ASSEMBLY, No. 1654

 

STATE OF NEW JERSEY

 

INTRODUCED MARCH 4, 1996

 

 

By Assemblyman CORODEMUS

 

 

An Act permitting licensed psychologists to perform competency evaluations in criminal cases and amending N.J.S.2C:4-5, N.J.S.2C:4-6, N.J.S.2C:4-8, N.J.S.2C:4-9 and N.J.S.2C:4-10.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. N.J.S.2C:4-5 is amended to read as follows:

    2C:4-5. Psychiatric or Psychological Examination of Defendant With Respect to Fitness to Proceed.

    a. Whenever there is reason to doubt the defendant's fitness to proceed, the court may on motion by the prosecutor, the defendant or on its own motion, appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. The psychiatrist or licensed psychologist so appointed shall be either:

    (1) From a list agreed to by the court, the prosecutor and the defendant; or

    (2) Agreed to by the court, prosecutor and defendant. 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 of not exceeding 30 days. A qualified psychiatrist or licensed psychologist retained by the defendant or by the prosecution shall, if requested, be permitted to examine the defendant. Upon showing of particular need, upon motion, the court may order commitment for an additional period not exceeding 15 days.

    b. The report of the examination shall include at least the following: (1) a description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to the defendant's capacity to understand the proceedings against him and to assist in his own defense. The [examining psychiatrist or psychiatrists] person or persons conducting the examination may ask questions respecting the crime charged when such questions are necessary to enable formation of an opinion as to a relevant issue, however, the evidentiary character of any inculpatory statement shall be limited expressly to the question of competency and shall not be admissible on the issue of guilt.

    c. If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental incompetence. Upon the filing of such a report, the court may permit examination without cooperation, may appoint a different psychiatrist or licensed psychologist, or may commit the defendant for observation for a period not exceeding 30 days except on good cause shown, or exclude or limit testimony by the defense psychiatrist.

    d. The report of the examination shall be sent by the psychiatrist or licensed psychologist to the court, the prosecutor and counsel for the defendant.

(cf: P.L.1979, c.178, s.13A)

 

    2. N.J.S.2C:4-6 is amended to read as follows:

    2C:4-6. Determination of Fitness to Proceed; Effect of Finding of Unfitness; Proceedings if Fitness is Regained; Post-Commitment Hearing.

    a. When the issue of the defendant's fitness to proceed is raised, the issue shall be determined by the court. If neither the prosecutor nor counsel for the defendant contests the finding of the report filed pursuant to section 2C:4-5, the court may make the determination on the basis of such report. If the finding is contested or if there is no report, the court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, either party shall have the right to summon and examine the psychiatrists or licensed psychologists who joined in the report and to offer evidence upon the issue.

    b. If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in subsection c. of this section. At this time, the court may commit him to the custody of the Commissioner of Human Services to be placed in an appropriate institution if it is found that the defendant is so dangerous to himself or others as to require institutionalization, or it shall proceed to determine whether placement in an out-patient setting or release is appropriate; provided, however, that no commitment to any institution shall be in excess of such period of time during which it can be determined whether it is substantially probable that the defendant could regain his competence within the foreseeable future.

    c. If the defendant has not regained his fitness to proceed within such time as the court may deem adequate from the time that it was determined that the defendant lacked such fitness, the court shall after a hearing, if one is requested, dismiss the charges and either order the defendant discharged, or, subject to law governing civil commitment, order the defendant committed to an appropriate institution. When the charges are not dismissed, each defendant's case shall be specifically reviewed by the court at 6-month intervals until an order is made by the court that the defendant stand trial or that the charges be dismissed.

    d. When the court, on its own motion or upon application of the commissioner, his designee or either party, determines after a hearing, if a hearing is requested, that the defendant has regained fitness to proceed, the proceedings shall be resumed.

    e. When the court, on its own motion or upon application to the commissioner, his designee, or either party, determines after a hearing, if a hearing is requested, that the defendant has not regained fitness to proceed, the court may order the institution of civil commitment proceedings, or, if it is found that the defendant may be paroled or released on condition without danger to himself or to others, the court may so order. If it is determined that it is not substantially probable that the defendant will regain his competence in the foreseeable future, the court may dismiss the charge and either order the defendant to be discharged, or, subject to the law governing the civil commitment, order the defendant committed to an appropriate institution.

    f. The fact that the defendant is unfit to proceed does not preclude determination of any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

(cf: P.L.1979, c.178, s.13B)

 

    3. N.J.S.2C:4-8 is amended to read as follows:

    2C:4-8. Commitment of a Person by Reason of Insanity.

    a. After acquittal by reason of insanity, the court shall order that the defendant undergo a psychiatric or psychological examination by a psychiatrist or licensed psychologist of the prosecutor's choice. If the examination cannot take place because of the unwillingness of the defendant to participate, the court shall proceed as in section 2C:4-5c. The defendant, pursuant to this section, may also be examined by a psychiatrist or licensed psychologist of his own choice.

    b. The court shall dispose of the defendant in the following manner:

    (1) If the court finds that the defendant may be released without danger to the community or himself without supervision, the court shall so release the defendant; or

    (2) If the court finds that the defendant may be released without danger to the community or to himself under supervision or under conditions, the court shall so order; or

    (3) If the court finds that the defendant cannot be released with or without supervision or conditions without posing a danger to the community or to himself, it shall commit the defendant to a mental health facility approved for this purpose by the Commissioner of Human Services to be treated as a person civilly committed. In all proceedings conducted pursuant to this section, including any periodic review proceeding, the prosecuting attorney shall have the right to appear and be heard. The defendant's continued commitment, under the law governing civil commitment, shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which the defendant has been acquitted by reason of insanity. Expiration of that maximum period of imprisonment shall be calculated by crediting the defendant with any time spent in confinement for the charge or charges on which the defendant has been acquitted by reason of insanity.

    c. No person committed under this section shall be confined within any penal or correctional institution or any part thereof.

(cf: P.L.1981, c.290, s.9)

 

    4. N.J.S.2C:4-9 is amended to read as follows:

    2C:4-9. Release of Persons Committed by Reason of Insanity.

    a. If a person has been committed pursuant to this chapter and if the commissioner, or his designee, or the superintendent of the institution to which the person has been committed, is of the view that a person committed to his custody, pursuant to section 2C:4-8, may be discharged or released on condition without danger to himself or to others, or that he may be transferred to a less restrictive setting for treatment, the commissioner or superintendent shall make application for the discharge or release of such person in a report to the court by which such person was committed and shall transmit a copy of such application and report to the prosecutor, the court, and defense counsel. The court may, in its discretion, appoint at least two qualified psychiatrists or licensed psychologists, neither of whom may be on the staff of the hospital to which the defendant had been committed, to examine such person and to report within 30 days, or such longer period as the court determines to be necessary for the purpose, their opinion as to his mental condition.

    b. If the court is satisfied by the report filed pursuant to subsection a. of this section and such testimony of the reporting psychiatrists or licensed psychologists as the court deems necessary that the committed person may be discharged, released on condition without danger to himself or others, or treated as in civil commitment the court shall order his discharge, his release on such conditions as the court determines to be necessary or his transfer. If the court is not so satisfied, it shall promptly order a hearing to determine whether such person may safely be discharged, released or transferred. Any such hearing shall be deemed a civil proceeding. According to the determination of the court upon the hearing, the court shall proceed as in section 2C:4-8b. (1), (2) or (3).

    c. A committed person may make application for his discharge or release to the court by which he was committed, and the procedure to be followed upon such application shall be the same as that prescribed above in the case of an application by the commissioner.

    d. Each defendant's case shall be specifically reviewed as provided by the law governing civil commitment.

(cf: P.L.1979, c.178, s.16)

 

    5. N.J.S.2C:4-10 is amended to read as follows:

    2C:4-10. Statements for Purposes of Examination or Treatment     Inadmissible Except on Issue of Mental Condition.

    A statement made by a person subjected to psychiatric or psychological examination or treatment pursuant to sections 2C:4-5, 2C:4-6 or 2C:4-9 for the purposes of such examination or treatment shall not be admissible in evidence against him in any criminal proceeding on any issue other than that of his mental condition but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication. When such a statement constitutes an admission of guilt of the crime charged or of an element thereof, it shall only be admissible where it appears at trial that conversations with the examining psychiatrist or licensed psychologist were necessary to enable him to form an opinion as to a matter in issue.

(cf: P.L.1978, c.95, s.2C:4-10)

 

    6. This act shall take effect immediately .

 

 

STATEMENT

 

    Under the present provisions of New Jersey's criminal code, only psychiatrists are authorized to perform competency evaluations of defendants in criminal cases. This bill would permit licensed psychologists, as well as psychiatrists, to conduct such evaluations. This bill would conform New Jersey law with that of the majority of other states which permit psychologists to perform competency evaluations.

 

 

                       

Permits licensed psychologists to perform competency evaluations in criminal cases.