Section 77-15-5 - Order for hearing - Stay of other proceedings - Examinations of defendant - Scope of examination and report(1) A court in which criminal proceedings are pending shall stay all criminal proceedings, if: (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or(b) the court raises the issue of the defendant's competency under Section 77-15-4.(2) The court in which the petition described in Subsection (1)(a) is filed: (a) shall inform the court in which criminal proceedings are pending of the petition, if the petition is not filed in the court in which criminal proceedings are pending;(b) shall review the allegations of incompetency;(c) may hold a limited hearing solely for the purpose of determining the sufficiency of the petition, if the court finds the petition is not clearly sufficient on its face;(d) shall hold a hearing, if the petition is opposed by either party; and(e) may not order an examination of the defendant or order a hearing on the mental condition of the defendant unless the court finds that the allegations in the petition raise a bona fide doubt as to the defendant's competency to stand trial.(3)(a) If the court finds that there is a bona fide doubt as to the defendant's competency to stand trial, the court shall order the department to have one or two forensic evaluators complete a competency evaluation for the defendant in accordance with Subsection (3)(b) and provide a report to the court regarding the competency of the defendant to stand trial.(b) The court shall order the department to have the defendant evaluated by one forensic evaluator unless: (i) the defendant is charged with a capital felony; or(ii) the defendant is charged with a felony that is not a capital felony, and the court determines, based on the allegations in the petition, that good cause exists to order two competency evaluations.(c)(i) This section does not prohibit a party from seeking an additional forensic evaluator to conduct a competency evaluation of the defendant.(ii) If a party seeks an additional competency evaluation under this Subsection (3)(c), the party shall: (A) select the additional forensic evaluator; and(B) pay the costs of the additional forensic evaluator.(d) The stipulation by parties to a bona fide doubt as to the defendant's competency to stand trial alone may not take the place of a competency evaluation ordered under this Subsection (3).(4)(a) If the petition or other information sufficiently raises concerns that the defendant may have an intellectual disability, at least one forensic evaluator who is experienced in assessments of intellectual disabilities shall conduct a competency evaluation.(b) The petitioner or other party, as directed by the court or requested by the department, shall provide to the forensic evaluator nonmedical information and materials relevant to a determination of the defendant's competency, including the charging document, arrest or incident reports pertaining to the charged offense, known criminal history information, and known prior mental health evaluations and treatments.(c) For purposes of a competency evaluation, a custodian of mental health records pertaining to the defendant, including the defendant's prior mental health evaluations or records relating to the defendant's substance use disorder, may provide the records to: (i) with the defendant's consent, a forensic evaluator or the department on the department's request; or(ii) a forensic evaluator by court order.(d) A court order under Subsection (4)(c) shall include a protective order that expires 180 days after the day on which:(i) the defendant is found guilty;(ii) the defendant enters a guilty plea;(iii) the court sentences the defendant; or(iv) if the case is appealed, the day on which the final appeal is resolved.(e)(i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f), the court shall order the forensic evaluator to destroy all records subject to the protective order within the 180 day period described in Subsection (4)(d).(ii) A forensic evaluator is not required to destroy the records subject to the protective order if destroying the records is a violation of ethical standards to which the forensic evaluator is subject for occupational licensing.(f) The court may extend the protective order described in Subsection (4)(d) if:(i) the court finds the defendant incompetent to proceed without a substantial probability that the defendant will become competent in the foreseeable future;(ii) the prosecutor or another individual indicates to the court that the prosecutor or other individual will seek civil commitment of the defendant under Section 77-15-6; and(iii) the court orders the records be maintained and used only for the purposes of examining the defendant in connection with the petition for civil commitment.(g) An order for a competency evaluation may not contain an order for any other inquiry into the mental state of the defendant that is not described in this Subsection (4).(5) Pending a competency evaluation, unless the court or the department directs otherwise, the defendant shall be retained in the same custody or status that the defendant was in at the time the examination was ordered.(6) In the conduct of a competency evaluation and in a report to the court, a forensic evaluator shall consider and address, in addition to any other factors determined to be relevant by the forensic evaluator: (a)(i) the impact of the defendant's mental illness or intellectual disability on the defendant's present ability to: (A) rationally and factually understand the criminal proceedings against the defendant; and(B) consult with the defendant's legal counsel with a reasonable degree of rational understanding in order to assist in the defense;(b) in making the determinations described in Subsection (6)(a), the forensic evaluator shall consider, as applicable: (i) the defendant's present ability to: (A) understand the charges or allegations against the defendant;(B) communicate facts, events, and states of mind;(C) understand the range of possible penalties associated with the charges or allegations against the defendant;(D) engage in reasoned choice of legal strategies and options;(E) understand the adversarial nature of the proceedings against the defendant;(F) manifest behavior sufficient to allow the court to proceed; and(G) testify relevantly, if applicable; and(c) whether the defendant is exhibiting false or exaggerated physical or psychological symptoms relevant to the defendant's capacity to stand trial.(7) Upon a determination that the defendant is incompetent to proceed, the forensic evaluator shall indicate in the report to the court: (a) the factors that contribute to the defendant's incompetency, including the nature of the defendant's mental illness or intellectual disability, if any, and its relationship to the factors contributing to the defendant's incompetency;(b) whether there is a substantial probability that:(i) restoration treatment may bring the defendant to competency to stand trial in the foreseeable future; or(ii) the defendant cannot become competent to stand trial in the foreseeable future;(c) whether the defendant would benefit from restoration treatment; and(d) if the forensic evaluator makes the determination under Subsection (7)(b)(i) or (7)(c), an explanation of the reason for the determination and a summary of the treatment provided to the defendant in the past.(8)(a) A forensic evaluator shall provide an initial report to the court and the prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report shall inform the court of the examiner's opinion concerning the competency of the defendant to stand trial.(b)(i) If the forensic evaluator is unable to complete the report in the time specified in Subsection (8)(a), the forensic evaluator shall give written notice to the court.(ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i) shall receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on which the forensic evaluator received the court's order to conduct a competency evaluation and file a report.(iii) The court may further extend the deadline for completion of the evaluation and report if the court determines that there is good cause for the extension.(iv) Upon receipt of an extension described in Subsection (8)(b)(iii), the forensic evaluator shall file the report as soon as reasonably possible.(9) Any written report submitted by a forensic evaluator shall: (a) identify the case ordered for evaluation by the case number;(b) describe the procedures, techniques, and tests used in the examination and the purpose or purposes for each, the time spent by the forensic evaluator with the defendant for purposes of the examination, and the compensation to be paid to the evaluator for the report;(c) state the forensic evaluator's clinical observations, findings, and opinions on each factor described in Subsection (6); and(d) identify the sources of information used by the forensic evaluator and present the basis for the forensic evaluator's clinical findings and opinions.(10)(a) Any statement made by the defendant in the course of any competency examination, whether the examination is with or without the consent of the defendant, any testimony by a forensic evaluator based upon the statement, and any other fruits of the statement may not be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced evidence, unless the evidence is relevant to a determination of the defendant's competency.(b) Before examining the defendant, the forensic evaluator shall specifically advise the defendant of the limits of confidentiality as provided under Subsection (10)(a).(11)(a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a competency hearing. The hearing shall be held not less than five and not more than 15 days after the day on which the court received the forensic evaluators' reports, unless for good cause the court sets a later date.(b) Any person directed by the department to conduct the competency evaluation may be subpoenaed to testify at the hearing.(c) The court may call any forensic evaluator to testify at the hearing who is not called by the parties. If the court calls a forensic evaluator, counsel for the parties may cross-examine the forensic evaluator.(d)(i) If the forensic evaluators are in conflict as to the competency of the defendant, all forensic evaluators should be called to testify at the hearing if reasonably available.(ii) A conflict in the opinions of the forensic evaluators does not require the appointment of an additional forensic evaluator unless the court finds good cause for the appointment.(12)(a)(i) A defendant shall be presumed competent to stand trial unless the court, by a preponderance of the evidence, finds the defendant incompetent to proceed.(ii) The burden of proof is upon the proponent of incompetency at the hearing.(b) An adjudication of incompetent to proceed does not operate as an adjudication of incompetency to give informed consent for medical treatment or for any other purpose, unless specifically set forth in the court order.(13) In determining the defendant's competency to stand trial, the court shall consider the totality of the circumstances, including: (b) the defendant's criminal and arrest history;(c) prior mental health evaluations and treatments provided to the court by the defendant;(d) subject to Subsection (15), whether the defendant was found incompetent to proceed in a criminal action unrelated to the charged offense for which the petition is filed;(e) the testimony of lay witnesses, if any;(f) the forensic evaluator's testimony and report;(g) the materials on which the forensic evaluator's report is based; and(h) any other relevant evidence or consideration bearing on the competency of the defendant.(14) If the court finds the defendant incompetent to proceed: (a) the court shall issue the order described in Subsection 77-15-6(1), which shall: (i) include findings addressing each of the factors in Subsection (6)(a);(ii) include a transportation order, if necessary;(iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological, or social work reports submitted to the court relative to the mental condition of the defendant, and any other documents made available to the court by either the defense or the prosecution, pertaining to the defendant's current or past mental condition; and(iv) be sent by the court to the department; and(b) the prosecuting attorney shall provide to the department: (i) the charging document and probable cause statement, if any;(ii) arrest or incident reports prepared by law enforcement and pertaining to the charged offense; and(iii) additional supporting documents.(15) The court may not find the defendant incompetent to proceed based solely on a court having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6 in an unrelated criminal action if the court in the unrelated criminal action ordered the release more than one year before the day on which the petition described in Subsection (13)(a) is filed.(16) The court may make any reasonable order to ensure compliance with this section.(17) Failure to comply with this section does not result in the dismissal of criminal charges.Amended by Chapter 417, 2023 General Session ,§ 1, eff. 5/3/2023.Amended by Chapter 171, 2023 General Session ,§ 3, eff. 5/3/2023.Amended by Chapter 147, 2018 General Session ,§ 8, eff. 5/8/2018.Amended by Chapter 115, 2016 General Session ,§ 2, eff. 5/10/2016.Amended by Chapter 311, 2012 General Session ,§ 1, eff. 5/8/2012.Amended by Chapter 109, 2012 General Session ,§ 1, eff. 5/8/2012.Amended by Chapter 212, 2008 General Session