Reprinted
February 25, 2004
ENGROSSED
HOUSE BILL No. 1300
_____
DIGEST OF HB 1300
(Updated February 24, 2004 4:00 pm - DI 106)
Citations Affected: IC 12-26; IC 35-36.
Synopsis: Insanity defense. Requires notice to be given to certain
persons before a defendant who was found not responsible for a crime
by reason of insanity and committed to a mental health facility: (1) is
allowed outside the facility while not restrained and in custody; (2) is
given a new security classification; (3) is transferred to another facility;
or (4) is discharged. Provides for the provision of competency
restoration services by the division of mental health and addiction or
by a third party. Requires the superintendent of certain facilities to file
periodic reports with the court concerning committed individuals, and
to notify the court and other individuals as soon as practicable if the
committed individual escapes, and within 10 days if the individual is
transferred or allowed outside the facility without supervision. Provides
that a defendant who interposes a defense of insanity may not introduce
evidence from a medical witness with whom the defendant cooperated
unless: (1) after being ordered to do so by the court, the defendant
cooperates with medical witnesses appointed by the court; or (2) the
defendant shows by a preponderance of the evidence that the
defendant's failure to cooperate with medical witnesses appointed by
the court was caused by the defendant's mental illness.
Effective: July 1, 2004.
Bottorff
, Thomas
(SENATE SPONSORS _ LONG, BRODEN, SIPES)
January 15, 2004, read first time and referred to Committee on Courts and Criminal Code.
January 29, 2004, reported _ Do Pass.
February 4, 2004, read second time, amended, ordered engrossed.
February 5, 2004, engrossed. Read third time, passed. Yeas 93, nays 1.
SENATE ACTION
February 9, 2004, read first time and referred to Committee on Criminal, Civil and Public
Policy.
February 19, 2004, amended, reported favorably _ Do Pass.
February 24, 2004, read second time, amended, ordered engrossed.
Reprinted
February 25, 2004
Second Regular Session 113th General Assembly (2004)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in
this style type, and deletions will appear in
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Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTIONl that
adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 2003 Regular Session of the General Assembly.
ENGROSSED
HOUSE BILL No. 1300
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 12-26-7-2; (04)EH1300.2.1. -->
SECTION 1. IC 12-26-7-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 2. (a) This section does
not apply to the commitment of an individual if the individual has
previously been committed under IC 12-26-6.
(b) A proceeding for the commitment of an individual who appears
to be suffering from a chronic mental illness may be begun by filing
with a court having jurisdiction a written petition by any of the
following:
(1) A health officer.
(2) A police officer.
(3) A friend of the individual.
(4) A relative of the individual.
(5) The spouse of the individual.
(6) A guardian of the individual.
(7) The superintendent of a facility where the individual is
present.
(8) A prosecuting attorney in accordance with IC 35-36-2-4.
(9) A prosecuting attorney or the attorney for a county office if
civil commitment proceedings are initiated under IC 31-34-19-3
or IC 31-37-18-3.
(10) A third party that contracts with the division of mental
health and addiction to provide competency restoration
services to a defendant under IC 35-36-3-3 or IC 35-36-3-4.
SOURCE: IC 12-26-15-1; (04)EH1300.2.2. -->
SECTION 2. IC 12-26-15-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 1. (a) At least annually,
and more often if directed by the court, the superintendent of the
facility or the attending physician including the superintendent or
attending physician of an outpatient therapy program, shall file with the
court a review of the individual's care and treatment. The review must
contain a statement of the following:
(1) The mental condition of the individual.
(2) Whether the individual is dangerous or gravely disabled.
(3) Whether the individual:
(A) needs to remain in the facility; or
(B) may be cared for under a guardianship.
(b) If the court has entered an order under IC 12-26-12-1, the
superintendent or the attending physician shall give notice of the
review to the petitioner in the individual's commitment proceeding and
other persons that were designated by the court under IC 12-26-12-1
or
as provided in this section.
(c) If an individual has been committed under IC 35-36-2-4, the
superintendent of the facility or the attending physician shall:
(1) file with the court the report described in subsection (a)
every six (6) months, or more often if directed by the court;
and
(2) notify the court, the petitioner, and any other person or
persons designated by the court under this section:
(A) at least ten (10) days before, or as soon as practicable
in case of an emergency when:
(i) the committed individual is allowed outside the
facility or the grounds of the facility not under custodial
supervision;
(ii) the committed individual is transferred to another
facility and the location of that facility;
(iii) the committed individual is discharged or the
individual's commitment is otherwise terminated.
(B) as soon as practicable if the committed individual
escapes.
(d) The court may designate as a person or persons to receive
the notices provided in this section a person or persons who
suffered harm as the result of a crime for which the committed
individual was on trial.
(e) The court may designate as a person or persons to receive
the notices provided in this section:
(1) an individual or individuals described in subsection (d); or
(2) a designated representative if the person or persons
described in subsection (d) are incompetent, deceased, less
than eighteen (18) years of age or otherwise incapable of
receiving or understanding a notice provided for in this
section.
(f) A commitment order issued by a court under IC 35-36-2-4
and this article must include the following:
(1) The mailing address, electronic mail address, facsimile
number, and telephone number of the following:
(A) The petitioner who filed the petition under
IC 35-36-2-4.
(B) Any other person designated by the court.
(2) The notice requirements set forth in this section.
SOURCE: IC 12-26-17; (04)EH1300.2.3. -->
SECTION 3. IC 12-26-17 IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]:
Chapter 17. Committed Individuals Found Not Responsible by
Reason of Insanity
Sec. 1. If a court orders an individual to be committed under
IC 35-36-2-4 and this article following a verdict of not responsible
by reason of insanity at the time of the crime, the superintendent
of the facility to which the individual is committed or the attending
physician shall provide written notice to the prosecuting attorney
who filed the petition under IC 35-36-2-4 and to any other person
designated by the court:
(1) at least twenty (20) days before:
(A) the committed individual is allowed outside the facility
or grounds of the facility while the individual is not
restrained and in custody;
(B) the security classification of the committed individual
is changed;
(C) the committed individual is transferred to another
facility; or
(D) the committed individual is discharged or the
individual's commitment is otherwise terminated; and
(2) as soon as practicable after the committed individual
escapes.
Sec. 2. A commitment order issued by a court under
IC 35-36-2-4 and this article must include the following:
(1) The mailing address, electronic mail address, facsimile
number, and telephone number of the following:
(A) The prosecuting attorney who filed the petition under
IC 35-36-2-4.
(B) Any other person designated by the court.
(2) The notice requirements set forth in section 1 of this
chapter.
Sec. 3. If an individual is committed to a facility by a court as
described in section 1 of this chapter, the superintendent of the
facility or the attending physician shall forward a copy of the
review of the committed individual's care and treatment that is
required to be filed with the court under IC 12-26-15-1 to the
following:
(1) The prosecuting attorney who filed the petition under
IC 35-36-2-4.
(2) Any other person designated by the court.
Sec. 4. If an individual who is committed to a facility by a court
as described in section 1 of this chapter was on trial for committing
a crime under IC 35-42, any notices, documents, or other
information provided under this chapter to the prosecuting
attorney who filed the petition under IC 35-36-2-4 may be
distributed by the prosecuting attorney to any of the following:
(1) The victim of the crime.
(2) The family of the victim.
SOURCE: IC 35-36-2-2; (04)EH1300.2.4. -->
SOURCE: IC 35-36-2-2. -->
SECTION 4. IC 35-36-2-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 2.
(a) At the trial of a
criminal case in which the defendant intends to interpose the defense
of insanity, evidence may be introduced to prove the defendant's sanity
or insanity at the time at which the defendant is alleged to have
committed the offense charged in the indictment or information.
(b) When notice of an insanity defense is filed, the court shall
appoint two (2) or three (3) competent disinterested psychiatrists,
psychologists endorsed by the state psychology board as health service
providers in psychology, or physicians, at least one (1) of whom must
be a psychiatrist, to examine the defendant and to testify at the trial.
This testimony shall follow the presentation of the evidence for the
prosecution and for the defense, including testimony of any medical
experts employed by the state or by the defense.
(c) If a defendant does not adequately communicate, participate,
and cooperate with the medical witnesses appointed by the court,
after being ordered to do so by the court, the defendant may not
present as evidence the testimony of any other medical witness:
(1) with whom the defendant adequately communicated,
participated, and cooperated; and
(2) whose opinion is based upon examinations of the
defendant;
unless the defendant shows by a preponderance of the evidence
that the defendant's failure to communicate, participate, or
cooperate with the medical witnesses appointed by the court was
caused by the defendant's mental illness.
(d) The medical witnesses appointed by the court may be
cross-examined by both the prosecution and the defense, and each side
may introduce evidence in rebuttal to the testimony of such a medical
witness.
SOURCE: IC 35-36-2-4; (04)EH1300.2.5. -->
SECTION 5. IC 35-36-2-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 4.
(a) Whenever a
defendant is found not responsible by reason of insanity at the time of
the crime, the prosecuting attorney shall file a written petition with the
court under IC 12-26-6-2(a)(3) or under IC 12-26-7. If a petition is filed
under IC 12-26-6-2(a)(3), the court shall hold a commitment hearing
under IC 12-26-6. If a petition is filed under IC 12-26-7, the court shall
hold a commitment hearing under IC 12-26-7.
(b) The hearing shall be conducted at the earliest opportunity after
the finding of not responsible by reason of insanity at the time of the
crime, and the defendant shall be detained in custody until the
completion of the hearing. The court may take judicial notice of
evidence introduced during the trial of the defendant and may call the
physicians appointed by the court to testify concerning whether the
defendant is currently mentally ill and dangerous or currently mentally
ill and gravely disabled, as those terms are defined by IC 12-7-2-96 and
IC 12-7-2-130(a)(1). IC 12-7-2-130(1). The court may subpoena any
other persons with knowledge concerning the issues presented at the
hearing.
(c) The defendant has all the rights provided by the provisions of
IC 12-26 under which the petition against the defendant was filed. The
prosecuting attorney may cross-examine the witnesses and present
relevant evidence concerning the issues presented at the hearing.
(d) If a court orders an individual to be committed under
IC 12-26-6 or IC 12-26-7 following a verdict of not responsible by
reason of insanity at the time of the crime, the superintendent of
the facility to which the individual is committed and the attending
physician are subject to the requirements of IC 12-26-17.
SOURCE: IC 35-36-3-1; (04)EH1300.2.6. -->
SECTION 6. IC 35-36-3-1, AS AMENDED BY P.L.215-2001,
SECTION 109, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 1. (a) If at any time before the final
submission of any criminal case to the court or the jury trying the case,
the court has reasonable grounds for believing that the defendant lacks
the ability to understand the proceedings and assist in the preparation
of
his a defense, the court shall immediately fix a time for a hearing to
determine whether the defendant has that ability. The court shall
appoint two (2) or three (3) competent, disinterested:
(1) psychiatrists;
or
(2) psychologists endorsed by the Indiana state board of
examiners in psychology as health service providers in
psychology.
or physicians,
At least one (1) of
whom the individuals appointed under this
subsection must be a psychiatrist.
who However, none may be an
employee or a contractor of a state institution (as defined in
IC 12-7-2-184). The individuals who are appointed shall examine
the defendant and testify at the hearing as to whether the defendant can
understand the proceedings and assist in the preparation of the
defendant's defense.
(b) At the hearing, other evidence relevant to whether the defendant
has the ability to understand the proceedings and assist in the
preparation of the defendant's defense may be introduced. If the court
finds that the defendant has the ability to understand the proceedings
and assist in the preparation of the defendant's defense, the trial shall
proceed. If the court finds that the defendant lacks this ability, it shall
delay or continue the trial and order the defendant committed to the
division of mental health and addiction.
to be confined by the division
in an appropriate psychiatric institution. The division of mental health
and addiction shall provide competency restoration services or
enter into a contract for the provision of competency restoration
services by a third party in the:
(1) location where the defendant currently resides; or
(2) least restrictive setting appropriate to the needs of the
defendant and the safety of the defendant and others.
However, if the defendant is serving an unrelated executed
sentence in the department of correction at the time the defendant
is committed to the division of mental health and addiction under
this section, the division of mental health and addiction shall
provide competency restoration services or enter into a contract
for the provision of competency restoration services by a third
party at a department of correction facility agreed upon by the
division of mental health and addiction or the third party
contractor and the department of correction.
SOURCE: IC 35-36-3-2; (04)EH1300.2.7. -->
SECTION 7. IC 35-36-3-2, AS AMENDED BY P.L.215-2001,
SECTION 110, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 2. Whenever the defendant attains
the ability to understand the proceedings and assist in the preparation
of the defendant's defense:
(1) the division of mental health and addiction, through the
superintendent of the appropriate psychiatric institution,
superintendent of the state institution (as defined in
IC 12-7-2-184); or
(2) if the division of mental health and addiction entered into
a contract for the provision of competency restoration
services, the director or medical director of the third party
contractor;
shall certify that fact to the proper court, which shall enter an order
directing the sheriff to return the defendant. The court may shall enter
such an order immediately after being sufficiently advised of the
defendant's attainment of the ability to understand the proceedings and
assist in the preparation of the defendant's defense. Upon the return to
court of any defendant committed under section 1 of this chapter, the
court shall hold the trial as if no delay or postponement had occurred.
SOURCE: IC 35-36-3-3; (04)EH1300.2.8. -->
SECTION 8. IC 35-36-3-3, AS AMENDED BY P.L.215-2001,
SECTION 111, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 3.
(a) Within ninety (90) days after:
(1) a defendant's
admittance to a psychiatric institution, the
superintendent of the psychiatric institution admission to a state
institution (as defined in IC 12-7-2-184); or
(2) the initiation of competency restoration services to a
defendant by a third party contractor;
the superintendent of the state institution (as defined in
IC 12-7-2-184) or the director or medical director of the third
party contractor, if the division of mental health and addiction has
entered into a contract for the provision of competency restoration
services by a third party, shall certify to the proper court whether the
defendant has a substantial probability of attaining the ability to
understand the proceedings and assist in the preparation of the
defendant's defense within the foreseeable future.
(b) If a substantial probability does not exist, the
division of mental
health and addiction state institution (as defined in IC 12-7-2-184)
or the third party contractor shall initiate regular commitment
proceedings under IC 12-26. If a substantial probability does exist, the
division of mental health and addiction state institution (as defined
in IC 12-7-2-184) or third party contractor shall retain the
defendant:
(1) until the defendant attains the ability to understand the
proceedings and assist in the preparation of the defendant's
defense and is returned to the proper court for trial; or
(2) for six (6) months from the date of the:
(A) defendant's admittance admission to a state institution
(as defined in IC 12-7-2-184); or
(B) initiation of competency restoration services by a third
party contractor;
whichever first occurs.
SOURCE: IC 35-36-3-4; (04)EH1300.2.9. -->
SECTION 9. IC 35-36-3-4, AS AMENDED BY P.L.215-2001,
SECTION 112, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 4. If a defendant who was found
under section 3 of this chapter to have had a substantial probability of
attaining the ability to understand the proceedings and assist in the
preparation of the defendant's defense has not attained that ability
within six (6) months after the date of the:
(1) defendant's
admittance to a psychiatric institution, the division
of mental health and addiction admission to a state institution
(as defined in IC 12-7-2-184); or
(2) initiation of competency restoration services by a third
party contractor;
the state institution (as defined in IC 12-7-2-184) or the third party
contractor, if the division of mental health and addiction has
entered into a contract for the provision of competency restoration
services by a third party, shall institute regular commitment
proceedings under IC 12-26.
EH 1300_LS 6704/DI 69
Figure
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