H-3110              _______________________________________________

 

                                                   HOUSE BILL NO. 1595

                        _______________________________________________

 

State of Washington                              49th Legislature                              1986 Regular Session

 

By Representatives Crane, Fisch, Smitherman, Valle, Zellinsky, P. King, Todd, Kremen, Ebersole, Tilly, K. Wilson, Baugher, Appelwick and Rayburn

 

 

Read first time 1/20/86 and referred to Committee on Judiciary.

 

 


AN ACT Relating to the mental competence of criminal defendants; amending RCW 71.05.280 and 71.05.290; adding new sections to chapter 10.77 RCW; repealing RCW 10.77.010, 10.77.020, 10.77.030, 10.77.040, 10.77.050, 10.77.060, 10.77.070, 10.77.080, 10.77.090, 10.77.100, 10.77.110, 10.77.120, 10.77.130, 10.77.140, 10.77.150, 10.77.160, 10.77.163, 10.77.165, 10.77.170, 10.77.180, 10.77.190, 10.77.200, 10.77.210, 10.77.220, 10.77.230, 10.77.240, 10.77.250, 10.77.900, 10.77.910, 10.77.920, 10.77.930, and 9A.12.010; and providing an effective date.

 

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

 

          NEW SECTION.  Sec. 1.     As used in this chapter, the term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or other antisocial conduct.

 

          NEW SECTION.  Sec. 2.     Evidence that a criminal defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense.

 

          NEW SECTION.  Sec. 3.     A person who, as a result of mental disease or defect, is unable to understand the proceedings against the person or to assist in his or her own defense shall not be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.

 

          NEW SECTION.  Sec. 4.     (1) Evidence of mental disease or defect is not admissible in a trial on the merits unless the defendant, at the time of entering the plea of not guilty or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of the defendant's purpose to rely on a mental disease or defect to prove that he or she did not have a particular state of mind that is an essential element of the offense charged.  Otherwise, except on good cause shown, the defendant shall not introduce in his or her case in chief expert testimony in support of that defense.

(2) If the defendant is found not guilty of the charged offense or offenses or any lesser included offense for the reason that due to a mental disease or defect the defendant could not have a particular state of mind that is an essential element of the offense charged, the verdict and the judgment shall so state.

 

          NEW SECTION.  Sec. 5.     (1) If the defendant or the defendant's counsel files a written notice of intent to rely on a mental disease or defect under section 4 of this act or raises the issue of the defendant's fitness to proceed, the court shall appoint at least one qualified psychiatrist to examine and report upon the mental condition of the defendant.

          (2) The court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period of not exceeding sixty days or such longer period as the court determines to be necessary for the purpose and may direct that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the examination.

          (3) In the examination, any method may be employed that is accepted by the medical profession for the examination of those alleged to be suffering from mental disease or defect.

 

          NEW SECTION.  Sec. 6.     (1) The report of the examination shall include the following:

          (a) A description of the nature of the examination;

          (b) A diagnosis of the mental condition of the defendant;

          (c) If the defendant suffers from a mental disease or defect, an opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in his or her own defense; and

          (d) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind that is an element of the offense charged.

          (2) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental disease or defect.

          (3) The report of the examination shall be filed in triplicate with the clerk of court, who shall deliver copies to the prosecuting attorney and the counsel for the defendant.

 

          NEW SECTION.  Sec. 7.     If either the defendant or the state wishes the defendant to be examined by a qualified psychiatrist or other expert selected by the one proposing the examination in order to determine the defendant's fitness to proceed or whether the defendant had, at the time the offense was committed, a particular state of mind that is an essential element of the offense, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination.

 

          NEW SECTION.  Sec. 8.     (1) Upon the trial, any psychiatrist who reported under sections 5 and 6 of this act may be called as a witness by the prosecution or the defense.  Both the prosecution and the defense may summon any other qualified psychiatrist or other expert to testify, but no one who has not examined the defendant is competent to testify to an expert opinion with respect to the mental condition of the defendant, as distinguished from the validity of the procedure followed by or the general scientific propositions stated by another witness.

          (2) If a psychiatrist or other expert who has examined the defendant testifies concerning the defendant's mental condition, the expert may make a statement as to the nature of the examination, the expert's diagnosis of the mental condition of the defendant at the time of the commission of the offense charged, and the expert's opinion as to the ability of the defendant to have a particular state of mind that is an element of the offense charged.  The expert may make any explanation reasonably serving to clarify the diagnosis and opinion and may be cross-examined as to any matter bearing on the expert's competency or credibility or the validity of the diagnosis or opinion.

 

          NEW SECTION.  Sec. 9.     (1) The issue of the defendant's fitness to proceed may be raised by the defendant or the defendant's counsel or by the prosecuting attorney.  If the issue is raised, it shall be determined by the court.  If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed under section 6 of this act, the court may make the determination on the basis of the report.  If the finding is contested, the court shall hold a hearing on the issue.  If the report is received in evidence at the hearing, the parties have the right to summon and cross-examine the psychiatrists who joined in the report and to offer evidence on the issue.

          (2) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in subsection (3) of this section, and the court shall commit the defendant to the custody of the secretary of social and health services to be placed in an appropriate institution of the department of social and health services for so long as the unfitness endures.  The committing court shall, within ninety days of commitment, review the defendant's fitness to proceed.  If the court finds that the defendant is still unfit to proceed and that it does not appear that the defendant will become fit to proceed within the reasonably foreseeable future, the proceeding against the defendant shall be dismissed, except as provided in subsection (3) of this section, and the prosecuting attorney shall petition the court in the manner provided in Title 71 RCW to determine the disposition of the defendant pursuant to those provisions.

          (3) The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible to fair determination prior to trial and without the personal participation of the defendant.

          (4) The expenses of sending the defendant to the custody of the secretary of social and health services to be placed in an appropriate institution, of keeping the defendant there, and of bringing the defendant back are chargeable to the state but the state may recover them from the estate of the defendant.

 

          NEW SECTION.  Sec. 10.    If the court, on its own motion or upon the application of the secretary of social and health services, the prosecuting attorney, or the defendant or the defendant's legal representative, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding shall be resumed.  If, however, the court is of the view that so much time has elapsed since the commitment of the defendant that it would be unjust to resume the criminal proceeding, the court may dismiss the charge and may order the defendant to be discharged or, subject to the law governing the civil commitment of persons suffering from serious mental illness, order the defendant committed to an appropriate institution of the department of social and health services.

 

          NEW SECTION.  Sec. 11.    (1) If a defendant is found not guilty for the reason that due to a mental disease or defect the defendant could not have a particular state of mind that is an essential element of the offense charged, the court shall order a predisposition investigation, which must include an investigation of the present mental condition of the defendant.  If the trial was by jury, the court shall hold a hearing to determine the appropriate disposition of the defendant.  If the trial was by the court, the court may hold a hearing to obtain any additional testimony it considers necessary to determine the appropriate disposition of the defendant.  In either case, the testimony and evidence presented at the trial shall be considered by the court in making its determination.

          (2) The court, upon finding that the defendant can not be discharged or released without danger to others, shall order the defendant committed to the custody of the secretary of social and health services to be placed in an appropriate institution for custody, care, and treatment.

          (3) A person committed to the custody of the secretary of social and health services shall have a hearing within one hundred eighty days of confinement to determine the defendant's present mental condition and whether the defendant may be discharged or released without danger to others.  The hearing shall be conducted by the court that ordered the commitment.  The court shall cause notice of the hearing to be served upon the defendant, the defendant's counsel, and the prosecuting attorney.  Such a hearing shall be deemed a civil proceeding, and the burden shall be on the defendant to prove by a preponderance of the evidence that the defendant may be safely released.

          (4) According to the determination of the court upon the hearing, the defendant shall be discharged or released on such conditions as the court determines to be necessary or shall be committed to the custody of the secretary of social and health services to be placed in an appropriate institution for custody, care, and treatment.

 

          NEW SECTION.  Sec. 12.    (1) If the secretary of social and health services believes that a person committed to custody under section 11 of this act may be discharged or released on condition without danger to him or herself or others, the secretary shall make application for the discharge or release in a report to the court by which the person was committed and shall send a copy of the application and report to the prosecuting attorney of the county from which the defendant was committed.

          (2) The court shall then appoint at least two qualified psychiatrists to examine the person and to report their opinion as to the person's mental condition within sixty days or such longer period as the court determines to be necessary for the purpose.  To facilitate the examinations and the proceedings thereon, the court may have the person confined in any institution located near the place where the court sits which may hereafter be designated by the secretary of social and health services as suitable for the temporary detention of irresponsible persons.

          (3) If the court is satisfied by the report filed under subsection (1) of this section and the testimony of the reporting psychiatrists which the court considers necessary that the committed person may be discharged or released on condition without danger to him or herself or others, the court shall order the discharge or release on conditions which the court determines to be necessary.

          (4) If the court is not satisfied, it shall promptly order a hearing to determine whether the person may safely be discharged or released.  A hearing is considered a civil proceeding, and the burden is upon the committed person to prove by a preponderance of the evidence that the person may safely be discharged or released.  According to the determination of the court upon the hearing, the committed person shall then be discharged or released on conditions which the court determines to be necessary or shall be recommitted to the custody of the secretary of social and health services, subject to discharge or release only in accordance with the procedures prescribed in this section and section 13 of this act.

 

          NEW SECTION.  Sec. 13.    A committed person may make application for discharge or release to the court by which the person was committed, and the procedure to be followed on the application shall be the same as that prescribed in section 12 of this act in the case of an application by the secretary of social and health services.  However, an application by a committed person need not be considered until the person has been confined for a period of not less than six months from the date of the order of commitment and, if the determination of the court is adverse to the application, the person shall not be permitted to file a further application until one year has elapsed from the date of any preceding hearing on an application for release or discharge.

 

          NEW SECTION.  Sec. 14.    If within five years after the conditional release of a committed person the court determines after hearing evidence that the conditions of release have not been fulfilled and that for the safety of the person  or for the safety of others the conditional release should be revoked, the court shall immediately order the person to be recommitted to the secretary of social and health services, subject to discharge or release only in accordance with the procedures prescribed in sections 12 or 13 of this act.

 

          NEW SECTION.  Sec. 15.    If a defendant is convicted on a verdict or a plea of guilty and the defendant claims that at the time of the commission of the offense of which the defendant was convicted the defendant was suffering from a mental disease or defect which rendered the defendant unable to appreciate the criminality of the conduct or to conform the defendant's conduct to the requirements of law, the sentencing court shall consider any relevant evidence presented at the trial and shall require such additional evidence as it considers necessary for the determination of the issue, including examination of the defendant and a report thereof as provided in sections 5 and 6 of this act.

 

          NEW SECTION.  Sec. 16.    (1) If the court finds that the defendant at the time of the commission of the offense of which the defendant was convicted did not suffer from a mental disease or defect as described in section 15 of this act, it shall sentence the defendant as provided in Title 9 RCW.

          (2) If the court finds that the defendant at the time of the commission of the offense suffered from a mental disease or defect as described in section 15 of this act, any mandatory minimum sentence prescribed by law for the offense need not apply and the court shall sentence the defendant to be committed to the custody of the department of corrections to be placed in an appropriate institution for custody, care, and treatment for a definite period of time not to exceed the maximum term of imprisonment that could be imposed under subsection (1) of this section.  The authority of the court with regard to sentencing is the same as authorized in Title 9 RCW, provided the treatment of the individual and the protection of the public are provided for.

          (3) A defendant whose sentence has been imposed under subsection (2) of this section may petition the sentencing court for review of the sentence if the professional person certifies that the defendant has been cured of the mental disease or defect.  The sentencing court may make any order not inconsistent with its original sentencing authority except that the length of confinement or supervision must be equal to that of the original sentence.  The professional person shall review the defendant's status each year.

 

          NEW SECTION.  Sec. 17.    At the expiration of the period of commitment or period of treatment specified by the court under section 16(2) of this act, the defendant must be discharged from custody and further supervision, subject only to the law regarding the civil commitment of persons suffering from serious mental illness.

 

          NEW SECTION.  Sec. 18.    A statement made for the purposes of psychiatric examination or treatment provided for in this chapter by a person subjected to such examination or treatment is not admissible in evidence against the person in any criminal proceeding, except a sentencing hearing conducted under section 15 of this act, on any issue other than that of the person's mental condition.  It is admissible on the issue of the person's mental condition, whether or not it would otherwise be considered a privileged communication, unless it constitutes an admission of guilt of the crime charged.  In a hearing held under section 15 of this act, the court may hear and consider any such statement even if it constitutes an admission of guilt.

 

          NEW SECTION.  Sec. 19.    (1) Any acts done before the effective date of this act, and any proceedings then pending and any constitutional right or any action taken in any proceeding pending under statutes in effect prior to the effective date of this act, are not impaired by this chapter.

          (2)  This chapter also applies  to persons committed under prior law as incompetent to stand trial or as being criminally insane and to any proceedings in court then pending or thereafter commenced regardless of when the proceedings were commenced, except to the extent that in the opinion of the court, the former procedure should continue to be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedures of this chapter.

 

          NEW SECTION.  Sec. 20.    If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons or circumstances is not affected.

 

        Sec. 21.  Section 33, chapter 142, Laws of 1973 1st ex. sess. as last amended by section 14, chapter 215, Laws of 1979 ex. sess. and RCW 71.05.280 are each amended to read as follows:

          At the expiration of the fourteen day period of intensive treatment, a person may be confined for further treatment pursuant to RCW 71.05.320 for an additional period, not to exceed ninety days if:

          (1) Such person after having been taken into custody for evaluation and treatment has threatened, attempted, or inflicted:  (a) Physical harm upon the person of another or himself, or substantial damage upon the property of another, and (b) as a result of mental disorder presents a likelihood of serious harm to others or himself; or

          (2) Such person was taken into custody as a result of conduct in which he attempted or inflicted physical harm upon the person of another or himself, and continues to present, as a result of mental disorder, a likelihood of serious harm to others or himself; or

          (3) Such person has been determined to be incompetent and criminal charges have been dismissed pursuant to ((RCW 10.77.090(3))) section 11 of this 1986 act, as now or hereafter amended,  and has committed acts constituting a felony, and as a result of a mental disorder, presents a substantial likelihood of repeating similar acts.  In any proceeding pursuant to this subsection it shall not be necessary to show intent, wilfulness, or state of mind as an element of the felony; or

          (4) Such person is gravely disabled.

          For the purposes of this chapter "custody" shall mean involuntary detention under the provisions of this chapter or chapter 10.77 RCW, uninterrupted by any period of unconditional release from a facility providing involuntary care and treatment.

 

        Sec. 22.  Section 34, chapter 142, Laws of 1973 1st ex. sess. as last amended by section 6, chapter 199, Laws of 1975 1st ex. sess. and RCW 71.05.290 are each amended to read as follows:

          (1) At any time during a person's fourteen day intensive treatment period, the professional person in charge of a treatment facility or his professional designee or the designated county mental health professional may petition the superior court for an order requiring such person to undergo an additional period of treatment.  Such petition must be based on one or more of the grounds set forth in RCW 71.05.280.

          (2) The petition shall summarize the facts which support the need for further confinement and shall be supported by affidavits signed by two examining physicians, or by one examining physician and examining mental health professional.  The affidavits shall describe in detail the behavior of the detained person which supports the petition and shall explain what, if any, less restrictive treatments which are alternatives to detention are available to such person, and shall state the willingness of the affiant to testify to such facts in subsequent judicial proceedings under this chapter.

          (3) If a person has been determined to be incompetent pursuant to ((RCW 10.77.090(3) as now existing or hereafter amended)) section 11 of this 1986 act, then the professional person in charge of the treatment facility or his professional designee or the county designated mental health professional may directly file a petition for ninety day treatment under RCW 71.05.280(3).  No petition for initial detention or fourteen day detention is required before such a petition may be filed.

 

          NEW SECTION.  Sec. 23.    Sections 1 through 20 of this act are each added to chapter 10.77 RCW.

 

          NEW SECTION.  Sec. 24.  The following acts or parts of acts are each repealed:

                   (1) Section 1, chapter 117, Laws of 1973 1st ex. sess., section 1, chapter 198, Laws of 1974 ex. sess., section 1, chapter 122, Laws of 1983 and RCW 10.77.010;

          (2) Section 2, chapter 117, Laws of 1973 1st ex. sess., section 2, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.020;

          (3) Section 3, chapter 117, Laws of 1973 1st ex. sess., section 3, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.030;

          (4) Section 4, chapter 117, Laws of 1973 1st ex. sess., section 4, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.040;

          (5) Section 5, chapter 117, Laws of 1973 1st ex. sess., section 5, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.050;

          (6) Section 6, chapter 117, Laws of 1973 1st ex. sess., section 6, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.060;

          (7) Section 7, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.070;

          (8) Section 8, chapter 117, Laws of 1973 1st ex. sess., section 7, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.080;

          (9) Section 9, chapter 117, Laws of 1973 1st ex. sess., section 8, chapter 198, Laws of 1974 ex. sess., section 3, chapter 215, Laws of 1979 ex. sess. and RCW 10.77.090;

          (10) Section 10, chapter 117, Laws of 1973 1st ex. sess., section 9, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.100;

          (11) Section 11, chapter 117, Laws of 1973 1st ex. sess., section 10, chapter 198, Laws of 1974 ex. sess., section 4, chapter 215, Laws of 1979 ex. sess., section 1, chapter 25, Laws of 1983 and RCW 10.77.110;

          (12) Section 12, chapter 117, Laws of 1973 1st ex. sess., section 11, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.120;

          (13) Section 13, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.130;

          (14) Section 14, chapter 117, Laws of 1973 1st ex. sess., section 12, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.140;

          (15) Section 15, chapter 117, Laws of 1973 1st ex. sess., section 13, chapter 198, Laws of 1974 ex. sess., section 1, chapter 112, Laws of 1982  and RCW 10.77.150;

          (16) Section 16, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.160;

          (17) Section 2, chapter 122, Laws of 1983 and RCW 10.77.163;

          (18) Section 3, chapter 122, Laws of 1983 and RCW 10.77.165;

          (19) Section 17, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.170;

          (20) Section 18, chapter 117, Laws of 1973 1st ex. sess., section 14, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.180;

          (21) Section 19, chapter 117, Laws of 1973 1st ex. sess., section 15, chapter 198, Laws of 1974 ex. sess., section 2, chapter 112, Laws of 1982 and RCW 10.77.190;

          (22) Section 20, chapter 117, Laws of 1973 1st ex. sess., section 16, chapter 198, Laws of 1974 ex. sess., section 2, chapter 25, Laws of 1983 and RCW 10.77.200;

          (23) Section 21, chapter 117, Laws of 1973 1st ex. sess., section 3, chapter 196, Laws of 1983 and RCW 10.77.210;

          (24) Section 22, chapter 117, Laws of 1973 1st ex. sess., section 17, chapter 198, Laws of 1974 ex. sess., section 3, chapter 112, Laws of 1982 and RCW 10.77.220;

          (25) Section 23, chapter 117, Laws of 1973 1st ex. sess., section 18, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.230;

          (26) Section 24, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.240;

          (27) Section 25, chapter 117, Laws of 1973 1st ex. sess., section 1, chapter 245, Laws of 1985 and RCW 10.77.250;

          (28) Section 26, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.900;

          (29) Section 27, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.910;

          (30) Section 28, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.920;

          (31) Section 30, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.930; and

          (32) Section 9A.12.010, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.12.010.

 

          NEW SECTION.  Sec. 25.    This act shall take effect on January 1, 1987.