HI Rev Stat § 704-404 (2021)
2021 Hawaii Revised Statutes|Title 37. Hawaii Penal Code|704. Penal Responsibility and Fitness to Proceed|704-404 Examination of defendant with respect to physical or mental disease, disorder, or defect excluding fitness to proceed. §704-404 Commentary:

  §704-404 Examination of defendant with respect to physical or mental disease, disorder, or defect excluding fitness to proceed. (1) Whenever there is reason to doubt the defendant's fitness to proceed, the court may immediately suspend all further proceedings in the prosecution; provided that for any defendant not subject to an order of commitment to the director of health for the purpose of the examination, neither the right to bail nor proceedings pursuant to chapter 804 shall be suspended. If a trial jury has been empaneled, it shall be discharged or retained at the discretion of the court. The discharge of the trial jury shall not be a bar to further prosecution.  (2) Upon suspension of further proceedings in the prosecution:  (a) In cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, if a court-based certified examiner is available, the court shall appoint the court-based certified examiner to examine and provide an expedited report solely upon the issue of the defendant's capacity to understand the proceedings against the defendant and defendant's ability to assist in the defendant's own defense. The court-based certified examiner shall file the examiner's report with the court within two days of the appointment of the examiner, or as soon thereafter is practicable. A hearing shall be held to determine if the defendant is fit to proceed within two days of the filing of the report, or as soon thereafter as is practicable;  (b) In all other nonfelony cases, and where a court-based certified examiner is not available in cases under paragraph (a), the court shall appoint one qualified examiner to examine and report upon the defendant's fitness to proceed. The court may appoint as the examiner either a psychiatrist or a licensed psychologist designated by the director of health from within the department of health; and  (c) In felony cases, the court shall appoint three qualified examiners to examine and report upon the defendant's fitness to proceed. The court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.  (3) An examination performed under this section may employ any method that is accepted by the professions of medicine or psychology for the examination of those alleged to be affected by a physical or mental disease, disorder, or defect; provided that each examiner shall form and render an opinion upon the defendant's fitness to proceed independently from the other examiners, and the examiners, upon approval of the court, may secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination.  (4) For defendants charged with felonies, the examinations for fitness to proceed under this section and penal responsibility under section 704-407.5 shall be conducted separately unless a combined examination has been ordered by the court upon a request by the defendant or upon a showing of good cause to combine the examinations. The report of the examination for fitness to proceed shall be separate from the report of the examination for penal responsibility unless a combined examination has been ordered. For defendants charged with offenses other than felonies, a combined examination is permissible when ordered by the court.  (5) Except in the case of an examination pursuant to subsection (2)(a), the report of the examination for fitness to proceed shall include the following:  (a) A description of the nature of the examination;  (b) A diagnosis of the physical or mental condition of the defendant;  (c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;  (d) An assessment of the risk of danger to the defendant or to the person or property of others for consideration and determination of the defendant's release on conditions; and  (e) Where more than one examiner is appointed, a statement that the opinion rendered was arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction.  (6) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.  (7) A copy of the report of the examination, including any supporting documents, shall be filed with the clerk of the court.  (8) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's opinion.  (9) The court shall obtain all existing relevant medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statute, and make the records available for inspection by the examiners in hard copy or digital format. The court may order that the records so obtained be made available to the prosecuting attorney and counsel for the defendant in either format, subject to conditions the court determines appropriate; provided that juvenile records shall not be made available unless constitutionally required. No further disclosure of records shall be made except as permitted by law. If, pursuant to this section, the court orders the defendant committed to a hospital or other suitable facility under the control of the director of health, then the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or no contest, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of plea of guilty or no contest made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments, with the exception of expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center. The county police departments shall segregate or sanitize from the police reports information that would result in the likely or actual identification of individuals who furnished information in connection with its investigation, or who were of investigatory interest. No further disclosure of records shall be made except as provided by law.  (10) All public agencies in possession of relevant medical, mental health, social, police, and juvenile records, and any other pertinent records of a defendant ordered to be examined under this chapter, shall provide those records to the court, notwithstanding any other state statute.  (11) The compensation of persons making or assisting in the examination, other than those retained by a nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State. [L 1972, c 9, pt of §1; am L 1973, c 136, §4(b); am L 1974, c 54, §1; am L 1979, c 3, §1 and c 105, §64; am L 1983, c 172, §1; am L 1987, c 145, §1; am L 1988, c 305, §5; am L 1992, c 88, §1; gen ch 1993; am L 1997, c 306, §1; am L 2006, c 230, §6; am L 2008, c 99, §1; am L 2014, c 192, §2; am L 2016, c 198, §3 and c 231, § §4, 5; am L 2020, c 26, §2] COMMENTARY ON §704-404  This section sets forth the provisions for appropriate medical examination of a defendant when the defendant's physical or mental condition is made an issue either with respect to the defendant's fitness to proceed, the defendant's responsibility for conduct, or the defendant's capacity to have a particular state of mind.  The Code provides that, whenever the defendant's responsibility, fitness to proceed, or physical or mental condition becomes an issue in the case, the proceedings shall be suspended and the designated medical examination shall take place. In taking this approach we reject the requirement of prior notice suggested by the Model Penal Code.[1] Such a requirement necessarily relies on the psychiatric and other medical insights of defendant's counsel--a person manifestly without proper training in these areas. If defense counsel does not recognize symptoms of a physical or mental disease, disorder, or defect--either because of lack of medical knowledge or because of lack of diligence--the consequences of his ineptness should not fall on his client. Especially is this so where the client is unable to "communicate" the disease, disorder, or defect to the client's attorney. The procedure provided for examination of the defendant assures that the prosecution will not be prejudiced in gathering evidence and in litigating these issues merely because the defendant did not raise these issues at a preliminary stage. The defendant or the prosecuting attorney may request, or the court may order, an examination of the defendant at a preliminary (or later) stage in the proceedings whenever it appears that fitness to proceed, responsibility, or physical or mental condition is or may become an issue in the case.  Previous law provided for an examination of the defendant, at the discretion of the court, before trial.[2] The Code allows the relevant issues to be raised at any stage.  If an examination is ordered after a trial jury has been empanelled, it shall be discretionary with the trial court whether or not to discharge the jury; however the dismissal of the jury shall not bar further prosecution by reason of former jeopardy or want or delay of prosecution.  Subsection (2) provides for the selection of examiners and is in substantial accord with prior law. However, modifications have been made to take into consideration the suggestions of local psychiatrists and representatives of the department of health[3] and to accommodate those cases involving diseases, disorders, and defects which require examination by physicians other than psychiatrists. Also, under the Code, the court may order that qualified physicians, which include psychiatrists, retained by the defendant be allowed to witness and participate in the examination.  Subsection (3) clarifies what methods may be used in the examination of the defendant; a point not covered in prior law.  Subsections (4) and (5) state explicitly what the report of the examining physicians shall contain. This was covered under pre- existing law by the vague provision that the defendant shall be examined "with a view to determine the mental condition of such person and the existence of any mental disease or defect which would affect his criminal responsibility."[4] These subsections are intended to assure the court and the parties "that the report will be adequate for the purpose for which the examinations and report were ordered."[5]  Subsection (7) is designed to achieve for the examiner the same freedom in reporting his examination that he would be afforded were he to testify orally.[6]  Other subsections are self-explanatory. SUPPLEMENTAL COMMENTARY ON §704-404  Act 136, Session Laws 1973, amended subsection (1) to provide that where the issue of mental disease, disorder, or defect excluding responsibility is raised the court "may immediately suspend all further proceedings in the prosecution." (Emphasis added.) This eliminated the previous mandatory requirement of suspension of the proceedings and examination of the defendant when the issue of responsibility was introduced. The Committee Report is silent on the reason for this. It is believed, however, that the change arose because certain trial judges felt that defense counsel were acting in some instances with questionable sincerity in invoking the mandatory examination procedure. (House Standing Committee Report No. 726 and Senate Standing Committee Report No. 858, 1973.)  Act 54, Session Laws 1974, amended subsection (2) to permit the use of a certified clinical psychologist as part of the examination panel.  Act 3, Session Laws 1979, amended subsections (2) and (3) by modifying the requirements for the composition of examination panels. The purpose was to allow the courts greater flexibility in appointing mental health professionals to examination panels, particularly in geographical areas where shortages of various types of mental health professionals made compliance with the requirements of the prior law burdensome and expensive.  Act 172, Session Laws 1983, amended subsections (3) and (4) to require forensic examiners in sanity examinations to arrive at their conclusions independently of the other examiners. Subsection (8) was amended to allow the examiners access to police and juvenile records, including those expunged. The legislature found that the accuracy and objectivity of sanity examinations would be enhanced if the examiners made their findings without collaborating with each other and if they were provided with a wider range of information. House Conference Committee Report No. 20.  Act 145, Session Laws 1987, replaced the term "certified clinical" psychologist with "licensed" psychologist because "certified clinical" psychologist is an outdated classification which is no longer applicable to current practice. Act 145 also permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.  Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.  Act 88, Session Laws 1992, amended this section by adding a reference to section 465-3(a)(3), which exempts psychologists employed under government certification or civil service rules from the licensure requirement. This is consistent with Act 314, Session Laws 1986, which intended to include this language in sections of chapter 704 that refer to licensed psychologists. Senate Standing Committee Report No. 2579.  Act 306, Session Laws 1997, amended subsections (2), (3), and (4), to, inter alia, allow mental health examinations to be conducted by one rather than three examiners, in nonfelony cases; the courts may appoint a psychiatrist or licensed psychologist as the examiner. In felony cases, three examiners are required, including at least one psychiatrist and one psychologist. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.  Act 230, Session Laws 2006, amended this section to, among other things, (1) allow all certified examiners who evaluate a defendant's fitness to proceed or claims of physical or mental disease or disorder to confer without restriction upon submittal of all reports to the court; and (2) add all existing mental health records to the records that the court must obtain and make available for inspection by examiners. House Standing Committee Report No. 665-06.  Act 99, Session Laws 2008, amended subsection (8) by requiring the county police departments to provide to the director of health and a defendant who is committed to a hospital under the control of the director, copies of certain police reports regarding that defendant. Act 99 expedited the records disclosure process for clinical evaluation purposes while protecting a patient's right of privacy. Conference Committee Report No. 161-08.  Act 192, Session Laws 2014, amended this section to require public agencies with a defendant's medical, mental health, social, and juvenile records to release information to the court when the defendant is ordered to submit to a forensic mental health examination in order to expedite the process. The legislature found that the governor commissioned a special action team in June 2012 to analyze causes and identify ideas to address the systemic factors contributing to the increased rate of admission and increased length of stay of persons admitted to the Hawaii state hospital. Act 192 resulted from the special action team's efforts to improve the State's forensic mental health services. Conference Committee Report No. 51-14.  Act 198, Session Laws 2016, amended this section by separating the examination for fitness to proceed of a defendant with respect to physical or mental disease, disorder, or defect, from the examination for penal responsibility of the defendant with respect to physical or mental disease, disorder, or defect §704-407.5, with certain exceptions, in criminal prosecutions where the defendant's capacity is at issue. The legislature found that under §704-404, when a defendant's fitness to proceed comes into question, the criminal proceedings are stopped, and the court must order a physical or mental examination of the defendant to determine the defendant's fitness to proceed and whether the defendant was penally responsible for the alleged crime. The legislature further found that it is in the best interest of the defendants for the examination process to proceed in a timely, expedient manner by separating the fitness to stand trial and the penal responsibility components of examinations. Conference Committee Report No. 153-16.  Act 231, Session Laws 2016, amended subsections (1), (2), and (8) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).  Act 26, Session Laws 2020, amended this section to: (1) in cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, require the appointment of a court-based certified examiner, if available, to examine and provide an expedited report solely upon the issues of the defendant's capacity to understand the proceedings against the defendant and the defendant's ability to assist in the defendant's own defense and require a hearing to be held on the defendant's fitness within two days of the filing of the report; (2) in all other nonfelony cases, and where a court-based certified examiner is not available in petty misdemeanor cases not involving violence or attempted violence, specify that the qualified examiner may be either a psychiatrist or a licensed psychologist designated by the director of health from within the department of health; (3) in felony cases, repeal the requirement that the three qualified examiners appointed to examine and report on the defendant's fitness to proceed include at least one psychiatrist and one licensed psychologist, and instead allow the appointment of any combination of psychiatrists, licensed psychologists, or qualified physicians, so long as one examiner is a psychiatrist or licensed psychologist designated by the director of health from within the department of health; (4) require that examination reports, other than for defendants charged with a petty misdemeanor not involving violence or attempted violence, include a diagnosis of the defendant's physical or mental condition; and (5) repeal the requirement that copies of examination reports be delivered to the prosecuting attorney and the defendant's counsel. The legislature noted significant increases in the number of individuals with mental illness that were arrested and remained in custody while awaiting a psychiatric evaluation of competency. If determined to be legally unfit to proceed with their cases, these individuals continued to remain in custody until restoration of their legal fitness to proceed. The legislature found that the mental health core steering committee, a collaboration of the department of health and the judiciary, published a Joint Report on January 9, 2020, proposing legislation to divert nonviolent petty misdemeanants living with mental illness from the criminal justice system within days of their arrest, rather than months, to further the goal of crime prevention, ensure appropriate diversion to community treatment, and further the goal of rehabilitation, among other amendments to existing statute. The legislature further found that Act 26 reflected the recommendations of the steering committee to achieve a more efficient and just response in the treatment of individuals with mental disorders within the criminal justice system. Senate Standing Committee Report No. 3757. Law Journals and Reviews  Fitness to Proceed: Compassion or Prejudice? II HBJ, no. 13, at 135 (1998). Case Notes  Mental examination is within sound discretion of court. 57 H. 418, 558 P.2d 1012 (1976).  Motion made prior to trial for mental examination of defendant was not a notice of intention to rely on defense of mental irresponsibility. 57 H. 418, 558 P.2d 1012 (1976).  Failure to impanel a board of examiners, under the circumstances, did not violate defendant's due process rights. 60 H. 17, 586 P.2d 1028 (1978).  Impanelling of a board of examiners is within sound discretion of court. 60 H. 17, 586 P.2d 1028 (1978).  Court appointed psychiatrists entitled to absolute immunity from civil suit. 63 H. 516, 631 P.2d 173 (1981).  Court could have suspended trial and ordered examination pursuant to section if defendant raised defense of physical or emotional disease, disorder, or defect excluding capability of forming criminal intent. 73 H. 109, 831 P.2d 512 (1992).  Under subsections (1) and (2), the legislature intended that only some rational basis for convening a panel is necessary to trigger the trial court's power to stay the proceedings and, thereafter, to appoint examiners. 93 H. 424, 5 P.3d 414 (2000).  Where motion for mental examination and defense counsel's attached declaration articulated a rational basis upon which there was both "reason to doubt" defendant's fitness to proceed and "reason to believe" that defendant was suffering from a physical or mental disease, disorder, or defect that had affected defendant's ability to assist in defendant's own defense, trial court abused its discretion in refusing to stay proceedings, failing to appoint a panel of examiners, and determining without assistance of panel that defendant was fit to proceed. 93 H. 424, 5 P.3d 414 (2000).  When a court orders an examination to determine whether a defendant is fit to proceed to trial pursuant to this section, and the defendant refuses to cooperate with the examiner, the examiner must produce a report of the examination that expressly states whether such "unwillingness of the defendant was the result of physical or mental disease, disorder, or defect", if possible; if it is not possible for the examiner to make that determination, the examiner must expressly state in the report that it is not possible to determine whether the defendant's unwillingness was the result of physical or mental disease, disorder, or defect. 127 H. 157, 277 P.3d 251 (2012).  Where, given defendant's bizarre statements at sentencing, the record was clear that there was reason to doubt defendant's fitness during the sentencing proceedings, the circuit court abused its discretion in not ordering a fitness examination. 134 H. 308, 340 P.3d 440 (2014).  Standard of review of motions for judgment of acquittal in insanity cases. 1 H. App. 1, 612 P.2d 117 (1980).  As it had no obligation under subsection (8) to unilaterally and on its own initiative provide the police reports and other pertinent records to its fitness examiners, trial court did not err; subsection only requires that court "obtain" the pertinent records and "make such records available for inspection by the examiners" and does not require that the court, unbidden, provide such records directly to the examiners. 97 H. 53 (App.), 33 P.3d 549 (2001).  Mentioned: 74 H. 141, 838 P.2d 1374 (1992). __________  §704-404 Commentary: 1. M.P.C. §4.03. 2. H.R.S. §711-91; Territory v. Gaudia, 41 Haw. 231 (1955). 3. See S.B. 46 (S.D. 1) of the 1967 legislature, which passed the Senate but failed to pass the House of Representatives. As the Senate Committee Reports indicate, this bill was supported by many groups concerned with mental health. 4. H.R.S. §711-91. 5. M.P.C., Tentative Draft No. 4, comments at 197 (1955). 6. Cf. §704-410(3) and (4).