§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. [L 1972, c 9, pt of §1; am L 1980, c 222, §1(2); gen
ch 1993; am L 2006, c 230, §8]



 



COMMENTARY ON §704-407



 



  This section affords the defendant and the defendant's
counsel the opportunity, notwithstanding the defendant's unfitness to proceed,
to make any objection to the prosecution which is susceptible of a fair
determination without the personal participation of the defendant.  It seems
clear that this is an eminently sensible provision in view of the fact that it
is the defendant's inability to participate in the defendant's defense (either
because the defendant lacks capacity to either understand the proceedings or to
assist in the defendant's own defense) that has rendered the defendant unfit to
be proceeded against.  If a valid objection to the continuance of the prosecution
can be established without the participation of the defendant, there is no
reason not to terminate it.



  This section is an addition to the law.  The concept was
originally proposed by the Massachusetts Judicial Council[1] and adopted as an
optional alternative by the Model Penal Code.[2]



 



SUPPLEMENTAL COMMENTARY ON §704-407



 



  Act 222, Session Laws 1980, eliminated post-commitment
release motions based upon factual grounds and limited such motions to those
based upon legal grounds.  The intent was to have all factual issues, including
insanity, heard in one trial.



  Act 230, Session Laws 2006, amended this section to, among
other things, allow the court to order the release of the defendant on
conditions, subject to the law governing involuntary outpatient treatment.



 



__________



§704-407 Commentary:



 



1.  Massachusetts Judicial Council, Thirty-Sixth Report 22-24,
27-28 (1960).



 



2.  M.P.C. §4.06.  The other alternative is to limit post-
commitment hearings to legal objections to the prosecution which are
susceptible of a determination prior to trial.