Criminal Justice Section  

   Standards

PART I.

MENTAL HEALTH, MENTAL RETARDATION,AND CRIMINAL JUSTICE: GENERAL PROFESSIONAL OBLIGATIONS



Standard  7-1.1. Roles of mental health and mental retardation professionals in the criminal process

(a) Identification of appropriate roles. Mental health and mental retardation professionals serve the administration of criminal justice by offering expert opinions and testimony within their respective areas of expertise concerning present scientific or clinical knowledge; by evaluating and offering expert opinions and testimony on the mental condition of defendants and witnesses; by providing consultation to the prosecution or defense concerning the conduct of individual cases; and by providing treatment and habilitation for persons charged with or convicted of crimes. Because these roles involve differing and sometimes conflicting obligations and functions, these professionals as well as courts, attorneys, and criminal justice agencies should clarify the nature and limitations of these respective roles. The professional's performance within these roles should be limited to the individual professional's area of expertise and should be consistent with that professional's ethical principles.

(b) Scientific and evaluative roles. In offering expert opinions and testimony concerning present scientific or clinical knowledge and in evaluating and offering expert opinions and testimony on the mental condition of criminal defendants, the mental health or mental retardation professional, no matter by whom retained, should function objectively within the professional's area of expertise. The qualifications of a mental health or mental retardation professional to offer expert testimony on present scientific or clinical knowledge are established in standard 7-3.13. In evaluating the mental condition of a defendant or witness, the professional has an obligation to make a thorough assessment based on sound evaluative methods and to reach an objective opinion on each specific matter referred for evaluation. Disclosure of information obtained during the evaluation is governed by limitations set forth in standards 7-3.2, 7-3.3(b), 7-3.4(b), and 7-3.8. The qualifications of a professional to serve as a court-appointed evaluator are established in standard 7-3.10. The qualifications of a professional to offer expert testimony about a person's mental condition are established in standard 7-3.11. Presentation of expert testimony is governed by standard 7-3.14.

(c) Consultative role. When providing consultation and advice to the prosecution or defense on the preparation or conduct of the case, the mental health or mental retardation professional has the same obligations and immunities as any member of the prosecution or defense team. Nevertheless, the prosecutor and defense counsel should respect the professional's ethical and professional standards. Any attempt by an attorney to compromise the professional's standards would constitute unprofessional conduct.

(d) Treatment and habilitation roles. When providing treatment or habilitation for a person charged with or convicted of a crime, the mental health or mental retardation professional's obligations to the person and to society derive primarily from those arising out of the treatment or habilitative relationship. Consistent with institutional security requirements, correctional and mental health or mental retardation facilities should not interfere with that traditional professional relationship. Any limitation on the professional relationship owing to the individual's involvement in the criminal process or placement in an institutional setting should be precisely defined and explained to the individual at the time the professional relationship is established.

Standard  7-1.2. Joint professional obligations for improving the administration of justice in criminal cases involving mental health or mental retardation issues
(a) National, state, and local judicial, legal, and mental health and mental retardation agencies and professional organizations have an obligation to work cooperatively to monitor the interdependent performance within the criminal process of their members and constituents and to improve the overall quality of the administration of justice in criminal cases involving mental health and mental retardation issues.

(b) Appropriate professional organizations and governmental agencies should establish programs, including peer review, for monitoring the performance of mental health and mental retardation professionals participating in the criminal process. Existing professional ethics boards and committees should develop specific criteria and special review procedures designed to address the unique ethical questions that arise when mental health and mental retardation professionals participate in the criminal process.

(c) Appropriate professional, scientific, and governmental organizations should sponsor empirical research concerning: (i) the validity and reliability of evaluations as relating to issues in criminal cases; (ii) the development of standardized protocols for conducting mental evaluations in criminal cases; (iii) the application and practical effect of substantive rules and procedures concerning mental illness and mental retardation in criminal law and procedure; and, (iv) the quality and impact of participation by mental health and mental retardation professionals in the criminal process.

Standard  7-1.3. Education and training
(a) Interdisciplinary cooperation. Judicial, legal, and mental health and mental retardation professional associations, organizations, and institutions at national, state, and local levels should cooperate in promoting, designing, and offering basic and advanced programs on the participation of mental health and mental retardation professionals in the criminal process to judges, attorneys, mental health and mental retardation professionals, and to students within these disciplines.

(b) Lawyers.

 
(i) Law schools should provide the opportunity for all students, as a part of their formal legal education, to become familiar with the issues involved in mental health and mental retardation law and mental health and mental retardation professional participation in the criminal process. When it is appropriate in view of the curricular framework, a law school should consider offering advanced courses on mental health and mental retardation law and mental health and mental retardation professional participation in the criminal process for students who desire to concentrate on criminal law practice.

(ii) Bar associations, law schools, and other organizations having responsibility for providing continuing legal education should develop and regularly conduct programs offering advanced instruction on mental health and mental retardation law and mental health and mental retardation professional participation in the criminal process. Prosecutors, public defenders, and other attorneys who specialize in, or regularly practice, criminal law should participate in these programs.


(c) Judges. Each jurisdiction's highest appellate tribunal or its judicial supervisory authority with responsibility for continuing judicial education should develop and regularly conduct programs on the participation of mental health and mental retardation professionals in the criminal process. Judges who preside over criminal trials should participate in these programs.

(d) Mental health and mental retardation professionals.

 
(i) Professional and graduate schools should afford the opportunity for the students of mental health and mental retardation disciplines, as a part of their formal education, to become familiar with the issues concerning the participation of mental health and mental retardation professionals in the criminal process.

(ii) These professional and graduate schools should also provide advanced instruction for students of the mental health and mental retardation disciplines who desire to meet the minimum criteria established by standard 7-3.10 for qualifying as court-appointed evaluators and by standard 7-3.11 for qualifying as expert witnesses testifying about a person's mental condition.

(iii) Professional and graduate schools and other appropriate organizations, including governmental agencies having responsibility for continuing education for mental health and mental retardation professionals, should develop and regularly conduct programs offering instruction on the participation of such professionals in the criminal process designed to:

 
(A) enable those professionals to meet the minimum criteria established by standard 7-3.10 for qualifying as court appointed evaluators and by standard 7-3.11 for qualifying as expert witnesses testifying about a person's mental condition; and,

(B) inform all participants of significant new developments in law and criminal practice in order to improve the professional competence of those who play scientific, evaluative, consultative, treatment, or habilitation roles in the criminal process. Mental health and mental retardation professionals who participate in the criminal process should enroll in these programs.

PART II.

POLICE AND CUSTODIAL ROLES

Standard  7-2.1. Classes of mentally ill and mentally retarded persons subject to police emergency detention

(a) Authority for the police to take mentally ill and mentally retarded persons into custody in emergency situations should be statutorily defined and limited to the following two classes of persons:
 
(i) those whose conduct represents a danger to themselves or others; and,

(ii) those who appear so gravely disabled as to be unable to provide themselves with the basic necessities of life.


(b) Detention is for the exclusive purpose of providing transportation to an appropriate facility where the detainee can be examined, and, if necessary, be provided appropriate evaluation, treatment, or habilitation. Wherever feasible, transportation should be to a mental health, mental retardation, or medical facility.

(c) Police agencies should promulgate written procedures to implement the emergency detention statute in their jurisdiction on behalf of the persons described in paragraph (a).

(d) The capacity of the police to implement the standards in this part is largely dependent upon the availability of comprehensive community mental health and mental retardation programs. This dependence is an explicit recognition of the fact that the police role in dealing with mentally ill and mentally retarded persons is a limited one.

Standard  7-2.2. Development of joint policy admitting persons detained by police for mental evaluation
(a) In every jurisdiction police officials and administrators of mental health, mental retardation, and medical facilities should cooperate in developing joint guidelines and policies regarding the admission of persons in police custody for appropriate evaluation, treatment, or habilitation. The joint guidelines should be widely disseminated to police, mental health, mental retardation, and medical facility personnel. The guidelines should provide for routine notification to police administrators and other appropriate officials when facility officials decline to accept a person in police custody for evaluation, treatment, or habilitation.

(b) Police officials and administrators of mental health, mental retardation, and medical facilities should periodically conduct a joint review of such guidelines and policies to evaluate performance and effect operational changes and improvements.

Standard  7-2.3. Policy preference for voluntary police disposition
Even where the law authorizes custodial intervention for the purpose of transporting a person to a mental health, mental retardation, or medical facility, police departmental guidelines should nonetheless stress a preference for a voluntary disposition. Such guidelines should require police officers, whenever feasible, to negotiate a voluntary disposition, particularly when a mentally ill or mentally retarded person is living with others and does not appear to be dangerous. In some cases, police action to summon the assistance of the person's friends or relatives will be adequate. In others, referral to a community mental health, community mental retardation, or other appropriate community facility may be required.
Standard  7-2.4. Use of force in mental health emergency interventions
(a) Police departmental guidelines should stipulate that when custodial disposition is appropriate police should use only the force reasonably necessary to effect such custody, taking into consideration the obligation of the police to protect the mentally ill or mentally retarded person, themselves, and others from bodily harm.

(b) Whenever feasible police should utilize the services of persons with special mental health or mental retardation training, including mental health and mental retardation professionals, to assist them in effecting custody of mentally ill or mentally retarded persons in emergency situations.

Standard  7-2.5. Custodial processing of mentally ill or mentally retarded persons
(a) When police custody of a mentally ill or mentally retarded person is based exclusively on either noncriminal behavior or minor criminal behavior, the police should either transport the person to an appropriate facility for evaluation or negotiate a voluntary disposition as provided for in standard 7-2.3.

(b) When a police officer has arrested a person for a felony or other serious crime, however, such person should be processed in the same manner as any other criminal suspect notwithstanding the fact that the arresting officer has reasonable grounds for believing that the person's behavior meets statutory and departmental guideline requirements for emergency detention for mental evaluation. In those cases, and as soon as possible following arrest, the police should arrange for a mental health or mental retardation professional to provide evaluation, treatment, or habilitation.

(c) Upon initial presentation to the prosecutor or the court, the arresting officer should reveal fully those facts which suggest that the arrestee is mentally ill or mentally retarded and in need of evaluation, treatment, or habilitation.

(d) At or after initial presentation to the prosecutor or the court, the arresting officer should record those facts which suggest that the arrestee is mentally ill or mentally retarded and in need of evaluation, treatment, or habilitation. This written record will preserve the arresting officer's observations for appropriate reference in conjunction with any future proceedings.

Standard  7-2.6. Postarrest obligations of police and custodial personnel
(a) It is the responsibility of custodial officials to ensure that mental health and mental retardation services are provided for detainees. To this end, and pursuant to the provisions of standard 7-2.8, training for all custodial personnel, and especially for personnel responsible for processing new admissions, should include instruction in the identification of symptoms and behavior indicative of mental illness and mental retardation.

(b) When arresting or custodial officers or other personnel observe a detainee whose conduct or demeanor is indicative of mental illness or mental retardation, mental disturbance, disorientation or distress, or whose behavior is self-injurious or is indicative of the possibility of suicide, such officers or personnel have a duty to report those observations promptly to the official in charge of the detention or holding facility. Such official, after promptly confirming the need to do so, should summon a mental health or mental retardation professional to provide emergency evaluation, treatment, or habilitation. Arresting and custodial officers and other personnel are obliged to report these observations even in cases where the detainee's conduct, demeanor, or behavior does not fall within the classifications for emergency detention described in standard 7-2.1

(c) When the mental health or mental retardation professional determines that a confined person requires immediate evaluation, treatment, or habilitation not available in the detention or holding facility, the detainee should promptly be transferred to a facility capable of providing such services.

Standard  7-2.7. Treatment or habilitation of detainees; voluntary and involuntary transfer; notice to counsel
 
(a) A detainee who is able to make informed decisions regarding the need for treatment or habilitation and who requests or consents to such services may be treated in the detention or holding facility or may be transferred to a mental health, mental retardation, or other appropriate facility in conformity with the statutes or rules governing voluntary mental health treatment and hospitalization.
(b) A detainee who is unable to make the kind of informed decision set forth in paragraph (a), or who objects to treatment or habilitation, or who objects to transfer to a mental health, mental retardation, or other appropriate facility should not be transferred or required to accept treatment or habilitation services except:
(i) when required by court order; or,
(ii) when reasonably believed by the responsible professional to be necessary in an emergency to prevent death or serious physical injury to the detainee or others. An involuntary transfer hearing should be initiated not later than [forty-eight] hours after an emergency transfer is effected.
(c) The detainee's attorney and the prosecuting attorney should be notified whenever:
(i) custodial personnel observe or are otherwise informed that a detainee is exhibiting symptoms or behaviors indicative of significant mental disturbance;
(ii) mental health or mental retardation professionals are summoned to provide treatment or habilitation or to determine the need for an emergency transfer to a mental health, mental retardation or medical facility; or,
(iii) the detainee is transferred to a mental health, mental retardation or medical facility. When possible, this notice should precede detainee's transfer.


Standard  7-2.8. Specialized training
 

(a) All agencies should provide specialized training to their personnel to assist them in identifying and responding to incidents involving mentally ill or mentally retarded persons. Mental health and mental retardation professionals should be routinely consulted regarding curriculum preparation and training material selection. To the extent feasible police administrators should obtain qualified professionals to serve as instructors for recruit and in-service training programs.
(b) As an adjunct to training, all police agencies should promulgate written policies detailing department procedures for intervening in emergency situations involving the mentally ill and mentally retarded. In addition, promotional examinations should test each candidate's knowledge concerning the characteristics of such persons and the resolution of emergency situations.
(c) All custodial personnel, whether civilian or sworn, should receive training in identifying and responding to the symptoms and behaviors, including self-injurious behavior, associated with mental illness and mental retardation. Emphasis should be placed on those symptoms and behaviors that arise or are aggravated by the fact of incarceration, particularly as they relate to suicide prevention. Explicit guidelines for responding to emergency situations, providing first aid, and preventing individuals with suicidal tendencies from harming themselves should be published and made available to all facility personnel.


Standard  7-2.9. Police and custodial records of contacts with mentally ill or mentally retarded persons
 

(a) Records of significant contacts with mentally ill or mentally retarded persons who are not charged with crime should be filed separately from arrest records and should be subject to a high degree of confidentiality.
(b) Records of treatment and habilitation provided to the detainee by the mental health or mental retardation professional should be maintained separately from other records pertaining to the detainee, and access to them should be limited to professionals providing treatment or habilitation, detainee's attorney, and detainee except as otherwise provided. Custodial personnel, including supervisory personnel, may not examine these records without prior authorization of the detainee or the detainee's attorney. However, whenever a mental health or mental retardation professional concludes that the detainee presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency treatment or habilitative intervention, the evaluator should notify the person in charge of the institution.
(c) Detainee's access to such treatment or habilitation records should be governed by rules similar to those applicable to patient access to public mental health institution treatment records.

 

PART III.

PRETRIAL EVALUATIONS AND EXPERT TESTIMONY

Standard  7-3.1. Authority to obtain mental evaluations
 

(a) Evaluations of defendant's competency to stand trial are governed by part IV of this chapter. Evaluations of other present competency issues are governed by part V of this chapter.
(b) Defense-initiated evaluations of defendant's mental condition at the time of the alleged crime are governed by standard 7-3.3.
(c) Prosecution-initiated evaluations of defendant's mental condition at the time of the alleged crime may only be conducted when ordered by the court as provided by standard 7-3.4.
(d) Other pretrial mental evaluations. Law enforcement and prosecution authorities may not seek or obtain a pretrial mental health or mental retardation professional interview or mental evaluation of a person who is the subject of a criminal investigation but who has not yet been taken into custody or arrested. Law enforcement and prosecution authorities may seek and obtain a pretrial mental health or mental retardation professional interview or evaluation of a person who has been taken into custody or arrested only if such interview or evaluation is otherwise permitted under existing law and
(i) has been authorized by that person's attorney; or
(ii) has been ordered by a court pursuant to paragraphs (a) or (c); or,
(iii) is conducted either for the sole purpose of diverting the person from the criminal process or for the sole purpose of determining whether emergency mental health treatment or habilitation is warranted, in a situation in which law enforcement or prosecution authorities have reasonable, articulable grounds to believe that the person needs immediate mental health treatment or habilitation.
In all cases in which a pretrial mental health or mental retardation professional interview or mental evaluation is conducted pursuant to paragraph (d), the person's attorney should be informed, whenever possible in advance, of the interview or evaluation and should receive a written report containing all information and opinions based on such interview or evaluation that were supplied orally or in writing to the law enforcement or prosecution authorities.
(e) Civil commitment of persons found not guilty by reason of mental nonresponsibility. Evaluations of the current mental condition of persons found not guilty by reason of mental nonresponsibility [insanity] are governed by standard 7-7.2.
(f) Presentence evaluations. Presentence evaluations of defendant's mental condition are governed by part IX of this chapter. An indigent offender's right to mental health or mental retardation professional assistance in the sentencing process is provided by standard 7-9.4. Evaluations of the current mental condition of offenders prior to or during a sentencing hearing to consider their commitment as mentally ill or mentally retarded offenders are governed by standard 7-9.8 of this chapter.
(g) Transfer of prisoners. Evaluations of the current mental condition of prisoners being considered for voluntary or involuntary transfer to mental health or mental retardation facilities are governed respectively by standards 7-10.3 and 7-10.4.


Standard  7-3.2. Uses of disclosures or opinions derived from pretrial mental evaluations
 

(a) Admissibility of disclosure or opinions in criminal proceedings. No statement made by or information obtained from a person, or evidence derived from such statement or information during the course of any pretrial mental health or mental retardation professional interview or mental evaluation, or during treatment or habilitation, and no opinion of a mental health or mental retardation professional based on such statement, information, or evidence is admissible in any criminal proceeding in which that person is a defendant unless the disclosure or opinion is otherwise admissible under standard 7-3.9 and:
(i) relates solely to defendant's present mental competency and the use of such disclosure conforms to the requirements of standard 7-4.6; or,
(ii) is otherwise relevant to an issue raised by defendant concerning defendant's mental condition and defendant intends to introduce the testimony of a mental health or mental retardation professional to support the defense claim on this issue.
(b) Duty of evaluator to disclose information concerning defendant's present mental condition that was not the subject of the evaluation. If in the course of any evaluation, the mental health or mental retardation professional concludes that defendant may be mentally incompetent to stand trial, presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention, the evaluator should notify defendant's attorney. If the evaluation was initiated by the court or prosecution, the evaluator should also notify the court.


Standard  7-3.3. Evaluations initiated by defense
 

(a) Defense access to mental health or mental retardation professional assistance and evaluation. The right to defend oneself against criminal charges includes an adequate opportunity to explore, through a defense-initiated mental evaluation, the availability of any defense to the existence or grade of criminal liability relating to defendant's mental condition at the time of the alleged crime. Accordingly, each jurisdiction should make available funds in a reasonable amount to pay for a mental evaluation by a qualified mental health or mental retardation professional selected by defendant in any case involving a defendant financially unable to afford such an evaluation. In such cases an attorney who believes that an evaluation could support a substantial legal defense should move for the appointment of a professional or professionals in an ex parte hearing. The court should grant the defense motion as a matter of course unless the court determines that the motion has no foundation. The court should promptly provide the prosecution with a copy of the order authorizing the evaluation. Assistance of mental health or mental retardation professionals during the sentencing process is governed by standard 7-9.4.
(b) Uses of disclosures. Whenever a mental health or mental retardation professional conducts an evaluation of defendant's mental condition upon the request or motion of the defense, all disclosures made by defendant or the attorney during the course of the evaluation are protected by the attorney-client privilege. As to that evaluation only, the privilege is waived to the extent that discovery is permitted by standard 7-3.8(b), if:
(i) defendant gives notice pursuant to standard 7-6.3 of an intention:
(A) to raise an issue concerning defendant's mental condition at the time of the alleged crime, and
(B) to introduce the testimony of the mental health or mental retardation professional who conducted the evaluation to support he defense claim on this issue; or,
(ii) defendant calls another mental health or mental retardation professional as an expert witness concerning defendant's mental condition at the time of the alleged crime, and the prosecution establishes, to the court's satisfaction, that in bad faith the defendant secured evaluations by all available qualified mental health or mental retardation professionals in the area thereby depriving the prosecution of the opportunity to obtain an adequate evaluation.
This standard does not preclude a mental health or mental retardation professional from disclosing the fact that the professional evaluated a named person upon defense request.


Standard 7-3.4. Court-ordered evaluations upon prosecution request
 

(a) Prosecution access to defendant for evaluation of mental condition at time of alleged crime. The defense attorney should notify the prosecution within [forty-eight] hours after a mental health or mental retardation professional begins a defense-initiated evaluation interview with defendant for the purposes of evaluating defendant's mental condition at the time of the alleged crime. If a defense attorney has obtained a court-ordered evaluation pursuant to standard 7-3.3, the requirement that the prosecution be provided with a copy of the court order satisfies the notification requirement of this standard. Upon motion of the prosecution after it receives notification, the court should order that defendant submit to an evaluation of defendant's mental condition to be performed by a qualified mental health or mental retardation professional acceptable to the prosecution. If the defense attorney fails to give the required notification, the court may impose sanctions appropriate to the degree of prejudice to the prosecution.
(b) Disposition of reports. A mental health or mental retardation professional who performs an evaluation initiated by the prosecutor pursuant to paragraph (a) should notify the prosecution and the defense in writing of the clinical findings and opinions reached in the evaluation. In this notification, the mental health or mental retardation professional should not refer to statements made by defendant or anyone else, identify the sources of information, or present the factual basis for the evaluator's clinical findings and opinions. The professional should also submit to the court a complete written report whose contents conform to the requirements of standard 7-3.7. The court should promptly provide the defendant with a copy of the report but should otherwise order that the report be sealed and that information contained in the report not be divulged. The court should not read the report prior to ordering it sealed. The report should remain sealed until such time as defendant gives notice, in accordance with standard 7-6.3, of an intention:
(i) to raise an issue concerning defendant's mental condition at the time of the alleged crime; and
(ii) to introduce the testimony of a mental health or mental retardation professional to support the defense claim on this issue.
Upon defendant's giving of the required notice, the court should promptly provide the prosecution with a copy of the mental health or mental retardation professional's report.
(c) Consequences of defendant's failure to cooperate in the evaluation. If the court determines that an adequate evaluation of defendant's mental condition at the time of the alleged crime has been precluded because defendant has refused to cooperate with the mental health or mental retardation professional, and that the refusal was not a result of defendant's mental illness or mental retardation, the court, in its discretion, may exclude the introduction at trial of testimony by a mental health or mental retardation professional offered by defendant concerning defendant's mental condition at the time of the alleged crime. Other proof of defendant's mental condition at the time of the alleged crime may be offered by defendant and, if otherwise competent, such evidence should be admissible. Sanctions for a defendant's refusal to cooperate in an evaluation of competency to stand trial are governed by standard 7-4.6.


Standard  7-3.5. Procedures for initiating mental evaluations
 

(a) Specificity of request. Whoever initiates an evaluation of defendant's mental condition should inform the mental health or mental retardation professional in writing of each specific matter to be addressed in the evaluation.
(b) Attorney's duty to provide information. The attorney initiating an evaluation should take appropriate measures to obtain and submit to the evaluator any record or information that the mental health or mental retardation professional regards as necessary for conducting a thorough evaluation on the matter(s) referred. Ordinarily, such records and information will include relevant medical and psychological records, police and other law enforcement reports, confessions or statements made by defendant, investigative reports, autopsy reports, toxicological studies, and transcripts of pretrial hearings. The attorney should also obtain and submit to the evaluator any other record or information that the attorney believes may be of assistance in facilitating a thorough evaluation on the matter(s) referred.
(c) Preference for single purpose evaluations. An evaluation of defendant's present mental competency should not be combined with an evaluation of defendant's mental condition at the time of the alleged crime, or with an evaluation for any other purpose, unless defendant so requests or, for good cause shown, the court so orders.
(d) Terms of court order. When an evaluation is conducted pursuant to court order, that order should:
(i) identify the initiating party;
(ii) identify the purpose or purposes of the evaluation;
(iii) describe the circumstances under which statements or other information obtained during the course of the evaluation, and any opinions of the mental health or mental retardation professional based on the evaluation, may be disclosed or used for any purpose in any criminal proceeding;
(iv) explain all applicable evidentiary privileges;
(v) specify whether the evaluator is required to prepare a written report, and, if so, delineate the scope, content, and disposition of the written report.
(e) Promulgation of standard court orders. Each jurisdiction should promulgate standard court orders designed to inform mental health and mental retardation professionals serving as evaluators of the laws and procedures within the jurisdiction applicable to such evaluations.


Standard  7-3.6. Procedures for conducting mental evaluations
 

(a) Duty of attorney to explain nature of evaluation to evaluator. Whoever initiates the evaluation should inform the mental health or mental retardation professional conducting the evaluation and ensure that the professional understands:
(i) the specific legal and factual matters relevant to the evaluation;
(ii) the rules governing disclosure of statements or information obtained during the evaluation and governing disclosure of opinions based on such statements or information; and,
(iii) the applicable evidentiary privileges.
(b) Duties of defense attorney and evaluator to explain nature of evaluation to defendant. In any evaluation, whether initiated by the court, prosecution, or defense, the defendant's attorney and the mental health or mental retardation professional conducting the evaluation have independent obligations to explain to defendant and to ensure that defendant understands to the extent possible:
(i) the purpose and nature of the evaluation;
(ii) the potential uses of any disclosures made during the evaluation;
(iii) the conditions under which the prosecutor will have access to information obtained and reports prepared; and,
(iv) the consequences of defendant's refusal to cooperate in the evaluation as provided for in standard 7-3.4(c) and 7-4.6(b).
(c) Presence of attorney during evaluation.
(i) When the scope of the evaluation is limited to defendant's present mental competency, the defense attorney is entitled to be present at the evaluation but may actively participate only if requested to do so by the evaluator.
(ii) When the scope of the evaluation is not limited to defendant's present mental competency, the defense attorney may be present at the evaluation only with the evaluator's prior approval, and if present may actively participate only if requested to do so by the evaluator.
(iii) The prosecutor may not be present at any mental evaluation of defendant.
(d) Recording the evaluation. All court-ordered evaluations of defendant initiated by the prosecution should be recorded on audiotape or, if possible, on videotape, and a copy of the recording should be provided promptly to the defense attorney. The defense may use the recording for any evidentiary purpose permitted by the jurisdiction. If the defense intends to use the recording at trial, it should notify the court. Upon receiving notice, the court should promptly provide to the prosecution a copy of the recording. Upon defense motion, the court may enter a protective order redacting portions of the recording before it is forwarded to the prosecution.
(e) Joint evaluation. Joint evaluations should be encouraged. They should be permitted when agreed upon by the prosecutor and defense attorney. A joint evaluation involves either a simultaneous evaluation by two or more mental health or mental retardation professionals or a single evaluation by a mental health or mental retardation professional agreed on by both parties.


Standard  7-3.7. Preparation and contents of written reports of mental evaluations
 

(a) Requirement of written report. Promptly upon concluding the evaluation, the mental health or mental retardation professional should prepare a complete, written report. However, at the specific request of the defense attorney, a professional who conducted an evaluation initiated by the defense attorney may make only an oral report.
(b) Contents of written report.
(i) The written evaluation report should ordinarily:
(A) identify the specific matters referred for evaluation;
(B) describe the procedures, tests, and techniques used by the evaluator;
(C) state the evaluator's clinical findings and opinions on each matter referred for evaluation and indicate specifically those questions, if any, that could not be answered;
(D) identify the sources of information and present the factual basis for the evaluator's clinical findings and opinions; and,
(E) present the reasoning by which the evaluator utilized the information to reach the clinical findings and opinions. The evaluator should express an opinion on a specific legal criterion or standard only if the opinion is within the scope of the evaluator's specialized knowledge.
(ii) Except as limited by standard 7-3.8(a), the evaluator should include in the written report any statements or information that serve as necessary factual predicates for the clinical findings or opinions, even if the statements or information are of a personal or potentially incriminating nature.
(c) Clarification of written report. The attorney who requested the evaluation should not edit, modify, revise, or otherwise compromise the integrity of the report. However, after the report has been completed and submitted, the attorney may correspond in writing with the mental health or mental retardation professional in order to clarify the meaning or implications of the evaluator's findings or opinions. The report and any clarifying correspondence between the attorney and the evaluator should be disclosed at the time established for discovery of written reports.
(d) Promulgation of written guidelines. Each jurisdiction should promulgate written guidelines regarding the law and procedures within that jurisdiction governing the preparation of written reports in order to inform mental health and mental retardation professionals serving as evaluators.


Standard  7-3.8. Discovery of written reports
 

(a) Discovery of reports concerning defendant's present mental competency. When the court has ordered a pretrial evaluation on any present mental competency issue, the evaluator should prepare a separate report on that issue even if other issues have also been referred for evaluation. The report should not contain information or opinions concerning either defendant's mental condition at the time of the alleged crime or any statements made by defendant regarding the alleged crime or any other crime. Upon satisfying itself that the report does not contain information or opinions that should have been excluded, the court should promptly provide copies to the prosecutor and to the defense attorney.
(b) Discovery of reports concerning defendant's mental condition at time of the alleged crime. When the defendant gives the notice specified in standard 7-6.3:
(i) the prosecution should promptly provide to the defense all written reports prepared by mental health or mental retardation professionals for the prosecution; and
(ii) the defense should promptly provide to the prosecution all written reports prepared by any mental health or mental retardation professional whom defendant intends to call as an expert witness on defendant's mental condition at the time of the alleged crime. Whenever defendant intends to call an expert witness who has not previously prepared a written report, a written report should be prepared and promptly provided to the prosecution. However, upon a showing of good cause by defendant, the court may order that the delivery of a report or reports be denied, restricted, or deferred until a time certain before trial. The court may order defendant to promptly disclose to the prosecutor a list of the sources of information relied upon in any report whose delivery has been denied, restricted, or deferred.
(c) Promulgation of written guidelines. Each jurisdiction should establish, by statute or court rule, detailed guidelines governing discovery of written reports prepared by mental health or mental retardation professionals.


Standard  7-3.9. Admissibility of expert testimony concerning a person's mental condition or behavior
 

(a) Admissibility of expert testimony concerning a person's present or past mental condition. Expert testimony, in the form of an opinion or otherwise, concerning a person's present mental competency or mental condition at some time in the past should be admissible whenever the testimony is based on and is within the specialized knowledge of the witness and will assist the trier of fact. However, the expert witness should not express, or be permitted to express, an opinion on any question requiring a conclusion of law or a moral or social value judgment properly reserved to the court or the jury.
(b) Admissibility of expert testimony concerning a person's future mental condition or behavior. An expert opinion stating a conclusion that a particular person will or will not engage in dangerous behavior in the future should not be admissible in any criminal proceeding or in any special commitment hearing involving a person found not responsible under the criminal law. Expert testimony relating to the person's future mental condition or behavior should be admissible in any criminal proceeding or in any special commitment hearing whenever the testimony is based on and is within the specialized knowledge of the witness and is limited to a description of:
(i) the clinical significance of the individual's personal history and proven past criminal act(s);

(ii) scientific studies involving the relationship between specific behaviors and variables that are objectively measurable and verifiable;

(iii) the possible psychological or behavioral effects of proposed therapeutic or habilitative interventions; or

(iv) the factors that tend to enhance or diminish the likelihood that specific types of behavior could occur in the future.


Standard  7-3.10. Evaluations of a person's mental condition: qualifications for court appointed evaluators

Evaluations by mental health and mental retardation professionals can contribute important information in cases that involve a person's mental condition. Accordingly, no professional should be appointed by the court to evaluate a person's mental condition unless the court determines that the professional's qualifications include:
 

(a) sufficient professional education and sufficient clinical training and experience to establish the clinical knowledge required for the specific type(s) of evaluation(s) being conducted; and,

(b) sufficient forensic knowledge, gained through specialized training or an acceptable substitute therefor, necessary for understanding the relevant legal matter(s) and for satisfying the specific purpose(s) for which the evaluation is being ordered.


Standard  7-3.11. Expert witnesses: qualifications for testifying about a person's mental condition
 

(a) Qualifications. Expert opinion testimony about a person's mental condition is designed to assist the trial factfinder. Because such testimony often assumes extraordinary importance in cases that involve a person's mental condition, no witness should be qualified by the court to present expert opinion testimony on a person's mental condition unless the court determines that the witness:
 
(i) has sufficient professional education and sufficient clinical training and experience to establish the clinical knowledge required to formulate an expert opinion; and,

(ii) has either:

(A) acquired sufficient knowledge, through forensic training or an acceptable substitute therefor, relevant to conducting the specific type(s) of mental evaluation actually conducted in the case, and relevant to the substantive law concerning the specific matter(s) on which expert opinion is to be proffered; or,

(B) has had a professional therapeutic or habilitative relationship with the person whose mental condition is in question; and

(iii) has performed an adequate evaluation, including a personal interview with the individual whose mental condition is in question, relevant to the legal and clinical matter(s) upon which the witness is being called to testify.


(b) Related standard. This standard refers only to qualifications for expert witnesses testifying about a person's mental condition. Qualifications for expert witnesses testifying on matters of present scientific or clinical knowledge are governed by standard 7-3.13.


Standard  7-3.12. Establishing minimum professional education and clinical training requirements for evaluators and expert witnesses; recommended requirements
 

(a) Responsibility of jurisdictions to establish education and training requirements. Evaluators appointed under standard 7-3.10 and witnesses qualified under standard 7-3.11 play important roles in cases that involve a person's mental condition. The development of high and uniform education and training standards for professionals performing in these capacities will enhance the administration of justice. Accordingly, every jurisdiction should establish, by statute, regulation, or court rule, minimum professional education and clinical training requirements necessary to qualify persons for the performance of such roles. Forensic knowledge requirements are governed by standards 7-3.10 and 7-3.11.

(b) Factors to be considered in developing education and training requirements. In developing such minimum requirements, jurisdictions should take the following general factors into consideration:

(i) Necessary and desirable education and training requirements should differ according to the specific subject matter of the evaluation(s) being performed and the specific legal purpose(s) for which expert opinion is being solicited; and,

(ii) Sufficient flexibility should be provided to permit the courts to utilize persons who clearly demonstrate the requisite knowledge notwithstanding their lack of the formal education or training that may be specified in the requirements. However, experience in performing evaluations or in testifying as an expert should not, by itself, constitute a sufficient demonstration of the requisite clinical knowledge.

(c) Recommended education and training requirements. In establishing minimum professional and education and clinical training requirements, each jurisdiction should strive for the highest possible qualifications and should adopt the following recommended minimum requirements or such higher requirements as may be feasible and appropriate:
(i) When an evaluation concerns a person's present mental competence, including issues governed by standard 7-4.9(a), or other matters concerning mental condition at the time of the evaluation, or a person's need for treatment or habilitation, evaluators and expert witnesses should be either:
 
(A) a licensed physician who has successfully completed at least two years of postdoctoral specialty training in a psychiatric residency program approved by the American Board of Psychiatry and Neurology (or one year of internship and one year of such residency training); or,

(B) a clinical, counseling, or school psychologist who has received a doctoral degree in psychology from an educational institution accredited by an organization recognized by the Council on Postsecondary Accreditation, and who is licensed or certified as a psychologist if the jurisdiction requires licensure or certification for that discipline; or,

(C) a clinical social worker who has received a master's degree in social work with an emphasis on clinical practice from an educational institution accredited by the Council on Social Work Education, and who has completed a minimum of two years or three thousand hours of postgraduate supervised clinical experience in the diagnosis, assessment, and treatment of mental disorders in an appropriate clinical setting, and who is licensed or certified as a social worker if the jurisdiction requires licensure or certification; or,

(D) a clinical specialist in psychiatric nursing or a psychiatric nurse, who has received a master's degree in psychiatric nursing from an educational institution accredited by an organization recognized by the National League of Nursing, and who is licensed or certified if the jurisdiction requires licensure or certification for the respective discipline.

(ii) When an evaluation concerns a person's mental condition at the time of an alleged crime, or a person's future mental condition or behavior when these issues arise within a sentencing proceeding or a special commitment proceeding held pursuant to standard 7-7.4 or standard 7-4.13, the evaluator or expert witness should be either:
 
(A) a licensed physician who has completed the postdoctoral specialty training in a psychiatric residency program approved by the American Board of Psychiatry and Neurology; or,

(B) a clinical or counseling psychologist who has received a doctoral degree in psychology from an educational institution accredited by an organization recognized by the Council on Postsecondary Accreditation, and who is licensed or certified as a psychologist if the jurisdiction requires licensure or certification.


(iii) A licensed physician who does not meet the requirements of specialty training in psychiatry established in this standard but who has completed the postdoctoral training requirements of another medical specialty, may, upon performing an adequate evaluation, qualify to testify as an expert witness regarding any physical condition or any organically based mental disability within the scope of the professional's specialized knowledge.

(iv) A certified special education teacher, speech or language pathologist, or an audiologist, who is licensed or certified if the jurisdiction requires licensure or certification for the respective discipline, may, upon performing an adequate evaluation, qualify to testify as an expert witness regarding a disability within the scope of the professional's specialized knowledge.


 

Standard  7-3.13. Expert witnesses: qualifications for testifying on issues of present scientific or clinical knowledge
 

(a) Qualifications. Expert opinion testimony may involve issues of present scientific or clinical knowledge. Such testimony should be presented only by witnesses with demonstrable scientific or clinical qualifications. Accordingly, no witness should be qualified by the court to present expert opinion testimony on issues of present scientific or clinical knowledge unless the court determines that the witness:
 
(i) has a degree in an appropriate medical or scientific discipline; and,

(ii) has relevant clinical or research experience and demonstrated familiarity with current scientific or clinical information on the specific issue on which the witness is called to testify.


(b) Effect of credentials and general experience. Professional degree credentials and general practical experience should not, in and of themselves, constitute a demonstration of expertise sufficient to warrant qualification as an expert witness on issues of present scientific or clinical knowledge.

(c) Related standard. The qualifications, including recommended education and training requirements, for any expert witness testifying about a person's mental condition are governed by the provisions of standards 7-3.11 and 7-3.12.


Standard 7-3.14. Presentation of expert testimony
 

(a) Attorney's duty to prepare expert for trial. An attorney intending to call an expert witness should assist the expert in preparing for trial.

(b) Presentation of data and reasoning upon which opinion is based.
 

(i) A mental health or mental retardation professional offering an expert opinion should identify and explain the theoretical and factual basis for that opinion and the reasoning process through which the opinion was formulated.

(ii) An expert witness should not testify about defendant's statements, or about information obtained during or derived from an evaluation, or about other information that would not otherwise be admissible in evidence, unless those statements or information:

(A) are of a type that are customarily relied upon by mental health or mental retardation professionals in formulating their opinions; and

(B) are relevant to serve as the factual basis for the expert's opinion; and

(C) the court determines that the probative value of the statements or information outweigh their tendency to prejudice or confuse the trier of fact.


(c) Promulgation of written guidelines. Every jurisdiction should promulgate written guidelines designed to inform and advise mental health and mental retardation professionals called to testify as expert witnesses about all aspects of the law and procedure within that jurisdiction applicable to the effective presentation of expert opinions.


Standard  7-3.15. Jury instructions
 

(a) The court should instruct the jury concerning the functions and limitations of mental health and mental retardation professional expert testimony. As provided for in standard 15-3.6(e), preliminary instructions should be given prior to the introduction of the expert testimony. The jury should be informed that the purpose of such testimony is to identify for the trier of fact the clinical factors relevant to the issues of past, present, and future mental condition or behavior that are under consideration.

(b) Jurors also should be informed that they are not asked or expected to become experts in medicine, psychology, or other behavioral sciences and that their task is to decide whether the explanation offered by a mental health or mental retardation professional is persuasive. In evaluating the weight to be given an expert's opinion, the jury should consider the qualifications of the witness, the theoretical and factual basis for the expert's opinion, and the reasoning process by which the information available to the expert was utilized to formulate the opinion. In reaching its decisions on the ultimate questions in the trial, the jury is not bound by the opinions of expert witnesses. The testimony of each witness should be considered in connection with the other evidence in the case and given such weight as the jury believes it is fairly entitled to receive.


 

PART IV.

COMPETENCE TO STAND TRIAL

Standard  7-4.1. Mental incompetence to stand trial; rules and definitions

 
(a) No defendant shall be tried while mentally incompetent to stand trial.

(b) The test for determining mental competence to stand trial should be whether the defendant has sufficient present ability to consult with defendant's lawyer with a reasonable degree of rational understanding and otherwise to assist in the defense, and whether the defendant has a rational as well as factual understanding of the proceedings.

(c) The terms competence and incompetence as used with Part IV of this chapter refer to mental competence or mental incompetence. A finding of mental incompetence to stand trial may arise from mental illness, physical illness, or disability; mental retardation or other developmental disability; or other etiology so long as it results in a defendant's inability to consult with defense counsel or to understand the proceedings.


Standard  7-4.2. Responsibility for raising the issue of incompetence to stand trial
 

(a) The court has a continuing obligation, separate and apart from that of counsel for each of the parties, to raise the issue of incompetence to stand trial at any time the court has a good faith doubt as to the defendant's competence, and may raise the issue at any stage of the proceedings on its own motion.

(b) The prosecutor should move for evaluation of defendant's competence to stand trial whenever the prosecutor has a good faith doubt as to the defendant's competence. The prosecutor should further advise defense counsel and the court of any information that has come to the prosecution's attention relative to defendant's incompetence to stand trial.

(c) Defense counsel should move for evaluation of the defendant's competence to stand trial whenever the defense counsel has a good faith doubt as to the defendant's competence. If the client objects to such a motion being made, counsel may move for evaluation over the client's objection. In any event, counsel should make known to the court and to the prosecutor those facts known to counsel which raise the good faith doubt of competence.

(d) A motion for evaluation should be in writing and contain a certificate of counsel indicating that the motion is based on a good faith doubt that the defendant is competent to stand trial and that it is not filed for purposes of delay. The motion should also set forth the specific facts that have formed the basis for the motion.

(e) In the absence of good faith doubt that the defendant is competent to stand trial it is improper for either party to move for evaluation. It is improper for either party to use the incompetence process for purposes unrelated to incompetence to stand trial such as to obtain information for mitigation of sentence, to obtain favorable plea negotiation, or to delay the proceedings against the defendant.

(f) In making any motion for evaluation, or, in the absence of a motion, in making known to the court information raising a good faith doubt of defendant's competence, the defense counsel should not divulge confidential communications or communications protected by the attorney-client privilege.


Standard  7-4.3. Pretrial release of a defendant pending competence examination
 

(a) A defendant otherwise entitled to pretrial release should not be involuntarily confined or taken into custody solely because the issue of the defendant's competence to stand trial has been raised and an evaluation has been ordered unless confinement is necessary for any personal examination that may be necessary for the evaluation process.

(b) If a defendant has been released from custody under any pretrial release provision, the court may order the defendant to appear at a designated time and place for outpatient examination and such appearance may be made a condition of pretrial release.

(c) If the court determines that a defendant will not submit to outpatient examination as a condition of pretrial release, that the defendant refuses to appear for examination, or that adequate examination is impossible without the confinement of the defendant, the court may order that the defendant be involuntarily confined until the examination is made.

(d) If a defendant who is on pretrial release is subsequently involuntarily confined or otherwise taken into custody for examination, such confinement should be in the least restrictive setting and for the minimum amount of time necessary to complete the examination. Immediately upon completion of the examination the defendant should be returned to pretrial release status.

(e) A defendant otherwise entitled to a judicial determination of eligibility for pretrial release should not have the determination postponed because of the pendency of proceedings to determine competence to stand trial.


Standard 7-4.4. Judicial order for competence evaluation
 

(a) Whenever, at any stage of the proceedings, a good faith doubt is raised as to the defendant's competence to stand trial, the court should order an evaluation and conduct a hearing into the competence of the defendant to stand trial. The court should follow this procedure whether the doubt arises from a motion of counsel, from information supplied by counsel, from the court's own observation of the defendant, or from any information otherwise known to the court.
 
(i) An evaluation of defendant's competence to stand trial should not be ordered by the court before there has been a judicial determination of probable cause for criminal prosecution unless the early evaluation is requested by defense counsel. If the court finds that the requisite probable cause for criminal prosecution does not exist, there should be no further inquiry into the defendant's competence to stand trial.

(ii) An evaluation to determine competence to stand trial should not be ordered before the defendant is represented by counsel who has had an opportunity to consult with the defendant and to be heard by the court.

(iii) The evaluator(s) appointed to perform the evaluation of the defendant's competence to stand trial should be persons qualified by training and experience to offer testimony to the court on matters affecting competence. A mental health or mental retardation professional who is appointed as an evaluator should have the qualifications set forth in standard 7-3.10.


(b) The order for evaluation should specify the nature of the evaluation to be conducted and should specify the legal criteria to be addressed by the evaluator in accordance with the requirements set forth in standard 7-3.5(d). Unless a joint evaluation has been requested by the defendant or for good cause shown in accordance with standard 7-3.5(c), the evaluation should not include an evaluation into the defendant's sanity at the time of the offense, civil commitment, or other matters collateral to the issues of competence to stand trial.

(c) Each jurisdiction should establish time periods by which the evaluation should be concluded and a report returned to the court. Such periods normally should not exceed [seven] days in the case of a defendant in custody nor [fourteen] days in the case of a defendant at liberty. For good cause, the time periods might be extended but should never exceed [thirty] days.


Standard  7-4.5. Report of evaluator
 

(a) The first matter to be addressed in the report should be the assessment of the defendant's competence to stand trial. If it is determined that the defendant is competent to stand trial, issues relating to treatment or habilitation should not be addressed. If it is determined that the defendant is incompetent to stand trial, or that the defendant is competent to stand trial but that continued competence is dependent upon maintenance of treatment or habilitation, the evaluator should then report on the treatment or habilitation necessary for the defendant to attain or maintain competence.

(b) If it is determined that treatment or habilitation is necessary for the defendant to attain or maintain competence, the report should address the following issues:
 

(i) the condition causing the incompetence;

(ii) the treatment or habilitation required for the defendant to attain or maintain competence and an explanation of appropriate treatment alternatives in order of choice;

(iii) the availability of the various types of acceptable treatment or habilitation in the local geographical area. The evaluator should indicate the agencies or settings in which such treatment or habilitation might be obtained. Whenever the treatment or habilitation would be available in an outpatient setting, the evaluating expert should make such fact clear in the report;

(iv) the likelihood of the defendant's attaining competence under the treatment or habilitation and the probable duration of the treatment or habilitation.


(c) If the evaluating expert determines that the only appropriate treatment or habilitation would require that the defendant be taken into custody or involuntarily committed, then the report should include the following:
 

(i) an analysis of whether the defendant, because of the condition causing mental incompetence, meets the criteria for involuntary civil commitment or placement set forth by law;

(ii) whether there is a substantial probability that the defendant will attain competence to stand trial within the reasonably foreseeable future;

(iii) the nature and probable duration of the treatment or habilitation required for the defendant to attain competence;

(iv) alternatives other than involuntary confinement which were considered by the evaluator and the reasons for the rejection of such alternatives.


Standard  7-4.6. Use of reports; defendant remaining mute
 

(a) Any information or testimony elicited from the defendant at any hearing or examination on competence or contained in any motion filed by the defendant or any information furnished by the defendant to the court or to any person evaluating or providing mental health or mental retardation services, and any information derived therefrom and any testimony of experts or others based on information elicited from the defendant, should be considered privileged information and should be used only in a proceeding to determine the defendant's competence to stand trial and related treatment or habilitation issues. The defendant may waive use of information contained in a report evaluating competence to stand trial by using the report or parts thereof for any other purpose. The defendant's use of the evaluation report for a purpose other than the determination of competence to stand trial should be considered a waiver of any privilege of nondisclosure, and the prosecutor should be permitted to use the report or any part of the report, subject only to the applicable rules of evidence.

(b) The court should have the authority to confine involuntarily, for observation to determine the issue of competence to stand trial, a defendant who refuses to cooperate or to provide sufficient information to permit a determination of competence.
 

(i) The confinement may continue for such time as is necessary for the evaluation to determine competence, but should last no longer than [fourteen] days under the initial order with such extensions as may be necessary to determine competence.

(ii) At the expiration of [sixty] days, however, the court must hold a hearing at which the burden shall be on the prosecutor to show justification for further confinement.


Standard  7-4.7. Necessity for hearing on competence to stand trial
 

(a) In every case in which a good faith doubt of the defendant's competence to stand trial has been raised and as soon as practicable after receipt of the reports of the evaluators, the court should conduct a hearing on the issue of competence to stand trial unless all parties stipulate that no hearing is necessary and the court concurs. If the defendant has been confined for examination, the hearing should be held within [seven] days of the receipt of the report of the evaluators; if the defendant is at liberty it should be held within [thirty] days.

(b) If the parties agree on the issue of competence to stand trial or issues related to treatment or habilitation, a stipulation containing the factual basis for the agreement may be accepted by the court and the court, after review of the factual basis for the stipulation, should enter the appropriate order on the basis of the stipulation. In the absence of stipulation by the parties and concurrence by the court, a hearing on the issues should be mandatory in all cases.

(c) Trial by jury should not be required for the hearing on the issues of competence to stand trial and issues related to treatment or habilitation, provided that in those jurisdictions which authorize trial by jury for determination of issues of involuntary civil commitment, jury trial should be available to a defendant to determine issues of competence to stand trial and of involuntary confinement for treatment or habilitation to effect competence.


Standard  7-4.8. Hearing on competence; defendant's rights, evidence, and priority of issues
 

(a) Fundamental constitutional rights afforded a defendant in criminal cases should apply to the hearing on competence to stand trial.
 
(i) In all cases, the defendant should have the right to be present at the hearing, to confront and fully cross-examine witnesses, to call independent expert witnesses, to have compulsory process for the attendance of witnesses, and to have a transcript of the proceedings. Either party should have the authority to call and to examine as a court witness any person designated by the evaluators as a source of information for preparation of the evaluative report other than the defendant or the defense attorney.

(ii) The defendant should have the right to adequate notice and time to prepare for the hearing, including timely disclosure of the report of appointed evaluators and, if necessary, opportunity to interview or to depose the evaluators before the hearing.


(b) Evidence presented at the hearing should conform to rules of evidence applicable to criminal cases within that jurisdiction. The evaluators, whether called by the court or by either party, should be considered court witnesses and be subject to examination as such by either party.
 

(i) Defense counsel may elect to relate to the court personal observations of and conversations with the defendant to the extent that counsel does not disclose confidential communications or violate the attorney-client privilege; counsel so electing may be cross-examined to that extent.

(ii) The court may properly inquire of defense counsel about the professional attorney-client relationship and the client's ability to communicate effectively with counsel. The defense counsel, however, should not be required to divulge the substance of confidential communications or those that are protected by the attorney-client privilege. Defense counsel responding to inquiry by the court on its own motion should not be subject to cross-examination by the prosecutor.


(c) At the hearing, the court should consider separately each discrete issue raised and should first consider the issue of the defendant's competence to stand trial.
 

(i) The party raising the issue of incompetence should have the burden of going forward with the evidence to show incompetence. If the defendant has moved for evaluation then the defense should have the burden of going forward; if the prosecutor or the court on its own motion or on information supplied by the prosecutor has raised the issue, then the prosecutor should have the burden of going forward.

(ii) If the court, after hearing the evidence, finds by the greater weight of the evidence that the defendant is competent to stand trial the matter should proceed to trial; if not, the court should proceed to issues of treatment or habilitation to effect competence.


Standard 7-4.9. Hearing on competence; dispositional issues
 

(a) Once the court has found that the defendant is incompetent to stand trial or that competence depends on continuation of treatment or habilitation, the court should consider issues relating to treatment or habilitation to effect competence, including its appropriateness, its availability in the geographic area, its probable duration, the likelihood of restoration to competence in the reasonably foreseeable future, and the availability of the least restrictive treatment alternative.
 
(i) A defendant may be ordered to undergo treatment if the court finds that the defendant is in need of such services and that such services are available. The court may make outpatient treatment or habilitation a condition of the defendant's pretrial release. When the defendant is in custody the court may order treatment or habilitation services to be administered at the custodial facility or may order defendant's transfer to another facility for treatment or habilitation or may order outpatient treatment services.

(ii) A defendant on pretrial release should not be involuntarily confined in a residential facility to restore competence unless the court determines by clear and convincing evidence that:
 

(A) there is substantial probability that defendant's incompetence will respond to treatment or habilitation and defendant will attain or maintain competence in the reasonably foreseeable future

(B) treatment or habilitation appropriate for the defendant to attain or maintain competence is available in a residential facility; and

(C) no appropriate treatment or habilitation alternative is available less restrictive than that requiring involuntary hospitalization.


(b) At the conclusion of the hearing the court should enter its written order for treatment to effect competence. The order should contain the following:
 

(i) written findings of fact setting forth separately and distinctly the findings of the court on the issues of competence, treatment or habilitation, and involuntary confinement;

(ii) copies of supporting evaluative information sufficient for a professional involved in providing treatment or habilitation to ascertain the charge against the defendant and the nature of the condition causing the incompetence;

(iii) a finding that the institution to which the defendant is to be committed is sufficiently staffed and equipped to meet that defendant's treatment or habilitation needs;

(iv) the time at which reports will be required from the professionals providing treatment or habilitation.


(c) An order adjudicating the defendant incompetent to stand trial should be an appealable order.


Standard  7-4.10. Right to treatment or habilitation and to refuse
 

(a) A defendant determined to be incompetent to stand trial has a right to prompt and adequate treatment or habilitation to effect competence and a right to have such services administered by competent and qualified professionals.

(b) Within [fourteen] days after entry of an order detaining or committing a defendant for treatment or habilitation or directing that a defendant report for treatment or habilitation on an outpatient basis, the professional providing such services should develop and file with the court, copies being made available to both parties, an individualized plan of treatment or habilitation. Each treatment plan should contain the following:
 

(i) a statement of the specific causes of defendant's incompetence including, where appropriate, diagnosis and description of any physical or mental illness, mental retardation or physical disability, and reference to any other factors causing the incompetence to stand trial;

(ii) a statement of the planned treatment or habilitation, whether medical, psychological, educational, or social, appropriate to effect competence;

(iii) a statement setting forth any restrictions to be placed on the defendant and the reasons for imposing such restrictions;

(iv) a statement of the expected duration of treatment or habilitation required to effect the defendant's competence.


(c) A defendant has a right to treatment or habilitation in the least restrictive setting appropriate to effect competence to stand trial.
 

(i) If necessary for treatment or habilitation persons may be treated or habilitated in facilities established for that purpose or in sections of general treatment or habilitation facilities which are specifically set apart and designated for treatment or habilitation of persons under criminal charges.

(ii) Whenever a defendant who is incompetent to stand trial has been denied pretrial release or is unable to meet the release conditions imposed, that defendant may be detained in jail only if adequate treatment or habilitation to effect competence is provided in that setting.


(d) A person determined to be incompetent to stand trial and detained or committed for treatment or habilitation or ordered to appear for outpatient treatment or habilitation should have no right to refuse ordinary and reasonable treatment or habilitation designed to effect competence. However, a defendant should have the right to refuse any treatment or habilitation which may impair the defendant's ability to prepare a defense to the charge, which is experimental, or which has an unreasonable risk of serious, hazardous, or irreversible side effects.


Standard  7-4.11. Periodic redetermination of incompetence
 

(a) Defendant's continuing incompetence to stand trial should be periodically redetermined by the court without the necessity of motion by either party. The facility or person responsible for treatment or habilitation should therefore be required periodically to file with the court a report on the defendant's current status, with copies to the prosecutor and defense counsel and with notice to the defendant. The report should be filed:
 
(i) at any time when the treating facility or person responsible for treatment or habilitation believes that the defendant has attained competence to stand trial;

(ii) at any time the treating facility or person responsible for treatment or habilitation believes that there is not a substantial probability that the defendant will attain competence within the foreseeable future; or.

(iii) at intervals not to exceed [ninety] days.


(b) The report should contain the following:
 

(i) a reevaluation of those issues required by standard 7-4.5 to be contained in the initial report to the court;

(ii) a description of the treatment or habilitation administered to the defendant;

(iii) an evaluation of the defendant's continued progress toward attaining competence within the reasonably foreseeable future, if the report concludes that the defendant remains incompetent to stand trial.


(c) Either party should have the right to contest the report or any issues addressed in the report within such time as is established in that jurisdiction and have the right to demand a hearing on the issues contested.
 

(i) Before the hearing, upon motion of either party and upon cause shown, the court should order that the defendant be evaluated by independent evaluators and that reports be submitted;

(ii) Each party should have the right to present evidence at the hearing. At the conclusion of the hearing the court should enter its written order setting forth separately and distinctly the findings of the court on the issues of competence, treatment or habilitation, and involuntary confinement.


(d) If neither party contests the report within the time set, the court should then independently review the report and:
 

(i) if the court concurs in the report's recommendations the court should enter an order accepting the report and continuing the defendant's treatment or habilitation or setting the case for trial, as appropriate;

(ii) if the court does not concur in the report's conclusions the court, if appropriate, should order an independent reevaluation of the defendant and should hold a hearing on the issues addressed in the report.


(e) Notwithstanding the availability of periodic redeterminations by the court, either party should, upon good cause to believe that a defendant has attained competence to stand trial, be able to initiate a redetermination of the defendant's competence.
 

(i) The prosecutor or the defense counsel, upon a showing of good cause, should be able to make a motion for reevaluation of a defendant by independent experts or for rehearing by the court of the issue of the defendant's continuing incompetence. For good cause shown, the court should be empowered to order such reevaluation or rehearing at any time.

(ii) Defense counsel should be permitted to have the defendant reevaluated at defense expense at any time, and the treating institution should be mandated to make the defendant available to the evaluator for reexamination. All records necessary to independent evaluation should be available to the prosecutor or defense counsel at any time.


Standard  7-4.12. Defense motions; proceedings while defendant remains incompetent
 

The fact that the defendant has been determined to be incompetent to stand trial should not preclude further judicial action, defense motions, or discovery proceedings which may fairly be conducted without the personal participation of the defendant.


Standard  7-4.13. Disposition of permanently incompetent defendants
 

(a) A defendant may be adjudged permanently incompetent to stand trial if the defendant has previously been adjudged incompetent and there is no substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future.
 
(i) The court should hold a hearing to determine permanent incompetence to stand trial whenever the issue has been raised by the report of the professional providing treatment or habilitation, at the expiration of the maximum time of sentence for the crime charged or [twelve/eighteen] months from the date of adjudication of incompetence to stand trial, whichever first occurs.

(ii) If the defendant has been found permanently incompetent to stand trial and has been charged with a felony causing or seriously threatening serious bodily harm, then the defendant may be subject to hearing on factual guilty and special commitment as set forth in paragraph (b) below.

(iii) If the defendant has been found permanently incompetent to stand trial and has not been charged with the crimes set forth in paragraph (a)(ii), then the defendant should be released from any detention or commitment for treatment or habilitation to attain or restore competence. If the defendant meets the criteria for involuntary civil commitment, the court may order such commitment.


(b) At such time as a defendant charged with a felony causing or seriously threatening serious bodily harm has been adjudged permanently incompetent to stand trial, or, upon motion of the state or the defense counsel at any time after the expiration of [twelve/eighteen] months from the date the defendant was first adjudicated incompetent to stand trial, the court should hold a hearing to determine the factual guilt of the defendant.
 

(i) The following principles should apply at the hearing:
 
(A) The hearing should be an adversary hearing:

(B) Rules of evidence applicable to criminal cases in that jurisdiction should apply at the hearing.

(C) Constitutional rights generally applicable to defendants at criminal trials, other than the right not to be tried while incompetent, should apply at the hearing. Such rights would include the privilege against self-incrimination, exclusion of evidence unlawfully obtained, and the right to call witnesses on the defendant's behalf and to confront and cross-examine witnesses against the defendant.

(D) The prosecution should have the burden of proof, beyond a reasonable doubt, of each element of the offense charged.

(E) Evidence adduced at such hearing should be recorded.

(F) The court should make specific findings of the extent to which the defendant's incompetence affected the outcome of the case, including its effect on the defendant's ability to consult with and assist the defense counsel, to testify in the defendant's behalf, the extent to which the evidence could be reconstructed without the assistance of the defendant, and the strength of the prosecution's case.

(G) The defendant should have a right to jury determination of the issues raised at the hearing.


(ii) If the finder of fact determines that the prosecution has failed to establish, beyond a reasonable doubt, any element of the offense charged or that the prosecution has failed to carry its burden under the law of the jurisdiction of disproving any affirmative defense raised by the defendant, the defendant shall be acquitted of the crime. If the finder of fact determines that the prosecution has established, beyond a reasonable doubt, all elements of the offense and that the prosecution has met its burden under the law of the jurisdiction of disproving any affirmative defense raised by the defendant, then the defendant may be subject to the special commitment procedures set forth in part VII.


Standard  7-4.14. Trial of defendants on medication
 

(a) A defendant should not be considered incompetent to stand trial because the defendant's present mental competence is dependent upon continuation of treatment or habilitation which includes medication, nor should a defendant be prohibited from standing trial or entering a plea solely because that defendant is being provided such services under professional supervision.

(b) If the defendant proceeds to trial with the aid of treatment or habilitation which may affect demeanor, either party should have the right to introduce evidence regarding the treatment or habilitation and its effects and the jury should be instructed accordingly.


Standard  7-4.15. Credit for time served
 

A defendant who has been detained or committed for examination of competence to stand trial or treatment or habilitation to effect competence to stand trial should receive credit against any sentence ultimately imposed for the time of such pretrial confinement.

 

PART V.

COMPETENCE ON OTHER ISSUES

Standard  7-5.1. Mental competence to plead guilty or nolo contendere
 

(a) No plea of guilty or nolo contendere should be accepted from a defendant who is mentally incompetent to enter a plea of guilty.
 
(i) Ordinarily, absent additional information bearing on defendant's competence, a finding made that the defendant is competent to stand trial should be sufficient to establish the defendant's competence to plead guilty.

(ii) The test for determining mental competence to plead guilty should be whether the defendant has sufficient present ability to consult with defendant's lawyer with a reasonable degree of rational understanding and whether, given the nature and complexity of the charges and the potential consequences of a conviction, the defendant has a rational as well as factual understanding of the proceedings relating to entry of a plea of guilty.


(b) If, at the time entry of a plea of guilty is proposed by the defendant, the court should have a good faith doubt as to the defendant's competence to enter such plea, whether the doubt arises from motion of the prosecutor or the defense attorney, or from the court's own observations, the court should not accept such proferred plea, but should order an evaluation of the defendant's competence to plead guilty and competence to stand trial according to the procedures set forth in part IV of these standards.

(c) If, at the time a plea of guilty is proferred by a defendant, the prosecutor or the defense counsel should have a good faith doubt as to the competence of the defendant to plead guilty, the attorney having such doubt should so advise the court and move for evaluation according to the procedures established by standard 7-4.2.

(d) If, after evaluation and report returned to the court, the defendant is determined to be competent to enter a plea of guilty, the court should proceed to accept the plea in accordance with the principles set forth in chapter 14, Pleas of Guilty, otherwise the court should proceed to those issues of treatment and habilitation as set forth in part IV.


Standard  7-5.2. Competence at time of sentence: noncapital cases
 

(a) Although a defendant may be incompetent at time of sentence, the court, in a noncapital case, may proceed to provisionally sentence such incompetent defendant.
 
(i) The test for determining competence at time of sentence should be whether the defendant has the sufficient present ability to consult with the defendant's attorney with a reasonable degree of rational understanding and whether the defendant has a rational as well as factual understanding of the sentence proceedings.

(ii) If, at time of sentence, a good faith doubt is raised as to the defendant's mental competence, the court has an obligation to determine the defendant's competence at time of sentence and, before imposing sentence, should order a presentence mental evaluation of the defendant according to the procedures set forth in part IV of these standards.

(iii) If the evaluators determine that the defendant is incompetent at the time of sentence, the court should make a specific finding, on the record, of the nature of the incompetence and the extent to which the sentencing proceeding has been affected by the incompetence of the defendant.


(b) A defendant who has been sentenced while incompetent at time of sentence should have the right, upon regaining competence, to exercise the right of allocution and to present to the court at a hearing matters of mitigation which were not presented to the court at the sentencing proceeding because of the defendant's incompetence at that time. The judge should reconsider the sentence imposed in the light of such matters.

(c) If the sentence imposed is one involving incarceration or other significant restraint on liberty, the defendant should receive adequate treatment or habilitation to restore competence during the time the defendant is serving the sentence, pursuant to standard 23-5.1.


Standard  7-5.3. Competence to waive counsel and to proceed without assistance of counsel
 

(a) A defendant who is mentally incompetent to waive counsel or to defend himself or herself at trial without the assistance of counsel should not be permitted to stand trial without the assistance of counsel.

(b) The test for determining the competence to waive counsel and to represent oneself at trial should be whether the defendant has the present ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case.

(c) If, after explaining the availability of a lawyer and making sufficient inquiry of a defendant professing a desire to waive counsel and represent himself or herself, the trial judge has a good faith doubt of the mental competence of the defendant to waive counsel or to represent himself for herself the judge should order a pretrial mental evaluation of the defendant according to the procedures set forth in part IV of this chapter.

(d) After obtaining the report of the evaluators, the court should hold a hearing on the issues raised according to the procedures set forth in part IV of this chapter.
 

(i) If, after hearing, the court determines that the defendant is competent to waive counsel and to represent himself or herself, the court should proceed with the case. The court in any such case should consider the appointment of standby counsel in accordance with standard 6-3.7 to assist the defendant or, if it should prove necessary, to assume representation of the defendant.

(ii) If, after hearing, the court should determine that the defendant is incompetent to waive counsel and is incompetent to stand trial or to plead, the court should proceed to issues of treatment and habilitation in accordance with part IV of this chapter.

(iii) If, after hearing, the court should determine that the defendant is competent to stand trial but is incompetent to waive counsel and to proceed without assistance of counsel, the court should appoint counsel to represent the defendant and should proceed to trial of the case.


Standard  7-5.4. Mental incompetence at time of noncapital appeal
 

(a) A defendant is incompetent at the time of appeal in a noncapital case if the defendant does not have sufficient present ability to consult with defendant's lawyer with a reasonable degree of rational understanding, or if the defendant does not have a rational as well as factual understanding appropriate to the nature of the proceedings.

(b) Mental incompetence of the defendant at time of appeal from conviction in a criminal case should not prohibit the continuation of such appeal as to matters deemed by counsel or by the court to be appropriate.
 

(i) If, following the conviction of the defendant in a criminal case, there should arise a good faith doubt about the mental competence of the defendant during the time of appeal, counsel for the state or the defendant should make such doubt known to the court and include it in the record.

(ii) Counsel for the defendant should proceed to prosecute the appeal on behalf of the defendant despite the defendant's incompetence and should raise on such appeal all issues deemed by counsel to be appropriate.


(c) Mental incompetence of the defendant during the time of appeal shall be considered adequate cause, upon a showing of prejudice, to permit the defendant to raise, in a later appeal or action for postconviction relief, any matter not raised on the initial appeal because of the defendant's incompetence.


 

ADDITION TO PART V.

COMPETENCE AND CAPITAL PUNISHMENT

Standard  7-5.5. Postconviction determination of mental competence in capital cases
 

Standard 18-1.1 makes it clear that the American Bar Association Standards for Criminal Justice do not deal with whether the death penalty should be an available sentencing alternative. Like Standard 18-1.1, Standards 7-5.6 and 7-5.7 establish no policy on the death penalty itself. Their sole purpose is to address complex issues dealing with postconviction determinations of mental competence in capital cases.


Standard  7-5.6. Currently incompetent condemned convicts; stay of execution
 

(a) Convicts who have been sentenced to death should not be executed if they are currently mentally incompetent. If it is determined that a condemned convict is currently mentally incompetent, execution should be stayed.

(b) A convict is incompetent to be executed if, as a result of mental illness or mental retardation, the convict cannot understand the nature of the pending proceedings, what he or she was tried for, the reason for the punishment, or the nature of the punishment. A convict is also incompetent if, as a result of mental illness or mental retardation, the convict lacks sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or lacks the ability to convey such information to counsel or the court.


Standard  7-5.7. Evaluation and adjudication of competence to be executed; stay of execution; restoration of competence
 

(a) Whenever a correctional official, other state official, the prosecution, or counsel for the convict have reason to believe that a convict who has been sentenced to death may be currently incompetent, such person should petition the court for an order requiring an evaluation of the convict's current mental condition. If the court concludes that the information in the petition indicates reasonable cause to believe that the convict may be incompetent, it should order an evaluation. Unless counsel for the defendant is the petitioner, counsel should be notified that such an evaluation is to be conducted. If the convict is not represented by counsel, the court should appoint counsel at the same time it orders the evaluation.

(b) Any interested person who has reason to believe that the convict may be currently incompetent may petition the court for an order requiring an evaluation of the convict's current mental condition. If the court concludes that the information in the petition indicates reasonable cause to believe that the convict may be incompetent, it should order an evaluation, and, if the convict is not represented by counsel, appoint counsel for the convict.

(c) In the absence of a petition, if the court obtains information that indicates reasonable cause to believe that the convict may be incompetent, it should order an evaluation sua sponte. If the convict is not represented by counsel, the court should appoint counsel at the same time it orders the evaluation.

(d) All evaluations of a convict's current mental condition for purpose of determining the issue of competence to be executed should be conducted by mental health and/or mental retardation professionals whose qualifications meet the requirements of Standards 7-3.10 and 7-3.12(c)(ii). The convict should be entitled to an evaluation by a qualified professional or professionals who should present the results of their evaluation to the convict's counsel. If the convict is indigent, the court should appoint an appropriate professional evaluator or evaluators for the convict, and such evaluators should be compensated at public expense. The state should be permitted to have its own qualified professional or professionals conduct an evaluation as well.

(e) If, after receiving the reports of the evaluation or evaluations, counsel for the convict believes that the convict is currently incompetent, counsel should move for a hearing on the issue of competence. Upon receiving such a motion, the court should order a hearing.

(f) Following the hearing, if the court finds, by a preponderance of the evidence, that the convict is currently incompetent, it should stay the order of execution for the duration of the convict's incompetence. The court's finding on the issue of competence should be considered a final, appealable order.

(g) If evaluations or proceedings under this standard cannot be accomplished before the scheduled date of the convict's execution, the court should order a stay of execution until the proceedings on the issue of competence are completed.

(h) In the absence of good faith doubt about the convict's current competence, it is improper for an attorney to move for an evaluation pursuant to paragraph (a) or (b) of this Standard. It is improper to use proceedings on the issue of current mental condition solely for the purpose of delay.

(i) When the appropriate state official has reason to believe that a condemned convict who has been found incompetent pursuant to paragraph (f) of this Standard has been restored to competence, the official may petition the court for an order recognizing the restoration to competence and lifting the stay of execution. Upon receipt of such a petition, the court should order the convict's current mental condition reevaluated under the provisions of paragraph (d) of this Standard. Counsel for the defendant should be notified that such an evaluation is to be conducted. Following the reevaluation, the court should hold a hearing on the convict's current mental condition. The convict should be represented by counsel at the hearing. Following the hearing, the court should lift the stay of execution if it finds, by a preponderance of the evidence, that the convict is no longer incompetent. The court's finding on the issue of competence should be considered a final, appealable order.


 

ADDITION TO PART V.

COMPETENCE AND CONFESSIONS

Standard  7-5.8. Statements by mentally ill or mentally retarded persons
 

(a) Mental illness or mental retardation can affect the reliability of statements. Where the court finds that the reliability of such a statement has been significantly impaired by a person's mental illness or mental retardation, it should exclude the statement from evidence. Where the statement has not been excluded, the court should permit evidence to be presented to the trier of fact regarding the effect of the defendant's mental illness or mental retardation on the reliability of the statement.

(b) Mental illness or mental retardation can affect the voluntariness of statements. Official conduct that does not constitute impermissible coercion when employed with nondisabled persons may impair the voluntariness of the statements of persons who are mentally ill or mentally retarded. Where such impairment of voluntariness is significant, the court should exclude the statement from evidence. However, in the absence of any such impermissibly coercive official conduct, such statement should not be excluded from evidence solely because it was the product of the person's mental illness or mental retardation, unless it is found unreliable pursuant to standard 7-5.8(a).


Standard  7-5.9. Waiver of rights by mentally ill or mentally retarded persons
 

(a) Custodial confessions by persons who are mentally ill or mentally retarded should be admissible only if the person has made a knowing, intelligent, and voluntary waiver of rights. A person's mental disability can affect and impair each element of an otherwise valid waiver.

(b) Law enforcement officials should be alert to the possibility that a person may be mentally ill or mentally retarded. Mental illness or mental retardation may impair the disabled person's ability to understand the rights explained by officials, thereby invalidating any waiver and subsequent statement. Official conduct that does not constitute impermissible coercion when employed with nondisabled persons may invalidate the waiver of rights by persons who are mentally ill or mentally disabled.


Standard  7-5.10. Expert testimony
 

The court should admit into evidence expert testimony by qualified mental health or mental retardation professionals bearing on the effect of a person's disability on the reliability and voluntariness of a statement and the validity of any waiver of rights that preceded such a statement.

 

PART VI.

NONRESPONSIBILITY FOR CRIME

Standard  7-6.1. The defense of mental nonresponsibility [insanity]
 

(a) A person is not responsible for criminal conduct if, at the time of such conduct, and as a result of mental disease or defect, that person was unable to appreciate the wrongfulness of such conduct.

(b) When used as a legal term in this standard mental disease or defect refers to:
 

(i) impairments of mind, whether enduring or transitory; or,

(ii) mental retardation,


either of which substantially affected the mental or emotional processes of the defendant at the time of the alleged offense.


Standard  7-6.2. Admissibility of other evidence of mental condition
 

Evidence, including expert testimony, concerning the defendant’s mental condition at the time of alleged offense which tends to show the defendant did or did not have the mental state required for the offense charged should be admissible.


Standard  7-6.3. Notice of defense based on mental condition
 

(a) If a defendant intends to rely upon the defense of mental nonresponsibility [insanity] or to introduce expert testimony relating to mental condition at the time of the offense charged, the defendant should, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the prosecuting attorney in writing of such intention and file a copy of such notice with the clerk. The court may, for cause shown, allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as my be appropriate. If notice is not given in compliance with the requirements of this standard, the court may impose such sanctions as are provided by law.

(b) Neither the court not the prosecution should assert a defense based on abnormal mental condition over the objection of a defendant who is competent to make a decision about raising the defense.


Standard  7-6.4. Prosecution-initiated evaluation to determine mental condition
 

(a) Upon the defendant’s giving of notice as provided in standard 7-3.4(a), or, if such notice is not required in the jurisdiction, upon the defendant’s giving of notice as provided in standard 7-6.3 and a finding that the defendant intends to rely upon expert testimony, the court may, on motion of the prosecuting attorney, order the defendant to be examined by an expert designated in the order, for the purpose of determining the mental condition which is being put in issue by the defendant. Should the court find that the defendant has refused to comply with such order, the court may prohibit the defendant from introducing expert testimony on the issue at trial pursuant to the provisions of standard 7-3.4(c).

(b) As provided in standard 7-3.6(c)(ii), a defense attorney may attend the mental examination only with the evaluator’s prior approval and may participate actively only if requested to do so by the examiner.

(c) The court should not on its own motion order a mental evaluation of the defendant to determine condition at the time of the offense.

(d) As provided in standard 7-3.5(c), the defendant’s mental condition at the time of the offense charged should not be combined in any evaluation ordered to determine competency to stand trial, unless the defendant should so request or for good cause shown.

(e) Provisions for recording court-ordered evaluations are set forth within standard 7-3.6(d).

(f) As provided in standard 7-3.2, except as otherwise provided by law no statement made by a defendant during the course of a court-ordered mental evaluation and no evidence obtained as result of such statement should be admissible in evidence against that person in any criminal proceeding on any issue other than an issue of mental condition raised by the defendant.


Standard  7-6.5. Prosecution’s duty to disclose
 

Upon notice that the defendant intends to rely upon an insanity defense [a defense of metal nonresponsibility] or to introduce expert testimony relating to mental condition, the prosecutor should timely disclose to defense counsel all materials and information within the prosecutor’s possession or control which bear on the defendant’s mental condition at issue, including but not limited to:

(a) any reports or statements made by experts, including the results of mental evaluations and tests;

(b) any written or recorded statements and the substance of any oral statements made by the defendant bearing on the issue;

(c) any information that tends to rebut the factual data upon which the experts called by the defendant are relying; this should include documents, names and addresses of witnesses and their relevant written or recorded statements, and substance of any oral statements;

(d) the names, addresses, and statements of any experts whom the prosecutor intends to call for the purpose of discrediting the mental nonresponsibility [insanity] defense or evidence of mental condition.


Standard  7-6.6. Limitation on opinion testimony concerning mental condition
 

Expert opinion testimony as to how the development, adaptation, and functioning of the defendant’s mental processes may have influenced the defendant’s conduct at the time of the offense charged should be admissible. Opinion testimony, whether expert or lay, as to whether or not the defendant was criminally responsible at the time of the offense charged should not be admissible.


Standard  7-6.7. A unitary trial
 

The defense of mental nonresponsibility [insanity] and all other evidence pertaining to the defendant’s responsibility for the acts charged should be heard in a unitary trial unless, upon the defendant’s request, the court determines that trying the issue of guilt separately from the issue of responsibility is necessary to prevent substantial prejudice to the defendant.


Standard  7-6.8. Instruction to the jury
 

The court should instruct the jury as to the dispositional consequences of a verdict of not guilty by reason of mental nonresponsibility [insanity].


Standard  7-6.9. Burden of production and burden of persuasion
 

(a) The defendant should have the burden of ensuring that evidence of mental nonresponsibility [insanity] is introduced.

(b) Once evidence of mental nonresponsibility [insanity] has been introduced at trial, the burden of persuasion should be allocated as follows:
 

(i) In jurisdictions utilizing any test for mental nonresponsibility [insanity] which focuses solely on whether the defendant, as a result of mental disease or defect, was unable to know, understand, or appreciate the wrongfulness of his or her conduct at the time of the offense charged, the prosecution should have the burden of disproving the defendant’s claim of mental nonresponsibility [insanity], the defendant should have the burden of proving the claim of mental nonresponsibility [insanity] beyond a reasonable doubt.

(ii) In jurisdictions utilizing the ALI Model Penal Code test for mental nonresponsibility [insanity], the defendant should have the burden of proving the claim of mental nonresponsibility [insanity] by a preponderance of the evidence.


(c) Nothing contained in paragraph (b) above relieves the prosecution of its burden of proving beyond a reasonable doubt all elements of the offense charged including the mental state required for the offense charged.


Standard  7-6.10. Forms of verdict
 

(a) When the defense of mental nonresponsibility [insanity] has been properly raised, the verdict returned should be in the form of either guilty, not guilty, or not guilty by reason of mental nonresponsibility [insanity]. The jury should be instructed that it may consider the verdict of not guilty by reason of mental nonresponsibility [insanity] only after finding, beyond a reasonable doubt, that the defendant committed the conduct charged.

(b) Statutes which supplant or supplement the verdict of not guilty by reason of mental nonresponsibility [insanity] with a verdict of guilty but mentally ill should not be enacted.


 

PART VII.

COMMITMENT OF NONRESPONSIBILITY ACQUITTEES

Standard  7-7.1. Commitment hearing following mental nonresponsibilty [insanity] acquittal
 

(a) Criminal defendants found not guilty by reason of mental nonresponsibility [insanity] are referred to within part VII as mental nonresponsibility [insanity] acquittees or acquittees.

(b) Mental nonresponsibiltiy [insanity] acquittees may be involuntarily confined following acquittal only if their commitment is sought in subsequent proceedings which satisfy the requirements of due process of law. States should have authority to conduct mental evaluations of acquittees. Statutes which authorize automatic commitment for a period longer than necessary to accomplish an evaluation of the acquittee’s current mental statues should be repealed.

(c) If the commitment of a mental nonresponsibility [insanity] acquittee is not sought, or if the commitment is sought but the court declines to order such commitment, the acquittee should be entitled to release.


Standard  7-7.2. Evaluation
 

(a) After issuance of a verdict of not guilty by reason of mental nonresponsibility [insanity], the criminal trial court, upon motion by the prosecution, should order an evaluation of the acquittee’s current mental condition. The evaluation should not exceed [thirty] calendar days except, when for good cause shown, the court extends the period for a short time. This evaluation is for the sole purpose of assisting the court in determining whether the acquittee should be committed.

(b) The court may order that the evaluation be conducted while the mental nonresponsibilty [insanity] acquittee is either an outpatient or is placed within a mental health or mental retardation facility, a general hospital, or, when security considerations so dictate, within another appropriate facility. In choosing the location of the evaluation, the court should be guided by the least restrictive alternative principle and by concern for public safety. The evaluation should be conducted by mental health or mental retardation professionals possessing the qualifications required by standard 7-3.10.

(c) Consistent with the requirements of institutional and community safety, mental nonresponsibility [insanity] acquittees should have the same rights regarding treatment and habilitation as do ordinary civil patients during evaluation for possible involuntary civil commitment.

(d) The evaluation should be completed and an evaluation report should be submitted to the court and to all parties within [thirty] calendar days of the issuance of the verdict. Upon submission of the evaluation report the prosecuting attorney may move for a commitment hearing. If the prosecuting attorney decides to seek commitment, a motion for a hearing must be filed within [five] days. That hearing must be held within [fifteen] days from the court’s receipt of the evaluation report.

(e) If the prosecuting attorney does not file a timely motion seeking commitment, an acquittee in custody should be entitled to release.


Standard  7-7.3. Commitment procedures; general and special
 

(a) Each state should adopt a separate set of special procedures ("special commitment") for seeking the civil commitment of those acquittees who were acquitted by reason of mental nonresponsibility [insanity] of felonies involving acts causing, threatening, or creating a substantial risk of death or serious bodily harm.

(b) States may seek the civil commitment of mental nonresponsibility [insanity] acquittees who were acquitted of felonies which did not involve acts causing, threatening, or creating a substantial risk of death or serious bodily harm, or of misdemeanors, only by using those procedures ("general commitment") used for the civil commitment of persons outside the criminal justice system, provided that those procedures satisfy the requirements of due process of law.


Standard  7-7.4. Special procedures; commitment criteria
 

(a) Special commitment procedures for mental nonresponsibility [insanity] acquittees acquitted of felonies involving acts causing or creating a substantial risk of death or threatening serious bodily harm should afford every such acquittee with the right to a commitment hearing which meets the requirements set forth in standard 7-7.5.

(b) At the conclusion of the commitment hearing, the court may order the acquittee to be committed if it finds by clear and convincing evidence that the acquittee:
 

(i) is currently mentally ill or mental retarded; and, as a result,

(ii) poses a substantial risk of serious bodily harm to others.


(c) The court may not commit the acquittee unless it finds, beyond a reasonable doubt, that the acquittee committed the criminal act for which he or she was acquitted by reason of mental nonresponsibility [insanity], or unless the trier of fact made such a finding at the acquittee’s criminal trial. The commitment court should evaluate the relevance of the criminal act to the proposed commitment in light of the amount of time which has passed since its occurrence and the possibility that the acquittee’s confinement may have prevented the commission of other overt acts posing a serious threat of bodily harm to others.

(d) If the court concludes that the only reason the acquittee does not meet the standard for commitment set forth in paragraph (b) is the effect of treatment or habilitation currently being received, the acquittee may be committed unless the court is persuaded by a preponderance of the evidence that the acquittee will continue to receive such treatment or habilitation following release for as long as the treatment or habilitation is required. If the court is persuaded that acquittee will continue to receive the needed treatment or habilitation, it may order either that acquittee be released or, in the alternative, that acquittee be released upon condition that acquittee continue to receive the treatment or habilitation. If acquittee does not continue to receive the treatment or habilitation, the conditional release may be revoked pursuant to standard 7-7.11.


Standard  7-7.5. Special commitment hearings
 

(a) A special commitment system for mental nonresponsibility [insanity] acquittees should provide the procedural protections described in this standard.

(b) The acquittee should be represented by counsel at the commitment hearing and is entitled to assistance of counsel during this period. If the acquittee is without counsel, the court should appoint counsel. If the acquittee is financially unable to afford counsel, the cost should be borne by the state. Representation by counsel cannot be waived.

(c) At the hearing, acquittee is entitled to confront and cross-examine adverse witnesses. Acquittee is also entitled to present witnesses, including an independent expert witness or expert witnesses. For financially unable acquittees the reasonable cost of expert witnesses should be borne by the state.

(d) At the hearing, the rules of evidence should apply, including the prohibition against hearsay testimony.

(e) The acquittee cannot be required to testify at the hearing.

(f) Acquittee should have the right to appeal on the record an adverse ruling on the issue of commitment. The appeal should be heard on an expedited basis.


Standard  7-7.6. Special commitment; conditions of confinement
 

Consistent with the requirements of institutional and public safety, persons committed pursuant to special commitment statutes should be confined under comparable conditions and should have the rights of persons committed under general commitment statutes.


Standard  7-7.7. Special commitment; maximum duration of commitment order
 

(a) When a court commits a mental nonresponsibility [insanity] acquittee pursuant to standard 7-7.4, it should also issue an order setting the maximum duration of the acquittee’s special commitment. The maximum duration set by the court may not exceed the maximum term of incarceration provided by law had the acquittee been found responsible for the crime charged. Upon the expiration of the maximum duration of special commitment, the acquitee may only be confined if subsequently committed under general commitment procedures.

(b) In setting the maximum duration for special commitment, as in other commitment proceedings under this chapter, the court should consider the acquittee’s need for treatment or habilitation and its concerns for the public’s safety, but it may not consider retribution or punitive factors.


Standard  7-7.8. Special commitment; periodic judicial review
 

(a) A specially committed acquittee may petition for a judicial hearing to determine whether the acquittee continues to meet the criteria for special commitment set forth in standard 7-7.4. The acquittee may petition the court for such a hearing [one year] after acquittee’s original special commitment, and every [two years] thereafter. At the original commitment hearing, or at subsequent periodic review hearings under this standard, the court may issue an order allowing the acquittee to petition for a rehearing sooner than the usual [one year] or [two year] period. The court should issue such an order when it appears that the acquittee’s mental condition and other relevant factors warrant a shorter interval between periodic review hearings.

(b) Upon filing of such perdition the court should convene a hearing within [thirty] days and that hearing should be conducted in accordance with the procedures set forth in standard 7-7.5. The state should have the burden of proving, by clear and convincing evidence, that the acquittee continues to meet the criteria for special commitment as set forth in standard 7-7.4. Overt acts by the acquittee tending to prove a substantial threat of serious bodily harm to others should be evaluated pursuant to the requirements of standard 7-7.4(c), and any overt acts committed by the acquittee prior to institutionalization may be considered to the extent that they continue to support a finding that the acquittee remains dangerous. Such previous overt acts should be evaluated by the trier of fact in light of the amount of time which has passed since their occurrence and the possibility that acquittee’s confinement may have prevented the commission of other overt acts indicative of a substantial threat of serious bodily harm to others.

(c) Legal assistance should be regularly available to all specially committed acquittees at the location of their confinement. To ensure that each acquittee’s right to periodic review as set forth in paragraph (a) of this standard is effective, each acquittee should have ready access to counsel, including appointed counsel. When the acquittee is entitled to periodic review, counsel should request a hearing on the acquittee’s continuing need for commitment or should notify the court in writing that counsel has conferred with the acquittee and that a hearing is not requested at that time. By declining to request a hearing when the acquittee is entitled to review, the acquittee does not waive the right to any subsequent hearing.

(d) Nothing in this standard should be interpreted as limiting the right of a specially committed acquittee to petition for a writ of habeas corpus at any time.


Standard  7-7.9. Special commitment; superintendent’s petition for acquittee’s release
 

(a) When the superintendent of the facility in which a specially committed acquittee is confined determines that substantial clinical evidence indicates that the acquittee no longer meets the special commitment criteria, the superintendent may petition the court for the acquittee’s release.

(b) The superintendent should have access to counsel for preparing and presenting the petition to the court.

(c) The petition should set forth the clinical findings supporting the conclusion in favor of release and should contain a summary of all pertinent clinical data.

(d) A hearing should be held no later than [fifteen ] days after filing the petition and the acquittee should remain confined pending the hearing.

(e) Following the hearing the court should order the acquittee’s release if it finds, by a preponderance of the evidence, that the acquittee no longer meets the criteria for special commitment.

(f) The acquittee should receive a copy of the superintendent’s petition and should have the right to be present at the hearing, to be represented by counsel, and to present evidence.

(g) The prosecuting attorney should receive a copy of the superintendent’s petition and should have the right to be present at the hearing and to present evidence.


Standard  7-7.10. Special commitment; notification of release
 

When the release of a specially committed acquittee is imminent, the prosecuting attorney should have the authority to notify relevant individuals and agencies.


Standard  7-7.11. Special commitment; authorized leave
 

(a) Authorized leave means a temporary absence from the facility without staff supervision. Authorized leave for specially committed acquittees should be permitted only by court order.

(b) When the superintendent of the facility concludes that a specially committed acquittee may be granted authorized leave without posing a danger to the community and that such leave would benefit the acquittee’s treatment or habilitation regimen, the superintendent should petition for a court order permitting authorized leave and setting its specific conditions. The petition should include a summary of all pertinent clinical data.

(c) A copy of the petition should be served on the prosecuting attorney who should have the right to respond to the petition.

(d) The court should order authorized leave if it finds, by a preponderance of the evidence, that the petition for leave constitutes treatment or rehabilitation consistent with the least restrictive alternative principle and that it is consistent with community safety. The court may set any conditions it believes necessary for community safety.

(e) If a specially committed acquittee violates any condition of an authorized leave order, or if the leave is no longer appropriate to the acquittee’s treatment or habilitation regimen or is no longer consistent with public safety, the leave may be terminated by the superintendent or the court. An acquittee permitted authorized leave who believes that such leave has been terminated wrongfully by the superintendent may petition the court for its reinstatement. Review of the acquittee’s petition should satisfy the requirements of procedural due process. The court should reinstate authorized leave if it finds, by a preponderance of the evidence, that the acquittee compiled with the conditions of that leave and that reinstatement would be consistent with the acquittee’s treatment or habilitation needs and with community safety.


 

PART VIII.

SPECIAL DISPOSITIONAL STATUTES

Standard  7-8.1. Repeal of psychopath statutes
 

Statutes which provide for special sentencing and treatment of sexual psychopaths, psychopaths, or defective delinquents should be repealed.

 

PART IX.

SENTENCING MENTALLY ILL AND MENTALLY RETARDED OFFENDERS

Standard  7-9.1. Definitions
 

(a) An adult, or a minor under eighteen years of age who was tried as an adult, convicted of a crime and subject to sentencing, is referred to within this part as an offender.

(b) An offender who suffers a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, or the capacity to recognize reality or the ability to meet the demands of life, is referred to within this part as a severely mentally ill offender.

(c) An offender with very significant subaverage general intellectual functioning existing concurrently with the substantial deficits in adaptive behavior is referred to within this part as a seriously mentally retarded offender.


Standard  7-9.2. Probation
 

An offender should not be denied probation solely because the offender requires mental health or mental retardation treatment or habilitation.


Standard 7-9.3. Sentencing effect of mental illness or mental retardation
 

Evidence of mental illness or mental retardation should be considered as a possible mitigating factor in sentencing a convicted offender.


Standard  7-9.4. Assistance of experts during sentencing
 

In discharging the duties specified in standard 18-6.3(f), defense counsel may require the assistance of mental health or mental retardation professionals to explore the availability of evidence concerning the defendant’s mental condition insofar as it may be relevant to issues of mitigation or disposition. Accordingly, in appropriate cases each jurisdiction should ensure that this form of assistance is available to defendants who are financially unable to obtain such assistance.


Standard  7-9.5. Inadmissibility of expert testimony based on competency evaluation
 

Testimony of a mental health or mental retardation professional which is based on a competency evaluation is admissible in a sentencing hearing only in accordance with the provisions of standard 7-4.6.


Standard  7-9.6. Inadmissibility of expert testimony based on pretrial evaluation
 

No testimony of a mental health or mental retardation professional based on a pretrial evaluation is admissible at a sentencing hearing unless the defendant puts mental condition in issue at that hearing.


Standard  7-9.7. Treatment for mentally ill and mentally retarded offenders sentenced to imprisonment
 

(a) Mental health and mental retardation services should be available within the adult correctional facility for offenders whose mental illness or retardation is not severe enough to necessitate commitment to a mental health or mental retardation facility.

(b) Severely mentally ill or seriously mentally retarded sentenced offenders should be treated in a mental health or mental retardation facility, preferably under the supervision of the jurisdiction’s department of mental health or mental retardation, in accordance with standards 7-9.8 and 7-9.9.


Standard  7-9.8. Commitment of severely mentally ill and seriously mentally retarded offenders
 

(a) Initiation of postconviction proceedings. Commitment proceedings may be initiated by the offender or prosecutor subsequent to conviction and prior to or during the sentencing hearing. The party who raises the issue must present evidence showing that the offender meets the criteria for commitment.

(b) Notice. The offender must receive written notice that commitment as a severely mentally ill or seriously mentally retarded offender is sought if the prosecutor initiates the proceedings. The prosecutor should receive written notice if the offender is the initiating party. The notice should be provided sufficiently in advance to allow full preparation for the hearing.

(c) Mental health and mental retardation evaluations. The offender may not be committed as a severely mentally ill or seriously mentally retarded offender unless the offender has been evaluated by a mental health or mental retardation professional within the last [sixty] days and found to be severely mentally ill or seriously mentally retarded. The judge may order a mental evaluation of the offender which may be conducted in the setting where the offender is located, or the offender may be committed for observation and diagnosis. Such commitment period should not exceed [thirty] days, and the offender’s sentence should be credited with time spent while confined for observation.

(d) Evaluation reports. Mental evaluation reports of the offender should address the question of whether the offender is severely mentally ill or seriously mentally retarded. All reports should be disclosed to the prosecution and the defense prior to the hearing. In addition to the diagnosis, the reports should describe the specific behavior or indicators which led to the conclusion that the offender is or is not severely mentally ill or seriously mentally retarded. An offender may not be committed unless a report from a mental health or mental retardation professional indicates that the offender suffers from severe mental illness or serious mental retardation.


Standard  7-9.9. Commitment hearing procedures
 

(a) Procedural protections. The commitment hearing should afford the offender the following minimal procedural protections:
 
(i) notice as provided in standard 7-9.8(b);

(ii) the right to counsel;

(iii) the right to be present at the hearing and to call witnesses, including independent expert witnesses, and to cross-examine witnesses;

(iv) a judicial hearing officer;

(v) a decision based upon the record;

(vi) written findings of facts by the hearing officer; and

(vii) to be informed of the foregoing rights.


(b) Procedures when neither party objects. If neither the prosecutor nor the offender objects to the offender being committed as a severely mentally ill or seriously mentally retarded offender, a hearing is not required. However, the court must still find, based on at least one report from a mental health or mental retardation professional, that the offender suffers from severe mentally illness or serious mental retardation.

(c) Burdens of proof. If either the offender or the prosecutor objects to commitment, the other party must then show by clear and convincing evidence that the offender meets the criteria for commitment.

(d) Criteria for commitment. At the commitment hearing the court must find that the offender is severely mentally ill or seriously mentally retarded and requires treatment or habilitation in a mental health or mental retardation facility rather than an adult correctional facility.

(e) Expert opinion testimony as to whether the offender is severely ill or seriously mentally retarded and requires treatment or habilitation in a mental health or mental retardation facility should be admissible subject to the limitations set forth in standards 7-9.5 and 7-9.6.


Standard  7-9.10. Disposition of offenders
 

(a) Sentence. The court should impose the sentence for the criminal offense whether or not the offender is place in accordance with paragraph (b) of this standard.

(b) Commitment. A severely mentally ill or seriously mentally retarded offender who is committed pursuant to standard 7-9.9 should be placed in a mental health or mental retardation facility. The principle of least-restrictive alternative should apply in the placement of such offenders, but the placement should also take into consideration the offender’s history, the offense, the sentence, institutional security requirements, and the offender’s current mental condition.


Standard  7-9.11. Right to treatment and habilitation; limitation on access into community
 

Once placed in a mental health or mental retardation facility, a mentally ill offender should have the right to treatment described in chapter 23 of these standards and a mentally retarded offender should have a comparable right to habilitation. These offenders should not, however, be permitted access into the community by mental health or mental retardation officials without authorization from appropriate correctional officials or the court.


Standard  7-9.12. Right of offender to refuse treatment
 

An offender who has been placed in a mental health or mental retardation facility has the same right to decline habilitation or mental health treatment as a civilly committed person in that jurisdiction.


Standard  7-9.13. Periodic review of the need for commitment
 

Committed severely mentally ill and seriously mentally retarded offenders should be entitled to the same kind of periodic review by the institution providing treatment or habilitation and by the court as provided for involuntary civil committees. The purpose of this review is solely to determine if treatment or habilitation in a mental health or mental retardation facility is still necessary.


Standard  7-9.14. Transfer to correctional facility
 

When the offender no longer meets the criteria for commitment, the offender should be transferred to a correctional facility. The offender, the correctional facility, and the court should receive written notice of this decision at least [fifteen] days prior to transfer. The notice should include the factual basis for the transfer decision and confirmation that the offender has been advised of the right to object. If the offender objects, that objection must be included in the notice sent to the court. The court should determine whether the return decision reflects a disregard for the offender’s reasonable mental health needs and may hold a hearing to determine this issue. The court must hold such a hearing in cases where the mental health or mental retardation facility seeks to return to a correctional facility an offender who has spent [ninety] days or less within the mental health or mental retardation facility.


Standard 7-9.15. Good time credits and parole
 

(a) An offender in a mental health or mental retardation facility is entitled to earn good time credits on the same terms as offenders in adult correctional facilities.

(b) An offender in a mental health or mental retardation facility should be eligible for parole release consideration on the same terms as offenders in adult correctional facilities.

(c) If otherwise qualified for parole, an offender should not be denied parole solely because the offender had or is receiving treatment or habilitation in a mental health or mental retardation facility.

(d) If otherwise qualified for parole, an offender who would benefit from outpatient treatment or habilitation should not be denied parole for that reason.


Standard  7-9.16. Procedure when sentence expires
 

A committed severely mentally ill or seriously mentally retarded offender must either be released or civilly committed pursuant to the state’s general civil commitment statute when the sentence expires.

 

PART X.

MENTALLY ILL AND MENTALLY RETARDED PRISONERS

Standard  7-10.1 Definitions
 

(a) An adult, or a minor under eighteen years of age who was tried as an adult, convicted of a crime and incarcerated within a correctional facility, is referred to within this part as a prisoner.

(b) A prisoner who suffers a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, or the capacity to recognize reality or the ability to meet the demands of life is referred to within this part as a severely mentally ill prisoner.

(c) A prisoner with very significant subaverage general intellectual functioning existing concurrently with substantial deficits in adaptive behavior is referred to within this part as a seriously mentally retarded prisoner.


Standard  7-10.2. Mental health or mental retardation care for prisoners
 

(a) Correctional facilities should provided a range of mental health and mental retardation services for prisoners and should have adequately trained personnel readily available to provide such services.

(b) Prisoners who require mental health treatment or mental retardation habilitation not available in the correctional facility should be transferred to a mental health or mental retardation facility, preferably under the supervision of the jurisdiction's department of mental health or mental retardation, pursuant to procedures set forth in the following standards.


Standard  7-10.3. Voluntary transfer to mental health or mental retardation facility

 
If a prisoner desires treatment or habilitation in a mental health or mental retardation facility the prisoner may make an application for voluntary admission to a mental health or mental retardation facility. If the correctional institution believes such treatment or habilitation is warranted, the application should be endorsed by the chief executive officer of the correctional institution and accompanied by the report of an evaluation conducted by a mental health or mental retardation professional. The prisoner should be admitted to such facility if it accepts the endorsed application.


Standard  7-10.4. Rejection of voluntary transfer application; court-ordered transfer to mental health or mental retardation facility
 

(a) Procedures for court-ordered transfer.
 
(i) If an application for voluntary admission submitted in accordance with the procedures set forth in standard 7-10.3 is rejected by the mental health or mental retardation facility and the correction officials believe that the applicant is a severely mentally ill or seriously mentally retarded prisoner, the chief executive officer of the correctional facility or a designee may file a petition for court-ordered transfer to a mental health or mental retardation facility. Notice of the petition should be sent to the mental health facility when the petition is filed. Such petition should be accompanied by the prisoner's voluntary application and the report of a mental evaluation. The court should set the matter for a prompt hearing.

(ii) The prisoner's mental evaluation reports should address the question of whether the prisoner is mentally ill and/or mentally retarded. In addition to the diagnosis, the report should describe the specific behavior or other indicators which led to the conclusion that the prisoner is or is not mentally ill or mentally retarded. A prisoner may not be transferred unless a report from a mental health or mental retardation professional indicates that the prisoner suffers from a severe mental disability. All mental evaluation reports should be disclosed to all parties prior to the hearing.


(b) Criteria for the court-ordered transfer. If the court finds, by clear and convincing evidence, that the prisoner is severely mentally ill or seriously mentally retarded and requires care not available in the correctional facility, it should order the prisoner transferred to a mental health or mental retardation facility.


Standard  7-10.5. Involuntary transfer
 

(a) Procedures for involuntary transfer. If correction officials believe a prisoner is severely mentally ill or seriously mentally retarded and requires treatment in a mental health or mental retardation facility and the prisoner objects to such placement, involuntary transfer proceedings should be initiated. At a minimum, involuntary transfer hearings for prisoners should provide the following procedural protections:
 
(i) the right to legal counsel, furnished by the state if the prisoner is financially unable to secure counsel;

(ii) the right to be present, to be heard in person, and to produce documentary evidence;

(iii) the right to call and cross-examine witnesses;

(iv) the right to review mental evaluation reports; and,

(v) the right to be notified of the foregoing rights.


(b) Evaluation reports. The prisoner's mental evaluation reports should address the question of whether the prisoner is severely mentally ill or seriously mentally retarded. In addition to the diagnosis, the reports should describe the specific behavior or other indicators which led to its conclusions. A prisoner may not be involuntarily transferred unless the evaluation report indicates that the prisoner is severely mentally ill or seriously mentally retarded.

(c) Criteria for involuntary transfer.
 

(i) In order to commit the prisoner, the judge must find by clear and convincing evidence that the prisoner meets the criteria for involuntary commitment and cannot be given proper treatment or habilitation in prison. Expert opinion testimony as to whether a prisoner is severely mentally ill or seriously mentally retarded and requires treatment or habilitation in a mental health facility should be admissible.

(ii) When the prisoner is a minor involuntary transfer is authorized if there is clear and convincing evidence that the minor is severely mentally ill or seriously mentally retarded and needs treatment or habilitation in a mental health or mental retardation facility.


Standard  7-10.6. Periodic review of the need for commitment
 

Committed severely mentally ill or seriously mentally retarded prisoners should be entitled to the same kind of periodic review by the institution providing treatment or habilitation and by the court as provided for involuntary civil committees. The purpose of this review is solely to determine if treatment or habilitation in a mental health or mental retardation facility is still necessary.


Standard 7-10.7. Emergency transfer to mental health or mental retardation facility
 

(a) If in respect to any prisoner a need for emergency intervention exists, the chief executive officer of the prison or that officer's designee may authorize immediate transfer to a mental health or mental retardation facility provided that an involuntary transfer hearing is initiated not later than [forty-eight] hours after the transfer is effected.

(b) An emergency exists when the chief executive officer of the correctional facility, or that officer's designee, reasonably believes that an immediate transfer is necessary to prevent serious injury to the prisoner or to protect the safety of other persons.


Standard  7-10.8. Rights of transferred or committed prisoners

 
Once transferred or committed to a mental health or mental retardation facility, mentally ill prisoners should have the right to treatment described in chapter 23 of these standards and mentally retarded prisoners should have a comparable right to habilitation. These prisoners should not be permitted access into the community by mental health or mental retardation officials without authorization from appropriate correction officials or the court.


Standard  7-10.9. Right of prisoner to refuse treatment or habilitation
 

(a) A prisoner, unless involuntarily transferred to a mental health or mental retardation facility, should be permitted to decline habilitation or mental health treatment except:
 
(i) when required by order of a court; or

(ii) when reasonably believed to be necessary in an emergency to save the life of the person or to prevent permanent and serious damage to the person's health.


(b) An involuntarily transferred prisoner has the same right to refuse treatment or habilitation as a civilly committed person in that jurisdiction.


Standard  7-10.10. Good time credits and parole
 

(a) A prisoner transferred to a mental health or mental retardation facility is entitled to earn good time credits on the same terms as prisoners in adult correctional facilities.

(b) A prisoner transferred to a mental health or mental retardation facility should be eligible for parole release consideration on the same terms as prisoners in adult correctional facilities.

(c) If otherwise qualified for parole, a prisoner should not be denied parole solely because the prisoner had or is receiving treatment in a mental health or mental retardation facility.

(d) If otherwise qualified for parole, a prisoner who would benefit from outpatient treatment or habilitation should not be denied parole for that reason.


Standard  7-10.11. Return to correctional facility
 

When the prisoner no longer meets criteria for transfer or commitment to a mental health or mental retardation facility, the prisoner should be returned to a correctional facility in accordance with the following procedures:

(a) When the prisoner, the mental health or retardation facility, and the correctional facility agree that the prisoner no longer meets the transfer criteria, the prisoner should be returned promptly to the correctional facility.

(b) When a voluntarily transferred prisoner seeks return to a correctional facility but the mental health or mental retardation facility disagrees that the prisoner currently meets retransfer criteria, the prisoner must be returned to the correctional facility or hearing procedures under standard 7-10.5 must be initiated.

(c) When the mental health or mental retardation facility determines that the prisoner no longer meets the criteria of standard 7-10.5(b) and decides to return the prisoner, then the prisoner, the correctional facility, and the court should receive written notice of this decision at least [fifteen] days prior to the return. The notice should include the factual basis for the return decision and confirmation that the prisoner has been advised of the right to object. If the prisoner objects, that objection must be included in the notice sent to the court. The court should determine whether the return decision reflects a deliberate indifference to the prisoner's mental condition and may hold a hearing to determine this issue. The court must hold such a hearing in cases where the mental health or mental retardation facility seeks to return to a correctional facility a prisoner who has spent [ninety] days or less within the mental health or mental retardation facility.


Standard  7-10.12. Civil commitment at expiration of sentence
 

A committed severely mentally ill or seriously mentally retarded prisoner must either be released or civilly committed pursuant to the state's general civil commitment statute when the sentence expires.