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EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1463
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR CRAWFORD.
6225S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal section 552.020, RSMo, and to enact in lieu thereof one new section relating to mental
capacity to be tried or convicted, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Section 552.020, RSMo, is repealed and one new 1
section enacted in lieu thereof, to be known as section 552.020, 2
to read as follows:3
552.020. 1. No person who as a result of mental 1
disease or defect lacks capacity to understand the 2
proceedings against him or her or to assist in his or her 3
own defense shall be tried, convicted or sentenced for the 4
commission of an offense so long as the incapacity endures. 5
2. Whenever any judge has reasonable cause to believe 6
that the accused lacks mental fitness to proceed and the 7
accused is charged with one or more nonviolent misdemeanors, 8
the judge shall, upon his or her own motion, or upon motion 9
filed by the state, or by or on behalf of the accused, by 10
order of record, direct the director of the department of 11
mental health to have the accused assessed by a mental 12
health professional as defined in section 632.005. The 13
assessment shall determine the treatment needs of the 14
accused and, as appropriate, refer the accused to community 15
treatment services, which may include involuntary commitment 16
under section 632.305. The department of mental health 17
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shall establish standards and provide training for those 18
individuals performing assessments under this section. Any 19
assessment performed under this subsection shall be 20
completed and filed with the court within fourteen days of 21
the order unless the court for good cause orders otherwise. 22
Charges shall be dismissed after no less than six months 23
following successful participation in treatment services but 24
no longer than the maximum amount of time that would have 25
been served if convicted. 26
3. Whenever any judge has reasonable cause to believe 27
that the accused lacks mental fitness to proceed and the 28
accused is charged with a felony or violent misdemeanor, the 29
judge shall, upon his or her own motion or upon motion filed 30
by the state or by or on behalf of the accused, by order of 31
record, appoint one or more private psychiatrists or 32
psychologists, as defined in section 632.005, or physicians 33
with a minimum of one year training or experience in 34
providing treatment or services to persons with an 35
intellectual disability or developmental disability or 36
mental illness, who are neither employees nor contractors of 37
the department of mental health for purposes of performing 38
the examination in question, to examine the accused; or 39
shall direct the director to have the accused so examined by 40
one or more psychiatrists or psychologists, as defined in 41
section 632.005, or physicians with a minimum of one year 42
training or experience in providing treatment or services to 43
persons with an intellectual disability, developmental 44
disability, or mental illness. The order shall direct that 45
a written report or reports of such examination be filed 46
with the clerk of the court. No private physician, 47
psychiatrist, or psychologist shall be appointed by the 48
court unless he or she has consented to act. The 49
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examinations ordered shall be made at such time and place 50
and under such conditions as the court deems proper; except 51
that, if the order directs the director of the department to 52
have the accused examined, the director, or his or her 53
designee, shall determine the time, place and conditions 54
under which the examination shall be conducted. The order 55
may include provisions for the interview of witnesses and 56
may require the provision of police reports to the 57
department for use in evaluations. The department shall 58
establish standards and provide training for those 59
individuals performing examinations pursuant to this section 60
and section 552.030. No individual who is employed by or 61
contracts with the department shall be designated to perform 62
an examination pursuant to this chapter unless the 63
individual meets the qualifications so established by the 64
department. Any examination performed pursuant to this 65
subsection shall be completed and filed with the court 66
within sixty days of the order unless the court for good 67
cause orders otherwise. Nothing in this section or section 68
552.030 shall be construed to permit psychologists to engage 69
in any activity not authorized by chapter 337. One pretrial 70
evaluation shall be provided at no charge to the defendant 71
by the department. All costs of subsequent evaluations 72
shall be assessed to the party requesting the evaluation. 73
[3.] 4. A report of the examination made under this 74
section shall include: 75
(1) Detailed findings; 76
(2) An opinion as to whether the accused has a mental 77
disease or defect; 78
(3) An opinion based upon a reasonable degree of 79
medical or psychological certainty as to whether the 80
accused, as a result of a mental disease or defect, lacks 81
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capacity to understand the proceedings against him or her or 82
to assist in his or her own defense; 83
(4) An opinion, if the accused is found to lack 84
capacity to understand the proceedings against him or her or 85
to assist in his or her own defense, as to whether there is 86
a substantial probability that the accused will be mentally 87
fit to proceed in the reasonably foreseeable future; 88
(5) A recommendation as to whether the accused should 89
be held in custody in a suitable hospital facility for 90
treatment pending determination, by the court, of mental 91
fitness to proceed; 92
(6) A recommendation as to whether the accused, if 93
found by the court to be mentally fit to proceed, should be 94
detained in such hospital facility pending further 95
proceedings; 96
(7) A recommendation as to whether the accused, if 97
found by the court to lack the mental fitness to proceed, 98
should be committed to a suitable hospital facility for 99
treatment to restore the mental fitness to proceed or if 100
such treatment to restore the mental fitness to proceed can 101
be provided in a county jail or other detention facility 102
approved by the director or designee; and 103
(8) A recommendation as to whether the accused, if 104
found by the court to lack the mental fitness to proceed and 105
the accused is not charged with a dangerous felony as 106
defined in section 556.061, murder in the first degree under 107
section 565.020, or rape in the second degree under section 108
566.031, or the attempts thereof: 109
(a) Should be committed to a suitable hospital 110
facility; or 111
(b) May be appropriately treated in the community; and 112
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(c) Is able to comply with bond conditions as set 113
forth by the court and is able to comply with treatment 114
conditions and requirements as set forth by the director of 115
the department or his or her designee. 116
[4.] 5. When the court determines that the accused can 117
comply with the bond and treatment conditions as referenced 118
in subsection [3] 4 of this section, the court shall order 119
that the accused remain on bond while receiving treatment 120
until the case is disposed of as set forth by subsection 121
[12] 13 of this section. If, at any time, the court finds 122
that the accused has failed to comply with the bond and 123
treatment conditions, the court may order that the accused 124
be taken into law enforcement custody until such time as a 125
department inpatient bed is available to provide treatment. 126
[5.] 6. If the accused has [pleaded] pled lack of 127
responsibility due to mental disease or defect or has given 128
the written notice provided in subsection 2 of section 129
552.030, the court shall order the report of the examination 130
conducted pursuant to this section to include, in addition 131
to the information required in subsection [3] 4 of this 132
section, an opinion as to whether at the time of the alleged 133
criminal conduct the accused, as a result of mental disease 134
or defect, did not know or appreciate the nature, quality, 135
or wrongfulness of his or her conduct or as a result of 136
mental disease or defect was incapable of conforming his or 137
her conduct to the requirements of law. A plea of not 138
guilty by reason of mental disease or defect shall not be 139
accepted by the court in the absence of any such pretrial 140
evaluation which supports such a defense. In addition, if 141
the accused has [pleaded] pled not guilty by reason of 142
mental disease or defect, and the alleged crime is not a 143
dangerous felony as defined in section 556.061, or those 144
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crimes set forth in subsection 10 of section 552.040, or the 145
attempts thereof, the court shall order the report of the 146
examination to include an opinion as to whether or not the 147
accused should be immediately conditionally released by the 148
court pursuant to the provisions of section 552.040 or 149
should be committed to a mental health or developmental 150
disability facility. If such an evaluation is conducted at 151
the direction of the director of the department of mental 152
health, the court shall also order the report of the 153
examination to include an opinion as to the conditions of 154
release which are consistent with the needs of the accused 155
and the interest of public safety, including, but not 156
limited to, the following factors: 157
(1) Location and degree of necessary supervision of 158
housing; 159
(2) Location of and responsibilities for appropriate 160
psychiatric, rehabilitation and aftercare services, 161
including the frequency of such services; 162
(3) Medication follow-up, including necessary testing 163
to monitor medication compliance; 164
(4) At least monthly contact with the department's 165
forensic case monitor; 166
(5) Any other conditions or supervision as may be 167
warranted by the circumstances of the case. 168
[6.] 7. If the report contains the recommendation that 169
the accused should be committed to or held in a suitable 170
hospital facility pending determination of the issue of 171
mental fitness to proceed, and if the accused is not 172
admitted to bail or released on other conditions, the court 173
may order that the accused be committed to or held in a 174
suitable hospital facility pending determination of the 175
issue of mental fitness to proceed. 176
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[7.] 8. The clerk of the court shall deliver copies of 177
the report to the prosecuting or circuit attorney and to the 178
accused or his or her counsel. The report shall not be a 179
public record or open to the public. Within ten days after 180
the filing of the report, both the defendant and the state 181
shall, upon written request, be entitled to an order 182
granting them an examination of the accused by a 183
psychiatrist or psychologist, as defined in section 632.005, 184
or a physician with a minimum of one year training or 185
experience in providing treatment or services to persons 186
with an intellectual disability or developmental disability 187
or mental illness, of their own choosing and at their own 188
expense. An examination performed pursuant to this 189
subsection shall be completed and a report filed with the 190
court within sixty days of the date it is received by the 191
department or private psychiatrist, psychologist or 192
physician unless the court, for good cause, orders 193
otherwise. A copy shall be furnished the opposing party. 194
[8.] 9. If neither the state nor the accused nor his 195
or her counsel requests a second examination relative to 196
fitness to proceed or contests the findings of the report 197
referred to in subsections 2, [and] 3, and 4 of this 198
section, the court shall make a determination and finding on 199
the basis of the report filed or hold a hearing on its own 200
motion. If any such opinion is contested, the court shall 201
hold a hearing on the issue. The court shall determine the 202
issue of mental fitness to proceed and may impanel a jury of 203
six persons to assist in making the determination. The 204
report or reports may be received in evidence at any hearing 205
on the issue but the party contesting any opinion therein 206
shall have the right to summon and to cross-examine the 207
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examiner who rendered such opinion and to offer evidence 208
upon the issue. 209
[9.] 10. At a hearing on the issue pursuant to 210
subsection [8] 9 of this section, the accused is presumed to 211
have the mental fitness to proceed. The burden of proving 212
that the accused does not have the mental fitness to proceed 213
is by a preponderance of the evidence and the burden of 214
going forward with the evidence is on the party raising the 215
issue. The burden of going forward shall be on the state if 216
the court raises the issue. 217
[10.] 11. If the court determines that the accused 218
lacks mental fitness to proceed, the criminal proceedings 219
shall be suspended and the court shall commit him or her to 220
the director of the department of mental health. The 221
director of the department, or his or her designee, shall 222
notify the court and the parties of the location and 223
conditions for treatment. After the person has been 224
committed, legal counsel for the department of mental health 225
shall have standing to file motions and participate in 226
hearings on the issue of involuntary medications. 227
[11.] 12. Any person committed pursuant to subsection 228
[10] 11 of this section shall be entitled to the writ of 229
habeas corpus upon proper petition to the court that 230
committed him or her. The issue of the mental fitness to 231
proceed after commitment under subsection [10] 11 of this 232
section may also be raised by a motion filed by the director 233
of the department of mental health or by the state, alleging 234
the mental fitness of the accused to proceed. A report 235
relating to the issue of the accused's mental fitness to 236
proceed may be attached thereto. When a motion to proceed 237
is filed, legal counsel for the department of mental health 238
shall have standing to participate in hearings on such 239
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motions. If the motion is not contested by the accused or 240
his or her counsel or if after a hearing on a motion the 241
court finds the accused mentally fit to proceed, or if he or 242
she is ordered discharged from the director's custody upon a 243
habeas corpus hearing, the criminal proceedings shall be 244
resumed. 245
[12.] 13. The following provisions shall apply after a 246
commitment as provided in this section: 247
(1) Six months after such commitment, the court which 248
ordered the accused committed shall order an examination by 249
the head of the facility in which the accused is committed, 250
or a qualified designee, to ascertain whether the accused is 251
mentally fit to proceed and if not, whether there is a 252
substantial probability that the accused will attain the 253
mental fitness to proceed to trial in the foreseeable 254
future. The order shall direct that written report or 255
reports of the examination be filed with the clerk of the 256
court within thirty days and the clerk shall deliver copies 257
to the prosecuting attorney or circuit attorney and to the 258
accused or his or her counsel. The report required by this 259
subsection shall conform to the requirements under 260
subsection [3] 4 of this section with the additional 261
requirement that it include an opinion, if the accused lacks 262
mental fitness to proceed, as to whether there is a 263
substantial probability that the accused will attain the 264
mental fitness to proceed in the foreseeable future; 265
(2) Within ten days after the filing of the report, 266
both the accused and the state shall, upon written request, 267
be entitled to an order granting them an examination of the 268
accused by a psychiatrist or psychologist, as defined in 269
section 632.005, or a physician with a minimum of one year 270
training or experience in providing treatment or services to 271
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persons with an intellectual disability or developmental 272
disability or mental illness, of their own choosing and at 273
their own expense. An examination performed pursuant to 274
this subdivision shall be completed and filed with the court 275
within thirty days unless the court, for good cause, orders 276
otherwise. A copy shall be furnished to the opposing party; 277
(3) If neither the state nor the accused nor his or 278
her counsel requests a second examination relative to 279
fitness to proceed or contests the findings of the report 280
referred to in subdivision (1) of this subsection, the court 281
may make a determination and finding on the basis of the 282
report filed, or may hold a hearing on its own motion. If 283
any such opinion is contested, the court shall hold a 284
hearing on the issue. The report or reports may be received 285
in evidence at any hearing on the issue but the party 286
contesting any opinion therein relative to fitness to 287
proceed shall have the right to summon and to cross-examine 288
the examiner who rendered such opinion and to offer evidence 289
upon the issue; 290
(4) If the accused is found mentally fit to proceed, 291
the criminal proceedings shall be resumed; 292
(5) If it is found that the accused lacks mental 293
fitness to proceed but there is a substantial probability 294
the accused will be mentally fit to proceed in the 295
reasonably foreseeable future, the court shall continue such 296
commitment for a period not longer than six months, after 297
which the court shall reinstitute the proceedings required 298
under subdivision (1) of this subsection; 299
(6) If it is found that the accused lacks mental 300
fitness to proceed and there is no substantial probability 301
that the accused will be mentally fit to proceed in the 302
reasonably foreseeable future, the court shall dismiss the 303
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charges without prejudice and the accused shall be 304
discharged, but only if proper proceedings have been filed 305
under chapter 632 or chapter 475, in which case those 306
sections and no others will be applicable. The probate 307
division of the circuit court shall have concurrent 308
jurisdiction over the accused upon the filing of a proper 309
pleading to determine if the accused shall be involuntarily 310
detained under chapter 632, or to determine if the accused 311
shall be declared incapacitated under chapter 475, and 312
approved for admission by the guardian under section 632.120 313
or 633.120, to a mental health or developmental disability 314
facility. When such proceedings are filed, the criminal 315
charges shall be dismissed without prejudice if the court 316
finds that the accused is mentally ill and should be 317
committed or that he or she is incapacitated and should have 318
a guardian appointed. The period of limitation on 319
prosecuting any criminal offense shall be tolled during the 320
period that the accused lacks mental fitness to proceed. 321
[13.] 14. If the question of the accused's mental 322
fitness to proceed was raised after a jury was impaneled to 323
try the issues raised by a plea of not guilty and the court 324
determines that the accused lacks the mental fitness to 325
proceed or orders the accused committed for an examination 326
pursuant to this section, the court may declare a mistrial. 327
Declaration of a mistrial under these circumstances, or 328
dismissal of the charges pursuant to subsection [12] 13 of 329
this section, does not constitute jeopardy, nor does it 330
prohibit the trial, sentencing or execution of the accused 331
for the same offense after he or she has been found restored 332
to competency. 333
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[14.] 15. The result of any examinations made pursuant 334
to this section shall not be a public record or open to the 335
public. 336
[15.] 16. No statement made by the accused in the 337
course of any examination or treatment pursuant to this 338
section and no information received by any examiner or other 339
person in the course thereof, whether such examination or 340
treatment was made with or without the consent of the 341
accused or upon his or her motion or upon that of others, 342
shall be admitted in evidence against the accused on the 343
issue of guilt in any criminal proceeding then or thereafter 344
pending in any court, state or federal. A finding by the 345
court that the accused is mentally fit to proceed shall in 346
no way prejudice the accused in a defense to the crime 347
charged on the ground that at the time thereof he or she was 348
afflicted with a mental disease or defect excluding 349
responsibility, nor shall such finding by the court be 350
introduced in evidence on that issue nor otherwise be 351
brought to the notice of the jury. 352
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