§704-415  Disposition of application for
discharge, conditional release, or modification of conditions of release. 
(1)  If the court is satisfied from the report filed pursuant to section
704-414, and such testimony of the reporting examiners as the court deems
necessary, that:



(a) The person is affected by a physical or mental
disease, disorder, or defect and the discharge, conditional release, or
modification of conditions of release applied for may be granted without danger
to the committed or conditionally released person or to the person or property
of others; or



(b) The person is no longer affected by a physical or
mental disease, disorder, or defect,



the court shall grant the application and order the
relief.  If the court is not so satisfied, it shall promptly order a hearing.



(2)  Any such hearing shall be deemed a civil
proceeding and the burden shall be upon the applicant to prove that the person
is no longer affected by a physical or mental disease, disorder, or defect or
may safely be either released on the conditions applied for or discharged. 
According to the determination of the court upon the hearing, the person shall
be:



(a) Discharged;



(b) Released on such conditions as the court
determines to be necessary; or



(c) Recommitted to the custody of the director of
health, subject to discharge or release only in accordance with the procedure
prescribed in section 704-412. [L 1972, c 9, pt of §1; am L 1982, c 232, §1; am
L 2006, c 230, §14]



 



COMMENTARY ON §704-415



 



  Following the filing of the report pursuant to §704-414, the
court may grant the application summarily if it is convinced that it can be
granted without danger to the defendant or to the person or property of
others.  The Code allows the court some flexibility in taking testimony of
examiners without the necessity of a full hearing.  If the testimony of the
examiners, in addition to the report, satisfies the court that favorable action
on the application is appropriate, it may be granted summarily.  If the court
is not satisfied, a full hearing is indicated, following which the court shall
make a determination consistent with the danger the committed or conditionally
released person presents to oneself and to others.



  The Code takes the position that the burden should remain
with the State to prove that the freedom applied for cannot be safely granted.



 



SUPPLEMENTAL COMMENTARY ON §704-415



 



  Act 232, Session Laws 1982, shifted from the State to the
applicant, the burden to prove that a conditional release, discharge, or
modification of condition of release may be safely granted without danger to
the person or community following a judgment of acquittal on the grounds of
disease, disorder, or defect excluding responsibility.



  Act 230, Session Laws 2006, amended this section, among others,
to ensure that the person's physical or mental disease, disorder, or defect is
considered in commitment and release provisions.  House Standing Committee
Report No. 665-06.



 



Attorney General Opinions



 



  Determination of whether person may be safely released--standard
of proof; nature of evidence.  Att. Gen. Op. 79-5.



  State must prove by "clear and convincing evidence"
that the person may not safely be released.  Att. Gen. Op. 79-5.



 



Law Journals and Reviews



 



  Foucha v. Louisiana:  The Keys to the Asylum for Sane But
Potentially Dangerous Insanity Acquittees?  15 UH L. Rev. 215.



 



Case Notes



 



  Section does not violate due process clauses of state and
U.S. Constitutions; at release hearing, insanity acquittee bears burden of
proving by preponderance of evidence freedom from mental illness and dangerous
propensities.  84 H. 269, 933 P.2d 606.



  Section does not violate equal protection clauses of state
and U.S. Constitutions; State may place burden on insanity acquittee to prove
by preponderance of evidence that acquittee should be released.  84 H. 269, 933
P.2d 606.