§704-411  Legal effect of acquittal on the
ground of physical or mental disease, disorder, or defect excluding
responsibility; commitment; conditional release; discharge; procedure for
separate post-acquittal hearing.  (1)  When a defendant is acquitted on the
ground of physical or mental disease, disorder, or defect excluding
responsibility, the court, on the basis of the report made pursuant to section
704-404, if uncontested, or the medical or psychological evidence given at the
trial or at a separate hearing, shall make an order as follows:



(a) The court shall order the defendant to be
committed to the custody of the director of health to be placed in an
appropriate institution for custody, care, and treatment if the court finds
that the defendant:



(i)  Is affected by a physical or mental
disease, disorder, or defect;



(ii)  Presents a risk of danger to self or
others; and



(iii)  Is not a proper subject for conditional
release;



provided that the director of health shall place
defendants charged with misdemeanors or felonies not involving violence or
attempted violence in the least restrictive environment appropriate in light of
the defendant's treatment needs and the need to prevent harm to the person
confined and others.  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;



(b) The court shall order the defendant to be granted
conditional release with conditions as the court deems necessary if the court
finds that the defendant is affected by physical or mental disease, disorder,
or defect and that the defendant presents a danger to self or others, but that
the defendant can be controlled adequately and given proper care, supervision,
and treatment if the defendant is released on condition; or



(c) The court shall order the defendant discharged if
the court finds that the defendant is no longer affected by physical or mental
disease, disorder, or defect or, if so affected, that the defendant no longer
presents a danger to self or others and is not in need of care, supervision, or
treatment.



(2)  The court, upon its own motion or on the
motion of the prosecuting attorney or the defendant, shall order a separate
post-acquittal hearing for the purpose of taking evidence on the issue of
physical or mental disease, disorder, or defect and the risk of danger that the
defendant presents to self or others.



(3)  When ordering a hearing pursuant to
subsection (2):



(a)  In nonfelony cases, the court shall appoint a
qualified examiner to examine and report upon the physical and mental condition
of the defendant.  The court may appoint either a psychiatrist or a licensed
psychologist.  The examiner may be designated by the director of health from
within the department of health.  The examiner 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;
and



(b)  In felony cases, the court shall appoint three
qualified examiners to examine and report upon the physical and mental
condition of the defendant.  In each case, the court shall appoint at least one
psychiatrist and at least one licensed psychologist.  The third member may be a
psychiatrist, a licensed psychologist, or a 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.  The three examiners
shall be appointed from a list of certified examiners as determined by the
department of health.



To facilitate the examination and the proceedings
thereon, the court may cause the defendant, if not then confined, to be
committed to a hospital or other suitable facility for the purpose of
examination for a period not exceeding thirty days or such longer period as the
court determines to be necessary for the purpose upon written findings for good
cause shown.  The court may direct that qualified physicians or psychologists
retained by the defendant be permitted to witness the examination.  The
examination and report and the compensation of persons making or assisting in
the examination shall be in accord with section 704-404(3), (4)(a) and (b),
(6), (7), (8), and (9).  As used in this section, the term "licensed
psychologist" includes psychologists exempted from licensure by section
465-3(a)(3).



(4)  Whether the court's order under subsection
(1) is made on the basis of the medical or psychological evidence given at the
trial, or on the basis of the report made pursuant to section 704-404, or the
medical or psychological evidence given at a separate hearing, the burden shall
be upon the State to prove, by a preponderance of the evidence, that the
defendant is affected by a physical or mental disease, disorder, or defect and
may not safely be discharged and that the defendant should be either committed
or conditionally released as provided in subsection (1).



(5)  In any proceeding governed by this
section, the defendant's fitness shall not be an issue. [L 1972, c 9, pt of §1;
am L 1974, c 54, §2; am L 1979, c 3, §2; am L 1983, c 281, §1; am L 1986, c
314, §8; am L 1987, c 145, §2; am L 1988, c 305, §7; am L 1992, c 88, §2; gen
ch 1992; am L 1997, c 306, §3; am L 2006, c 230, §10; am L 2008, c 99, §3 and c
100, §3; am L 2009, c 127, §2]



 



COMMENTARY ON §704-411



 



  This section rejects the concept of mandatory commitment
following a qualified acquittal on the basis of a physical or mental disease,
disorder, or defect which precluded defendant's responsibility.[1]  The Code
instead authorizes a flexible mode of disposition of defendants thus acquitted,
which depends on (1) the restraint necessary to protect other members of
society and the defendant from the consequences of a recurrence of the
prohibited conduct, and (2) the conditions necessary to afford the defendant
proper care and supervision.



  The Code recognizes three types of dispositions:  commitment,
conditional release, and discharge.  The Code utilizes the concept of
conditional release, which is presently recognized in the field of civil
commitment, but leaves the ultimate determination of the conditions of release
with the court, rather than with the medical authority to whom the defendant is
entrusted.



  Since the defendant has been detained for a substantial
period of time for purposes of examination prior to the determination of the
defendant's lack of responsibility, the examiners, in an appropriate case, may
be able to indicate, at the trial or at a separate hearing, that commitment is
not called for.  In such a case, mandatory commitment followed by an application
for release or discharge would be abusive and wasteful.  Furthermore, a
disease, disorder, or defect excluding responsibility which is influenced by
biological or organic factors may be susceptible to adequate treatment (by
means of drugs or otherwise) on an out- patient basis without danger to other
members of society or may be such that repetition of the prohibited conduct is
foreclosed.  In such cases commitment should not be made mandatory.



  Proof of penally prohibited conduct at the time of the alleged
offense cannot be used as a justification for automatic commitment following an
acquittal based on lack of responsibility.[2]  A determination by the court
will have to be made as to whether the defendant's condition at the time of
disposition requires commitment, conditional release, or discharge.  While
proof of the commission of prohibited conduct and an acquittal predicated on
lack of responsibility at the time of the conduct are relevant to and probative
of present dangerousness, they are not substitutes for such a finding. 
Although the evidence at trial will be primarily devoted to a determination of
the defendant's physical and mental condition at the time of the alleged
offense, in certain cases the examiners may be able to indicate the risks which
the defendant presents.  In some cases a defendant, seeking to avoid penal
liability on the basis of physical or mental disease, disorder, or defect
excluding responsibility, may be quite willing to stipulate to the need for
commitment or conditional release following acquittal.  In such cases, it
should not be necessary to require that the court hold a separate hearing for
the purpose of determining the defendant's present condition and the risks the
defendant presents.



  The Code, therefore, provides in subsection (1) that the
disposition order may be made on the basis of medical evidence given either at
the trial or at a separate hearing.  In those instances where the court
believes that the evidence at trial is not sufficiently addressed to the risk of
danger which the defendant presents to allow a determination of that issue, the
court may order a separate hearing.  Where either the prosecution or the
defense believes that the evidence at the trial (including stipulations) is not
dispositive of the issue of present danger, each is free to move for a separate
post-acquittal hearing on that issue.



  Subsection (3) provides that the procedure to be followed
with respect to a separate post-acquittal hearing shall conform to §704-404 to
the extent applicable.



  Subsection (4) provides that the burden of proof with respect
to the issue of present danger is on the government and that proof shall be by
a preponderance of the evidence.  This section is consistent with the burden
the government must bear under §704-415 with respect to applications for
discharge, conditional release, or modification of conditions of release.



  Previous Hawaii law, which provided "that upon
presentment of due proof that... [the defendant] has regained his sanity at the
time of acquittal, the judge may release such person without... commital
[sic],"[3] fell short of the flexibility and safeguards provided in the
Code.  By making dangerousness the relevant criterion, the Code provides for
possible commitment of a dangerous person even though the person's physical or
mental condition at the time of commitment does not preclude penal
responsibility.  Furthermore, the Code specifically provides that the court,
the prosecution, or the defendant may move for a separate post-acquittal hearing
directed to the limited issue of present dangerousness.  Consistent with the
concept of tailoring the disposition of the irresponsible defendant to the
condition of the defendant and the protection of others, the Code also
recognizes conditional release (in addition to commitment and discharge) and
provides for physical as well as mental conditions which preclude
responsibility.



 



SUPPLEMENTAL COMMENTARY ON §704-411



 



  Act 54, Session Laws 1974, amended subsection (3) to permit
the use of a certified clinical psychologist as a member of the examination
panel.



  Act 3, Session Laws 1979, amended subsection (3) by modifying
the requirements for the composition of examination panels to allow the courts
greater flexibility in appointing mental health professionals.



  Act 281, Session Laws 1983, amended subsection (1)(a) so that
defendants charged with nonviolent crimes who are acquitted pursuant to chapter
704, may be placed in the least restrictive environment which takes into
account the defendant's treatment needs and the need to prevent harm to the
defendant and others. Also, subsections (1) and (2) were amended to delete a
person's "danger to property" as a criteria justifying commitment,
based on Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980), in which the court found
that criteria unconstitutionally broad.  House Conference Committee Report No.
27.



  Act 314, Session Laws 1986, amended "certified clinical
psychologists" to "licensed psychologists".  This change was
made because psychologists are licensed and not certified and the term
"clinical" does not accurately describe psychologists qualified to
determine penal responsibility and fitness to proceed.  Act 314 also provided
an exception to the licensure requirement which recognizes that under §465-3(4),
psychologists employed under government certification or civil service rules
are exempt from the licensure requirement.  Conference Committee Report No.
51-86.



  Act 145, Session Laws 1987, 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, made technical amendments to the
section for purposes of clarity, consistency, and style.  Senate Standing
Committee Report No. 2579.



  Act 306, Session Laws 1997, amended subsection (3) by, inter
alia, allowing mental health examinations to be conducted by one rather than
three examiners in nonfelony cases; the courts are allowed to appoint either a
psychiatrist or a licensed psychologist as the examiner.  In felony cases,
three examiners are required, including at least one psychiatrist and one
psychologist.  The Act also limited the time period during which a defendant,
if not then confined, may be committed by the court for examination, to not
more than thirty days unless the court determines it necessary upon written
findings.  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, require that in a post-acquittal hearing, a defendant's fitness
shall not be an issue for a defendant who has been acquitted on the grounds of
physical or mental disease, disorder, or defect.  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.



  Act 100, Session Laws 2008, amended this section by
authorizing the director of health or a committed person to apply to the court
to conduct a hearing to assess any further need for inpatient hospitalization
of a person who is acquitted on the ground of physical or mental disease,
disorder, or defect excluding responsibility.  Act 100 also required the court
to complete the hearing process and render a decision within sixty days of the
application, provided that for good cause, the court may extend the sixty day
time frame upon the request of the director of health or the committed person. 
Conference Committee Report No. 37-08.



  Act 127, Session Laws 2009, amended this section by repealing
subsections (5), (6), and (7), which had been interpreted as having established
an additional hearing and application procedure for persons committed to the
Hawaii state hospital due to an acquittal based on the ground of physical or
mental disease, disorder, or defect excluding responsibility.  The repeal of the
subsections clarified that §704-412 governs the timing and standards for
conditional release or discharge from the custody of the director of health. 
Senate Standing Committee Report No. 533.



 



Law Journals and Reviews



 



  Unfair Punishment of the Mentally Disabled?  The
Constitutionality of Treating Extremely Dangerous and Mentally Ill Insanity
Acquittees in Prison Facilities.  23 UH L. Rev. 623.



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



 



Case Notes



 



  Prosecutor's comment that defendant, whose defense was
insanity, would "walk the streets" if acquitted was improper.  58 H.
623, 574 P.2d 895.



  Liability for subsequent harm done by criminal defendant
placed on conditional release.  61 H. 253, 602 P.2d 532.



  The difference in the burden of proof required for commitment
under this section and under §334-60(b)(4)(I) does not render this section
violative of due process or equal protection.  63 H. 186, 623 P.2d 881.



  Where defendant failed to follow the procedural mechanisms
set forth in this section by failing to request a post-acquittal hearing to
address the issue of dangerousness in a proceeding separate from the trial
proceedings, supreme court lacked appellate jurisdiction to review trial
court's decision.  102 H. 130, 73 P.3d 668.



 



Hawaii Legal Reporter Citations



 



  Commitment.  80-2 HLR 800999; 81-2 HLR 810769.



 



__________



§704-411 Commentary:



 



1.  M.P.C. §4.08.



 



2.  Bolton v. Harris, 395 F.2d 642 (1968).



 



3.  H.R.S. §711-93.