State Codes and Statutes
Statutes > Utah > Title-77 > Chapter-15 > 77-15-577-15-5. Order for hearing -- Stay of other proceedings -- Examinations ofdefendant -- Scope of examination and report.
(1) When a petition is filed pursuant to Section 77-15-3 raising the issue of thedefendant's competency to stand trial or when the court raises the issue of the defendant'scompetency pursuant to Section 77-15-4, the court in which proceedings are pending shall stayall proceedings. If the proceedings are in a court other than the district court in which thepetition is filed, the district court shall notify that court of the filing of the petition. The districtcourt in which the petition is filed shall pass upon the sufficiency of the allegations ofincompetency. If a petition is opposed by either party, the court shall, prior to granting ordenying the petition, hold a limited hearing solely for the purpose of determining the sufficiencyof the petition. If the court finds that the allegations of incompetency raise a bona fide doubt asto the defendant's competency to stand trial, it shall enter an order for a hearing on the mentalcondition of the person who is the subject of the petition.
(2) (a) After the granting of a petition and prior to a full competency hearing, the courtmay order the Department of Human Services to examine the person and to report to the courtconcerning the defendant's mental condition.
(b) The defendant shall be examined by at least two mental health experts not involved inthe current treatment of the defendant.
(c) If the issue is sufficiently raised in the petition or if it becomes apparent that thedefendant may be incompetent due to mental retardation, at least one expert experienced inmental retardation assessment shall evaluate the defendant. Upon appointment of the experts, thepetitioner or other party as directed by the court shall provide information and materials to theexaminers relevant to a determination of the defendant's competency and shall provide copies ofthe charging document, arrest or incident reports pertaining to the charged offense, knowncriminal history information, and known prior mental health evaluations and treatments.
(d) The prosecuting and defense attorneys shall cooperate in providing the relevantinformation and materials to the examiners, and the court may make the necessary orders toprovide the information listed in Subsection (2)(c) to the examiners. The court may provide inits order for a competency examination of a defendant that custodians of mental health recordspertaining to the defendant shall provide those records to the examiners without the need forconsent of the defendant or further order of the court.
(3) During the examination under Subsection (2), unless the court or the executivedirector of the department directs otherwise, the defendant shall be retained in the same custodyor status he was in at the time the examination was ordered.
(4) The experts shall in the conduct of their examination and in their report to the courtconsider and address, in addition to any other factors determined to be relevant by the experts:
(a) the defendant's present capacity to:
(i) comprehend and appreciate the charges or allegations against him;
(ii) disclose to counsel pertinent facts, events, and states of mind;
(iii) comprehend and appreciate the range and nature of possible penalties, if applicable,that may be imposed in the proceedings against him;
(iv) engage in reasoned choice of legal strategies and options;
(v) understand the adversary nature of the proceedings against him;
(vi) manifest appropriate courtroom behavior; and
(vii) testify relevantly, if applicable;
(b) the impact of the mental disorder, or mental retardation, if any, on the nature andquality of the defendant's relationship with counsel;
(c) if psychoactive medication is currently being administered:
(i) whether the medication is necessary to maintain the defendant's competency; and
(ii) the effect of the medication, if any, on the defendant's demeanor and affect andability to participate in the proceedings.
(5) If the expert's opinion is that the defendant is incompetent to proceed, the expert shallindicate in the report:
(a) which of the above factors contributes to the defendant's incompetency;
(b) the nature of the defendant's mental disorder or mental retardation and its relationshipto the factors contributing to the defendant's incompetency;
(c) the treatment or treatments appropriate and available; and
(d) the defendant's capacity to give informed consent to treatment to restore competency.
(6) The experts examining the defendant shall provide an initial report to the court andthe prosecuting and defense attorneys within 30 days of the receipt of the court's order. Thereport shall inform the court of the examiner's opinion concerning the competency of thedefendant to stand trial, or, in the alternative, the examiner may inform the court in writing thatadditional time is needed to complete the report. If the examiner informs the court thatadditional time is needed, the examiner shall have up to an additional 30 days to provide thereport to the court and counsel. The examiner must provide the report within 60 days from thereceipt of the court's order unless, for good cause shown, the court authorizes an additionalperiod of time to complete the examination and provide the report.
(7) Any written report submitted by the experts shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and thepurpose or purposes for each;
(c) state the expert's clinical observations, findings, and opinions on each issue referredfor examination by the court, and indicate specifically those issues, if any, on which the expertcould not give an opinion; and
(d) identify the sources of information used by the expert and present the basis for theexpert's clinical findings and opinions.
(8) (a) Any statement made by the defendant in the course of any competencyexamination, whether the examination is with or without the consent of the defendant, anytestimony by the expert based upon such statement, and any other fruits of the statement may notbe admitted in evidence against the defendant in any criminal proceeding except on an issuerespecting mental condition on which the defendant has introduced evidence. The evidence maybe admitted, however, where relevant to a determination of the defendant's competency.
(b) Prior to examining the defendant, examiners should specifically advise the defendantof the limits of confidentiality as provided under Subsection (8)(a).
(9) When the report is received the court shall set a date for a mental hearing which shallbe held in not less than five and not more than 15 days, unless the court enlarges the time forgood cause. Any person or organization directed by the department to conduct the examinationmay be subpoenaed to testify at the hearing. If the experts are in conflict as to the competency ofthe defendant, all experts should be called to testify at the hearing if reasonably available. Thecourt may call any examiner to testify at the hearing who is not called by the parties. If the court
calls an examiner, counsel for the parties may cross-examine the expert.
(10) A person shall be presumed competent unless the court, by a preponderance of theevidence, finds the person incompetent to proceed. The burden of proof is upon the proponent ofincompetency at the hearing. An adjudication of incompetency to proceed shall not operate as anadjudication of incompetency to give informed consent for medical treatment or for any otherpurpose, unless specifically set forth in the court order.
(11) (a) If the court finds the defendant incompetent to stand trial, its order shall containfindings addressing each of the factors in Subsections (4)(a) and (b) of this section. The orderissued pursuant to Subsection 77-15-6(1) which the court sends to the facility where thedefendant is committed or to the person who is responsible for assessing his progress towardcompetency shall be provided contemporaneously with the transportation and commitment orderof the defendant, unless exigent circumstances require earlier commitment in which case thecourt shall forward the order within five working days of the order of transportation andcommitment of the defendant.
(b) The order finding the defendant incompetent to stand trial shall be accompanied by:
(i) copies of the reports of the experts filed with the court pursuant to the order ofexamination if not provided previously;
(ii) copies of any of the psychiatric, psychological, or social work reports submitted tothe court relative to the mental condition of the defendant; and
(iii) any other documents made available to the court by either the defense or theprosecution, pertaining to the defendant's current or past mental condition.
(12) If the court finds it necessary to order the defendant transported prior to thecompletion of findings and compilation of documents required under Subsection (11), thetransportation and commitment order delivering the defendant to the Utah State Hospital, orother mental health facility as directed by the executive director of the Department of HumanServices or his designee, shall indicate that the defendant's commitment is based upon a findingof incompetency, and the mental health facility's copy of the order shall be accompanied by thereports of any experts filed with the court pursuant to the order of examination. The executivedirector of the Department of Human Services or his designee may refuse to accept a defendantas a patient unless he is accompanied by a transportation and commitment order which isaccompanied by the reports.
(13) Upon a finding of incompetency to stand trial by the court, the prosecuting anddefense attorneys shall provide information and materials relevant to the defendant's competencyto the facility where the defendant is committed or to the person responsible for assessing hisprogress towards competency. In addition to any other materials, the prosecuting attorney shallprovide:
(a) copies of the charging document and supporting affidavits or other documents used inthe determination of probable cause;
(b) arrest or incident reports prepared by a law enforcement agency pertaining to thecharged offense; and
(c) information concerning the defendant's known criminal history.
(14) The court may make any reasonable order to insure compliance with this section.
(15) Failure to comply with this section shall not result in the dismissal of criminalcharges.
Amended by Chapter 212, 2008 General Session
