§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. [L 1972, c 9, pt of §1; gen ch
1993]



 



COMMENTARY ON §704-403



 



  The section sets forth the universally accepted position in
Anglo-American law that a defendant cannot be proceeded against (with the
exception of being charged) unless the defendant has the capacity to understand
the proceedings against the defendant and assist in the defendant's own
defense.  The Code deliberately avoids terms such as "the then present
insanity"[1] and focuses on those factors which call for a suspension of
the proceedings:  (1) lack of capacity to understand the proceedings, or (2)
lack of capacity to assist in the defense.



  Previous Hawaii law is substantially in accord with this
section except that the statutory language used vague, unfocused phrases such
as "the then present insanity or mental irresponsibility of the
accused," and "the then existing... mental irresponsibility."[2] 
However, in actual application the trial courts have focused on the capacity of
the defendant to understand the proceedings and to assist in the defense.[3]



 



Law Journals and Reviews



 



  Fitness to Proceed:  Compassion or Prejudice?  II HBJ No. 13,
at pg. 135.



 



Case Notes



 



  Facts did not support a finding that petitioner was mentally
incompetent at relevant times.  79 H. 118 (App.), 899 P.2d 401.



  Cited:  60 H. 17, 586 P.2d 1028.



 



__________



§704-403 Commentary:



 



1.  See H.R.S. §§711-91 and 711-92.



 



2.  Id.



 



3.  See State v. Wong, 47 Haw. 361, 365, 389 P.2d 439, 442
(1964).