TITLE 40.1
Behavioral Healthcare, Developmental Disabilities and Hospitals

CHAPTER 40.1-5.3
Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity

SECTION 40.1-5.3-3


§ 40.1-5.3-3 Competency to stand trial.

(a) Definitions. As used in this section:

(1) "Attorney for the state" means the attorney general, an authorized assistant attorney general, or such other person as may be authorized by law to act as a representative of the state in a criminal proceeding;

(2) "Competent" or "competency" means mental ability to stand trial. A person is mentally competent to stand trial if he or she is able to understand the character and consequences of the proceedings against him or her and is able properly to assist in his or her defense;

(3) "Department" means the state department of behavioral healthcare, developmental disabilities and hospitals.

(4) "Director" means the director of the state department of behavioral healthcare, developmental disabilities and hospitals;

(5) "Incompetent" or "incompetency" means mentally incompetent to stand trial. A person is mentally incompetent to stand trial if he or she is unable to understand the character and consequences of the proceedings against him or her or is unable properly to assist in his or her defense;

(b) Presumption of competency. A defendant is presumed competent. The burden of proving that the defendant is not competent shall be by a preponderance of the evidence, and the burden of going forward with the evidence shall be on the party raising the issue. The burden of going forward shall be on the state if the court raises the issue.

(c) Request for examination. If at any time during a criminal proceeding, prior to the imposition of sentence, it appears that the defendant is not competent, counsel for the defendant or the state, or the court, on its own motion, may request an examination to determine the defendant's competency.

(d) Examination of defendant.

(1) If the court finds that the request for examination is justified, the court shall order an examination of the defendant. The scope of the examination shall be limited to the question of whether the defendant is competent.

(2) The examination shall take place on an outpatient basis if the defendant is to be released on bail or recognizance. If the defendant is ordered confined at the adult correctional institutions, the examination shall take place at that facility. The department shall appoint or designate the physician(s) who will conduct the examinations.

(3) If the defendant is ordered confined to the adult correctional institutions, the physician shall complete the examination within five (5) days. If the physician determines that the defendant is incompetent to stand trial, the defendant shall be immediately transferred to the institute of mental health's forensic unit pending the hearing provided for in subsection (g).

(e) Bail or recognizance during examination. (1) A defendant for whom a competency examination has been ordered shall be entitled to release on bail or recognizance to the same extent and on the same terms and conditions as if the issue of competency had not been raised.

(2) The court may order the defendant to appear at a designated time and place for outpatient examination, and such an appearance may be made a condition of pretrial release.

(f) Reports of examining physicians. Each examining physician shall prepare a report, in writing, in which he or she shall state his or her findings concerning the defendant's competency together with the medical and other data upon which his or her findings are based. The report shall be filed with the court within ten (10) business days if the defendant was ordered confined at the adult correctional institutions and as soon as practicable if the defendant was released on bail or recognizance and copies given to the attorney for the state and to the defendant or his or her counsel.

(g) Hearing. Upon receipt of the report and appropriate notice to the parties, the court shall hold a hearing unless the report concludes that the defendant is competent and the defendant and the attorney for the state in open court state their assent to the findings on the record. At the hearing, the report shall be introduced, other evidence bearing on the defendant's competence may be introduced by the parties, and the defendant may testify, confront witnesses, and present evidence on the issue of his or her competency. On the basis of the evidence introduced at the hearing, the court shall decide if the defendant is competent.

(h) Commitment of the defendant. (1) If the court finds, after the hearing, that a defendant is competent it shall proceed with the criminal case.

(2) If the court finds that a defendant is incompetent, it shall commit him or her to the custody of the director for the purpose of determining whether or not the defendant is likely to imperil the peace and safety of the people of the state or the safety of himself or herself and whether the defendant will regain competency within the maximum period of any placement under this chapter.

(3) Not later than fifteen (15) days from the date of the order of commitment, the director shall prepare and file with the court a written report in which he or she shall state his or her opinion regarding the defendant's dangerousness, the likelihood of the defendant becoming competent to stand trial within the maximum period of any placement order and the recommendations of the department regarding appropriate care and treatment of the defendant.

(4) In the event the director is unable to complete the examination of the person in time to render his or her report within the fifteen (15) day period, he or she shall report that fact, in writing, to the court with a statement of the reasons why the examination and report could not be completed within the prescribed period. A copy of the director's statement shall be given to the attorney general and to the defendant or his or her counsel, any of whom may respond in writing, or if the court deems it appropriate, orally, to the director's statement. The court may thereupon enter an order extending for an additional twenty (20) days the time in which the director is to file his or her report.

(i) Hearing. (1) Upon receipt of the report and appropriate notice to the director, the attorney general and the defendant or his or her counsel, the court shall hold a hearing at which the report shall be introduced, other evidence bearing on the question of the mental condition of the person may be introduced by the parties, and the person may testify, confront witnesses, and present evidence.

(2) If the court finds that a defendant who is incompetent may be placed on outpatient status without imperiling the peace or safety of the public or the safety of himself or herself, it may commit the defendant to an appropriate outpatient facility which agrees to provide treatment to the defendant and to adhere to the requirements of this section, in order that the defendant may receive treatment to restore or establish his or her competency.

(3) If the court finds that a defendant who is incompetent is likely to imperil the peace or safety of the people of the state or the peace and safety of himself or herself, it may order the defendant to the facility established pursuant to § 40.1-5.3-1 or to the general wards of the institute of mental health, if the director agrees that the defendant should be placed on the general wards. A person who is ordered to be treated on inpatient status shall not be paroled, furloughed, placed on outpatient status or removed from a locked facility or otherwise released from the institution where he or she is being treated except upon petition to the court by the director, on notice to the attorney general and the defendant or his or her counsel, and after hearing thereon and entry of an order by a judge of the court authorizing such release. The commitment ordered pursuant to this section shall terminate upon the occurrence of any of the following:

(i) The defendant is determined by the court to be competent; or

(ii) The charges against the defendant are dismissed pursuant to subsection (j); or

(iii) The charges against the defendant are dismissed or a nolle prosequi is entered; or

(iv) The defendant is civilly committed pursuant to § 40.1-5-8; or

(v) The court finds there is no reasonable likelihood that in the foreseeable future the defendant will become competent and his or her condition is such that he or she cannot properly be committed under § 40.1-5-8.

(j) Period of commitment. When a court commits a defendant pursuant to subsection (i)(2) or (i)(3) it shall compute, counting from the date of entry to the order of commitment, the date of the expiration of the period of time equal to two thirds ( 2/3) of the maximum term of imprisonment for the most serious offense with which the defendant is charged. If the maximum term for the most serious offense charged is life imprisonment or death, the court shall for the purpose of computation deem such offense to be punishable by a maximum term of thirty (30) years. In the order of commitment, the court shall provide that if, on the date so computed, the defendant is still committed under the order, the charges against him or her shall be dismissed.

(k) Periodic review. The director shall petition the court to review the state of competency of a defendant committed pursuant to subsection (i)(2) or (i)(3) not later than six (6) months from the date of the order of commitment and every six (6) months thereafter, or when the director believes the defendant is no longer incompetent, whichever occurs first. Outpatient facilities which are providing treatment to defendants in accordance with subsection (i)(2) shall prepare reports to be submitted to the director in accordance with the requirements of this section. The director shall attach to the petition a report on the condition of the defendant. If the report indicates that the defendant remains incompetent, it shall include a prognosis regarding the likelihood that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j). Copies of the report shall be given to the attorney for the state and to the defendant or his or her counsel.

(l) Defendant's right to petition. A defendant committed pursuant to subsection (i)(2) or (i)(3) may at any time petition the court to review the state of his or her competency.

(m) Hearing on petition. Upon receipt of a petition pursuant to subsection (k) or (l) and appropriate notice to the defendant, the state, and the director, the court shall hold a hearing at which the parties may introduce evidence as to the defendant's competency, including any reports of the director, and the defendant may testify, confront witnesses, and present evidence as to his or her competency and prognosis. On the basis of the evidence, the court shall make a finding as to the defendant's competency and, if he or she is found to be incompetent, whether a reasonable likelihood exists that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j). If the court finds that the defendant is competent, it shall enter an order to that effect. If the court finds that the defendant is incompetent and that a reasonable likelihood exists that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j), it shall order continuation of the commitment of the defendant. If the court finds that the defendant is incompetent and that a reasonable likelihood does not exist that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j), it shall order that thirty (30) days thereafter the defendant be discharged from detention under the order of commitment. Upon entry of the order the state may commence proceedings seeking to commit the defendant pursuant to § 40.1-5-8.

(n) Statements inadmissible. No statements made by a defendant in the course of an examination conducted pursuant to subsection (d) or during a hearing conducted pursuant to subsection (i) or (m) shall be admissible in evidence against the defendant in any criminal action on any issue other than his or her mental condition. The statements shall be admissible on the issue of his or her mental condition even though they might otherwise be deemed to be privileged communications.

(o) Disposition of charges. The court may, at any time, proceed to a disposition of the charges pending against a defendant who has been committed pursuant to subsection (i)(2) or (i)(3) if the factual and legal issues involved can be resolved without regard to the competency of the defendant.

History of Section.
(P.L. 1973, ch. 175, § 2; P.L. 1976, ch. 203, § 2; P.L. 1976, ch. 261, § 1; G.L. 1956, § 26-4-3; P.L. 1979, ch. 39, § 1; P.L. 1989, ch. 140, § 1; 1989, ch. 158, § 1; P.L. 1993, ch. 138, art. 57, § 2; P.L. 1996, ch. 299, § 1; P.L. 2012, ch. 307, § 1; P.L. 2012, ch. 336, § 1.)