§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.  If the court is satisfied that the
defendant may be released on condition 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.  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 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 a 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 the investigation of who were of investigatory
interest.  Records shall not be re-disclosed except to the extent permitted by
law.



(2)  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.



(3)  Within a reasonable time following any
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.



(4)  Within a reasonable time following any
release 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. [L 1972, c 9, pt of §1; am L 1986, c 314, §7; am L 1993, c 87, §1;
am L 1997, c 306, §2; am L 2006, c 230, §7; am L 2008, c 99, §2]



 



COMMENTARY ON §704-406



 



  Subsection (1) provides that following a determination of the
defendant's unfitness to be proceeded against, the defendant shall be committed
to the custody of the director of health or placed on conditional release for
the duration of the defendant's unfitness.



  The commitment or conditional release of the unfit defendant
does not terminate until a determination by the court, after a hearing if one
is requested, that the defendant is fit to be proceeded against.  Upon such a
determination, the penal proceedings resume unless the court finds that such
resumption would be unjust.  This section is designed to allow no hiatus in the
procedure.



  The Code, in its treatment of a defendant committed because of
unfitness to proceed, conforms to the present Hawaii law which insures that a
defendant so committed will remain in the custody of the director of health
until the defendant has regained fitness.[1]  Previous Hawaii law had no
provision for conditional release of unfit defendants.



  The second sentence of subsection (2) follows the suggestion
of the Model Penal Code[2] and permits "the court to dismiss the
prosecution if because of lapse of time it would be unjust to
continue."[3]  Under the prior law the power to dismiss the prosecution
was vested in the prosecutor's discretion to enter a nolle prosequi.  The Code
accepts the position that



there is value... in vesting such a power in the Court, to be
exercised either where because of the lapse of time a defendant is unable to
produce certain witnesses or other evidence once available which is essential
to his defense, or where because of the length of the intervening period which
he has spent in a mental institution subsequent to the alleged wrongful conduct
it seems unjust to subject him to trial and punishment.[4]



 



SUPPLEMENTAL COMMENTARY ON §704-406



 



  Act 314, Session Laws 1986, added subsection (3), which
implements the holding in State v. Raitz, 63 Haw. 64 (1980).  In Raitz, the
court held that when a defendant is unlikely to become fit to proceed, due
process requires that:  (1) following commitment, there should be a timely
determination of the likelihood of the defendant regaining fitness; and (2) if
the court determines that the defendant will probably remain unfit, the
defendant should be released or civilly committed.  Conference Committee Report
No. 51-86.



  Act 87, Session Laws 1993, amended this section to require
the court to appoint a panel of three qualified examiners to report on whether
a defendant who has been conditionally released presents a substantial
likelihood of becoming fit to proceed in the future.  If the court determines
that the defendant probably will remain unfit to proceed, it may dismiss the
charge against the defendant or subject the defendant to involuntary civil
commitment procedures.  In addition, this act allows the court, following the
commitment of a defendant, to appoint a panel of three qualified examiners to
report on the defendant's likelihood of becoming fit to proceed in the future. 
House Standing Committee Report No. 185, Senate Standing Committee Report Nos.
1061 and 1263.



  Act 306, Session Laws 1997, amended subsections (3) and (4)
to allow mental health examinations to be conducted by one rather than three
examiners in nonfelony cases, and to require three examiners in felony cases. 
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, clarify that when a defendant is found to be affected by a
physical or mental disease, disorder, or defect and therefore remains unfit to
proceed, the defendant may be committed to the custody of the director of
health for placement in an appropriate institution, but only subject to the law
governing involuntary civil commitment.  House Standing Committee Report No.
665-06.



  Act 99, Session Laws 2008, amended subsection (1) by
requiring the county police departments to provide to the director of health
and a defendant who is committed to the custody 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



 



  Comments and Questions About Mental Health Law in Hawaii.  13
HBJ No. 4 Winter 1978, pg. 14.



  Risky Business:  Assessing Dangerousness in Hawai‘i.  24 UH L.
Rev. 63.



 



Case Notes



 



  Where defendant is unfit to proceed, a motion for judgment of
acquittal by reason of mental irresponsibility under §704-408 will be
deferred.  61 H. 313, 602 P.2d 944.



  The phrase authorizing commitment "for so long
as...unfitness shall endure" is qualified by subsection (2); statute not
constitutionally infirm.  63 H. 64, 621 P.2d 352.



  Does not apply to postacquittal proceedings.  71 H. 198, 787
P.2d 221.



  A court order authorizing the involuntary administration of
antipsychotic drugs is included within the authority vested by this section. 
91 H. 319, 984 P.2d 78.



 



__________



§704-406 Commentary:



 



1. H.R.S. §334-76.



 



2. M.P.C. §4.06.



 



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



 



4. Id. at 197-98.