An Act To Streamline the Process for Court-ordered Mental Health Examinations in Criminal Cases RepOlied by Representative PRIEST of Bnmswick for the Criminal Law Advisory Commission pursuant to the Maine Revised Statutes, Title 17-A, section 1354, subsection 2.
Maine Legislature, Session 124, LD 1200
Committee: JUdiciary
Amends: 15 MRSA §101-D, 15 MRSA §103, 15 MRSA §2211-A, 15 MRSA §3318, 17-A MRSA §1175

MAINE STATE LEGISLATURE 
The following document is provided by the 
LAW AND LEGISLATIVE DIGITAL LIBRARY 
at the Maine State Law and Legislative Reference Library 
http://legislature.maine.gov/lawlib 
Reproduced from scanned originals with text recognition applied 
(searchable text may contain some errors and/or omissions) 
() 
'~ 
124th MAl ELEGISLATURE 
Legislative Document 
No. 1200 
H.P.824 
House of Representatives, March 25,2009 
An Act To Streamline the Process for Court-ordered Mental Health 
Examinations in Criminal Cases 
RepOlied by Representative PRIEST of Bnmswick for the Criminal Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 17-A, section 1354, subsection 2. 
Reference to the Committee on JUdiciary suggested and ordered printed under Joint Rule 
218. 
Printed 011 fL.-cycled papL'1' 
71/~d 
1?1.I7lILC~~{ 
MILLICENT M. MacFARLAND 
Clerk 
,3 
Be it enacted by the People ofthe State of Maine as follows: 
Sec. 1. 15 MRSA §lOI-B, as amended by PI:, 2001, c. 634, §1 and PL 2003, c. 
689, Pt. B, §§6 and 7, is repealed. 
Sec. 2. 15 MRS A §101-C, sub-§l, as enacted by PL 1987, c. 402, Pt. A, §109, is 
amended to read: 
1. Written demand for records. When a person or entity has been ordered to 
perfonn an examination or evaluation pursuant to section·~ 10 I-D, and the person to 
be examined has sought the examination, joined in a request or order for the examination 
. 
or has entered a plea of not criminally responsible by reason of insanity, that person may 
'make written demand upon any individual, partnership, association, corporation, 
institution or governmental entity to produce the records or copies of the records, in 
whatever medium preserved, ofthe subject of the examination or evaluation .. 
Sec. 3. 15 MRSA §101-D is eriacted to re,ad: 
§101-D. Mental examination of persons accused of crime 
1. Competency to proceed. The court may for cause shown order that the defendant 
be examined to evaluate the defendant's competency to proceed as provided in this 
subsection. 
A. Upon motion by the defendant or by the State, or upon its own motion, a court 
having jurisdiction in any criminal case may for cause shown order that the defendant 
be examined by the State Forensic Service for evaluation of the defendant's 
competency to proceed. When ordered to evaluate a defendant under this paragraph, 
the.8tate Forensic Service shall promptly examine the defendant and report its initial 
detenrunation regarding the defendant's competency to proceed to the court. 
If, 
based upon' its examination, the State Forensic Service concludes that further 
examination is necessary to fully evaluate the defendant's competency to proceed, the 
report must so state and must set forth recommendations as to the nature and scope of 
any further examination. 
The court shall forward any repmi filed by, the State 
Forensic Service to the defendant or the defendant's attomey and to the attomey for 
the State. 
' 
B. If the defendant is incarcerated, the examination ordered pursuant to paragraph A 
must take place within 21 days of the court's order, and the report of that examination 
must be filed within 30 days of the court's order. If further examination is ordered 
pursuant to paragraph C, the report of that examination must be filed within 60 days 
of the court's order. 
If the State Forensic Service requires an extension of the 
'deadlines set forth above, it shall communicate its request and the reasons for that 
request to the court and to counsel for the parties. The court shall accommodate any 
party's request to be heard on the issue of Whether an extension should be granted and 
may grant any extension of time that is reasonable under the circumstances. The 
examination may. take place at the correctional facility where the defendant is 
incarcerated if the State Forensic Service determines that the correctionai facility can 
provide an appropriate setting for the examination. If the State Forensic Service 
) 
") 
,/' 
) 
n 
). 
'~ 
determines otherwise, the examination will be conducted at a time and place 
designated by the State Forensic Service. For examinations that take place outside 
the correctional facility, the correctional facility shall provide transportation and 
security for the examination. 
C. If the report submitted pursuant to paragraph A recommends further evaluation of 
the defendant or upon motion by the defendant or by the State for good cause shown, 
the court may order further evaluation of the defendant by the State Forensic Service. 
' Any order for further evaluation may designate the specialty of the person to perform 
the evaluation. In addition, if at any time during a criminal proceeding an issue of 
competency to proceed arises with respect to a defendant initially determined to be 
competent, the court may order such further examination by the State Forensic 
Service as the court finds necessary and aQPropriate. The court shall forward any 
further report filed by the State Forensic ,Service to the defendant or the defendant's 
attorney and to the attorney for the State. 
2. Insanity; abnormal condition of the mind. The court may for cause shown 
order that the defendant be evaluated with reference to insanity or abnormal condition of 
the mind as provided in this subsection. 
36· 
A. Upon motion by the defendant or by the State, a court having jurisdiction in any 
criminal case may for cause shown order that the defendant be examined by the State 
Forensic Service for evaluation of the defendant's mental state at the time of the 
crime with reference to criminal responsibility under Title 17-A, section 39 and 
abnormal condition of the mind under Title 17-A, section 38. When ordered to 
evaluate a defendant under this paragraph, the State Forensic Service shall promptly 
examine the defendant and the cll-cumstances of the crime and provide a report of its 
evaluation to the court. If, based upon its exainination, the State Forensic Service 
concludes that further examination is necessary to fully evaluate the defendant's 
mental state at the time of the crime, the report must so state and must set forth 
recommendations as to the nature and scope of any further examination. The court 
shall forward any report filed by the State Forensic Service to the defendant or the 
defendant's attorney and, unless the defendant. had objected to the order for 
examination, to the attorney for the State. 
The court may order an examination under this paragraph over the objection of the 
defendant, but any report filed by the State Forensic Service must be impounded and 
may not be shared with the attorney for the State, unless 'with reference to crintinal 
responsibility the defendant enters a plea of not criminally responsible by reason of . 
insanity or with reference to an abnormal condition of mind the defendant provides 
notice to tIie attorney for the State of the intention to introduce -testirriony as to the 
defendant's abnormal condition of mind pursuant to the Maine Rules of Criminal 
Procedure, Rule 16A(a). 
B. If the defendant enters a plea of not criminally responsible by reason of insanity, 
the comt shall order evaluation under paragraph A. 
C. If the defendant is incarcerated, the examination ordered pursuant to paragraph A 
must take place within 45 days of the court's order and the report of that examination 
must be filed within 60 days of the court's order. If further examination is ordered 
1.6 
pursuant to paragraph D, the report of that examination must be filed within 90 days 
of the court's order. 
If the State Forensic Service requires an extension of the 
deadlines set forth above, it shall communicate its request and the reasons for that 
request to the court and to counsel for the parties. The court shall accommodate a 
party's request to be heard on the issue of whether an extension should be. granted and 
may grant any extension. of time that is reasonable under the circumstances. The 
examination may take place at the correctional facility where· the defendant is 
incarcerated if the State Forensic Service determines that the correctional facility can 
provide an appropriate setting for the examination. If the State Forensic Service 
determines otherwise, the examination must be conducted at a time and place 
designated by the State Forensic Service. For examinations that take place outside 
the correctional facility, the correctional facility shall provide transportation and 
security for the examination. 
" 
D. If the report submitted pursuant to paragraph A recommends further evaluation of 
the defendant or upon motion by the defendant or by the State for good cause shown, 
the court may order further evaluation of the.defendant by the State Forensic Service. 
An order for further evaluation may designate the specialty of the person to perform 
the evaluation. The court shall forward any further report filed by the State Forensic 
Service to the defendant or the defendant's attorney and, unless the defendant had 
objected to the order for examination, to the attorney for the State. 
The court may order an examination under this paragraph over the objection of the 
defendant, but any report filed by the State Forensic Service must be impounded and 
may not be shared with the attorney for the State, unless with reference to criminal 
responsibility the defendant enters a plea of not criminally responsible by reason of 
insanity or with reference to an abnormal condition of mind the defendant provides 
notice to the attorney for the State of the intention to introduce testimony as to the 
defendant's abnormal condition of mind pursuant to the Maine Rules of Criminal 
Procedure, Rule l6A(a). 
" 
.29 
3. Mental condition relevant to other issues. The court may for good cause shown 
order that the defendant be examined to evaluate the defendant's mental condition with 
reference to issues other than competency, insanity or abnormal condition of the mind as 
provided in this subsection. 
" . 
" 
A. Upon motion by the defendant'or"by"the State or UPbn" its own motion a court 
having jurisdiction in any criminal case may for cause shown order that the defendant 
. 35 
be examined by the State Forensic Service for evaluation with respect to any issue 
36" 
"necessary for determination in the case,· including the appropriate "sentence. The 
court's order shall set forth the issue or issues to be addressed by the State Forensic 
Service. When ordered "to evaluate a defendant under this paragraph, the State 
Forensic Service shall promptly examine. the defendant· and the circumstances 
relevant to the issues identified in the court's order and report" to the court regarding 
the defendant's mental· condition as it pertains to those issues. Prior to a verdict or 
rmding of guilty or prior to acceptance of a plea of guilty or nolo contendere, the 
court may not order examination under this subsection over the objection of the 
defendant unless the defendant has asserted, or intends to assert, the defendant's 
mental condition as a basis for an objection, a defense or for mitigation at sentencing. 
) 
) 
). 
n 
~ 
The court shall forward any report filed by the State Forensic Service to the. 
. defendant or the defendant's attorney and to the attorney for the State. 
B. If the defendant is incarcerated the examination ordered pursuant to paragraph A 
must take place within 45 days of the court's order and the report of that examination 
must be filed within 60 days of the court's order. If the State Forensic Service 
requires an extension of the deadlines set forth above it ~hall communicate its request 
and the reasons for that request to the court and to counsel for the parties. The court 
shall accommodate a party's request to be heard on the issue of whether an extension 
should be granted and may grant an extension of time that is reasonable under the 
circumstances. The examination may take place at the correctional facility where the. 
defendant is incarcerated if the State Forensic Service determines that the correctional 
facility can provide an appropriate setting for the examination. If the Stale Forensic 
Service determines otherwise, the examination must be conducted at a time and place 
designated by the State Forensic Service. For examinations that take place outside 
the correctional facility, the cOlTectional facility shall provide transportation and 
security for the examination. 
4.· Commitment for observation. The cOUli may commit the defendant to the 
custody of the Commissioner of Health and Human Services for placement in an 
appropriate institution for the care and treatment of people with mental illness or inental 
retardation as set forth in this subsection. 
. 
A. . If the State'Forensic Service determines that observation of the defendant in an 
appropriate institution for the care of people with mental illness or mental retardation 
will materially enhance its ability· to perform an evaluation ordered pursuant to 
subsection 1, 2, 3 or 9 the State Forensic Service shall so advise the court. The State 
ForensiC Service may make this detel1Tunation based upon consultation with the 
defendant's attorney and the attorney for the State and the court and upon such other 
infol111ation as it detennines appropriate. In addition, the 'State Forensic Service may 
include such a determination in a report to the court that recommends further 
evaluation of the defendant. 
B. Upon a determination by the State Forensic Service under paragraph A, a court 
having jurisdiction in a criminal case may cOlmmt the defendant to the custody of the 
Commissioner of Health and Human Services for placement· in an appropriate 
institution for the care and treatment of people with mental illness or mental 
retardation for observation for a period not to exceed 60 days. If the State Forensic 
Service requires additional time for observation, it shall communicate its request and 
the reasons for that request to the court and to counsel for the parties. The court shall 
accommodate a partis request to be heard on the issue of whether an extension 
should be granted and may extend the COlmIDtment for up to an additional 90 days. 
Unless the defendant objects, an order' under this paragraph must authorize the 
institution where the defendant is placed by the Commissioner of Health and Human, 
Services to provide treatment to the defendant. When further observation of the 
defendant is determined no longer necessary by the State ForenSIC Service, the 
commissioner shall report that determination to the court and the court shall tenninate 
the commitment. 
' 
C. If the court has provided for remand to a correctional facility fonowing. the 
commitment under paragraphB, the correctional facility shall execute· the remand 
order upon advice from the Commissioner of Health and HUlnan Services that 
commitment is-determined no longer necessary. 
5. Finding of incompetence; custody; bail. If, after hearing upon motion of the 
attomey for the· defendant or upon the court's own motion, the court finds that any 
defendant is incompetent to stand trial, the court shall continue the case until such time as 
the defendant is determined,by the court to be competent to stand trial and may either: 
32. 
A. Conunit the defendant to the custody of the Commissioner of Health and.Human 
Services to be placed in an appropriate institution for the care and treatment of people 
with mental.illness or mental retardation for observation, care and treatment. At the 
end of 30 days or sooner, and again in the event of recommitInent, at the end of 60 
days and one. year, the State Forensic Service shall forward a report to the 
Commissioner of Health and Human Services relative to the defendant's competence 
to stand trial and its reasons. The Commissioner of Health and Human Services shall 
without delay file the report with the court having jmisdiction of the case. The court 
shall without delay set a date for and hold a hearing on the question of the defendant's 
competence to stand trial arid receive all relevant testimony bearing on the question. 
If the court determines that the defendant is not competent to stand trial, but there 
does exist a substantial probability that the defendant will be competent to stand trial 
in the foreseeable future, the court shall recommit the defendant to the custody of the 
Commissioner of Health and Human Services to be placed in an appropriate 
institution for the care and treatment· of people with mental illness or mental 
retardation for observation, care and treatment. 
When a person who has been 
evaluated on behalf of the court by the State Forensic Service is committed into the 
custody of the Commissioner of the Department of Human Services under this 
paragraph, the court shall order that the State Forensic Service share any information 
that it has collected or generated with respect to the person with the institution in 
which the person is placed. If the defendant is charged with an offense under Title 
17-A, chapter 9, 11 or 13 or Title 17-A, section 506-A, 802 or 803-A and the court 
determines that the defendant is not competent to stand trial and there does not exist a 
substantial probability that the defendant can be competent in the foreseeable future, 
the court shall dismiss all charges against the defendant and order the Commissioner 
of Health and Human Services to comnience involuntary commitment proceedings 
pursuant to Title 34-B, chapter 3, subchapter 4 or chapter 5, subchapter 3. If the 
defendant is charged with offenses not listed in the previous sentence and the court 
determines that the defendant is not competent to stand trial and there does not exist a 
substantial probability that the defendant can be competent in the foreseeable future, 
the court shall dismiss all charges against the defendant and notify the appropriate 
authorities who may institute civil commitment procedures for the individual; or 
B. Issue a bail order in accordance with chapter 105-A, with or without the further 
order that the defenda'nt undergo observation at a state mental hospital or mental 
health facility approved by the Department of Health and Human Services or by 
arrangement with a private psychiatrist or licensed clinical psychologist and 
treatment when it is determined appropriate by the State Forensic .Service. When 
. outpatient observation and. treatment is ordered an· examination must take place 
) 
) 
) 
n 
i 
r-
~ 
) 
~ 
within 45 days of the cOUli's order and the State Forensic Service shall file its report 
. of that examination within 60 days of the court's order. The State Forensic Service's 
report to the court must contain the opinion of the State Forensic Service concerning 
the defendant's competency to stand trial and its reasons. The court shall without 
delay set a date for and hold a hearing on the question of the defendant's competence 
to stand trial, whichmusi be held pursuant to and consistent with the standards set out 
in paragraph A. 
6. Examiners. Evaluatioh of a defendant by the State Forensic Service pursuant to 
this section, must be performed by a licensed psychologist or a psychiatrist. The State 
Forensic Service may determine whether an examination will be perfonned by a licensed 
psychologist· or a psychiatrist unless the c~urt has designated the specialty of the 
examiner in its order. 
- 7. 
Competence; proceedings. 
Upon a detemunation that the defendant is 
competent to stand trial, proceedings with respect to the defendant must be in accordance 
with the mles of criminal procedure. 
8. 
No release during commitment period; violation. 
A person ordered or 
'conunitted for examination, observation, care or treatment pursuant to this section may 
not be released from the designated institution during the period of examination. . An 
individual responsible for or pennitting the release of a person ordered conmutted 
pursuant to this section for examination, observation, care or treatment from the 
designated institution commits a civil violation for which a fine of not more than $1,000 
may be adjudged. 
9. Examination after sentencing. If the issue. of insanity, competency, abnonnal 
condition of mind or any other issue involving the mental condition of the defendant is 
raised after s~ntencing, the court may for cause shown order the convicted person to be 
examined by the State Forensic SerVice. If at the time an examination order is entered by 
the court the sentenced person is in execution of a sentence of imprisonment imposed for 
any criminal conduct, the time linuts and bail provisions of this section do not apply. 
Sec, 4. 15 MRSA §103, as amended by PL 2005, c. 263, § 1, is further amended to 
read: 
§103. Commitment following acceptance of negotiated insanity plea or following 
verdict or finding of insanity 
, 
. 
. . 
' 
When a cOUli accepts a negotiated plea of not criminally responsible by reason of 
insaluty or when a defendant is found not criminally responsible by reason of insanity by 
jury verdict or cOUli finding, the judgment must so state. In those cases the court shall 
order the person comnutted to the custody of the Corillnissioner of Health and Human 
Services to be placed 'in an appropriate institution for the mentally iII or the mentally 
retarded care and treatment of persons with mental illness or mental retardation for care 
and treatment. Upon placement in the appropriate institution and in the event of transfer 
from one institution to another of persons, committed under this section, notice of the' 
place~ent or transfer must be given by the commissioner to the committing court. 
When a person who has been evaluated on behalf of a court by the State Forensic 
Service is committed into the custody of the Commissioner of Health and Human 
Services pursuant to this section, the court shall order that the State Forensic Service 
share any information it has collected or generated with respect to the person with the 
institution in which the person is placed. 
. 
As used in this section, "not criminally responsible by reason of insaniJy" has the 
. 
same meaning as in Title l7-A, section 39 and inc1udesany comparable plea, finding or ' 
verdict in this State under former section 102; under a former version of Title l7-A, 
section 39; under-former Title l7-A, section 58; or under former section 17-B, chapter 
of the Revised Statutes of 1954. 
' 
. 
Sec. 5. 
MRSA §2211-A, sub-§8, as enacted 'by PL 1995, c. 431, §1, is 
amended to read: 
8~ Competency hearing. ' Admission to a hospital under this section may not be used 
to examine or observe a person for the purpose of a criminal proceeding pending in court. 
Before the trial of a defendant admitted for hospitalization under this section, the court 
may, at any time upon motion of the defendant's attorney or the attorney for the State or 
upon the court's own motion, hold a hearing with respect to the competel1ce of that person 
to stand trial as provided in section +G+-B 10 l-D and appropriate disposition maybe 
made. The court's order following a hearing may terrllinate an admission effected under 
this section. 
Sec. 6. 15 MRSA §3318, sub-§l,~, as amended by PL 2001, c. 471, Pt. F, §3, 
is further amended to read: 
B. Order that the juvenile be examined by a physician or psychologist and refer the 
juvenile to a suitable facility or program for the purpose of examination, the costs of 
that examination to be paid by the court. If the reportof thatexarmnation is that the 
juvenile,..is mentally ill or incapacitated to the extent that shOli-term or long-term 
hospitalization or institutional confinement is required" the Juvenile Court shall 
' initiate proceedings for voluntary or involuntary commitment as provided in section 
+G+-B, 10 l-D and in Title 34-B, chapter 3, subchapter !¥.1. The court shall continue 
the proceedings when a juvenile is voluntarily or involuntarily'conunitted. 
Sec. 7. 15 MRSA §3318, sub-§2,~, as amended by PL 2001, c. 471, Pt. F, §3, 
is further amended to read: 
B. The child is not found 'by the appropriate court to be a mentally ill person or an 
incapacitated person as defined in section +G+-B 10 1 ~D and in Title 34-B, section 
,35 
5001. 
Sec. 8. 17-A MRS A §1175, first 9f, as amended by PL 2005,c. 527, §14, is 
further amended to read: 
Upon complying wi th ,subsection 1, a victim ofa crime of murde~ or stalking or of a 
. Class A, Class B or Class C crime for which the defendant is conunitted to the 
Department of Corrections or to a county jail or is conunitted to the custody of the 
Commissioner of Health and Human Services either under Title 15, section 103 after' 
Page,? - 124LR1902(Ol)-1 
) 
,) 
) 
() 
( 
',----
\~ 
havirig been found not criminally responsible by reason of insanity or under Title 15, 
section -J:.G.i--g 10 1-D after having been found incompetent to stand trial must receive 
notice of the defendant's unconditional release and discharge from institutional 
confinement upon the expiration of the sentence or upon release from commitment under 
Title 15, section -J:.G.i--g 1Ol-D or upon discharge under Title 15, section 104-A and must 
receive notice of any conditiomi1 release of the defendant from institutional confmement, 
including probation, supervised release for sex offenders, parole, furlough, work release, 
intensive supervision, supervised community confinement, home release monitoring or 
similar program, administrative release or release under Title 15, section 104-A. . 
Sec. 9. 17-A MRSA §1175, sub-§3,~, as amended by PL 2005, c. 527, § 15, is 
further amended to read: 
B. The nature of the release authorized, whether it is a conditional release, includinp' 
. 
probation, supervised release for sex offenders, parole, furlough, work release, 
. 
. 
intensive supervision, supervised community confinement, home release monitoring 
or a similar program, administrative release or release under Title 15, section 104-A, 
or an unconditional release and discharge upon release from commitment under Title 
15, section -J:.G.i--g 10 1-D or upon the expiration of a sentence or upon discharge under 
Title 15, section 104-A; 
Sec. 10. 17-A MRSA §1175, sub-§4, ,A, as amended by PL 2005, c. 527, §16, 
is further amended to read: 
A. 
Notice has been provided of an unconditional release or discharge upon' the 
expiration of the sentence or upon release under Title 15, section -J:.G.i--g 1Ol-D or 
upon discharge under Title 15, section 104-A; or 
Sec. 11. 34:.n MRSA §1212, sub-§2, EjJA, as amended by PL 1989, c. 621, §9, is 
further amended to read: 
A. To perform examinations of the mental condition of a defendant pursuant to Title 
15, section -J:.G.i--g 1Ol-D and to do the evaluations or examinations on behalf of any 
court of record, pursuant to agreement between the commissioner and the jurisdiction 
requesting that the evaluation be performed; 
SUMMARY 
This bill is proposed by the Criminal Law Advisory Commission. 
The bill 
reorganizes the Maine Revised Statutes, Title 15 provisions that govern court-ordered 
mental health examinations of criminal defendants by linking the court's authority to 
order an examination to the specific issues to be addressed by the examination. The bill 
. creates different provisions governing examinations to review competency to proceed, 
criminal responsibility and abnormal condition of the mind and mental cbndition relevant 
to other issues. By doing so, the bill will conserve resources by eliminating existing 
language that often resulted in the State ForeI].sic Service's being ordered to address all of 
these issues when a narrower review would have satisfied the needs ofthe court and the 
parties. 
The bill also eliminates existing language that requires examination by both . a 
psychologist and a psychiatrist in insanity cases, often resulting in the expensive and 
unnecessary duplication of effort. Instead, the bill gives the court discretion to determine, 
in conjunction with the State Forensic Service, the number and type of examinations 
required under the circumstances of a particular case. 
The bill provides a more flexible mechanism for the court to order a defendant 
committed for observation in an appropriate institution for the· care and treatment of 
people with mental illness or m~ntal retardatimi for the purpose of. conducting the 
examination. Under existing law, such commitment may only occur after the State· 
Forensic Service has conducted an initial examination and recommended commitment in 
its report to the court. The existing procedure often results in unnecessary expense and 
delay. Instead, the bill authorizes the court to order commitment when advised by the 
State Forensic Service that such commitment would materially enhance its ability to 
conduct the examination. The State Forensic Service may make this determination based 
upon consultation with the parties and the. court and upon such other information it 
determines appropriate . 
. 17 
Finally, the bill ensures that when a person who has been evaluated by the State 
Forensic Service on behalf of a court is committed into the custody of the Commissioner 
of Health and Human Services, the court shall order the State Forensic Service to share 
any information it has gathered with respect to that person with the institution in which 
the person is placed. 
) 
) 
)