§704-414  Procedure upon application for
discharge, conditional release, or modification of conditions of release. 
Upon filing of an application pursuant to section 704-412 for discharge or
conditional release, or upon the filing of an application pursuant to section
704-413 for discharge or for modification of conditions of release, 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, 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 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 the examination and 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). [L 1972, c 9, pt of §1; am L 1974, c 54, §3;
am L 1979, c 3, §3; am L 1986, c 314, §9; am L 1987, c 145, §3; am L 1988, c
305, §9; am L 1992, c 88, §3; am L 1997, c 306, §5; am L 2006, c 230, §13]



 



COMMENTARY ON §704-414



 



  This section provides for the appointment of independent
examiners for the purpose of reporting and possibly testifying on the former
defendant's condition prior to action on an application for discharge,
conditional release, or modification of conditions of release.  The procedure
for examination is substantially similar to that prescribed for the initial
determination of the issues of fitness to proceed and penal responsibility;
however, the relevant condition is the person's present condition and the
relevant criterion is whether the application can be granted without danger to
the person himself, or to the person or property of others.



  Prior Hawaii law merely required "proof of termination
of... [the committed person's] insanity."[1]  The mandatory requirement of
an independent review before change in commitment or conditional release status
is an addition to the law.  It affords the defendant and the public a more
deliberate determination of the application.



 



SUPPLEMENTAL COMMENTARY ON §704-414



 



  In conformity with the changes made in §§704-404 and 411, Act
54, Session Laws 1974, also changed §704-414 to permit the use of one certified
clinical psychologist as part of the examination panel.



  Act 3, Session Laws 1979, modified the requirements for the
composition of examination panels to allow the courts greater flexibility in
appointing mental health professionals.



  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 this section to allow
mental health examinations to be conducted by one rather than three examiners
in nonfelony cases, and to require three examiners, which include at least one
psychiatrist and one psychologist, 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 by omitting
in the sixth sentence, the words "and participate in" from the phrase
that formerly read "to witness and participate in the examination".



 



__________



§704-414 Commentary:



 



1.  H.R.S. §711-94.