§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. [L 1972, c 9, pt of §1; am L 1973, c 136,
§4(b); am L 1974, c 54, §1; am L 1979, c 3, §1 and c 105, §64; am L 1983, c
172, §1; am L 1987, c 145, §1; am L 1988, c 305, §5; am L 1992, c 88, §1; gen
ch 1993; am L 1997, c 306, §1; am L 2006, c 230, §6; am L 2008, c 99, §1]



 



COMMENTARY ON §704-404



 



  This section sets forth the provisions for appropriate
medical examination of a defendant when the defendant's physical or mental
condition is made an issue either with respect to the defendant's fitness to
proceed, the defendant's responsibility for conduct, or the defendant's
capacity to have a particular state of mind.



  The Code provides that, whenever the defendant's
responsibility, fitness to proceed, or physical or mental condition becomes an
issue in the case, the proceedings shall be suspended and the designated
medical examination shall take place.  In taking this approach we reject the
requirement of prior notice suggested by the Model Penal Code.[1]  Such a
requirement necessarily relies on the psychiatric and other medical insights of
defendant's counsel--a person manifestly without proper training in these
areas.  If defense counsel does not recognize symptoms of a physical or mental
disease, disorder, or defect--either because of lack of medical knowledge or
because of lack of diligence--the consequences of his ineptness should not fall
on his client.  Especially is this so where the client is unable to
"communicate" the disease, disorder, or defect to the client's
attorney.  The procedure provided for examination of the defendant assures that
the prosecution will not be prejudiced in gathering evidence and in litigating
these issues merely because the defendant did not raise these issues at a
preliminary stage.  The defendant or the prosecuting attorney may request, or
the court may order, an examination of the defendant at a preliminary (or
later) stage in the proceedings whenever it appears that fitness to proceed,
responsibility, or physical or mental condition is or may become an issue in
the case.



  Previous law provided for an examination of the defendant, at
the discretion of the court, before trial.[2]  The Code allows the relevant
issues to be raised at any stage.



  If an examination is ordered after a trial jury has been
empanelled, it shall be discretionary with the trial court whether or not to
discharge the jury; however the dismissal of the jury shall not bar further
prosecution by reason of former jeopardy or want or delay of prosecution.



  Subsection (2) provides for the selection of examiners and is
in substantial accord with prior law.  However, modifications have been made to
take into consideration the suggestions of local psychiatrists and
representatives of the department of health[3] and to accommodate those cases
involving diseases, disorders, and defects which require examination by
physicians other than psychiatrists.  Also, under the Code, the court may order
that qualified physicians, which include psychiatrists, retained by the
defendant be allowed to witness and participate in the examination.



  Subsection (3) clarifies what methods may be used in the
examination of the defendant; a point not covered in prior law.



  Subsections (4) and (5) state explicitly what the report of
the examining physicians shall contain.  This was covered under pre- existing
law by the vague provision that the defendant shall be examined "with a
view to determine the mental condition of such person and the existence of any
mental disease or defect which would affect his criminal
responsibility."[4]  These subsections are intended to assure the court
and the parties "that the report will be adequate for the purpose for
which the examinations and report were ordered."[5]



  Subsection (7) is designed to achieve for the examiner the
same freedom in reporting his examination that he would be afforded were he to
testify orally.[6]



  Other subsections are self-explanatory.



 



SUPPLEMENTAL COMMENTARY ON §704-404



 



  Act 136, Session Laws 1973, amended subsection (1) to provide
that where the issue of mental disease, disorder, or defect excluding
responsibility is raised the court "may immediately suspend all further
proceedings in the prosecution."  (Emphasis added.)  This eliminated the
previous mandatory requirement of suspension of the proceedings and examination
of the defendant when the issue of responsibility was introduced.  The
Committee Report is silent on the reason for this.  It is believed, however,
that the change arose because certain trial judges felt that defense counsel
were acting in some instances with questionable sincerity in invoking the
mandatory examination procedure.  (House Standing Committee Report No. 726 and
Senate Standing Committee Report No. 858, 1973.)



  Act 54, Session Laws 1974, amended subsection (2) to permit
the use of a certified clinical psychologist as part of the examination panel.



  Act 3, Session Laws 1979, amended subsections (2) and (3) by
modifying the requirements for the composition of examination panels.  The
purpose was to allow the courts greater flexibility in appointing mental health
professionals to examination panels, particularly in geographical areas where
shortages of various types of mental health professionals made compliance with
the requirements of the prior law burdensome and expensive.



  Act 172, Session Laws 1983, amended subsections (3) and (4)
to require forensic examiners in sanity examinations to arrive at their
conclusions independently of the other examiners.  Subsection (8) was amended
to allow the examiners access to police and juvenile records, including those
expunged.  The legislature found that the accuracy and objectivity of sanity
examinations would be enhanced if the examiners made their findings without
collaborating with each other and if they were provided with a wider range of
information.  House Conference Committee Report No. 20.



  Act 145, Session Laws 1987, replaced the term "certified
clinical" psychologist with "licensed" psychologist because
"certified clinical" psychologist is an outdated classification which
is no longer applicable to current practice.  Act 145 also permitted the department
of health to set minimum standards for participation and appointment of a
sanity examiner.  The legislature felt this change would allow additional
assurances of higher quality testimony by these examiners.  Senate Standing
Committee Report No. 691, House Standing Committee Report No. 1217.



  Act 305, Session Laws 1988, included licensed psychologists
among the professionals which may provide offender examination services to the
Hawaii criminal justice system.  The Legislature stated that the present laws,
which permit only psychiatric evaluation, are inconsistent with the many and
varied uses the court has found for the services of licensed psychologists. 
Senate Standing Committee Report No. 2153.



  Act 88, Session Laws 1992, amended this section by adding a
reference to section 465-3(a)(3), which exempts psychologists employed under
government certification or civil service rules from the licensure
requirement.  This is consistent with Act 314, Session Laws 1986, which
intended to include this language in sections of chapter 704 that refer to
licensed psychologists.  Senate Standing Committee Report No. 2579.



  Act 306, Session Laws 1997, amended subsections (2), (3), and
(4), to, inter alia, allow mental health examinations to be conducted by one
rather than three examiners, in nonfelony cases; the courts may appoint a
psychiatrist or licensed psychologist as the examiner.  In felony cases, three
examiners are required, including at least one psychiatrist and one
psychologist.  The amendment streamlines the process for committing and
releasing mentally incompetent defendants.  Conference Committee Report No. 64.



  Act 230, Session Laws 2006, amended this section to, among
other things, (1) allow all certified examiners who evaluate a defendant's
fitness to proceed or claims of physical or mental disease or disorder to
confer without restriction upon submittal of all reports to the court; and (2)
add all existing mental health records to the records that the court must
obtain and make available for inspection by examiners.  House Standing
Committee Report No. 665-06.



  Act 99, Session Laws 2008, amended subsection (8) by
requiring the county police departments to provide to the director of health
and a defendant who is committed to a hospital under the control of the
director, copies of certain police reports regarding that defendant.  Act 99
expedited the records disclosure process for clinical evaluation purposes while
protecting a patient's right of privacy.  Conference Committee Report No.
161-08.



 



Law Journals and Reviews



 



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



 



Case Notes



 



  Mental examination is within sound discretion of court.  57
H. 418, 558 P.2d 1012.



  Motion made prior to trial for mental examination of
defendant was not a notice of intention to rely on defense of mental
irresponsibility.  57 H. 418, 558 P.2d 1012.



  Failure to impanel a board of examiners, under the
circumstances, did not violate defendant's due process rights.  60 H. 17, 586
P.2d 1028.



  Impanelling of a board of examiners is within sound
discretion of court.  60 H. 17, 586 P.2d 1028.



  Court appointed psychiatrists entitled to absolute immunity
from civil suit.  63 H. 516, 631 P.2d 173.



  Court could have suspended trial and ordered examination
pursuant to section if defendant raised defense of physical or emotional
disease, disorder, or defect excluding capability of forming criminal intent. 
73 H. 109, 831 P.2d 512.



  Under subsections (1) and (2), the legislature intended that
only some rational basis for convening a panel is necessary to trigger the
trial court's power to stay the proceedings and, thereafter, to appoint
examiners.  93 H. 424, 5 P.3d 414.



  Where motion for mental examination and defense counsel's
attached declaration articulated a rational basis upon which there was both
"reason to doubt" defendant's fitness to proceed and "reason to
believe" that defendant was suffering from a physical or mental disease,
disorder, or defect that had affected defendant's ability to assist in defendant's
own defense, trial court abused its discretion in refusing to stay proceedings,
failing to appoint a panel of examiners, and determining without assistance of
panel that defendant was fit to proceed.  93 H. 424, 5 P.3d 414.



  Standard of review of motions for judgment of acquittal in
insanity cases.  1 H. App. 1, 612 P.2d 117.



  As it had no obligation under subsection (8) to unilaterally
and on its own initiative provide the police reports and other pertinent
records to its fitness examiners, trial court did not err; subsection only
requires that court "obtain" the pertinent records and "make
such records available for inspection by the examiners" and does not
require that the court, unbidden, provide such records directly to the
examiners.  97 H. 53 (App.), 33 P.3d 549.



  Mentioned:  74 H. 141, 838 P.2d 1374.



 



__________



§704-404 Commentary:



 



1.  M.P.C. §4.03.



 



2.  H.R.S. §711-91; Territory v. Gaudia, 41 Haw. 231 (1955).



 



3.  See S.B. 46 (S.D. 1) of the 1967 Legislature, which passed
the Senate but failed to pass the House of Representatives.  As the Senate
Committee Reports indicate, this bill was supported by many groups concerned
with mental health.



 



4.  H.R.S. §711-91.



 



5.  M.P.C., Tentative Draft No. 4, comments at 197 (1955).



 



6.  Cf. §704-410(3) and (4).