2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-406 Effect of finding of unfitness to proceed and regained fitness to proceed. §704-406 Commentary:

§704-406 Effect of finding of unfitness to proceed and regained fitness to proceed.
(1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in sections 704407 and 704421, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, assessment, care, and treatment; provided that:
(a) When the defendant is charged with a petty misdemeanor not involving violence or attempted violence, the defendant shall be diverted from the criminal justice system pursuant to section 704-421; and
(b) When the defendant is charged with a misdemeanor not involving violence or attempted violence, the commitment shall be limited to no longer than one hundred twenty days from the date the court determines the defendant lacks fitness to proceed.
If the court is satisfied that the defendant may be released on conditions without danger to the defendant or to another or risk of substantial danger to property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, on conditions the court determines necessary; provided that the release on conditions of a defendant charged with a misdemeanor not involving violence or attempted violence shall continue for no longer than one hundred twenty days. A copy of all reports filed pursuant to section 704-404 shall be attached to the order of commitment or order of release on conditions that is provided to the department of health. When the defendant is committed to the custody of the director of health for detention, assessment, care, and treatment, 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 nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere 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; provided further that 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 shall not be provided. 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 the investigation or who were of investigatory interest. No further disclosure of records shall be made except as provided by law.
(2) When the defendant is released on conditions after a finding of unfitness to proceed, the department of health shall establish and monitor a fitness restoration program consistent with conditions set by the court order of release, and shall inform the prosecuting attorney of the county that charged the defendant of the program and report the defendant's compliance therewith.
(3) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, has reason to believe that the defendant has regained fitness to proceed, for a defendant charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint three qualified examiners and may appoint in all other cases one qualified examiner, to examine and report upon the physical and mental condition of the defendant. In cases in which the defendant has been charged with murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint as examiners at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In all other cases, the one qualified examiner shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. All examiners shall be appointed from a list of certified examiners as determined by the department of health. After a hearing, if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the penal proceeding shall be resumed and the defendant shall no longer be committed to the custody of the director of health. In cases where a defendant is charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, upon the request of the prosecuting attorney or the defendant, and in consideration of information provided by the defendant's clinical team, the court may order that the defendant remain in the custody of the director of health, for good cause shown, subject to bail or until a judgment on the verdict or a finding of guilt after a plea of guilty or nolo contendere. Thereafter, the court may consider a request from the director of health to rescind its order maintaining the defendant in the director's custody, for good cause shown. As used in this section, the term "qualified physician" means a physician qualified by the court for the specific evaluation ordered. If, however, the court is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and:
(a) Order the defendant to be discharged;
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or
(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions the court determines necessary.
(4) An examination for regained fitness to proceed 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, and shall include a review of records where the defendant, while under the custody of the director of health, was placed; provided that each examiner shall form and render an opinion on the defendant's regained 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.
(5) The report of the examination for regained fitness to proceed shall include the following:
(a) A description of the nature of the examination;
(b) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense; and
(c) 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) All other procedures as set out in section 704-404(6) through (11) shall be followed for the completion of the report of the examination for regained fitness to proceed performed under this section.
(7) If a defendant committed to the custody of the director of health for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the commitment, the charge for which the defendant was committed for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be released from custody unless the defendant is subject to prosecution for other charges or subject to section 334-60.2 regarding involuntary hospitalization criteria, in which case the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:
(a) Release the defendant; or
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment.
(8) If a defendant released on conditions for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the release on conditions order, the charge for which the defendant was released on conditions for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be discharged from the release on conditions unless the defendant is subject to prosecution for other charges or subject to section 334-60.2 regarding involuntary hospitalization criteria, in which case the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other release on conditions under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:
(a) Release the defendant; or
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. [L 1972, c 9, pt of §1; am L 1986, c 314, §7; am L 1993, c 87, §1; am L 1997, c 306, §2; am L 2006, c 230, §7; am L 2008, c 99, §2; am L 2011, c 53, §2 and c 112, §2; am L 2016, c 198, §4 and c 231, §6; am L 2020, c 26, §3]
COMMENTARY ON §704-406
Subsection (1) provides that following a determination of the defendant's unfitness to be proceeded against, the defendant shall be committed to the custody of the director of health or placed on conditional release for the duration of the defendant's unfitness.
The commitment or conditional release of the unfit defendant does not terminate until a determination by the court, after a hearing if one is requested, that the defendant is fit to be proceeded against. Upon such a determination, the penal proceedings resume unless the court finds that such resumption would be unjust. This section is designed to allow no hiatus in the procedure.
The Code, in its treatment of a defendant committed because of unfitness to proceed, conforms to the present Hawaii law which insures that a defendant so committed will remain in the custody of the director of health until the defendant has regained fitness.[1] Previous Hawaii law had no provision for conditional release of unfit defendants.
The second sentence of subsection (2) follows the suggestion of the Model Penal Code[2] and permits "the court to dismiss the prosecution if because of lapse of time it would be unjust to continue."[3] Under the prior law the power to dismiss the prosecution was vested in the prosecutor's discretion to enter a nolle prosequi. The Code accepts the position that
there is value ... in vesting such a power in the Court, to be exercised either where because of the lapse of time a defendant is unable to produce certain witnesses or other evidence once available which is essential to his defense, or where because of the length of the intervening period which he has spent in a mental institution subsequent to the alleged wrongful conduct it seems unjust to subject him to trial and punishment.4
SUPPLEMENTAL COMMENTARY ON §704-406
Act 314, Session Laws 1986, added subsection (3), which implements the holding in State v. Raitz, 63 Haw. 64 (1980). In Raitz, the court held that when a defendant is unlikely to become fit to proceed, due process requires that: (1) following commitment, there should be a timely determination of the likelihood of the defendant regaining fitness; and (2) if the court determines that the defendant will probably remain unfit, the defendant should be released or civilly committed. Conference Committee Report No. 51-86.
Act 87, Session Laws 1993, amended this section to require the court to appoint a panel of three qualified examiners to report on whether a defendant who has been conditionally released presents a substantial likelihood of becoming fit to proceed in the future. If the court determines that the defendant probably will remain unfit to proceed, it may dismiss the charge against the defendant or subject the defendant to involuntary civil commitment procedures. In addition, this Act allows the court, following the commitment of a defendant, to appoint a panel of three qualified examiners to report on the defendant's likelihood of becoming fit to proceed in the future. House Standing Committee Report No. 185, Senate Standing Committee Report Nos. 1061 and 1263.
Act 306, Session Laws 1997, amended subsections (3) and (4) to allow mental health examinations to be conducted by one rather than three examiners in nonfelony cases, and to require three examiners in felony cases. 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, clarify that when a defendant is found to be affected by a physical or mental disease, disorder, or defect and therefore remains unfit to proceed, the defendant may be committed to the custody of the director of health for placement in an appropriate institution, but only subject to the law governing involuntary civil commitment. House Standing Committee Report No. 665-06.
Act 99, Session Laws 2008, amended subsection (1) by requiring the county police departments to provide to the director of health and a defendant who is committed to the custody 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 53, Session Laws 2011, established a maximum time frame for the mental health commitment or conditional release of a defendant found unfit to proceed for trial. The Act limited the time of commitment or conditional release to a maximum of: (1) sixty days for persons charged with petty misdemeanors and (2) one hundred twenty days for persons charged with misdemeanors, where the petty misdemeanor or misdemeanor did not involve violence or attempted violence. Act 53 also required the dismissal of charges for defendants committed or placed on conditional release who are not found fit to proceed prior to the expiration of the commitment or conditional release unless certain elements are met.
The legislature found that when a defendant lacks fitness to proceed, criminal proceedings are suspended, and the defendant is committed to the director of health to be placed in an appropriate institution for detention, care, and treatment. The commitment to the director of health can be indefinite if the defendant continues to be found unfit to proceed, and the defendant may be held by the director of health for a period that is longer than the period of incarceration that the defendant would have received if the defendant had been sentenced to the maximum incarceration period allowed by law. House Standing Committee Report No. 700, Senate Standing Committee Report No. 1125.
Act 112, Session Laws 2011, amended this section by requiring the department of health to establish and monitor a fitness restoration program consistent with the conditions set by a court order of release when a defendant is released on conditions after a finding of unfitness to proceed; and to inform the prosecuting attorney of the county that charged the defendant of the fitness restoration program and report the defendant's compliance with the program. Act 112 provided a formal structure and mechanism to address community safety and monitoring concerns for persons found unfit to proceed and released on conditions. Conference Committee Report No. 79, Senate Standing Committee Report No. 1216, House Standing Committee Report No. 861.
Act 198, Session Laws 2016, amended this section by specifying procedures after a finding of unfitness to proceed and regained fitness to proceed. The legislature found that it is in the best interest of the defendants for the examination process to proceed in a timely, expedient manner by codifying procedures for appointing examiners for reevaluation of fitness. Conference Committee Report No. 153-16.
Act 231, Session Laws 2016, amended this section 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 make conforming amendments relating to the criminal justice diversion program established under §704-421 for defendants charged with petty misdemeanors not involving violence or attempted violence. 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
Comments and Questions About Mental Health Law in Hawaii. 13 HBJ, no. 4, at 3 (1978).
Risky Business: Assessing Dangerousness in Hawai €˜i. 24 UH L. Rev. 63 (2001).
Case Notes
Where defendant is unfit to proceed, a motion for judgment of acquittal by reason of mental irresponsibility under §704-408 will be deferred. 61 H. 313, 602 P.2d 944 (1979).
The phrase authorizing commitment "for so long as ... unfitness shall endure" is qualified by subsection (2); statute not constitutionally infirm. 63 H. 64, 621 P.2d 352 (1980).
Does not apply to postacquittal proceedings. 71 H. 198, 787 P.2d 221 (1990).
A court order authorizing the involuntary administration of antipsychotic drugs is included within the authority vested by this section. 91 H. 319, 984 P.2d 78 (1999).
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§704-406 Commentary:
1. H.R.S. §334-76.
2. M.P.C. §4.06.
3. M.P.C. Tentative Draft No. 4, comments at 197 (1955).
4. Id. at 197-98.