REPORT TITLE:
Crime Victims; Major Devts.


DESCRIPTION:
Amends the bill of rights for crime victims by amending the
definition of "major developments" to include unfitness to stand
trial, transfer to the state hospital or other psychiatric
facility, or regaining fitness to proceed; requires notice to be
given to state or county law enforcement agencies on behalf of
victims of custodial status of defendants committed to
psychiatric facilities as unfit to proceed or after acquittal
based on mental illness. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2142
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO RIGHTS OF VICTIMS AND WITNESSES IN CRIMINAL
   PROCEEDINGS.



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

 1      SECTION 1.  The legislature finds that under the basic bill
 
 2 of rights of crime victims and witnesses in chapter 801D, Hawaii
 
 3 Revised Statutes, victims and surviving immediate family members
 
 4 of crime, upon their written request, must be notified of "major
 
 5 developments" in the case and whenever the defendant or
 
 6 perpetrator is released from custody, provided that the crime
 
 7 charged is a felony.  This right of crime victims and their
 
 8 surviving immediate family members does not depend on whether or
 
 9 not the person has actually been convicted of that crime, since
 
10 the term "crime" is defined in that chapter as an act or omission
 
11 committed by an adult or juvenile that would constitute an
 
12 offense against the person under the Hawaii penal code.
 
13      However, the definition of "major developments" in that
 
14 chapter is vague with respect to whether that term includes such
 
15 events as a finding that the perpetrator is deemed unfit to stand
 
16 trial, has been transferred to the state hospital or other
 
17 psychiatric institution, or has been rehabilitated and
 
18 transferred back to the jurisdiction of the county for resumption
 
19 of penal proceedings upon regaining fitness to proceed.  While
 
20 the definition of that term includes "the disposition of the
 

 
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 1 case," this phrase arguably does not include these other
 
 2 developments.
 
 3      Consequently, a victim or surviving immediate family member
 
 4 of a felony may conceivably not be notified of a defendant's or
 
 5 perpetrator's acquittal and release if found unfit to proceed, or
 
 6 transferred to the state hospital or other facility, since these
 
 7 events are not specifically included in the definition of "major
 
 8 developments."  The legislature finds that these crime victims
 
 9 and their families should be notified under these circumstances,
 
10 however, and should be further notified of the date of the
 
11 resumption of penal proceedings should the defendant or
 
12 perpetrator be subsequently deemed fit to proceed.
 
13      Accordingly, the purpose of this Act is to require notice to
 
14 the state or county law enforcement agency responsible for the
 
15 criminal case of any proposed change in the custodial status of a
 
16 defendant who was committed to a psychiatric facility after being
 
17 found unfit to proceed, being acquitted on the grounds of mental
 
18 illness, or being civilly committed in lieu of prosecution or of
 
19 sentence; and to amend the definition of "major developments" to
 
20 include a finding of unfitness to stand trial, transfer to the
 
21 state hospital or other psychiatric facility, or regaining
 
22 fitness to proceed.
 

 
 
 
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 1      SECTION 2.  Section 334-60.4, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  The court shall set a hearing on the petition and
 
 4 notice of the time and place of such hearing shall be served in
 
 5 accordance with, and to those persons specified in, a current
 
 6 order of commitment.  If there is no current order of commitment,
 
 7 notice of the hearing shall be served personally on the subject
 
 8 of the petition and served personally or by certified or
 
 9 registered mail, return receipt requested, deliverable to the
 
10 addressee only, on the subject's spouse or reciprocal
 
11 beneficiary, legal parents, adult children, and legal guardian,
 
12 if one has been appointed.  If the subject of the petition has no
 
13 living spouse or reciprocal beneficiary, legal parent and adult
 
14 children, or if none can be found, notice of the hearing shall be
 
15 served on at least one of the subject's closest adult relatives
 
16 if any can be  found.  Notice of the hearing shall also be served
 
17 on the public defender, attorney for the subject of the petition,
 
18 or other court-appointed attorney as the case may be.  If the
 
19 subject of the petition was committed pursuant to sections 704-
 
20 406, 704-411, or 706-607, notice shall also be served on any
 
21 state or county department, agency, or office responsible for the
 
22 enforcement of rights under section 801D-4, on behalf of any
 
23 victim, surviving immediate family member, or witness. If the
 
24 subject of the petition is a minor, notice of the hearing shall
 

 
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 1 also be served upon the person who has had the principal care and
 
 2 custody of the minor during the sixty days preceding the date of
 
 3 the petition if such person can be found within the State.
 
 4 Notice shall also be given to such other persons as the court may
 
 5 designate."
 
 6      SECTION 3.  Section 334-60.5, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (i) to read as follows:
 
 8      "(i)  If after hearing all relevant evidence, including the
 
 9 result of any diagnostic examination ordered by the court, the
 
10 court finds that an individual is not a person requiring medical,
 
11 psychiatric, psychological, or other rehabilitative treatment or
 
12 supervision, the court shall order that the individual be
 
13 discharged if the individual has been hospitalized prior to the
 
14 hearing.  If the court finds that the [criteria] criterion for
 
15 involuntary hospitalization under section 334-60.2(1) has been
 
16 met beyond a reasonable doubt and that the criteria under
 
17 sections 334-60.2(2) and 334-60.2(3) have been met by clear and
 
18 convincing evidence, the court may issue an order to any police
 
19 officer to deliver the subject to a facility that has agreed to
 
20 admit the subject as an involuntary patient, or if the subject is
 
21 already a patient in a psychiatric facility, authorize the
 
22 facility to retain the patient for treatment for a period of
 
23 ninety days unless sooner discharged.  An order of commitment
 

 
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 1 shall specify which of those persons served with notice pursuant
 
 2 to section 334-60.4, together with such other persons as the
 
 3 court may designate, shall be entitled to receive any subsequent
 
 4 notice of intent to discharge, transfer, or recommit. If the
 
 5 subject of the petition was committed pursuant to sections 704-
 
 6 406, 704-411, or 706-607, the order of commitment shall also
 
 7 specify that notice shall be provided to any state or county
 
 8 department, agency, or office responsible for the enforcement of
 
 9 rights under section 801D-4, on behalf of any victim, surviving
 
10 immediate family member, or witness.  The director of health
 
11 shall be responsible for proper service of notice."
 
12      SECTION 4. Section 334-60.6, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "334-60.6  Period of detention. [The] (a) Except as
 
15 provided by subsection (b), the psychiatric facility may detain a
 
16 subject for a period of time ordered by the court not to exceed
 
17 ninety days from date of admission unless sooner discharged by
 
18 the facility pursuant to section 334-76 or section 334-74.  At
 
19 the end of the ninety-day period the subject shall be discharged
 
20 automatically except as provided in [sections 704-406, 704-411,
 
21 and 706-607,] subsection (b), unless before expiration of the
 
22 period and by a proceeding initiated pursuant to section 334-60.3
 
23 the facility obtains a court order for the subject's
 

 
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 1 recommitment.  Recommitment for a period not to exceed ninety
 
 2 days may not be ordered unless the court determines that the
 
 3 criteria for involuntary hospitalization set forth in section
 
 4 334-60.2 continue to exist.  If at the end of a recommitment
 
 5 period the court finds that the criteria for involuntary
 
 6 hospitalization set forth in section 334-60.2 continue to exist
 
 7 and are likely to continue beyond ninety days, the court may
 
 8 order recommitment for a period not to exceed one hundred eighty
 
 9 days.
 
10      Nothing in this section shall preclude a facility from
 
11 accepting for voluntary inpatient treatment, in accordance with
 
12 the procedures in section 334-60.1, a patient, for whom the
 
13 facility contemplates discharge pursuant to section 334-60.7 and
 
14 who voluntarily agrees to further hospitalization after the
 
15 period of commitment has expired, or where the patient is no
 
16 longer a proper subject for commitment.
 
17      (b) A subject committed to a psychiatric facility pursuant
 
18 to sections 704-406, 704-411, and 706-607 shall not be eligible
 
19 for release under this section until one hundred and eighty days
 
20 have elapsed from the date of admission.  No subject committed
 
21 pursuant to sections 704-406, 704-411, and 706-607 shall be
 
22 automatically released at the end of the one hundred and eighty
 
23 day period.  At the end of the one hundred and eighty day period,
 

 
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 1 the subject may petition for release pursuant to section 334-
 
 2 60.5.  If the court orders that the psychiatric facility shall
 
 3 retain the subject for treatment, the subject shall not be
 
 4 entitled to petition for release until ninety days have elapsed.
 
 5 No subject committed pursuant to sections 704-406, 704-411,and
 
 6 706-607 shall be automatically released at the end of the ninety-
 
 7 day period.  At the end of the ninety-day period, the subject may
 
 8 again petition for release pursuant to section 334-60.5.  If the
 
 9 court orders that the psychiatric facility shall retain the
 
10 subject for treatment, the court may order recommitment for a
 
11 period not to exceed one hundred and ninety days."
 
12      SECTION 5.  Section 334-60.7 Hawaii Revised Statutes is
 
13 amended to read as follows:
 
14      "334-60.7  Notice of intent to [discharge.] discharge:
 
15 hearing. (a)  When the administrator of a psychiatric facility
 
16 contemplates discharge of an involuntary patient because of
 
17 expiration of the court order for commitment or because the
 
18 patient is no longer a proper subject for commitment, as
 
19 determined by the criteria for involuntary hospitalization in
 
20 section 334-60.2 the administrator shall provide notice of intent
 
21 to discharge, or if the patient voluntarily agrees to further
 
22 hospitalization, the administrator shall provide notice of the
 
23 patient's admission to voluntary inpatient treatment.  The notice
 

 
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 1 shall be filed with the court and served personally or by
 
 2 certified mail on those persons whom the order of commitment
 
 3 specifies as entitled to receive notice. If the patient is
 
 4 committed pursuant to sections 704-406, 704-411, or 706-607, the
 
 5 administrator shall serve notice by personal service or by
 
 6 certified mail on any state or county department, agency, or
 
 7 office responsible for the enforcement of rights under section
 
 8 801D-4, on behalf of any victim, surviving immediate family
 
 9 member, or witness, in accordance with section 801D-4. 
 
10      (b) If no objection is filed within three days of service,
 
11 the administrator of the psychiatric facility shall discharge or
 
12 accept the patient for voluntary inpatient treatment.  If any
 
13 person specified as entitled to receive notice files a written
 
14 objection to discharge or to the patient's admission to voluntary
 
15 inpatient treatment on the grounds that the patient is a proper
 
16 subject for commitment, the court shall conduct a hearing to
 
17 determine if the patient still meets the criteria for involuntary
 
18 hospitalization in section 334-60.2.  If the court finds that the
 
19 patient does not meet the criteria for involuntary
 
20 hospitalization in section 334-60.2, the court shall issue an
 
21 order of discharge from the commitment.  If the court finds that
 
22 the patient does meet the criteria for involuntary
 

 
 
 
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 1 hospitalization in section 334-60.2, the court shall issue an
 
 2 order denying discharge from the commitment."
 
 3      SECTION 6.  Section 334-76, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "334-76  Discharge from custody.  Subject to any special
 
 6 requirements of law as provided in sections 704-406, 704-411, and
 
 7 706-607 or elsewhere, with respect to patients committed on court
 
 8 order, the administrator of a psychiatric facility, pursuant to
 
 9 section 334-60.7, shall send a notice of intent to discharge or
 
10 notice of the patient's admission to voluntary inpatient
 
11 treatment to those persons specified in the order of commitment
 
12 as entitled to receive notice of intent to discharge [and the].
 
13 The administrator shall also serve notice by personal service or
 
14 by certified mail on any state or county department, agency, or
 
15 office responsible for the enforcement of rights under section
 
16 801D-4, on behalf of any victim, surviving immediate family
 
17 member, or witness in accordance with section 801D-4.  The
 
18 administrator or the deputy or the physician assuming medical
 
19 responsibility for the patient shall discharge an involuntary
 
20 patient when the patient is no longer a proper subject for
 
21 commitment, as determined by the criteria for involuntary
 
22 hospitalization in section 334-60.2.
 
23      Nothing in this section shall preclude a facility from
 
24 accepting for voluntary inpatient treatment, in accordance with
 

 
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 1 the procedures in section 334-60.1, a patient for whom the
 
 2 facility contemplates discharge pursuant to section 334-60.7 and
 
 3 who voluntarily agrees to further hospitalization after the
 
 4 period of commitment has expired or where the patient is no
 
 5 longer a proper subject for commitment."
 
 6      SECTION 7.  Section 334-82, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "334-82  Order to show cause; guardian ad litem.
 
 9 Immediately upon receipt of a request, the court shall issue an
 
10 order to show cause directed to the administrator of the facility
 
11 and commanding the administrator to show cause at a date and time
 
12 certain, not later than five days thereafter, why the patient
 
13 should not be discharged forthwith.  A copy of the request shall
 
14 be attached to the order to show cause.  The form of the order to
 
15 show cause shall be prescribed and supplied free of charge by the
 
16 court.  The order to show cause shall issue without cost and may
 
17 be served as any other civil process or by any responsible person
 
18 appointed by the court for that purpose.  At any stage of the
 
19 proceedings, the court may appoint a guardian ad litem for the
 
20 patient.  The guardian ad litem may be a member of the bar of the
 
21 court or any other responsible person.  Service on the
 
22 administrator may be effected by leaving certified copies of the
 
23 order to show cause and request at the facility with any person
 

 
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 1 exercising authority.  If the patient has been committed pursuant
 
 2 to sections 704-406, 704-411, or 706-607, the request and the
 
 3 order to show cause shall also be served personally or by
 
 4 certified mail on any state or county department, agency, or
 
 5 office responsible for the enforcement of rights under section
 
 6 801D-4, on behalf of any victim, surviving immediate family
 
 7 member, or witness in accordance with section 801D-4."
 
 8      SECTION 8.  Section 801D-2, Hawaii Revised Statutes, is
 
 9 amended by amending the definition of "major developments" to
 
10 read as follows:
 
11      ""Major developments" means arrest or release of the suspect
 
12 by the police, case deferral by the police, referral to the
 
13 prosecutor by the police, rejection of the case by the
 
14 prosecutor, preliminary hearing date, grand jury date, trial and
 
15 sentencing dates, and the disposition of the case.
 
16      The term "major developments" includes, but shall not be
 
17 limited to, the following events:
 
18      (1)  The acquittal or finding of unfitness to proceed of a
 
19           defendant or perpetrator on the ground of physical or
 
20           mental disease, disorder, or defect excluding
 
21           responsibility under chapter 704;
 

 
 
 
 
 
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 1      (2)  Following an acquittal or finding of unfitness to
 
 2           proceed as described in paragraph (1), the defendant's
 
 3           or perpetrator's subsequent:
 
 4           (A)  Release or discharge from custody; or
 
 5           (B)  Commitment to the custody of the director of
 
 6                health for placement in an appropriate public or
 
 7                private institution, including:
 
 8                (i)  The state hospital established under section
 
 9                     334-31;
 
10               (ii)  A psychiatric facility, special treatment
 
11                     facility, or therapeutic living program, as
 
12                     those terms are defined in section 334-1; or
 
13              (iii)  Any other public or private facility or
 
14                     institution, whether on an inpatient or
 
15                     outpatient basis, for the care, custody,
 
16                     diagnosis, treatment, or rehabilitation of
 
17                     that person; or
 
18      (3)  A determination that the defendant or perpetrator has
 
19           regained fitness to proceed pursuant to section 704-
 
20           406(2), including the date on which the penal
 
21           proceedings are to be resumed."
 
22      SECTION 9.  Section 801D-4, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "801D-4  Basic bill of rights for victims and witnesses.
 
 2 (a)  Upon written request, victims and surviving immediate family
 
 3 members of crime shall have the following rights:
 
 4      (1)  To be informed by the police and the prosecuting
 
 5           attorney of the final disposition of the case.  If the
 
 6           crime charged is a felony, the victim or a surviving
 
 7           immediate family member shall be notified of major
 
 8           developments in the case and whenever the defendant or
 
 9           perpetrator is released from custody.  The victim or a
 
10           surviving immediate family member shall also be
 
11           consulted and advised about plea bargaining by the
 
12           prosecuting attorney;
 
13      (2)  To be notified by the prosecuting attorney if a court
 
14           proceeding to which they have been subpoenaed will not
 
15           proceed as scheduled;
 
16      (3)  To receive protection from threats or harm;
 
17      (4)  To be informed by the police, victim/witness counselor,
 
18           or other criminal justice personnel, of financial
 
19           assistance and other social services available as a
 
20           result of being a witness to or a victim of crime,
 
21           including information on how to apply for the
 
22           assistance and services;
 
23      (5)  To be provided by the court, whenever possible, with a
 
24           secure waiting area during court proceedings that does
 

 
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 1           not require them to be in close proximity to defendants
 
 2           and families and friends of defendants;
 
 3      (6)  To have any stolen or other personal property
 
 4           expeditiously returned by law enforcement agencies when
 
 5           the property is no longer needed as evidence.  If
 
 6           feasible, all the property, except weapons, currency,
 
 7           contraband, property subject to evidentiary analysis,
 
 8           and property, the ownership of which is disputed, shall
 
 9           be returned to the person within ten days of being
 
10           taken; and
 
11      (7)  To be informed by the department of public safety of
 
12           changes planned by the department in the custodial
 
13           status of the offender that allows or results in the
 
14           release of the offender into the community, including
 
15           escape, furlough, work release, placement on supervised
 
16           release, release on parole, release on bail bond,
 
17           release on appeal bond, and final discharge at the end
 
18           of the prison term.
 
19      (b)  Upon written request, the victim or the parent or
 
20 guardian of a minor or incapacitated victim of an offense under
 
21 section 707-730, 707-731, or 707-732(1)(a) shall have the right
 
22 to be informed of the human immunodeficiency virus (HIV) status
 
23 of the person who has been convicted or a juvenile who has been
 
24 adjudicated under that section and to receive counseling
 

 
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 1 regarding HIV.  The testing shall be performed according to the
 
 2 protocols set forth in section 325-17.  Upon request of the
 
 3 victim, or the parent or guardian of a minor or incapacitated
 
 4 victim, the department of health shall provide counseling.
 
 5      (c)  Pursuant to sections 334-60.7, 334-76, and 334-82,
 
 6 victims, surviving immediate family members, or witnesses of a
 
 7 crime shall have the right to be notified of the custodial status
 
 8 of a patient who has been committed pursuant to sections 704-406,
 
 9 704-411, or 706-607."
 
10      SECTION 10.  This Act shall apply to the release, after the
 
11 effective date of this Act, of any patient placed under the
 
12 jurisdiction of the department of health, whether before or after
 
13 the effective date of this Act, pursuant to chapter 334, Hawaii
 
14 Revised Statutes, as a result of having been found unfit to
 
15 proceed under section 704-406, Hawaii Revised Statutes, or having
 
16 been acquitted under section 704-411, Hawaii Revised Statutes, or
 
17 having been ordered hospitalized under section 706-607, Hawaii
 
18 Revised Statutes.
 
19      SECTION 11.  Statutory material to be repealed is bracketed.
 
20 New statutory material is underscored.
 
21      SECTION 12.  This Act shall take effect upon its approval.