reports submitted to the board pursuant to this section shall be furnished to the person and the person's counsel. The confidentiality of these reports is determined pursuant to ORS 192.501 to 192.505.

(e) The facility shall comply with the conditional release order and any modifications of the conditions ordered by the board.

(4)(a) If at any time while the person is under the jurisdiction of the board it appears to the board or its chairperson that the person has violated the terms of the conditional release or that the mental health of the individual has changed, the board or its chairperson may order the person returned for evaluation or treatment to a state hospital or, if the person is under 18 years of age, to a secure intensive community inpatient facility. A written order of the board, or its chairperson on behalf of the board, is sufficient warrant for any law enforcement officer to take into custody such person and transport the  person accordingly. A sheriff, municipal police officer, constable, parole and probation officer, prison official or other peace officer shall execute the order, and the person shall be returned as soon as practicable to the state hospital or secure intensive community inpatient facility designated in the order.

(b) The community mental health program director, the director of the facility providing treatment to a person on conditional release, any peace officer or any person responsible for the supervision of a person on conditional release may take a person on conditional release into custody or request that the person be taken into custody if there is reasonable cause to believe the person is a substantial danger to others because of mental disease or defect and that the person is in need of immediate care, custody or treatment. Any person taken into custody pursuant to this subsection shall be transported as soon as practicable to a state hospital or, if the person is under 18 years of age, to a secure intensive community inpatient facility.

(c) Within 20 days following the return of the person to a state hospital or secure intensive community inpatient facility under this subsection, the agency having jurisdiction over the person shall conduct a hearing. The agency shall provide notice of the hearing to the person, the attorney representing the person and the Attorney General. The state must prove by a preponderance of the evidence the person's unfitness for conditional release. The hearing shall be conducted in accordance with ORS 161.346.

(5)(a) Any person conditionally released under this section may apply to the board for discharge from or modification of an order of conditional release on the ground that the person is no longer affected by mental disease or defect or, if still so affected, no longer presents a substantial danger to others and no longer requires supervision, medication, care or treatment. Notice of the hearing on an application for discharge or modification of an order of conditional release shall be made to the Attorney General. The applicant, at the hearing pursuant to this subsection, must prove by a preponderance of the evidence the applicant's fitness for discharge or modification of the order of conditional release. Applications by the person for discharge or modification of conditional release may not be filed more often than once every six months.

(b) Upon application by any person or agency responsible for supervision or treatment pursuant to an order of conditional release, the board shall conduct a hearing to determine if the conditions of release shall be continued, modified or terminated. The application shall be accompanied by a report setting forth the facts supporting the application.

(6) A person who has spent five years on conditional release shall be brought before the board for hearing within 30 days before the expiration of the five-year period. The board shall review the person's status and determine whether the person should be discharged from the jurisdiction of the board.

CREDIT(S)

Laws 1977, c. 380, § 11 (enacted in lieu of 161.335); Laws 1979, c. 885, § 3; Laws 1981, c. 711, § 5; Laws 1983, c. 800, § 9; Laws 1987, c. 140, § 1; Laws 1989, c. 790, § 49; Laws 2001, c. 326, § 1; Laws 2005, c. 264, § 14, eff. June 20, 2005; Laws 2005, c. 685, § 2, eff. Aug. 2, 2005; Laws 2009, c. 595, § 103, eff. June 26, 2009; Laws 2011, c. 708, § 2, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.340

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.340. Laws 1971, c. 743, § 47; Laws 1975, c. 380, § 2; repealed by Laws 1977, c. 380, § 12 (161.341 enacted in lieu of 161.340)

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.341

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.341. Commitment; discharge or conditional release

(1) If at any time after a person is committed under ORS 161.315 to 161.351 to a state hospital or a secure intensive community inpatient facility, the superintendent of the hospital or the director of the secure intensive community inpatient facility is of the opinion that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others or that the person continues to be affected by mental disease or defect and continues to be a danger to others, but that the person can be controlled with proper care, medication, supervision and treatment if conditionally released, the superintendent or director shall apply to the agency having jurisdiction over the person for an order of discharge or conditional release. The application shall be accompanied by a report setting forth the facts supporting the opinion of the superintendent or director. If the application is for conditional release, the application must be accompanied by a verified conditional release plan. The agency shall hold a hearing on the application within 60 days of its receipt. Not less than 20 days prior to the hearing before the agency, copies of the report shall be sent to the Attorney General.

(2) The attorney representing the state may choose a psychiatrist or licensed psychologist to examine the person prior to the initial or any later decision by the agency having jurisdiction over the person on discharge or conditional release. The results of the examination shall be in writing and filed with the agency, and shall include, but need not be limited to, an opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled with treatment as a condition of release.

(3) Any person who has been committed to a state hospital, or to a secure intensive community inpatient facility, for custody, care and treatment under ORS 161.315 to 161.351, or another person acting on the person's behalf, may apply to the agency having jurisdiction over the person for an order of discharge or conditional release upon the grounds:

(a) That the person is no longer affected by mental disease or defect;

(b) That the person, if so affected, no longer presents a substantial danger to others; or

(c) That the person continues to be affected by a mental disease or defect and would continue to be a danger to others without treatment, but that the person can be adequately controlled and given proper care and treatment if placed on conditional release.

(4) When application is made under subsection (3) of this section, the agency having jurisdiction over the person shall require that a report from the superintendent of the hospital or the director of the secure intensive community inpatient facility be prepared and transmitted as provided in subsection (1) of this section. The applicant must prove by a preponderance of the evidence the applicant's fitness for discharge or conditional release under the standards of subsection (3) of this section, unless more than two years has passed since the state had the burden of proof on that issue, in which case the state shall have the burden of proving by a preponderance of the evidence the applicant's lack of fitness for discharge or conditional release. Applications for discharge or conditional release under subsection (3) of this section may not be filed more often than once every six months commencing with the date of the initial agency hearing.

(5) The agency having jurisdiction over the person is not required to hold a hearing on a first application under subsection (3) of this section any sooner than 90 days after the initial hearing. Hearings resulting from any subsequent requests shall be held within 60 days of the filing of the application.

(6)(a) In no case shall a person committed by the court under ORS 161.327 to a state hospital, or to a secure intensive community inpatient facility, be held in the hospital or facility for more than 90 days from the date of the court's commitment order without an initial hearing before the agency having jurisdiction over the person to determine whether the person should be conditionally released or discharged.

(b) In no case shall a person be held pursuant to this section for a period of time exceeding two years without a hearing before the agency to determine whether the person should be conditionally released or discharged.

CREDIT(S)

Laws 1977, c. 380, § 13 (enacted in lieu of 161.340); Laws 1979, c. 885, § 4; Laws 1981, c. 711, § 6; Laws 1983, c. 800, § 10; Laws 1985, c. 192, § 3; Laws 1989, c. 790, § 50; Laws 1991, c. 244, § 1; Laws 2005, c. 685, § 3, eff. Aug. 2, 2005; Laws 2009, c. 595, § 104, eff. June 26, 2009; Laws 2011, c. 708, § 3, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.345

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.345. Laws 1971, c. 743, § 48; repealed by Laws 1977, c. 380, § 14 (161.346 enacted in lieu of 161.345)

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.346

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.346. Hearings

(1) When the Psychiatric Security Review Board or the Oregon Health Authority conducts a hearing under ORS 161.315 to 161.351, the agency conducting the hearing shall enter an order and make findings in support of the order. If the agency finds that a person under the jurisdiction of the agency:

(a) Is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others, the agency shall order the person discharged from commitment and conditional release.

(b) Is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the agency shall order the person conditionally released as provided in ORS 161.336.

(c) Has not recovered from the mental disease or defect, is a substantial danger to others and cannot adequately be controlled if conditionally released on supervision, the agency shall order the person committed to, or retained in, a state hospital, or if the person is under 18 years of age, a secure intensive community inpatient facility, for care, custody and treatment.

(2)(a) Except as otherwise provided in ORS 161.349, the Psychiatric Security Review Board shall exercise exclusive jurisdiction over a tier one offender until the board discharges the person from the jurisdiction of the board or the maximum  period of jurisdiction expires.

(b) When the board orders a tier two offender committed to a state hospital, or a secure intensive community inpatient facility, under ORS 161.315 to 161.351, the order shall transfer jurisdiction over the person to the Oregon Health Authority.

(c) When the authority orders a tier two offender conditionally released under ORS 161.315 to 161.351, the order shall transfer jurisdiction over the person to the board.

(d) The authority shall assume jurisdiction over a tier two offender when the person is returned to a state hospital, or to a secure intensive community inpatient facility, under ORS 161.336 (4).

(3) To assist the agency in making the determination described in subsection (1) of this section, the agency exercising jurisdiction over the person may, at any time, appoint a psychiatrist or licensed psychologist to examine the person and to submit a report to the agency. The report must include an opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled with treatment as a condition of release.

(4) The agency exercising jurisdiction over the person may make the determination regarding discharge or conditional release based upon the written reports submitted pursuant to this section. If the authority or any member of the board desires further information from the examining psychiatrist or licensed psychologist who submitted the report, the agency shall summon the person to give testimony. The agency shall consider all evidence available to it that is material, relevant and reliable regarding the issues before the agency. The evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person's mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at hearings. Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to witnesses.

(5) The agency exercising jurisdiction over the person shall furnish to the person about whom the hearing is being conducted, the attorney representing the person, the Attorney General, the district attorney and the court or department of the county from which the person was committed written notice of any hearing pending under this section within a reasonable time prior to the hearing. The notice shall include:

(a) The time, place and location of the hearing.

(b) The nature of the hearing and the specific action for which a hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved.

(c) A statement of the legal authority and jurisdiction under which the hearing is to be held.

(d) A statement of all rights under subsection (7) of this section.

(6) Prior to the commencement of the hearing, the agency shall serve personally or by mail a written notice to each party as provided in ORS 183.413 (2).

(7) At the hearing, the person about whom the hearing is being held shall have the right:

(a) To appear at all proceedings held pursuant to this section, except for deliberations.

(b) To cross-examine all witnesses appearing to testify at the hearing.

(c) To subpoena witnesses and documents as provided in ORS 161.395.

(d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if financially eligible, to have suitable counsel appointed at state expense.

(e) To examine all information, documents and reports that the agency considers. If then available to the agency, the information, documents and reports shall be disclosed to the person so as to allow examination prior to the hearing.

(8) A record shall be kept of all hearings conducted under ORS 161.315 to 161.351, except for deliberations.

(9) Upon request of any party, or on motion of the agency conducting the hearing, the hearing may be continued for a reasonable period not to exceed 60 days to obtain additional information or testimony or for other good cause shown.

(10) Within 15 days following the conclusion of the hearing, the agency shall provide to the person, the attorney representing the person, the Attorney General or other attorney representing the state, if any, written notice of the order entered by the agency.

(11) The burden of proof on all issues at hearings under ORS 161.315 to 161.351 shall be by a preponderance of the evidence.

(12) If the agency conducting the hearing determines that the person about whom the hearing is being held is financially eligible, the agency shall appoint suitable counsel to represent the person. Counsel so appointed shall be an attorney who satisfies the professional qualifications established by the Public Defense Services Commission under ORS 151.216. The public defense services executive director shall determine and allow fair compensation for counsel appointed under this subsection and the reasonable expenses of the person in respect to the hearing. Compensation payable to appointed counsel shall not be less than the applicable compensation level established under ORS 151.216. The compensation and expenses so allowed shall be paid by the public defense services executive director from funds available for the purpose.

(13) The Attorney General may represent the state at contested hearings under ORS 161.315 to 161.351 unless the district attorney of the county from which the person was committed elects to represent the state. The district attorney of the county from which the person was committed shall cooperate with the Attorney General in securing the material necessary for presenting a contested hearing. If the district attorney elects to represent the state, the district attorney shall give timely written notice of such election to the Attorney General, the agency conducting the hearing and the attorney representing the person.

CREDIT(S)

Laws 1977, c. 380, § 15 (enacted in lieu of 161.345); Laws 1979, c. 867, § 6; Laws 1979, c. 885, § 5; Laws 1981, c. 711, § 7; Laws 1981, Sp. Sess. c. 3, § 130; Laws 1983, c. 430, § 1; Laws 1985, c. 502, § 23; Laws 1987, c. 803, § 19; Laws 1991, c. 827, § 3; Laws 2001, c. 962, § 40; Laws 2003, c. 449, § 32, eff. July 1, 2003; Laws 2005, c. 685, § 4, eff. Aug. 2, 2005; Laws 2007, c. 288, § 7, eff. Jan. 1, 2008; Laws 2009, c. 595, § 105, eff. June 26, 2009; Laws 2011, c. 708, § 1, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.348

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.348. Judicial review of orders

(1) When a person over whom the Psychiatric Security Review Board or the Oregon Health Authority exercises jurisdiction under ORS 161.315 to 161.351 or 419C.544 is adversely affected or aggrieved by a final order of the board or authority, the person is entitled to judicial review of the final order. The person is entitled on judicial review to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is financially eligible, suitable counsel shall be appointed by the reviewing court in the manner provided in ORS 138.500 (1). If the person is financially eligible, the public defense services executive director shall determine and pay, as provided in ORS 138.500, the cost of briefs, any other expenses of the person necessary to the review and compensation for counsel appointed for the person. The costs, expenses and compensation so allowed shall be paid as provided in ORS 138.500.

(2) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. The agency that conducted the hearing shall submit to the court the record of the proceeding or, if the person agrees, a shortened record. The record may include a certified true copy of a tape recording of the proceedings at a hearing in accordance with ORS 161.346. A copy of the record transmitted shall be delivered to the person by the agency.

(3) The court may affirm, reverse or remand the order on the same basis as provided in ORS 183.482 (8).

(4) The filing of the petition does not stay the order of the agency, but the agency or the Court of Appeals may order a stay upon application on such terms as are deemed proper.

CREDIT(S)

Added by Laws 2011, c. 708, § 9, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.349

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.349. Person committed to state hospital or secure community inpatient facility; sentencing to term of incarceration; stay; delivery to Department of Corrections or supervisory authority; jurisdiction

(1) When a person who is committed to a state hospital or a secure intensive community inpatient facility under ORS 161.315 to 161.351 is convicted of a crime and sentenced to a term of incarceration and when the person is sentenced to a term of incarceration as a sanction for violating the conditions of probation, parole or post-prison supervision, the sentencing court shall stay execution of the sentence pending the conditional release or discharge of the person or the expiration of the period of time described in ORS 161.327 (5). When the person is conditionally released or discharged by the agency having jurisdiction over the person under ORS 161.315 to 161.351, or when the maximum period of jurisdiction described in ORS 161.327 (5) expires, the stay shall be lifted by operation of law and the person shall be delivered to the custody of the Department of Corrections or the supervisory authority to begin service of the sentence imposed.

(2) When a person described in subsection (1) of this section is delivered to the custody of the department or the supervisory authority as described in this section, the agency having jurisdiction over the person while the person was committed to a state hospital or a secure intensive community inpatient facility shall notify the department or the supervisory authority when the period of time described in ORS 161.327 (5) will expire.

(3) The department or supervisory authority shall notify the Psychiatric Security Review Board when the person has served the term of incarceration imposed by the court and the board shall resume exercising active jurisdiction over the person in accordance with ORS 161.315 to 161.351.

(4) As used in this section, “supervisory authority” has the meaning given that term in ORS 144.087.

CREDIT(S)

Added by Laws 2011, c. 708, § 15, eff. Aug. 2, 2011, operative Jan. 1, 2012. Amended by Laws 2011, c. 708, § 39, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.350

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.350. Laws 1971, c. 743, § 49; Laws 1975, c. 380, § 3; repealed by Laws 1977, c. 380, § 16 (161.351 enacted in lieu of 161.350)

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.351

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.351. Discharge; primary concern

(1) Any person placed under the jurisdiction of the Psychiatric Security Review Board or the Oregon Health Authority under ORS 161.315 to 161.351 shall be discharged at such time as the agency having jurisdiction over the person, upon a hearing, finds by a preponderance of the evidence that the person is no longer affected by mental disease or defect or, if so affected, no longer presents a substantial danger to others that requires regular medical care, medication, supervision or treatment.

(2) For purposes of ORS 161.315 to 161.351, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect. A person whose mental disease or defect may, with reasonable medical probability, occasionally become active and when it becomes active will render the person a danger to others may not be discharged. The person shall continue under supervision and treatment necessary to protect the person and others.

(3) In determining whether a person should be committed to a state hospital or secure intensive community inpatient facility, conditionally released or discharged, the board and the authority shall have as their primary concern the protection of society.

CREDIT(S)

Laws 1977, c. 380, § 17 (enacted in lieu of 161.350); Laws 1981, c. 711, § 13; Laws 1985, c. 192, § 4; Laws 1989, c. 49, § 1; Laws 2011, c. 708, § 4, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.360

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.360. Fitness to proceed; mental disease or defect

(1) If, before or during the trial in any criminal case, the court has reason to doubt the defendant's fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365.

(2) A defendant may be found incapacitated if, as a result of mental disease or defect, the defendant is unable:

(a) To understand the nature of the proceedings against the defendant; or

(b) To assist and cooperate with the counsel of the defendant; or

(c) To participate in the defense of the defendant.

CREDIT(S)

Laws 1971, c. 743, § 50; Laws 1993, c. 238, § 1.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.365

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.365. Fitness to proceed; examination of defendant

(1) When the court has reason to doubt the defendant's fitness to proceed by reason of incapacity as described in ORS 161.360, the court may call any witness to its assistance in reaching its decision. If the court determines the assistance of a psychiatrist or psychologist would be helpful, the court may:

(a) Order that a psychiatric or psychological examination of the defendant be conducted by a certified evaluator as defined in ORS 161.309 and a report of the examination be prepared; or

(b) Order the defendant to be committed for the purpose of an examination for a period not exceeding 30 days to a state mental hospital or other facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age.

(2) The report of an examination described in this section must include, but is not necessarily limited to, the following:

(a) A description of the nature of the examination;

(b) A statement of the mental condition of the defendant;

(c) If the defendant suffers from a mental disease or defect, an opinion as to whether the defendant is incapacitated within the description set out in ORS 161.360; and

(d) If the defendant is incapacitated within the description set out in ORS 161.360, a recommendation of treatment and services necessary to restore capacity.

(3) Except when the defendant and the court both request to the contrary, the report may not contain any findings or conclusions as to whether the defendant as a result of mental disease or defect was subject to the provisions of ORS 161.295 or 161.300 at the time of the criminal act charged.

(4) If the examination by the psychiatrist or psychologist cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental disease or defect affecting capacity to proceed.

(5) The report shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the district attorney and to counsel for defendant.

(6)(a) When upon motion of the court or a financially eligible defendant, the court has ordered a psychiatric or psychological examination of the defendant, a county or justice court shall order the county to pay, and a circuit court shall order the public defense services executive director to pay from funds available for the purpose:

(A) A reasonable fee if the examination of the defendant is conducted by a psychiatrist or psychologist in private practice; and

(B) All costs including transportation of the defendant if the examination is conducted by a psychiatrist or psychologist in the employ of the Oregon Health Authority or a community mental health program established under ORS 430.610 to  430.670.

(b) When an examination is ordered at the request or with the acquiescence of a defendant who is determined not to be financially eligible, the examination shall be performed at the defendant's expense. When an examination is ordered at the request of the prosecution, the county shall pay for the expense of the examination.

CREDIT(S)

Laws 1971, c. 743, § 51; Laws 1975, c. 380, § 4; Laws 1981, Sp. Sess., c. 3, § 131; Laws 1983, c. 800, § 11; Laws 1987, c. 803, § 18; Laws 1993, c. 238, § 2; Laws 2001, c. 962, § 90; Laws 2005, c. 685, § 5, eff. Aug. 2, 2005; Laws 2009, c. 595, § 106, eff. June 26, 2009; Laws 2011, c. 724, § 7, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.370

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.370. Determination of fitness

(1) When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed under ORS 161.365, the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence in the hearing, the party who contests the finding has the right to summon and to cross-examine any psychiatrist or psychologist who submitted the report and to offer evidence upon the issue. Other evidence regarding the defendant's fitness to proceed may be introduced by either party.

(2) If the court determines that the defendant lacks fitness to proceed, the criminal proceeding against the defendant shall be suspended and:

(a) If the court finds that the defendant is dangerous to self or others as a result of mental disease or defect, or that the services and supervision necessary to restore the defendant's fitness to proceed are not available in the community, the court shall commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility, designated by the Oregon Health Authority, if the defendant is at least 18 years of age, or to the custody of the director of a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age; or

(b) If the court does not make a finding described in paragraph (a) of this subsection, or if the court determines that care other than commitment for incapacity to stand trial would better serve the defendant and the community, the court shall release the defendant on supervision for as long as the unfitness endures.

(3) When a defendant is released on supervision under this section, the court may place conditions that the court deems appropriate on the release, including the requirement that the defendant regularly report to the authority or a community mental health program for examination to determine if the defendant has regained capacity to stand trial.

(4) When the court, on its own motion or upon the application of the superintendent of the hospital or director of the facility in which the defendant is committed, a person examining the defendant as a condition of release on supervision, or  either party, determines, after a hearing, if a hearing is requested, that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or release of the defendant on supervision that it would be unjust to resume the criminal proceeding, the court on motion of either party may dismiss the charge and may order the defendant to be discharged or cause a proceeding to be commenced forthwith under ORS 426.070 to 426.170 or 427.235 to 427.290.

(5) The superintendent of a state hospital or director of a facility to which the defendant is committed shall cause the defendant to be evaluated within 60 days from the defendant's delivery into the superintendent's or director's custody, for the purpose of determining whether there is a substantial probability that, in the foreseeable future, the defendant will have the capacity to stand trial. In addition, the superintendent or director shall:

(a) Immediately notify the committing court if the defendant, at any time, gains or regains the capacity to stand trial or will never have the capacity to stand trial.

(b) Within 90 days of the defendant's delivery into the superintendent's or director's custody, notify the committing court that:

(A) The defendant has the present capacity to stand trial;

(B) There is no substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial; or

(C) There is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial. If the probability exists, the superintendent or director shall give the court an estimate of the time in which the defendant, with appropriate treatment, is expected to gain or regain capacity.

(6)(a) If the superintendent or director determines that there is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial, unless the court otherwise orders, the defendant shall remain in the superintendent's or director's custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain capacity. In keeping with the notice requirement under subsection (5)(b) of this section, the superintendent or director shall, for the duration of the defendant's period of commitment, submit a progress report to the committing court, concerning the defendant's capacity or incapacity, at least once every 180 days as measured from the date of the defendant's delivery into the superintendent's or director's custody.

(b) Notwithstanding paragraph (a) of this subsection, if the superintendent or director determines that a defendant committed under this section is no longer dangerous to self or others as a result of mental disease or defect, or that the services and supervision necessary to restore the defendant's fitness to proceed are available in the community, the superintendent or director shall file notice of that determination with the court. Upon receipt of the notice, the court shall order the person released on supervision as described in subsection (3) of this section.

(7)(a) A defendant who remains committed under subsection (6) of this section shall be discharged within a period of time that is reasonable for making a determination concerning whether or not, and when, the defendant may gain or regain capacity. However, regardless of the number of charges with which the defendant is accused, in no event shall the defendant be committed for longer than whichever of the following, measured from the defendant's initial custody date, is shorter:

(A) Three years; or

(B) A period of time equal to the maximum sentence the court could have imposed if the defendant had been convicted.

(b) For purposes of calculating the maximum period of commitment described in paragraph (a) of this subsection:

(A) The initial custody date is the date on which the defendant is first committed under this section on any charge alleged in the accusatory instrument; and

(B) The defendant shall be given credit against each charge alleged in the accusatory instrument for each day the defendant is committed under this section, whether the days are consecutive or are interrupted by a period of time during which the defendant has regained fitness to proceed.

(8) The superintendent or director shall notify the committing court of the defendant's impending discharge 30 days before the date on which the superintendent or director is required to discharge the defendant under subsection (7) of this section.

(9) When the committing court receives a notice from the superintendent or director under subsection (5) or (8) of this section concerning the defendant's progress or lack thereof, the committing court shall determine, after a hearing, if a hearing is requested, whether the defendant presently has the capacity to stand trial.

(10) If at any time the court determines that the defendant lacks the capacity to stand trial, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain or regain the capacity to stand trial and whether the defendant is entitled to discharge under subsection (7) of this section. If the court determines that there is no substantial probability that the defendant, in the foreseeable future, will gain or regain the capacity to stand trial or that the defendant is entitled to discharge under subsection (7) of this section, the court shall dismiss, without prejudice, all charges against the defendant and:

(a) Order that the defendant be discharged; or

(b) Initiate commitment proceedings under ORS 426.070 or 427.235 to 427.290.

(11) All notices required under this section shall be filed with the clerk of the court and delivered to both the district attorney and the counsel for the defendant.

(12) If the defendant regains fitness to proceed, the term of any sentence received by the defendant for conviction of the crime charged shall be reduced by the amount of time the defendant was committed under this section to the custody of a state mental hospital, or to the custody of a secure intensive community inpatient facility, designated by the Oregon Health Authority.

(13) Notwithstanding the suspension of the criminal proceeding under subsection (2) of this section, the fact that the defendant is unfit to proceed does not preclude any objection through counsel and without the personal participation of the defendant on the grounds that the indictment is insufficient, that the statute of limitations has run, that double jeopardy principles apply or upon any other ground at the discretion of the court which the court deems susceptible of fair determination prior to trial.

CREDIT(S)

Laws 1971, c. 743, § 52; Laws 1975, c. 380, § 5; Laws 1993, c. 238, § 3; Laws 1999, c. 931, §§ 1, 2; Laws 2005, c. 685, § 6, eff. Aug. 2, 2005; Laws 2009, c. 595, § 107, eff. June 26, 2009; Laws 2011, c. 508, § 1, eff. June 23, 2011; Laws 2011, c. 724, § 8, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.375

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.375. Escape from state hospital; arrest

(1) When a patient, who has been placed at a state hospital for evaluation, care, custody and treatment under ORS 161.315 to 161.351 or by court order under ORS 161.315, 161.365 or 161.370, has escaped or is absent without authorization from the hospital or from the custody of any person in whose charge the superintendent has placed the patient, the superintendent may order the arrest and detention of the patient.

(2) When a patient, who has been placed at a secure intensive community inpatient facility for evaluation, care, custody and treatment under ORS 161.315 to 161.351 or by court order under ORS 161.315, 161.365, 161.370 or 419C.527, has escaped or is absent without authorization from the facility or from the custody of any person in whose charge the director of the facility has placed the patient, the director of the facility shall notify the Director of the Oregon Health Authority. The Director of the Oregon Health Authority may order the arrest and detention of the patient.

(3) The superintendent or the Director of the Oregon Health Authority may issue an order under this section based upon a reasonable belief that grounds exist for issuing the order. When reasonable, the superintendent or the Director of the Oregon Health Authority shall investigate to ascertain whether such grounds exist.

(4) Any order issued by the superintendent or the Director of the Oregon Health Authority as authorized by this section constitutes full authority for the arrest and detention of the patient and all laws applicable to warrant or arrest apply to the order. An order issued by the superintendent or the Director of the Oregon Health Authority under this section expires 72 hours after being signed by the superintendent or the Director of the Oregon Health Authority.

(5) As used in this section, “superintendent” means the superintendent of the state hospital to which the person was committed or the superintendent's authorized representative.

CREDIT(S)

Laws 1997, c. 423, § 1; Laws 2005, c. 685, § 7; Laws 2005, c. 843, § 24a, eff. July 1, 2007; Laws 2009, c. 595, § 108, eff. June 26, 2009; Laws 2011, c. 708, § 7, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.380

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.380. Laws 1971, c. 743, § 53; renumbered 161.290

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.385

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.385. Psychiatric Security Review Board

(1) There is hereby created a Psychiatric Security Review Board consisting of 10 members appointed by the Governor and subject to confirmation by the Senate under section 4, Article III of the Oregon Constitution.

(2) The membership of the board may not include any district attorney, deputy district attorney or public defender. The Governor shall appoint:

(a) A psychiatrist experienced in the criminal justice system and not otherwise employed on a full-time basis by the Oregon Health Authority or a community mental health program;

(b) A licensed psychologist experienced in the criminal justice system and not otherwise employed on a full-time basis by the authority or a community mental health program;

(c) A member with substantial experience in the processes of parole and probation;

(d) A lawyer with substantial experience in criminal trial practice;

(e) A psychiatrist certified, or eligible to be certified, by the Oregon Medical Board in child psychiatry who is experienced in the juvenile justice system and not employed on a full-time basis by the authority or a community mental health program;

(f) A licensed psychologist who is experienced in child psychology and the juvenile justice system and not employed on a full-time basis by the authority or a community mental health program;

(g) A member with substantial experience in the processes of juvenile parole and probation;

(h) A lawyer with substantial experience in juvenile law practice; and

(i) Two members of the general public.

(3) The term of office of each member is four years. The Governor at any time may remove any member for inefficiency, neglect of duty or malfeasance in office. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(4) A member of the board not otherwise employed full-time by the state shall be paid on a per diem basis an amount equal to $289.22, adjusted according to the executive pay plan for the biennium, for each day during which the member is engaged in the performance of official duties, including necessary travel time. In addition, subject to ORS 292.220 to 292.250 regulating travel and other expenses of state officers and employees, the member shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties.

(5) Subject to any applicable provision of the State Personnel Relations Law, the board may hire employees to aid it in performing its duties.

(6) The board consists of two five-member panels. The adult panel is responsible for persons placed under the board's jurisdiction under ORS 161.315 to 161.351 and 419C.544 and consists of those members appointed under subsection (2)(a) to (d) of this section and one of the public members. The juvenile panel is responsible for young persons placed under the board's jurisdiction under ORS 419C.529 and consists of those members appointed under subsection (2)(e) to (h) of this section and the other public member.

(7)(a) Each panel shall select one of its members as chairperson to serve for a one-year term with such duties and powers as the panel determines.

(b) A majority of the voting members of a panel constitutes a quorum for the transaction of business of the panel.

(8) Each panel shall meet at least twice every month, unless the chairperson determines that there is not sufficient business before the panel to warrant a meeting at the scheduled time. The panel shall also meet at other times and places specified by the call of the chairperson or of a majority of the members of the panel.

CREDIT(S)

Laws 1977, c. 380, § 8; Laws 1979, c. 867, § 7; Laws 1979, c. 885, § 6; Laws 1981, c. 711, § 15; Laws 1981, Sp. Sess., c. 3, § 132; Laws 1983, c. 740, § 26; Laws 1983, c. 800, § 12; Laws 1987, c. 133, § 1; Laws 2001, c. 962, § 70; Laws 2005, c. 843, § 20, eff. July 1, 2007; Laws 2009, c. 595, § 109, eff. June 26, 2009; Laws 2011, c. 708, § 8, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.387

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.387. Implementation of policies

(1) The Psychiatric Security Review Board, by rule pursuant to ORS 183.325 to 183.410 and not inconsistent with law, may implement its policies and set out its procedure and practice requirements and may promulgate such interpretive rules as the board deems necessary or appropriate to carry out its statutory responsibilities.

(2) Administrative meetings of the board are not deliberations for the purposes of ORS 192.690.

CREDIT(S)

Laws 1981, c. 711, §§ 10, 11; Laws 2011, c. 708, § 11b, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.390

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.390. Rules for assignment to state mental hospitals or secure intensive community inpatient facilities; release plans; hearing; records

(1) The Oregon Health Authority shall adopt rules for the assignment of persons to state mental hospitals or secure intensive community inpatient facilities under ORS 161.315 to 161.351, 161.365 and 161.370 and for establishing standards for evaluation and treatment of persons committed to a state hospital or a secure intensive community inpatient facility or ordered to a community mental health program under ORS 161.315 to 161.351.

(2) When the Psychiatric Security Review Board or the authority requires the preparation of a predischarge or preconditional release plan before a hearing or as a condition of granting discharge or conditional release for a person committed under ORS 161.315 to 161.351 to a state hospital or a secure intensive community inpatient facility for custody, care and treatment, the authority is responsible for and shall prepare the plan.

(3) In carrying out a conditional release plan prepared under subsection (2) of this section, the authority may contract with a community mental health program, other public agency or private corporation or an individual to provide supervision and treatment for the conditionally released person.

(4) Before the authority conducts a hearing under ORS 161.315 to 161.351, the authority shall notify the board. The board may provide the authority with conditions of release that the board determines are advisable. If the authority orders the person conditionally released, the authority shall include the conditions of release in the order.

(5) The board and the authority shall maintain and keep current the medical, social and criminal history of all persons committed to their respective jurisdiction. The confidentiality of records maintained by the board shall be determined pursuant to ORS 192.501 to 192.505.

(6) The evidentiary phase of a hearing conducted by the board or the authority under ORS 161.315 to 161.351 is not a deliberation for purposes of ORS 192.690.

CREDIT(S)

Laws 1975, c. 380, § 7; Laws 1977, c. 380, § 18; Laws 1981, c. 711, § 14; Laws 1993, c. 680, § 18; Laws 2005, c. 22, § 109; Laws 2005, c. 685, § 8, eff. Aug. 2, 2005; Laws 2009, c. 595, § 110, eff. June 26, 2009; Laws 2011, c. 708, § 5, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.392

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.392. Evaluations and examinations; adoption of rules necessary for certification of psychiatrists and psychologists

(1) The Oregon Health Authority shall adopt rules necessary to certify psychiatrists and licensed psychologists for the purpose of performing evaluations and examinations described in ORS 161.309, 161.365 and 419C.524. The rules must include a description of the standards and qualifications necessary for certification. The authority may charge a fee for certification under this section in an amount determined by rule.

(2) The authority shall consult with the Psychiatric Security Review Board about proposed rules described in subsection (1) of this section before issuing the proposed rules for public comment and before adopting the rules.

CREDIT(S)

Added by Laws 2011, c. 724, § 9, eff. Aug. 5, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.395

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.395. Subpoenas

(1) Upon request of any party to a hearing before the Psychiatric Security Review Board or the Oregon Health Authority under ORS 161.315 to 161.351, the agency conducting the hearing shall issue, or on its own motion may issue, subpoenas requiring the attendance and testimony of witnesses.

(2) Upon request of any party to the hearing before the agency and upon a proper showing of the general relevance and reasonable scope of the documentary or physical evidence sought, the agency shall issue, or on its own motion may issue, subpoenas duces tecum.

(3) Witnesses appearing under subpoenas, other than the parties or state officers or employees, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2). If the agency certifies that the testimony of a witness was relevant and material, any person who has paid fees and mileage to that witness shall be reimbursed by the agency.

(4) If any person fails to comply with a subpoena issued under subsections (1) or (2) of this section or any party or witness refuses to testify regarding any matter on which the party or witness may be lawfully interrogated, the judge of the circuit court of any county, on the application of the agency that issued the subpoena or of the party requesting the issuance of the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued by the court.

(5) If any person, agency or facility fails to comply with an order of the board or authority issued pursuant to subsection (2) of this section, the judge of a circuit court of any county, on application of the agency that issued the order, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of an order issued by the court. Contempt for disobedience of an order of the board or authority shall be punishable by a fine of $100.

CREDIT(S)

Laws 1977, c. 380, § 9; Laws 1989, c. 980, § 8; Laws 2011, c. 708, § 10, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.397

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.397. Psychiatric Security Review Board Account

The Psychiatric Security Review Board Account is established separate and distinct from the General Fund. All moneys received by the Psychiatric Security Review Board, other than appropriations from the General Fund, shall be deposited into  the account and are continuously appropriated to the board to carry out the duties, functions and powers of the board.

CREDIT(S)

Laws 2001, c. 716, § 3.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.400

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.400. Leaves of absence

If, at any time after the commitment of a person to a state hospital or a secure intensive community inpatient facility under ORS 161.315 to 161.351, the superintendent of the hospital or the director of the facility is of the opinion that a leave of absence from the hospital or facility would be therapeutic for the person and that such leave would pose no substantial danger to others, the superintendent or director may authorize such leave for up to 48 hours in accordance with rules adopted by the agency having jurisdiction over the person. However, the superintendent or director, before authorizing the leave of absence, shall first notify the agency for the purposes of ORS 161.326.

CREDIT(S)

Laws 1981, c. 711, § 12; Laws 2005, c. 685, § 9, eff. Aug. 2, 2005; Laws 2011, c. 708, § 11, eff. Aug. 2, 2011, operative Jan. 1, 2012.

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

O.R.S. § 161.403

West's Oregon Revised Statutes Annotated Currentness

Title 16. Crimes and Punishments

Chapter 161. General Provisions (Refs & Annos)

Responsibility (Refs & Annos)

161.403. Laws 1983, c. 800, § 14; repealed by Laws 1993, c. 77, § 1

Current with emergency legislation through Ch. 191 of the 2013 Reg. Sess. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication.

Connecticut General Statutes Annotated Currentness

Title 53A. Penal Code (Refs & Annos)

Chapter 951. Penal Code: Statutory Construction; Principles of Criminal Liability (Refs & Annos)

§ 53a-13. Lack of capacity due to mental disease or defect as affirmative defense

(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.

(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a prescribing practitioner, as defined in subdivision (22) of section 20-571, and was used in accordance with the directions of such prescription.

(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.

CREDIT(S)

(1969, P.A. 828, § 13, eff. Oct. 1, 1971; 1979, P.A. 79-49; 1981, P.A. 81-301, § 1; 1983, P.A. 83-486, § 1; 1995, P.A. 95-264, § 64.)

Current with Public Acts enrolled and approved by the Governor on or before June 1, 2013 and effective on or before July 1, 2013

Iowa Code Annotated Currentness

Title XVI. Criminal Law and Procedure [Chs. 687-915] (Refs & Annos)

Subtitle 1. Crime Control and Criminal Acts [Chs. 687-747] (Refs & Annos)

Chapter 701. General Criminal Law Provisions (Refs & Annos)

701.4. Insanity

A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a diseased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguishing between right and wrong in relation to that act. Insanity need not exist for any specific length of time before or after the commission of the alleged criminal act. If the defense of insanity is raised, the defendant must prove by a preponderance of the evidence that the defendant at the time of the crime suffered from such a deranged condition of the mind as to render the defendant incapable of knowing the nature and quality of the act the defendant was committing or was incapable of distinguishing between right and wrong in relation to the act.

CREDIT(S)

Added by Acts 1976 (66 G.A.) ch. 1245 (ch. 1), § 104, eff. Jan. 1, 1978. Amended by Acts 1984 (70 G.A.) ch. 1320, § 1.

Current with immediately effective legislation signed as of 5/21/2013 from the 2013 Reg.Sess.

West's Utah Code Annotated Currentness

Title 76. Utah Criminal Code

Chapter 2. Principles of Criminal Responsibility (Refs & Annos)

Part 3. Defenses to Criminal Responsibility

§ 76-2-305. Mental illness--Use as a defense--Influence of alcohol or other substance voluntarily consumed--Definition

(1)(a) It is a defense to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged.

(b) Mental illness is not otherwise a defense, but may be evidence in mitigation of the penalty in a capital felony under Section 76-3-207 and may be evidence of special mitigation reducing the level of a criminal homicide or attempted criminal homicide offense under Section 76-5-205.5.

(2) The defense defined in this section includes the defenses known as “insanity” and “diminished mental capacity.”

(3) A person who asserts a defense of insanity or diminished mental capacity, and who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense is not excused from criminal responsibility on the basis of mental illness if the alcohol or substance caused, triggered, or substantially contributed to the mental illness.

(4)(a) “Mental illness” means a mental disease or defect that substantially impairs a person's mental, emotional, or behavioral functioning. A mental defect may be a congenital condition, the result of injury, or a residual effect of a physical  or mental disease and includes, but is not limited to, mental retardation.

(b) “Mental illness” does not mean an abnormality manifested primarily by repeated criminal conduct.

(5) “Mental retardation” means a significant subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to age 22.

CREDIT(S)

Laws 1983, c. 49, § 1; Laws 1986, c. 120, § 1; Laws 1990, c. 306, § 3; Laws 1999, c. 2, § 1, eff. May 3, 1999; Laws 2003, c. 11, § 2, eff. March 15, 2003.

Current through 2012 Fourth Special Session.

West's Idaho Code Annotated Currentness

Title 18. Crimes and Punishments

Chapter 2. Persons Liable, Principals and Accessories

§ 18-207. Mental condition not a defense--Provision for treatment during incarceration--Reception of evidence--Notice and appointment of expert examiners

(1) Mental condition shall not be a defense to any charge of criminal conduct.

(2) If by the provisions of section 19-2523, Idaho Code, the court finds that one convicted of crime suffers from any mental condition requiring treatment, such person shall be committed to the board of correction or such city or county official as provided by law for placement in an appropriate facility for treatment, having regard for such conditions of security as the case may require. In the event a sentence of incarceration has been imposed, the defendant shall receive treatment in a facility which provides for incarceration or less restrictive confinement. In the event that a course of treatment thus commenced shall be concluded prior to the expiration of the sentence imposed, the offender shall remain liable for the remainder of such sentence, but shall have credit for time incarcerated for treatment.

(3) Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.

(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:

(a) Notice must be given at least ninety (90) days in advance of trial, or such other period as justice may require, that a party intends to raise any issue of mental condition and to call expert witnesses concerning such issue, failing which such witness shall not be permitted to testify until such time as the opposing party has a complete opportunity to consider the substance of such testimony and prepare for rebuttal through such opposing expert(s) as the party may choose.

(b) A party who expects to call an expert witness to testify on an issue of mental condition must, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert, or a copy of a written report. The court may authorize the taking of depositions to inquire further into the substance of such reports or synopses.

(c) Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, the court shall order that the state's experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant's mental condition may be in issue.

(d) The court is authorized to appoint at least one (1) expert at public expense upon a showing by an indigent defendant that there is a need to inquire into questions of the defendant's mental condition. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code.

(e) If an examination cannot be conducted by reason of the unwillingness of the defendant to cooperate, the examiner shall so advise the court in writing. In such cases the court may deny the party refusing to cooperate the right to present evidence in support of a mental status claim unless the interest of justice requires otherwise and shall instruct the jury that it may consider the party's lack of cooperation for its effect on the credibility of the party's mental status claim.

CREDIT(S)

S.L. 1982, ch. 368, § 2; S.L. 1996, ch. 225, § 1.

Current through (2013) Chs. 1, 2, 4, 17, 20, 22, 39, 40, 41, 47, 55, 62, 67, 82, 83, 96, 97, 109, 112, 113, 135, 140, 147, 155, 170, 179, 180, 184, 225, 239, 243, 253, 261, 263, 271, 272, 276, 294, 329, 330, 332, 334, 337, 340, 345, 353 that are effective on or before July 1, 2013

Maine Revised Statutes Annotated Currentness

Title 17-A. Maine Criminal Code

Part 1. General Principles

Chapter 2. Criminal Liability; Elements of Crimes (Refs & Annos)

§ 39. Insanity

1. A defendant is not criminally responsible by reason of insanity if, at the time of the criminal conduct, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of the criminal conduct.

2. As used in this section, “mental disease or defect” means only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality. An abnormality manifested only by repeated criminal conduct or excessive use of alcohol, drugs or similar substances, in and of itself, does not constitute a mental disease or defect.

3. Lack of criminal responsibility by reason of insanity is an affirmative defense.

CREDIT(S)

1981, c. 324, § 14; 1985, c. 796, § 5; 2005, c. 263, §§ 5, 6.

Maine Revised Statutes Annotated Currentness

Title 17-A. Maine Criminal Code

Part 1. General Principles

Chapter 2. Criminal Liability; Elements of Crimes (Refs & Annos)

§ 40. Procedure upon plea of not guilty coupled with plea of not criminally responsible by reason of insanity

1. When the defendant enters a plea of not guilty together with a plea of not criminally responsible by reason of insanity, the defendant shall also elect whether the trial must be in 2 stages as provided for in this section, or a unitary trial in which both the issues of guilt and of insanity are submitted simultaneously to the jury. At the defendant's election, the jury must be informed that the 2 pleas have been made and that the trial will be in 2 stages.

2. If a 2-stage trial is elected by the defendant, there must be a separation of the issue of guilt from the issue of insanity in the following manner.

A. The issue of guilt must be tried first and the issue of insanity tried only if the jury returns a verdict of guilty. If the jury returns a verdict of not guilty, the proceedings must terminate.

B. Evidence of mental disease or defect, as defined in section 39, subsection 2, is not admissible in the guilt or innocence phase of the trial for the purpose of establishing insanity. Such evidence must be admissible for that purpose only in the 2nd phase following a verdict of guilty.

3. The issue of insanity must be tried before the same jury as tried the issue of guilt. Alternate jurors who were present during the first phase of the trial but who did not participate in the deliberations and verdict thereof may be substituted for jurors who did participate. The defendant may elect to have the issue of insanity tried by the court without a jury.

4. If the jury in the first phase returns a guilty verdict, the trial must proceed to the 2nd phase. The defendant and the State may rely upon evidence admitted during the first phase or they may recall witnesses. Any evidence relevant to insanity is admissible. The order of proof must reflect that the defendant has the burden of establishing the defendant's lack of criminal responsibility by reason of insanity. The jury shall return a verdict that the defendant is criminally responsible or not criminally responsible by reason of insanity. If the defendant is found criminally responsible, the court shall sentence the defendant according to law.

5. This section does not apply to cases tried before the court without a jury.

CREDIT(S)

1981, c. 324, § 14; 1985, c. 796, § 6; 2005, c. 263, § 7.

Current with emergency legislation through Chapter 75 of the 2013 First Regular Session of the 126th Legislature

Revised Statutes Annotated of the State of New Hampshire Currentness

Title LXII. Criminal Code (Ch. 625 to 651-F) (Refs & Annos)

Chapter 628. Responsibility (Refs & Annos)

 628:2 Insanity.

I. A person who is insane at the time he acts is not criminally responsible for his conduct. Any distinction between a statutory and common law defense of insanity is hereby abolished and invocation of such defense waives no right an accused person would otherwise have.

II. The defendant shall have the burden of proving the defense of insanity by clear and convincing evidence.

III. Evidence of insanity is not admissible unless:

(a) The defendant, within 10 days after entering his plea of not guilty or at such later time as the court may for good cause permit, notifies the court and the state of his purpose to rely on such defense; and

(b) Such notice is given at least 30 days before the scheduled commencement of trial.

Updated with laws current through Chapter 31 of the 2013 Reg. Sess., not including changes and corrections made by the State of New Hampshire, Office of Legislative Services

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 401. Mental illness or psychiatric disorder

(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused's conduct. If the defendant prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of "not guilty by reason of insanity."

(b) Where the trier of fact determines that, at the time of the conduct charged, a defendant suffered from a mental illness or serious mental disorder which substantially disturbed such person's thinking, feeling or behavior and/

(c) It shall not be a defense under this section if the alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health care practitioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms "insanity" or "mental illness" do not include an abnormality manifested only by repeated criminal or other antisocial conduct.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 63 Laws 1982, ch. 328, § 1; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 76 Laws 2007, ch. 141, §§ 1, 2, eff. July 17, 2007; 78 Laws 2012, ch. 224, §§ 2, 3, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 401

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 402

Effective: April 19, 2012

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 402. Rules to prescribe procedures for psychiatric examination; testimony of psychiatrist or other expert

(a) The procedures for examination of the accused by the accused's own psychiatrist or by a psychiatrist employed by the State and the circumstances under which such an examination will be permitted may be prescribed by rules of the court having jurisdiction over the offense.

(b) A psychiatrist or other expert testifying at trial concerning the mental condition of the accused shall be permitted to make a statement as to the nature of the examination, the psychiatrist's or expert's diagnosis of the mental condition of the accused at the time of the commission of the offense charged and the psychiatrist's or expert's opinion as to the extent, if any, to which the capacity of the accused to appreciate the wrongfulness of the accused's conduct or to choose whether the accused would do the act or refrain from doing it or to have a particular state of mind which is an element of the offense charged was impaired as a result of mental illness or serious mental disorder at that time. The psychiatrist or expert shall be permitted to make any explanation reasonably serving to clarify the diagnosis and opinion and may be cross-examined as to any matter bearing on the psychiatrist's or expert's competence or credibility or the validity of the diagnosis or opinion.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 78 Laws 2012, ch. 224, § 4, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 402

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 403

Effective:[See Text Amendments]

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 403. Verdict of "not guilty by reason of insanity"; commitment to Delaware Psychiatric Center of persons no longer endangering the public safety; periodic review of commitments to Delaware Psychiatric Center; participation of patient in treatment program

(a) Upon the rendition of a verdict of "not guilty by reason of insanity," the court shall, upon motion of the Attorney General, order that the person so acquitted shall forthwith be committed to the Delaware Psychiatric Center.

(b) Except as provided in subsection (c) below, a person committed, confined or transferred to the Delaware Psychiatric Center in accordance with subsection (a) of this section, § 404, § 405, § 406 or § 408 of this title (referred to herein as "the patient") shall be kept there at all times in a secured building until the Superior Court of the county wherein the case would be tried or was tried is satisfied that the public safety will not be endangered by the patient's release. The Superior Court shall without special motion reconsider the necessity of continued detention of a patient thus committed after the patient has been detained for 1 year. The Court shall thereafter reconsider the patient's detention upon petition on the patient's behalf or whenever advised by the Psychiatric Center that the public safety will not be endangered by the patient's release.

(c)(1) Upon petition by a patient confined pursuant to this section, § 404, § 405, § 406 or § 408 of this title, or upon petition by the Center Director of the Delaware Psychiatric Center, the Court may permit housing in an unsecured building or participation by the patient in any treatment program that is offered by the Center, which requires or provides that the patient be placed outside a secured building. Such participation shall include, but not be limited to, employment off hospital grounds, job interviews, family visits and other activities inside and outside the Center, as may be prescribed by the Medical Director in the interest of rehabilitation.

(2) The petition shall include an affidavit from the Medical Director which states that the patient has not exhibited dangerous behavior during the last year of confinement and that in the opinion of the Medical Director, the patient will benefit from such participation.

(3) The petition shall set forth any specific treatment program being sought; the specific goals and course of treatment involved; and a schedule for periodic judicial reevaluation of the patient's treatment status, all of which shall be subject to the Court's approval and modification.

(4) Copies of the petition shall be served on the Attorney General, the Medical Director and the patient or the patient's counsel or guardian.

(5) There shall be a judicial hearing on the petition, and any person or agency served with a copy of the petition, or a representative of such person or agency, shall have the right to testify, present evidence and/

(6) Upon conclusion of a hearing on a petition pursuant to this section, the Court may approve, modify or disapprove any request or matter within the petition. If the patient's participation in any treatment program is approved, such approval or participation shall be effective for not longer than 6 months from the date of the judge's signature on the petition or order permitting such participation. Immediately prior to the conclusion of the 6-month period, the Center Director shall report to the Court on the patient's status, and make recommendations. Any authorization by the Court for continued participation by the patient in any authorized treatment programs may be extended, modified or discontinued at the end of the effective period with or without further hearings, as the Court may determine.

(d) Any treatment program approved by the Court under this section may be terminated by the Medical Director of the Delaware Psychiatric Center. When a treatment program is terminated earlier than its court-approved expiration date, the Medical Director shall immediately notify the Superior Court. The Superior Court shall, after giving appropriate notice, hear the matter and review the decision of the Medical Director. At such termination hearing, the patient shall have such rights as are provided for other hearings under this section, including the right to counsel, the right to present evidence and the right to cross-examine witnesses. Where the Medical Director's decision to terminate is based upon the patient's mental or psychological condition, the patient may be examined by an independent psychiatrist or other qualified expert; provided, however, that the termination hearing shall not be held until such examination has been finally concluded.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 63 Laws 1982, ch. 428, §§ 1-3; 65 Laws 1985, ch. 90, §§ 1, 2; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1, eff. July 18, 1996.

Codifications: 11 Del.C. 1953, § 403

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 404

Effective: April 19, 2012

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 404. Confinement in Delaware Psychiatric Center of persons too mentally ill to stand trial; requiring State to prove prima facie case in such circumstances; adjustment of sentences

(a) Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own defense or to instruct counsel on the accused's own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal.

(b) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any  adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 59 Laws 1973, ch. 203, § 3; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1, eff. July 18, 1996; 78 Laws 2012, ch. 224, § 5, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 404

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 405

Effective: April 19, 2012

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 405. Confinement in Delaware Psychiatric Center of persons developing mental illness after conviction but before sentencing; adjustment of sentences

(a) Whenever the court is satisfied that a prisoner has developed a mental illness after conviction but before sentencing so that the prisoner is unable understandingly to participate in the sentencing proceedings, and if the court is satisfied that a sentence of imprisonment may be appropriate, the court may order the prisoner to be confined and treated in the Delaware Psychiatric Center until the prisoner is capable of participating in the sentencing proceedings.

(b) When the court finds that the prisoner is capable of participating in the sentencing proceedings, the prisoner may be sentenced in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1, eff. July 18, 1996; 78 Laws 2012, ch. 224, §§ 6, 7, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 405

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 406

Effective: April 19, 2012

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 406. Transfer of convicted persons becoming mentally disabled from prison to Delaware Psychiatric Center; appointment of physicians to conduct inquiry; expenses of transfer

(a) Whenever in any case it appears to the Superior Court, upon information received from the Department of Health and Social Services, that a prisoner confined with the Department has developed a mental illness after conviction and sentence, the Court may appoint 2 reputable practicing physicians to inquire of the mental condition of the prisoner and make report of their finding to the Court within 2 days from the date of their appointment, by writing under their hands and seals. Should the report of the physicians be that the prisoner has a mental illness, the prisoner shall at once be ordered by the Court transferred from the prison facility where the prisoner is confined to the Delaware Psychiatric Center.

(b) The expenses of the removal of such a person with a mental illness and of admission into such Psychiatric Center and maintenance therein up and until the time the person is discharged by the Court shall be borne by the State. If any such a person with a mental illness has any real or personal estate, the Department of Health and Social Services shall have for the expenses and charges so incurred the same remedy as is provided in § 5127 of Title 16.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1, eff. July 18, 1996; 78 Laws 2012, ch. 224, § 8, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 406

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 407

Effective:[See Text Amendments]

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 407. Repealed

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 408

Effective: April 19, 2012

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 408. Verdict of "guilty, but mentally ill"--Sentence; confinement; discharge from treating facility

(a) Where a defendant's defense is based upon allegations which, if true, would be grounds for a verdict of "guilty, but mentally ill" or the defendant desires to enter a plea to that effect, no finding of "guilty, but mentally ill" shall be rendered until the trier of fact has examined all appropriate reports (including the presentence investigation); has held a hearing on the sole issue of the defendant's mental illness, at which either party may present evidence; and is satisfied that the defendant did in fact have a mental illness at the time of the offense to which the plea is entered. Where the trier of fact, after such hearing, is not satisfied that the defendant had a mental illness at the time of the offense, or determines that the facts do not support a "guilty, but mentally ill" plea, the trier of fact shall strike such plea, or permit such plea to be withdrawn by the defendant. A defendant whose plea is not accepted by the trier of fact shall be entitled to a jury trial, except that if a defendant subsequently waives the right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial.

(b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware Psychiatric Center, or other suitable place for the residential treatment of criminally mentally ill individuals under the age of 18 who have been found nonamenable to the processes of Family Court. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for the mental illness for individuals placed at the Delaware Psychiatric Center, shall be the joint responsibility of the Director of the Division of Substance Abuse and Mental Health and those persons at the Delaware Psychiatric Center who are directly responsible for such treatment. The Delaware Psychiatric Center, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of the offender's mental illness; except when such a refusal will endanger the life of the offender, or the lives or property of other persons with whom the offender has contact.

(c) When the Psychiatric Center or other treating facility designated by the Commissioner discharges an offender prior to the expiration of such person's sentence, the treating facility shall transmit to the Commissioner and to the Parole Board a report on the condition of the offender which contains the clinical facts; the diagnosis; the course of treatment, and prognosis for the remission of symptoms; the potential for the recidivism, and for danger to the offender's own person or the public; and recommendations for future treatment. Where an offender under this section is sentenced to the Psychiatric Center or other facility, the offender shall not be eligible for any privileges not permitted in writing by the Commissioner (including escorted or unescorted on-grounds or off-grounds privileges) until the offender has become eligible for parole. Where the court finds that the offender, before completing the sentence, no longer needs nor could benefit from treatment for the offender's mental illness, the offender shall be remanded to the Department of Correction. The offender shall have credited toward the sentence the time served at the Psychiatric Center or other facility.

(d) No individual under the age of 18 shall be placed at the Delaware Psychiatric Center. Nothing herein shall prevent either the transfer to or placement at the Delaware Psychiatric Center any person who has reached the age of 18 following any finding of guilty, but mentally ill.

CREDIT(S)

63 Laws 1982, ch. 328, § 2; 64 Laws 1984, ch. 467, § 8; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1, eff. July 18, 1996; 73 Laws 2001, ch. 41, § 1, eff. June 11, 2001; 76 Laws 2008, ch. 322, §§ 1-3, eff. July 9, 2008; 78 Laws 2012, ch. 224, § 9, eff. April 19, 2012.

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

11 Del.C. § 409

Effective:[See Text Amendments]

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 409. Verdict of "guilty, but mentally ill"--Parole; probation

(a) A person who has been adjudged "guilty, but mentally ill" and who during incarceration is discharged from treatment may be placed on prerelease or parole status under the same terms and laws applicable to any other offender. Psychological or psychiatric counseling and treatment may be required as a condition for such status. Failure to continue treatment, except by agreement of the Department of Correction, shall be a basis for terminating prerelease status or instituting parole violation hearings.

(b) If the report of the Delaware Psychiatric Center or other facility recommends parole, the paroling authority shall within 45 days or at the expiration of the offender's minimum sentence, whichever is later, meet to consider the offender's request for parole. If the report does not recommend parole, but other laws or administrative rules of the Department permit parole, the paroling authority may meet to consider a parole request. When the paroling authority considers the offender for parole, it shall consult with the State Hospital or other facility at which the offender had been treated, or from which the offender has been discharged.

(c) If an offender who has been found "guilty, but mentally ill" is placed on probation, the court, upon recommendation by the Attorney General, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer, and the sentencing court. Treatment shall be provided by an agency of the State or, with the approval of the sentencing court and at individual expense, private agencies, private physicians or other mental health personnel.

CREDIT(S)

63 Laws 1982, ch. 328, § 2; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 70 Laws 1996, ch. 550, § 1.

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

West's Delaware Code Annotated Currentness

Title 11. Crimes and Criminal Procedure

Part I. Delaware Criminal Code

Chapter 4. Defenses to Criminal Liability

§ 422. Intoxication not mental illness

Evidence of voluntary intoxication shall not be admissible for the purpose of proving the existence of mental illness, mental defect, serious mental disorder or psychiatric disorder within the meaning of § 401 of this title.

CREDIT(S)

58 Laws 1972, ch. 497, § 1; 71 Laws 1997, ch. 153, § 1, eff. July 9, 1997; 78 Laws 2012, ch. 224, § 10, eff. April 19, 2012.

Codifications: 11 Del.C. 1953, § 422

Current through 79 Laws 2013, chs. 1 - 24. Revisions by the Delaware Code Revisors were unavailable at the time of publication.

South Dakota Codified Laws Currentness

Title 22. Crimes (Refs & Annos)

Chapter 22-5. Defenses (Refs & Annos)

22-5-7. Morbid propensity to commit crime

A morbid propensity to commit prohibited acts existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts forms no defense to a prosecution therefor.

CREDIT(S)

Source: SDC 1939, § 13.0505; repealed SL 1976, ch 158, § 5-2; re-enacted SL 1977, ch 189, § 15.

South Dakota Codified Laws Currentness

Title 22. Crimes (Refs & Annos)

Chapter 22-5. Defenses (Refs & Annos)

22-5-10. Insanity as affirmative defense--Burden of proof

Insanity is an affirmative defense to a prosecution for any criminal offense. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

CREDIT(S)

Source: SL 1985, ch 192, § 11.

Current through the 2012 Regular Session, 2012 general election results, and Supreme Court Rule 12-10

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-04. Disposition of mentally unfit defendants

No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against the person or to assist in the person's own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

CREDIT(S)

S.L. 1973, ch. 116, § 4.

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

NDCC, 12.1-04-05

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-05. Superseded by N.D.R.Crim.P., Rule 12.2

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

NDCC, 12.1-04-06

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-06. Examination--Temporary commitment

Whenever there is reason to doubt the defendant's fitness to proceed, the court may order the detention of the defendant for the purpose of an examination by a psychiatrist or a licensed psychologist. The detention must be in the least restrictive appropriate setting, including the state hospital, the developmental center at westwood park, Grafton, or other suitable facility for a reasonable period, not to exceed thirty days, for such examination. In lieu of detention, the court may allow the defendant to remain in the defendant's present residential setting or other suitable residential setting for the purpose of evaluation by a human service center or other suitable facility or personnel, subject to any reasonable limitation the court may impose. The court, by subsequent order and for good cause shown, may extend the detention for a period not to exceed thirty additional days. While the defendant is detained, the defendant's legal counsel, family, and others necessary to assist in the defendant's case shall have reasonable opportunity to examine and confer with the defendant.

CREDIT(S)

S.L. 1973, ch. 116, § 4; S.L. 1985, ch. 173, § 28; S.L. 1991, ch. 121, § 1; S.L. 1995, ch. 34, § 10.

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

NDCC, 12.1-04-07

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-07. Report--Hearing when contested

1. The report of the examining psychiatrists or psychologists must be given in writing to the court within three days of expiration of the period of commitment. The court shall cause copies to be delivered to the prosecutor and counsel for the defendant.

2. The report must include:

a. The identity of the individuals interviewed and records and other information considered.

b. Procedures, tests, and techniques utilized in the assessment.

c. The date and time of the examination of the defendant, and the identity of each individual present during the examination.

d. The relevant information obtained, other information not obtained which the examiner believes may be relevant, and the findings made.

e. An opinion as to whether the defendant is fit to proceed or is unable to effectively communicate with counsel and whether the defendant will attain fitness to proceed or ability to effectively communicate with counsel in the foreseeable future.

3. If the findings of the report are contested, the court shall hold a hearing prior to deciding whether the defendant currently lacks fitness to proceed or currently lacks ability to effectively communicate with counsel and whether the defendant will attain fitness to proceed or ability to effectively communicate with counsel in the foreseeable future. Upon hearing, the prosecution and defense have the right to summon and cross-examine the persons responsible for the report and to offer evidence upon the issues.

CREDIT(S)

S.L. 1973, ch. 116, § 4; S.L. 1991, ch. 121, § 2.

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

NDCC, 12.1-04-08

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-08. Suspension or dismissal of proceedings--Referral for services

1. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed or to effectively communicate with counsel but that the defendant may attain fitness to proceed or effectively communicate with counsel in the foreseeable future, the proceedings against the defendant must be suspended, except as provided in section 12.1-04-09. When the court determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed or to effectively communicate with counsel, the proceeding must be resumed. If prosecution of the defendant has not resumed prior to the expiration of the maximum period for which the defendant could be sentenced, or it is determined by the court, after a hearing if a hearing is requested, that the defendant will not regain fitness to proceed or to effectively communicate with counsel, the charges against the defendant must be dismissed. The court may at any time make a referral for other appropriate services, treatment, or civil commitment.

2. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and that the defendant will not attain fitness to proceed in the foreseeable future, the proceedings must be dismissed. The court may at any time make a referral for other appropriate services, treatment, or civil commitment.

3. Other appropriate services or treatment include:

a. Determination of incapacity, by a district court with appropriate jurisdiction following petition by the state's attorney, for the appointment of a guardian or conservator pursuant to chapter 30.1-28 or 30.1-29;

b. Civil commitment of the person pursuant to chapter 25-03.1; or

c. Treatment of the person by a human service center or other appropriate public or private provider.

4. The custodian, guardian, or other person charged with the control of the defendant may take an appeal from the court's order in the manner provided by law. The procedure provided in this section is not exclusive, but is in addition to any other procedure for the commitment of individuals to the developmental center at westwood park, Grafton, state hospital, or other state facility.

CREDIT(S)

S.L. 1973, ch. 116, § 4; S.L. 1991, ch. 121, § 3; S.L. 1995, ch. 34, § 10.

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

NDCC, 12.1-04-09

West's North Dakota Century Code Annotated Currentness

Title 12.1. Criminal Code

Chapter 12.1-04. Juveniles--Intoxication--Defenses

§ 12.1-04-09. Legal objections to prosecution allowed

The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

CREDIT(S)

S.L. 1973, ch. 116, § 4.

Current through the 2011 Regular and Special Sessions of the 62nd Legislative Assembly

§ 503. Mental Disease or Defect.

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. "Mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Lack of criminal responsibility under this section is a defense.

21 Okl.St.Ann. § 154

Oklahoma Statutes Annotated Currentness

Title 21. Crimes and Punishments

Part I. In General

Chapter 3. Persons Liable to Punishment

§ 154. Morbid propensity no defense

A morbid propensity to commit prohibited acts existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.

CREDIT(S)

R.L.1910, § 2096.

Current with emergency effective provisions through Chapter 213 of the First Regular Session of the 54th Legislature (2013)

21 Okl.St.Ann. § 152

Oklahoma Statutes Annotated Currentness

Title 21. Crimes and Punishments

Part I. In General

Chapter 3. Persons Liable to Punishment

§ 152. Persons capable of committing crimes--Exceptions--Children--Idiots--Lunatics--Ignorance--Commission without consciousness--Involuntary subjection

All persons are capable of committing crimes, except those belonging to the following classes:

1. Children under the age of seven (7) years;

2. Children over the age of seven (7) years, but under the age of fourteen (14) years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness;

3. Persons who are impaired by reason of mental retardation upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness;

4. Mentally ill persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness;

5. Persons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse from punishment for its violation;

6. Persons who committed the act charged without being conscious thereof; and

7. Persons who committed the act, or make the omission charged, while under involuntary subjection to the power of superiors.

CREDIT(S)

R.L.1910, § 2094; Laws 1998, c. 246, § 11, eff. Nov. 1, 1998.

Current with emergency effective provisions through Chapter 213 of the First Regular Session of the 54th Legislature (2013)

West's Kansas Statutes Annotated Currentness

Chapter 21. Crimes and Punishments

Article 52. Principles of Criminal Liability

21-5209. Defense of lack of mental state

It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense.

CREDIT(S)

Laws 2010, ch. 136, § 20, eff. July 1, 2011.

Current through 2012 regular session.