HB 304: "An Act relating to psychiatric examination under criminal law and procedure; relating to notice of reasonable cause to believe the defendant has become competent; relating to defendants who are civilly committed; and providing for an effective date."
00 HOUSE BILL NO. 304 01 "An Act relating to psychiatric examination under criminal law and procedure; relating 02 to notice of reasonable cause to believe the defendant has become competent; relating to 03 defendants who are civilly committed; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.47.070 is amended to read: 06 Sec. 12.47.070. Psychiatric examination. (a) If a defendant has filed a notice 07 of intention to rely on the affirmative defense of insanity under AS 12.47.010 or has 08 filed notice under AS 12.47.020(a), [OR THERE IS REASON TO DOUBT THE 09 DEFENDANT'S FITNESS TO PROCEED, OR THERE IS REASON TO BELIEVE 10 THAT A MENTAL DISEASE OR DEFECT OF THE DEFENDANT WILL 11 OTHERWISE BECOME AN ISSUE IN THE CASE,] the court shall appoint at least 12 two qualified psychiatrists or two qualified [FORENSIC] psychologists or one of 13 each [CERTIFIED BY THE AMERICAN BOARD OF FORENSIC PSYCHOLOGY] 14 to examine and report on [UPON] the mental condition of the defendant. If the court
01 appoints two qualified psychiatrists, the qualified psychiatrists may select qualified 02 psychologists to provide assistance. If the defendant has filed notice under 03 AS 12.47.090(a), the report shall consider whether the defendant can still be 04 committed under AS 12.47.090(c) [. THE COURT MAY ORDER THE 05 DEFENDANT TO BE COMMITTED TO A SECURE FACILITY FOR THE 06 PURPOSE OF THE EXAMINATION FOR NOT MORE THAN 60 DAYS OR 07 SUCH LONGER PERIOD AS THE COURT DETERMINES TO BE NECESSARY 08 FOR THE PURPOSE AND MAY DIRECT THAT A QUALIFIED PSYCHIATRIST 09 RETAINED BY THE DEFENDANT BE PERMITTED TO WITNESS AND 10 PARTICIPATE IN THE EXAMINATION]. 11 (b) In an examination under (a) or (f) of this section, any method may be 12 employed which is accepted by the medical profession for the examination of those 13 alleged to be suffering from mental disease or defect. 14 (c) The report of an examination under (a) or (f) of this section shall include 15 the following: 16 (1) a description of the nature of the examination; 17 (2) a diagnosis of the mental condition of the defendant; 18 (3) if the defendant suffers from a mental disease or defect, an opinion 19 as to the defendant's capacity to understand the proceedings against the defendant and 20 to assist in the defendant's defense; 21 (4) if a notice of intention to rely on the affirmative defense of insanity 22 under AS 12.47.010(b) has been filed, an opinion as to the extent, if any, to which the 23 capacity of the defendant to appreciate the nature and quality of the defendant's 24 conduct was impaired at the time of the crime charged; and 25 (5) if notice has been filed under AS 12.47.020(a), an opinion as to the 26 capacity of the defendant to have a culpable mental state which is an element of the 27 crime charged. 28 (d) If the examination under (a) or (f) of this section cannot be conducted by 29 reason of the unwillingness of the defendant to participate in it, the report shall so state 30 and shall include, if possible, an opinion as to whether the unwillingness of the 31 defendant was the result of mental disease or defect.
01 (e) The report of the examination under (a) or (f) of this section shall be filed 02 with the clerk of the court, who shall cause copies to be delivered to the prosecuting 03 attorney and to counsel for the defendant. 04 * Sec. 2. AS 12.47.070 is amended by adding new subsections to read: 05 (f) If there is reason to doubt the defendant's fitness to proceed, or there is 06 reason to believe that a mental disease or defect of the defendant will otherwise 07 become an issue in the case, the court shall appoint at least one qualified psychiatrist 08 or one qualified psychologist to examine and report on the mental condition of the 09 defendant. If the court appoints one qualified psychiatrist, the qualified psychiatrist 10 may select a qualified psychologist to provide assistance. 11 (g) In an examination under (a) or (f) of this section, the court may order the 12 defendant committed to a secure facility for the purpose of the examination for not 13 more than 60 days or a longer period that the court determines is necessary for the 14 examination and may direct that a qualified psychiatrist or qualified psychologist 15 retained by the defendant be permitted to witness and participate in the examination. 16 * Sec. 3. AS 12.47.100(b) is amended to read: 17 (b) If, before imposition of sentence, the prosecuting attorney or the attorney 18 for the defendant has reasonable cause to believe that the defendant is presently 19 suffering from a mental disease or defect that causes the defendant to be unable to 20 understand the proceedings or to assist in the person's own defense, the attorney may 21 file a motion for a judicial determination of the competency of the defendant. Upon 22 that motion, or upon its own motion, the court shall have the defendant examined by at 23 least one qualified psychiatrist or qualified psychologist, who shall report to the court 24 concerning the competency of the defendant. For the purpose of the examination, the 25 court may order the defendant committed for a reasonable period to a suitable hospital 26 or other facility designated by the court. If the report of the qualified psychiatrist or 27 qualified psychologist indicates that the defendant is incompetent, the court shall hold 28 a hearing, upon due notice, at which evidence as to the competency of the defendant 29 may be submitted, including that of the reporting qualified psychiatrist or qualified 30 psychologist, and make appropriate findings. Before the hearing, the court shall, upon 31 request of the prosecuting attorney, order the defendant to submit to an additional
01 evaluation by a qualified psychiatrist or qualified psychologist designated by the 02 prosecuting attorney. 03 * Sec. 4. AS 12.47.100(h) is amended to read: 04 (h) In a hearing to determine competency under this section, the court may, at 05 the court's discretion, allow a witness, including a qualified psychiatrist or qualified 06 psychologist who examined the defendant, to testify concerning the competency of the 07 defendant by contemporaneous two-way video conference if the witness is in a place 08 from which people customarily travel by air to the court, and the procedure allows the 09 parties a fair opportunity to examine the witness. The video conference technician 10 shall be the only person in the presence of the witness unless the court, at the court's 11 discretion, determines that another person may be present. Any person present with 12 the witness must be identified on the record. In this subsection, "contemporaneous 13 two-way video conference" 14 (1) means a conference among people at different places by means of 15 transmitted audio and video signals; 16 (2) includes all communication technologies that allow people at two 17 or more places to interact by two-way video and audio transmissions simultaneously. 18 * Sec. 5. AS 12.47.110(b) is amended to read: 19 (b) On or before the expiration of the initial 90-day period of commitment, the 20 court shall conduct a hearing to determine whether or not the defendant remains 21 incompetent. If the court finds by a preponderance of the evidence that the defendant 22 remains incompetent, the court may recommit the defendant for a second period of 90 23 days. The court shall determine at the expiration of the second 90-day period whether 24 the defendant has become competent. If, at the expiration of the second 90-day period, 25 the court determines that the defendant continues to be incompetent to stand trial, the 26 charges against the defendant shall be dismissed without prejudice, and continued 27 commitment of the defendant shall be governed by the provisions relating to civil 28 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 29 crime involving force against a person and the court finds that the defendant presents a 30 substantial danger of physical injury to other persons and that there is a substantial 31 probability that the defendant will regain competency within a reasonable period of
01 time, in which case the court may extend the period of commitment for an additional 02 six months. If the defendant remains incompetent at the expiration of the additional 03 six-month period, the charges shall be dismissed without prejudice, and continued 04 commitment proceedings shall be governed by the provisions relating to civil 05 commitment under AS 47.30.700 - 47.30.915 [. IF THE DEFENDANT REMAINS 06 INCOMPETENT FOR FIVE YEARS AFTER THE CHARGES HAVE BEEN 07 DISMISSED UNDER THIS SUBSECTION, THE DEFENDANT MAY NOT BE 08 CHARGED AGAIN FOR AN OFFENSE ARISING OUT OF THE FACTS 09 ALLEGED IN THE ORIGINAL CHARGES, EXCEPT IF THE ORIGINAL 10 CHARGE IS A CLASS A FELONY OR UNCLASSIFIED FELONY]. 11 * Sec. 6. AS 12.47.110 is amended by adding new subsections to read: 12 (f) If commitment proceedings under AS 47.30.700 - 47.30.915 are instituted 13 against a defendant in addition to the proceedings under this section, the proceedings 14 under this section shall have no effect on the proceedings under AS 47.30.700 - 15 47.30.915. 16 (g) Nothing in this section is intended to limit or prohibit an evaluation facility 17 or designated treatment facility from administering medication or treatment authorized 18 under AS 47.30.772. 19 * Sec. 7. AS 12.47 is amended by adding a new section to read: 20 Sec. 12.47.125. Determination of sanity after dismissal of charges. (a) If 21 charges are dismissed under AS 12.47.110(b) against a defendant admitted to a 22 designated treatment facility, and a psychiatrist or psychologist has reasonable cause 23 to believe that the defendant has become competent, the psychiatrist or psychologist 24 shall notify the prosecuting authority and the court. 25 (b) The defendant may be charged again for an offense arising out of the facts 26 alleged in the original charges if the notice in this section is provided 27 (1) any time after the dismissal under AS 12.47.110(b) if the original 28 charge was a class A felony or unclassified felony; or 29 (2) within five years of the dismissal under AS 12.47.110(b) for any 30 other offense. 31 (c) Upon the filing of charges for an offense arising out of facts alleged in the
01 original charges, the court shall appoint at least one qualified psychiatrist or qualified 02 psychologist to examine and report on the mental condition of the defendant. If the 03 court appoints a qualified psychiatrist, the qualified psychiatrist may select a qualified 04 psychologist to provide assistance. The court may order the defendant committed for a 05 reasonable period to an evaluation facility or order continued admission to a 06 designated treatment facility. The qualified psychiatrist or qualified psychologist shall 07 file a report with the court under AS 12.47.070(c). 08 (d) Upon the filing of the report described in (c) of this section, the court shall 09 hold a hearing, after due notice, as soon as conveniently possible. At the hearing, 10 evidence as to the mental condition of the defendant may be submitted, including 11 reports by the qualified psychiatrist or qualified psychologist and the licensed 12 psychiatrist or licensed psychologist who had reasonable cause to believe that the 13 defendant had become competent. For any charges filed for an offense arising out of 14 facts alleged in the original charges, the prosecuting authority bears the burden of 15 proving the defendant is competent to understand the nature of the proceedings against 16 the defendant and to assist in the defendant's own defense. 17 (e) If at the hearing described in (d) of this section the court determines that 18 the defendant is presently mentally competent to understand the nature of the 19 proceedings and to assist in the defendant's own defense, appropriate criminal 20 proceedings may proceed against the defendant. 21 (f) If at the hearing described in (d) of this section the court determines that 22 the defendant is still presently mentally incompetent, the court shall recommit the 23 defendant under AS 12.47.110. 24 (g) A finding by the court that the defendant is mentally competent to stand 25 trial in no way prejudices the accused in a defense based on mental disease or defect 26 excluding responsibility. This finding may not be introduced in evidence on that issue 27 or otherwise brought to the notice of the jury. 28 * Sec. 8. AS 12.47.130 is amended by adding new paragraphs to read: 29 (7) "designated treatment facility" has the meaning given in 30 AS 47.30.915; 31 (8) "evaluation facility" has the meaning given in AS 47.30.915;
01 (9) "qualified psychiatrist" means a licensed physician who is a 02 psychiatrist trained in forensic competency assessment, or a psychiatrist receiving 03 forensic training and is practicing under the supervision of a psychiatrist with 04 expertise in forensic psychiatry; 05 (10) "qualified psychologist" means a licensed psychologist trained in 06 forensic competency assessment, or a psychologist receiving forensic training and is 07 practicing under the supervision of a psychologist with expertise in forensic 08 psychology. 09 * Sec. 9. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 APPLICABILITY. This Act applies to procedures occurring and notices filed on or 12 after the effective date of those sections, for offenses occurring before, on, or after the 13 effective date of this Act. 14 * Sec. 10. This Act takes effect July 1, 2020.