§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. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §704-405



 



  This section departs from the prior law[1] and provides that
the issue of the defendant's fitness to proceed will be determined solely by
the court.  In this the Code follows the Model Penal Code.[2]  The fitness of
the defendant to proceed is only tangentially related to the defendant's
condition at the time of the conduct alleged and the defendant's responsibility
for that conduct.  Moreover, there might be several periodic hearings on the
question of the defendant's fitness to be proceeded against.  It seems unwise
to afford the defendant a jury determination in each instance.



  The Code also allows the court to make a determination of
fitness to proceed on the basis of an uncontested report; which is in accord
with prior law in felony cases.[3]  The last sentence of this section allows a
limited exception to the hearsay rule so that the report of an examining expert
may be received in evidence without the necessity of calling the expert to the
stand.  The exception is not inconsistent with the purpose of the hearsay rule
because the defendant is assured of the right to summon and to cross-examine
the reporting examiner if the defendant wishes.



 



Law Journals and Reviews



 



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



 



Case Notes



 



  Consideration of the sanity commission report is permissible
use of hearsay.  63 H. 186, 623 P.2d 881.



  Where defendant's counsel declined to call and cross-examine
the doctors who prepared the sanity report, counsel waived defendant's right of
confrontation.  63 H. 186, 623 P.2d 881.



  Cited:  60 H. 17, 586 P.2d 1028.



 



__________



§704-405 Commentary:



 



1.  H.R.S. §711-91.



 



2.  M.P.C. §4.06.



 



3.  See H.R.S. §711-91, which reads in part:  "If the
court deems such report conclusive of the then present insanity... of the
accused, the court may allow a nolle prosequi to be entered in the case, and in
such case shall forthwith, without other or further proceedings, adjudge the
accused to be insane and commit him to the state hospital until discharged as
provided by law...."