(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.
Attorney's Note
Under the Hawaii Revised Statutes, punishments for crimes depend on the classification. In the case of this section:
| Class | Prison | Fine |
|---|
| misdemeanor | up to 1 year | $2,000 |
| petty misdemeanor | up to 30 days | up to $1,000 |
For details, see
Haw. Rev. Stat. § 706-663
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Terms Used In Hawaii Revised Statutes 704-404
- Acquittal:
- Judgement that a criminal defendant has not been proved guilty beyond a reasonable doubt.
- A verdict of "not guilty."
- Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
- county: includes the city and county of Honolulu. See Hawaii Revised Statutes 1-22
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Statute: A law passed by a legislature.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Trial jury: A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of six persons.
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 NOLO CONTENDERE PLEA” class=”unlinked-ref” datatype=”S” sessionyear=”2024″ statecd=”HI”>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.
