REPORT TITLE:
Insanity Defense


DESCRIPTION:
Eliminates the insanity defense.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2090
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO PENAL RESPONSIBILITY.
 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 704-400, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "704-400 [Physical or mental disease, disorder, or defect
 
 4 excluding penal responsibility.(1)  A person is not
 
 5 responsible, under this Code, for conduct if at the time of the
 
 6 conduct as a result of physical or mental disease, disorder, or
 
 7 defect the person lacks substantial capacity either to appreciate
 
 8 the wrongfulness of the person's conduct or to conform the
 
 9 person's conduct to the requirements of law.
 
10      (2)  As used in this chapter, the terms "physical or mental
 
11 disease, disorder, or defect" do not include an abnormality
 
12 manifested only by repeated penal or otherwise anti-social
 
13 conduct.]  Mental condition not a defense.  A person's mental
 
14 condition shall not be a defense to any charge of criminal
 
15 conduct."
 
16      SECTION 2.  Section 704-404, Hawaii Revised Statutes, is
 
17 amended as follows:
 
18      (1)  By amending subsection (1) to read:
 
19      "(1)  Whenever [the defendant has filed a notice of
 

 
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 1 intention to rely on the defense of physical or mental disease,
 
 2 disorder, or defect excluding responsibility, or] there is reason
 
 3 to doubt the defendant's fitness to proceed, [or reason to
 
 4 believe that the physical or mental disease, disorder, or defect
 
 5 of the defendant will or has become an issue in the case,] the
 
 6 court may immediately suspend all further proceedings in the
 
 7 prosecution.  If a trial jury has been empanelled, it shall be
 
 8 discharged or retained at the discretion of the court.  The
 
 9 dismissal of the trial jury shall not be a bar to further
 
10 prosecution."
 
11      (2)  By amending subsection (4) to read:
 
12      "(4)  The report of the examination shall include the
 
13 following:
 
14      (a)  A description of the nature of the examination;
 
15      (b)  A diagnosis of the physical or mental condition of the
 
16           defendant;
 
17      (c)  An opinion as to the defendant's capacity to understand
 
18           the proceedings against the defendant and to assist in
 
19           the defendant's own defense;
 
20     [(d)  An opinion as to the extent, if any, to which the
 
21           capacity of the defendant to appreciate the
 
22           wrongfulness of the defendant's conduct or to conform
 
23           the defendant's conduct to the requirements of law was
 

 
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 1           impaired at the time of the conduct alleged;
 
 2      (e)  When directed by the court, an opinion as to the
 
 3           capacity of the defendant to have a particular state of
 
 4           mind which is required to establish an element of the
 
 5           offense charged;] and
 
 6     [(f)] (d)  Where more than one examiner is appointed, a
 
 7           statement that the diagnosis and opinion rendered were
 
 8           arrived at independently of any other examiner, unless
 
 9           there is a showing of a clear need for communication
 
10           between or among the examiners for clarification.  A
 
11           description of the communication shall be included in
 
12           the report."
 
13      SECTION 3.  Section 704-410, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "704-410  Form of expert testimony regarding [physical or
 
16 mental disease, disorder, or defect.] fitness to proceed.  (1)
 
17 At the hearing pursuant to section 704-405 [or upon the trial],
 
18 the examiners who reported pursuant to section 704-404 may be
 
19 called as witnesses by the prosecution, the defendant, or the
 
20 court.  [If the issue is being tried before a jury, the jury may
 
21 be informed that the examiners or any of them were designated by
 
22 the court or by the director of health at the request of the
 
23 court, as the case may be.] If called by the court, the witness
 

 
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 1 shall be subject to cross-examination by the prosecution and the
 
 2 defendant.  Both the prosecution and the defendant may summon any
 
 3 other qualified physician or licensed psychologist or other
 
 4 expert to testify, but no one who has not examined the defendant
 
 5 shall be competent to testify to an expert opinion with respect
 
 6 to the physical or mental condition of the defendant, as
 
 7 distinguished from the validity of the procedure followed by, or
 
 8 the general scientific propositions stated by, another witness.
 
 9      (2)  When an examiner testifies on the issue of the
 
10 defendant's fitness to proceed, the examiner shall be permitted
 
11 to make a statement as to the nature of the examiner's
 
12 examination, the examiner's diagnosis of the physical or mental
 
13 condition of the defendant, and the examiner's opinion of the
 
14 extent, if any, to which the capacity of the defendant to
 
15 understand the proceedings against the defendant or to assist in
 
16 the defendant's own defense is impaired as a result of physical
 
17 or mental disease, disorder, or defect.
 
18      [(3)  When an examiner testifies on the issue of the
 
19 defendant's responsibility for conduct alleged or the issue of
 
20 the defendant's capacity to have a particular state of mind which
 
21 is necessary to establish an element of the offense charged, the
 
22 examiner shall be permitted to make a statement as to the nature
 
23 of the examiner's examination, the examiner's diagnosis of the
 

 
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 1 physical or mental condition of the defendant at the time of the
 
 2 conduct alleged, and the examiner's opinion of the extent, if
 
 3 any, to which the capacity of the defendant to appreciate the
 
 4 wrongfulness of the defendant's conduct or to conform the
 
 5 defendant's conduct to the requirements of law or to have a
 
 6 particular state of mind which is necessary to establish an
 
 7 element of the offense charged was impaired as a result of
 
 8 physical or mental disease, disorder, or defect at that time.
 
 9      (4)] (3)  When an examiner testifies, the examiner shall be
 
10 permitted to make any explanation reasonably serving to clarify
 
11 the examiner's diagnosis and opinion and may be cross-examined as
 
12 to any matter bearing on the examiner's competency or credibility
 
13 or the validity of the examiner's diagnosis or opinion."
 
14      SECTION 4.  Section 704-402, Hawaii Revised Statutes, is
 
15 repealed.
 
16      ["704-402  Physical or mental disease, disorder, or defect
 
17 excluding responsibility is an affirmative defense; form of
 
18 verdict and judgment when finding of irresponsibility is made.
 
19 (1)  Physical or mental disease, disorder, or defect excluding
 
20 responsibility is an affirmative defense.
 
21      (2)  When the defense provided for by subsection (1) is
 
22 submitted to a jury, the court shall, if requested by the
 
23 defendant, instruct the jury as to the consequences to the
 

 
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 1 defendant of an acquittal on the ground of physical or mental
 
 2 disease, disorder, or defect excluding responsibility.
 
 3      (3)  When the defendant is acquitted on the ground of
 
 4 physical or mental disease, disorder, or defect excluding
 
 5 responsibility, the verdict and the judgment shall so state."]
 
 6      SECTION 5.  Section 704-408, Hawaii Revised Statutes, is
 
 7 repealed.
 
 8      ["704-408  Determination of irresponsibility.  If the
 
 9 report of the examiners filed pursuant to section 704-404, or the
 
10 report of examiners of the defendant's choice under section
 
11 704-409, states that the defendant at the time of the conduct
 
12 alleged suffered from a physical or mental disease, disorder, or
 
13 defect which substantially impaired the defendant's capacity to
 
14 appreciate the wrongfulness of the defendant's conduct or to
 
15 conform the defendant's conduct to the requirements of law, the
 
16 court shall submit the defense of physical or mental disease,
 
17 disorder, or defect to the jury or the trier of fact at the trial
 
18 of the charge against the defendant."]
 
19      SECTION 6.  Section 704-411, Hawaii Revised Statutes, is
 
20 repealed.
 
21      ["704-411  Legal effect of acquittal on the ground of
 
22 physical or mental disease, disorder, or defect excluding
 
23 responsibility; commitment; conditional release; discharge;
 

 


 

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 1 procedure for separate post-acquittal hearing.(1)  When a
 
 2 defendant is acquitted on the ground of physical or mental
 
 3 disease, disorder, or defect excluding responsibility, the court
 
 4 shall, on the basis of the report made pursuant to section
 
 5 704-404, if uncontested, or the medical or psychological evidence
 
 6 given at the trial or at a separate hearing, make an order as
 
 7 follows:
 
 8      (a)  The court shall order the defendant to be committed to
 
 9           the custody of the director of health to be placed in
 
10           an appropriate institution for custody, care, and
 
11           treatment if the court finds that the defendant
 
12           presents a risk of danger to oneself or others and that
 
13           the defendant is not a proper subject for conditional
 
14           release; provided that the director of health shall
 
15           place defendants charged with misdemeanors or felonies
 
16           not involving violence or attempted violence in the
 
17           least restrictive environment appropriate in light of
 
18           the defendant's treatment needs and the need to prevent
 
19           harm to the person confined and others; or
 
20      (b)  The court shall order the defendant to be released on
 
21           such conditions as the court deems necessary if the
 
22           court finds that the defendant is affected by physical
 
23           or mental disease, disorder, or defect and that the
 

 
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 1           defendant presents a danger to oneself or others, but
 
 2           that the defendant can be controlled adequately and
 
 3           given proper care, supervision, and treatment if the
 
 4           defendant is released on condition; or
 
 5      (c)  The court shall order the defendant discharged from
 
 6           custody if the court finds that the defendant is no
 
 7           longer affected by physical or mental disease,
 
 8           disorder, or defect, or, if so affected, that the
 
 9           defendant no longer presents a danger to oneself or
 
10           others and is not in need of care, supervision, or
 
11           treatment.
 
12      (2)  The court shall, upon its own motion or on the motion
 
13 of the prosecuting attorney or the defendant, order a separate
 
14 post-acquittal hearing for the purpose of taking evidence on the
 
15 issue of the risk of danger which the defendant presents to
 
16 oneself or others.
 
17      (3)  When ordering a hearing pursuant to subsection (2):
 
18      (a)  In nonfelony cases, the court shall appoint a qualified
 
19           examiner to examine and report upon the physical and
 
20           mental condition of the defendant.  The court may
 
21           appoint either a psychiatrist or a licensed
 
22           psychologist.  The examiner may be designated by the
 
23           director of health from within the department of
 

 
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 1           health.  The examiner shall be appointed from a list of
 
 2           certified examiners as determined by the department of
 
 3           health.  The court, in appropriate circumstances, may
 
 4           appoint an additional examiner or examiners.
 
 5      (b)  In felony cases, the court shall appoint three
 
 6           qualified examiners to examine and report upon the
 
 7           physical and mental condition of the defendant.  In
 
 8           each case the court shall appoint at least one
 
 9           psychiatrist and at least one licensed psychologist.
 
10           The third member may be either a psychiatrist, a
 
11           licensed psychologist, or a qualified physician.  One
 
12           of the three shall be a psychiatrist or licensed
 
13           psychologist designated by the director of health from
 
14           within the department of health.  The three examiners
 
15           shall be appointed from a list of certified examiners
 
16           as determined by the department of health.
 
17 To facilitate the examination and the proceedings thereon, the
 
18 court may cause the defendant, if not then confined, to be
 
19 committed to a hospital or other suitable facility for the
 
20 purpose of examination for a period not exceeding thirty days or
 
21 such longer period as the court determines to be necessary for
 
22 the purpose upon written findings for good cause shown.  The
 
23 court may direct that qualified physicians or psychologists
 

 
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 1 retained by the defendant be permitted to witness and participate
 
 2 in the examination.  The examination and report and the
 
 3 compensation of persons making or assisting in the examination
 
 4 shall be in accord with section 704-404(3), (4)(a) and (b), (6),
 
 5 (7), (8), and (9).  As used in this section, the term "licensed
 
 6 psychologist" includes psychologists exempted from licensure by
 
 7 section 465-3(a)(3).
 
 8      (4)  Whether the court's order under subsection (1) is made
 
 9 on the basis of the medical or psychological evidence given at
 
10 the trial, or on the basis of the report made pursuant to section
 
11 704-404, or the medical or psychological evidence given at a
 
12 separate hearing, the burden shall be upon the State to prove, by
 
13 a preponderance of the evidence, that the defendant may not
 
14 safely be discharged and that the defendant should be either
 
15 committed or conditionally released as provided in subsection
 
16 (1)."]
 
17      SECTION 7.  Section 704-412, Hawaii Revised Statutes, is
 
18 repealed.
 
19      ["704-412  Committed person; application for conditional
 
20 release or discharge; by the director of health; by the person.
 
21 (1)  After the expiration of at least ninety days following the
 
22 order of commitment pursuant to section 704-411, if the director
 
23 of health is of the opinion that the person committed to his
 

 
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 1 custody may be released on condition or discharged without danger
 
 2 to himself or to the person or property of others, he shall make
 
 3 application for the discharge or conditional release of such
 
 4 person in a report to the court by which such person was
 
 5 committed and shall transmit a copy of the application and report
 
 6 to the prosecuting attorney of the county from which the
 
 7 defendant was committed.  The defendant shall be given notice of
 
 8 such application.
 
 9      (2)  After the expiration of ninety days from the date of
 
10 the order of commitment pursuant to section 704-411, the person
 
11 committed may apply to the court by which he was committed for an
 
12 order of discharge or conditional release upon the ground that
 
13 the same may be ordered without danger to himself or to the
 
14 person or property of others.  A copy of the application shall be
 
15 transmitted to the prosecuting attorney of the county from which
 
16 the defendant was committed.  If the determination of the court
 
17 is adverse to the application, such person shall not be permitted
 
18 to file a further application until one year has elapsed from the
 
19 date of any preceding hearing on an application for his discharge
 
20 or conditional release."]
 
21      SECTION 8.  Section 704-413, Hawaii Revised Statutes, is
 
22 repealed.
 
23      ["704-413  Conditional release; application for
 

 


 

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 1 modification or discharge; termination of conditional release and
 
 2 commitment.(1)  Any person released on condition pursuant to
 
 3 section 704-411 shall continue to receive mental health or other
 
 4 appropriate treatment and care deemed appropriate by the director
 
 5 of health until discharged from conditional release.  The person
 
 6 shall follow all prescribed treatments and take all prescribed
 
 7 medications according to the instructions of the person's
 
 8 treating mental health professional.  If any mental health
 
 9 professional treating any conditionally released person believes
 
10 the person is either not complying with the requirements of this
 
11 section, or there is other evidence that hospitalization is
 
12 appropriate, the mental health professional shall report the
 
13 matter to the probation officer of the conditionally released
 
14 person.  The probation officer may order the conditionally
 
15 released person to be hospitalized for a period not to exceed
 
16 seventy-two hours if the probation officer has probable cause to
 
17 believe the person has violated the requirements of this
 
18 subsection.  No person shall be hospitalized beyond the seventy-
 
19 two hour period unless a hearing has been held pursuant to
 
20 subsection (3).
 
21      (2)  Any person released on condition pursuant to section
 
22 704-411 may apply to the court ordering the conditional release
 
23 for discharge from or modification of the order granting
 

 
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 1 conditional release on the ground that he may be discharged or
 
 2 the order modified without danger to himself or to others.  The
 
 3 application shall be accompanied by a supporting affidavit of a
 
 4 qualified physician or licensed psychologist.  A copy of the
 
 5 application and affidavit shall be transmitted to the prosecuting
 
 6 attorney of the county in which the person is confined and to any
 
 7 persons supervising his release and the hearing on the
 
 8 application shall be held following notice to such persons.  If
 
 9 the determination of the court is adverse to the application,
 
10 such person shall not be permitted to file further application
 
11 until one year has elapsed from the date of any preceding hearing
 
12 on an application for modification of conditions of release or
 
13 for discharge.
 
14      (3)  If, at any time after the order pursuant to section
 
15 704-411 granting conditional release, the court shall determine,
 
16 after hearing evidence, that the conditions of release have not
 
17 been fulfilled or that for the safety of such person or others
 
18 his conditional release should be revoked, the court may
 
19 forthwith modify the conditions of release or order the person to
 
20 be committed to the custody of the director of health, subject to
 
21 discharge or release only in accordance with the procedure
 
22 prescribed in section 704-412."]
 
23      SECTION 9.  Section 704-414, Hawaii Revised Statutes, is
 

 
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 1 repealed.
 
 2      ["704-414  Procedure upon application for discharge,
 
 3 conditional release, or modification of conditions of release.
 
 4 Upon filing of an application pursuant to section 704-412 for
 
 5 discharge or conditional release, or upon the filing of an
 
 6 application pursuant to section 704-413 for discharge or for
 
 7 modification of conditions of release, the court shall appoint
 
 8 three qualified examiners in felony cases and one qualified
 
 9 examiner in nonfelony cases to examine and report upon the
 
10 physical and mental condition of the defendant.  In felony cases
 
11 the court shall appoint at least one psychiatrist and at least
 
12 one licensed psychologist.  The third member may be either a
 
13 psychiatrist, a licensed psychologist, or a qualified physician.
 
14 One of the three shall be a psychiatrist or licensed psychologist
 
15 designated by the director of health from within the department
 
16 of health.  The examiners shall be appointed from a list of
 
17 certified examiners as determined by the department of health.
 
18 To facilitate the examination and the proceedings thereon, the
 
19 court may cause the defendant, if not then confined, to be
 
20 committed to a hospital or other suitable facility for the
 
21 purpose of the examination and may direct that qualified
 
22 physicians or psychologists retained by the defendant be
 
23 permitted to witness and participate in the examination.  The
 

 
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 1 examination and report and the compensation of persons making or
 
 2 assisting in the examination shall be in accord with section
 
 3 704-404(3), (4)(a) and (b), (6), (7), (8), and (9).  As used in
 
 4 this section, the term "licensed psychologist" includes
 
 5 psychologists exempted from licensure by section 465-3(a)(3)."]
 
 6      SECTION 10.  Section 704-415, Hawaii Revised Statutes, is
 
 7 repealed.
 
 8      ["704-415  Disposition of application for discharge,
 
 9 conditional release, or modification of conditions of release.
 
10 If the court is satisfied by the report filed pursuant to section
 
11 704-414, and such testimony of the reporting examiners as the
 
12 court deems necessary, that the discharge, conditional release,
 
13 or modification of conditions of release applied for may be
 
14 granted without danger to the committed or conditionally released
 
15 person or to the person or property of others, the court shall
 
16 grant the application and order the relief.  If the court is not
 
17 so satisfied, it shall promptly order a hearing to determine
 
18 whether such person may safely be discharged or released.  Any
 
19 such hearing shall be deemed a civil proceeding and the burden
 
20 shall be upon the applicant to prove that the person may safely
 
21 be released on the conditions applied for or discharged.
 
22 According to the determination of the court upon the hearing, the
 
23 person shall thereupon be discharged, or released on such
 

 
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 1 conditions as the court determines to be necessary, or shall be
 
 2 recommitted to the custody of the director of health, subject to
 
 3 discharge or release only in accordance with the procedure
 
 4 prescribed in section 704-412."]
 
 5      SECTION 11.  The legislative reference bureau shall prepare
 
 6 proposed conforming legislation to make necessary amendments to
 
 7 statutes affected by the repeal of sections 704-402, 704-408,
 
 8 704-411, 704-412, 704-413, 704-414, and 704-415.  The legislative
 
 9 reference bureau shall transmit such proposed legislation to the
 
10 legislature not later than twenty days prior to the convening of
 
11 the regular session of 2001.
 
12      SECTION 12.  This Act does not affect rights and duties that
 
13 matured, penalties that were incurred, and proceedings that were
 
14 begun, before its effective date.
 
15      SECTION 13.  Statutory material to be repealed is bracketed.
 
16 New statutory material is underscored.
 
17      SECTION 14.  This Act shall take effect upon its approval.
 
18 
 
19                           INTRODUCED BY:_________________________