77-15a-104 - Hearing -- Notice -- Stay of proceeding -- Examinations of defendant -- Scope of examination -- Report -- Procedures. - Utah Statutes

77-15a-104. Hearing -- Notice -- Stay of proceeding -- Examinations of defendant --Scope of examination -- Report -- Procedures.
(1) (a) If a defendant proposes to offer evidence concerning or argue that he qualifies foran exemption from the death penalty under Subsection 77-15a-101(1) or (2), the defendant shallfile and serve the prosecuting attorney with written notice of his intention as soon as practicable,but not fewer than 60 days before trial.
(b) If the defendant wishes to claim the exemption provided in Subsection77-15a-101(2), the defendant shall file and serve the prosecuting attorney with written notice ofhis intention as soon as practicable, but not fewer than 60 days before trial.
(2) When notice is given under Subsection (1), the court raises the issue, or a motion isfiled regarding Section 77-15a-101, the court may stay all proceedings in order to address theissue.
(3) (a) The court shall order the Department of Human Services to appoint at least twomental health experts to examine the defendant and report to the court. The experts:
(i) may not be involved in the current treatment of the defendant; and
(ii) shall have expertise in mental retardation assessment.
(b) Upon appointment of the experts, the defendant or other party as directed by the courtshall provide information and materials to the examiners relevant to a determination of thedefendant's mental retardation, including copies of the charging document, arrest or incidentreports pertaining to the charged offense, known criminal history information, and known priormental health evaluations and treatments.
(c) The court may make the necessary orders to provide the information listed inSubsection (3)(b) to the examiners.
(d) The court may provide in its order appointing the examiners that custodians of mentalhealth records pertaining to the defendant shall provide those records to the examiners withoutthe need for consent of the defendant or further order of the court.
(e) Prior to examining the defendant, examiners shall specifically advise the defendant ofthe limits of confidentiality as provided under Section 77-15a-106.
(4) During any examinations under Subsection (3), unless the court directs otherwise, thedefendant shall be retained in the same custody or status he was in at the time the examinationwas ordered.
(5) The experts shall in the conduct of their examinations and in their reports to the courtconsider and address:
(a) whether the defendant is mentally retarded as defined in Section 77-15a-102;
(b) the degree of any mental retardation the expert finds to exist;
(c) whether the defendant has the mental deficiencies specified in Subsection77-15a-101(2); and
(d) the degree of any mental deficiencies the expert finds to exist.
(6) (a) The experts examining the defendant shall provide written reports to the court, theprosecution, and the defense within 60 days of the receipt of the court's order, unless the expertsubmits to the court a written request for additional time in accordance with Subsection (6)(c).
(b) The reports shall provide to the court and to prosecution and defense counsel theexaminers' written opinions concerning the mental retardation of the defendant.
(c) If an examiner requests of the court additional time, the examiner shall provide thereport to the court and counsel within 90 days from the receipt of the court's order unless, for

good cause shown, the court authorizes an additional period of time to complete the examinationand provide the report.
(7) Any written report submitted by an expert shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and thepurpose or purposes for each;
(c) state the expert's clinical observations, findings, and opinions; and
(d) identify the sources of information used by the expert and present the basis for theexpert's clinical findings and opinions.
(8) Within 30 days after receipt of the report from the Department of Human Services,but not later than five days before hearing, or at any other time the court directs, the prosecutingattorney shall file and serve upon the defendant a notice of witnesses the prosecuting attorneyproposes to call in rebuttal.
(9) (a) Except pursuant to Section 77-15a-105, this chapter does not prevent any partyfrom producing any other testimony as to the mental condition of the defendant.
(b) Expert witnesses who are not appointed by the court are not entitled to compensationunder Subsection (10).
(10) (a) Expenses of examinations of the defendant ordered by the court under thissection shall be paid by the Department of Human Services.
(b) Travel expenses associated with any court-ordered examination that are incurred bythe defendant shall be charged by the Department of Human Services to the county whereprosecution is commenced.
(11) (a) When the report is received, the court shall set a date for a hearing to determineif the exemption under Section 77-15a-101 applies. The hearing shall be held and the judge shallmake the determination within a reasonable time prior to jury selection.
(b) Prosecution and defense counsel may subpoena to testify at the hearing any person ororganization appointed by the Department of Human Services to conduct the examination andany independent examiner.
(c) The court may call any examiner to testify at the hearing who is not called by theparties. If the court calls an examiner, counsel for the parties may cross-examine that examiner.
(12) (a) A defendant is presumed to be not mentally retarded unless the court, by apreponderance of the evidence, finds the defendant to be mentally retarded. The burden of proofis upon the proponent of mental retardation at the hearing.
(b) A finding of mental retardation does not operate as an adjudication of mentalretardation for any purpose other than exempting the person from a sentence of death in the casebefore the court.
(13) (a) The defendant is presumed not to possess the mental deficiencies listed inSubsection 77-15a-101(2) unless the court, by a preponderance of the evidence, finds that thedefendant has significant subaverage general intellectual functioning that exists concurrently withsignificant deficiencies in adaptive functioning and that this functioning was manifested prior toage 22. The burden of proof is upon the proponent of that proposition.
(b) If the court finds by a preponderance of the evidence that the defendant hassignificant subaverage general intellectual functioning that exists concurrently with significantdeficiencies in adaptive functioning and that this functioning was manifested prior to age 22, thenthe burden is upon the state to establish that any confession by the defendant which the state

intends to introduce into evidence is supported by substantial evidence independent of theconfession.
(14) (a) If the court finds the defendant mentally retarded, it shall issue an order:
(i) containing findings of fact and conclusions of law, and addressing each of the factorsin Subsections (5)(a) and (b); and
(ii) stating that the death penalty is not a sentencing option in the case before the court.
(b) If the court finds by a preponderance of the evidence that the defendant possesses themental deficiencies listed in Subsection 77-15a-101(2) and that the state fails to establish that anyconfession is supported by substantial evidence independent of the confession, the state mayproceed with its case and:
(i) introduce the confession into evidence, and the death penalty will not be a sentencingoption in the case; or
(ii) not introduce into evidence any confession or the fruits of a confession that the courthas found is not supported by substantial evidence independent of the confession, and the deathpenalty will be a sentencing option in the case.
(c) (i) A finding by the court regarding whether the defendant qualifies for an exemptionunder Section 77-15a-101 is a final determination of that issue for purposes of this chapter.
(ii) The following questions may not be submitted to the jury by instruction, specialverdict, argument, or other means:
(A) whether the defendant is mentally retarded for purposes of this chapter; and
(B) whether the defendant possesses the mental deficiencies specified in Subsection77-15a-101(2).
(iii) This chapter does not prevent the defendant from submitting evidence of retardationor other mental deficiency to establish a mental condition as a mitigating circumstance underSection 76-3-207.
(15) A ruling by the court that the defendant is exempt from the death penalty may beappealed by the state pursuant to Subsection 77-18a-1(2)(h).
(16) Failure to comply with this section does not result in the dismissal of criminalcharges.

Enacted by Chapter 11, 2003 General Session